1. APPLICATION
a. These terms and conditions (these “Terms“) govern the purchase of the goods (“Goods“) and services (“Services“) by Credit Karma from the seller named in this Purchase Order (“Seller“), provided however, that (i) if another written contract signed by both parties is in existence that covers the sale of the Goods and Services listed in the Purchase Order, the terms and conditions of such contract shall prevail to the extent they are inconsistent this Agreement and the remaining terms and conditions of this Agreement shall remain in effect, and (ii) if there is a term in the Purchase Order that is in direct conflict with a term in these Terms, the term in the Purchase Order shall prevail, and the remaining terms and conditions of this Agreement shall remain in effect. “Credit Karma” means the named Credit Karma entity specified in the Purchase Order.
b. The accompanying purchase order (the “Purchase Order“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, negotiations, or agreements, whether oral or in writing (except as explicitly stated otherwise in Section 1(a)). This Agreement prevails over any of Seller’s general terms and conditions of sale regardless of whether or when Seller has presented such terms, whether included in Seller’s order confirmation, invoice, or otherwise. This Agreement expressly limits Seller’s acceptance to the terms of this Agreement. Fulfillment of this Purchase Order constitutes acceptance of these Terms.
2. DELIVERY OF GOODS AND PERFORMANCES OF SERVICES
a. Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date“) and to the address specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Point“) during Credit Karma’s normal business hours or as otherwise instructed by Credit Karma. If no delivery date is specified, Seller shall deliver the Goods within a reasonable time from Seller’s receipt of the Purchase Order. If Seller fails to deliver the Goods in full on the Delivery Date, Credit Karma may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Credit Karma against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Credit Karma has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such Goods on the Delivery Date.
b. Seller shall provide the Services to Credit Karma in accordance with this Agreement, including, if any, other specifications set forth on the Purchase Order or any corresponding statement of work or proposal signed by Credit Karma.
c. Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Goods and Services.
d. If Seller delivers more or less than the quantity of Goods ordered, Credit Karma may reject all or any excess Goods.
e. Delivery shall be made FOB Delivery Point. Seller shall include the Purchase Order number on all shipping documents, invoices, correspondence and any other documents pertaining to the Purchase Order. Seller shall give written notice of shipment to Credit Karma when the Goods are delivered to a carrier for transportation.
f. Title and risk of loss passes to Credit Karma upon delivery of the Goods at the Delivery Point.
g. Credit Karma has the right to inspect the Goods on or after the Delivery Date. Credit Karma may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective and pursue all remedies provided hereunder. If Credit Karma requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Credit Karma may terminate this Agreement and replace them with goods from a third party and charge Seller the cost thereof.
3. PRICE
The price of the Goods and Services is the price stated in the Purchase Order (the “Price“). Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs, insurance, customs duties, fees, and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Credit Karma.
4. PAYMENT TERMS
Seller may not issue an invoice prior to the delivery of Goods or completion of Services. Credit Karma shall pay all properly invoiced amounts due to Seller within forty-five (45) days of receipt of such invoice, except for any amounts disputed by Credit Karma in good faith. Without prejudice to any other right or remedy it may have, Credit Karma reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Credit Karma to Seller under this Agreement. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
5. SELLER’S OBLIGATIONS Seller shall:
a. Comply with all rules, regulations and policies of Credit Karma, including security procedures concerning systems and data and remote access thereto, building security procedures, and general health and safety practices and procedures;
b. Maintain complete and accurate records relating to the provision of the Goods and Services under this Agreement and during the term of this Agreement and for a period and for a period of two (2) years thereafter, upon Credit Karma’s written request, Seller shall allow Credit Karma to audit Seller in connection with the provision of the Goods and Services;
c. Obtain Credit Karma’s written consent prior to entering into agreements with or otherwise engaging any person (except for Seller’s employees) or entity, including all subcontractors and affiliates of Seller, to provide any Services to Credit Karma (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Credit Karma’s approval shall not relieve Seller of its obligations under the Agreement. Seller shall remain liable for the acts or omissions of each such Permitted Subcontractor and obtain written agreement from any Permitted Subcontractor to be bound by the terms of this Agreement.
6. WARRANTIES
a. Seller warrants to Credit Karma that all Goods and Services will (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications and other requirements specified by Credit Karma; (iii) be fit for their intended purpose and operate as intended; (iv) be free and clear of all liens, security interests or other encumbrances; and (v) not infringe or misappropriate any third party’s patent or other intellectual property rights.
b. Seller warrants to Credit Karma that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with the professional quality consistent with the standards of the applicable industry.
c. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Credit Karma. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Credit Karma’s discovery of the noncompliance of the Goods with the foregoing warranties.
7. INDEMNIFICATION
Seller shall defend, indemnify and hold harmless Credit Karma, their respective officers, directors, employees, agents, subsidiaries, affiliates, successors, and permitted assigns (each individually an, “Indemnitee” and collectively, “Indemnitees“) against any and all claims, liabilities, or damages, including attorneys’ fees and costs incurred in defense of any action, including but not limited to the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing an insurance providers, arising out of or occurring in connection with (i) the Goods and Services; (ii) Seller’s negligence, willful misconduct or breach of the Terms; and (iii) any claim that Credit Karma’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Credit Karma’s or Indemnitee’s prior written consent.
8. OTHER REMEDIES
If Seller fails to deliver the Goods or Services in conformance with this Agreement, Credit Karma may in its sole discretion elect any one (1) or more of the following remedies: (a) terminate this Agreement immediately, upon which Seller must issue Credit Karma a full refund for the Goods or Services, as applicable; (b) require Seller to reimburse Credit Karma for any costs incurred as a result thereto; (c) accept the Goods or Services at a reasonably reduced price; or (d) require replacement of the rejected Goods or a re-performance of the applicable Services.
9. LIMITATION OF LIABILITY
Credit Karma’s maximum liability to Seller shall be limited to actual, direct, and general money damages and shall not exceed the amount actually paid or payable under this Agreement in the twelve months preceding the claim that gave rise to the cause of action. Under no circumstances shall Credit Karma be liable for any special, consequential or indirect loss, loss of business, goodwill or loss of profit whether direct or indirect, lost interest, or for punitive or exemplary damages arising out of or relating in any way to this Agreement, even if Credit Karma has been advised of the possibility of such damages.
10. INSURANCE
During the term of this Agreement, Seller shall maintain in force adequate commercial general liability, errors and omissions, and other forms of insurance, in each case with insurers reasonably acceptable to Credit Karma, with policy limits sufficient to protect and indemnify Credit Karma and its Indemnitee, from any losses resulting from its conduct, acts, or omissions. Credit Karma shall be listed as additional insured under such policy, and Seller shall forward a certificate of insurance verifying such insurance upon Credit Karma’s written request, which certificate will indicate that such insurance policies may not be canceled before the expiration of a thirty (30) day notification period and that Credit Karma will be immediately notified in writing of any such notice of termination.
11. COMPLIANCE WITH LAWS
Seller shall comply with all applicable laws, regulations, and rules to which it may be subject in performance of this Agreement. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
12. TERMINATION
Credit Karma may terminate this Agreement for any reason with immediate effect upon written notice to the Seller. If Credit Karma terminates the Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Credit Karma prior to the termination.
13. WAIVER
No failure or delay by Credit Karma to exercise any rights hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder by Credit Karma preclude any other or future exercise of that right or any other right hereunder.
14. NO PUBLIC STATEMENTS
Seller will not make any announcements or statements to the public concerning the relationship between them or the transactions described herein without the prior written consent of Credit Karma. Unless otherwise provided herein, Seller may not use Credit Karma’s trademark or logos.
15. CONFIDENTIALITY
All non-public, confidential, or proprietary information of Credit Karma, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Credit Karma to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential. Seller shall: (i) use such information solely for the purpose of performing this Agreement, (ii) restrict access to the information to its agents, employees or representatives who have a need to know such information, and (iii) it will take all reasonable measures to maintain the confidentiality of the information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance, and (iv) will not disclose any such information to any third party without the prior written consent of Credit Karma. Upon Credit Karma’s request, Seller shall promptly return or destroy all such information. Credit Karma shall be entitled to injunctive relief for any violation of this Section.
16. INTELLECTUAL PROPERTY
“Work Product” means all deliverables, inventions, innovations, improvements, and other works of authorship created by Seller solely or jointly with others in the course of performing Services, or as a result of such Services, whether or not they are eligible for patent, copyright, trademark, trade secret, or other legal protection. Seller acknowledges that all Work Product shall be the sole and exclusive property of Credit Karma, except that any pre-existing works created by Seller and third parties outside of the Services but utilized in connection with such Services (the “Pre-existing Works“) shall continue to be owned by Seller or such parties. Seller hereby assigns to Credit Karma all of Seller’s rights, title, and interest to the Work Product and agrees to execute any documents and take any action reasonably requested by Credit Karma (at Credit Karma ‘s sole cost and expense) to protect the rights of Credit Karma in any Work Product. Seller agrees to notify Credit Karma in writing of any Pre-existing Works. Seller hereby grants, or agrees to acquire sufficient rights (at Seller’s expense) and grant, to Credit Karma a non-exclusive, perpetual, royalty-free license to utilize the Pre-existing Works in connection with the Work Product. Seller represents and warrants that the foregoing license does not encumber the Work Product nor impose any duty upon Credit Karma to any third party that Credit Karma has not expressly agreed to in writing. All materials and tools furnished or paid for by Credit Karma shall be the property of Credit Karma and shall be subject to removal at any time upon demand by Credit Karma without any additional cost. Seller shall keep such materials and tools separate from other materials or tools in its possession or control. Seller assumes all liability for loss or damage to such materials and tools in its possession or control, with the exception of normal wear and tear, and Seller agrees to supply detailed statements of inventory promptly upon Credit Karma’s request.
17. FORCE MAJEURE
Any delay or failure of either party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such party’s control, including without limitation, state or federal governmental orders, natural disasters, national or regional emergency, embargoes, explosions, riots, wars, or acts of terrorism (each, a “Force Majeure Event“). Each party shall give the other prompt written notice of any potential or actual Force Majeure Event, the anticipated duration of such Force Majeure Event, and shall use diligent efforts to mitigate or end the Force Majeure Event in order to resume full performance under this Agreement.
18. ASSIGNMENT
This Agreement is not assignable in whole or in part by Seller without the prior written consent of Credit Karma.
19. RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. NO THIRD-PARTY BENEFICIARIES
Except for the Indemnitees, this Agreement is for the sole benefit of Credit Karma and Seller and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
21. GOVERNING LAW; DISPUTE RESOLUTION
The parties hereunder agree to submit any controversy or claim arising out of, or relating to, this Agreement or the breach thereof to arbitration. The parties shall jointly choose a single arbitrator from JAMS, and the arbitrator shall be a retired judge experienced in resolving commercial disputes. The arbitration shall be conducted pursuant to JAMS Comprehensive Arbitration Rules and Procedures (“JAMS Rules”) and shall take place in San Francisco, California. The arbitrator shall administer and conduct any arbitration in accordance with the Federal Arbitration Act and California law, including the California Code of Civil Procedure, and shall apply substantive and procedural California law to the Dispute, without reference to any conflict-of-law provisions of any jurisdiction. The decision of the arbitrator shall be final, conclusive, and binding on the parties to the arbitration. The parties to the arbitration shall each pay an equal share of the costs and expenses of any arbitration, and each party shall separately pay for its respective attorneys’ fees and costs; provided, however, that the arbitrator shall award to the prevailing party, if any, the attorneys’ fees and costs reasonably incurred by the prevailing party in connection with the arbitration, except as prohibited by law. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction. THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY.
22. NOTICES
All notices hereunder shall be given in writing (including via email), addressed to the signatories of this Agreement at the respective addresses set forth in the first paragraph of this Agreement, if via email to Credit Karma, at counsel@creditkarma.com, or at such other address as may from time to time be designated by either party to the other.
23. SEVERABILITY
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
24. SURVIVAL
Any right or obligation of the parties in this Agreement which, by its nature, should survive, will survive termination of this Agreement.
25. AMENDMENT.
This Agreement may not be amended, terminated or superseded except by an agreement in writing signed by an authorized representative of Credit Karma.