1. Services.
1.1 Scope of Services. Upon Acceptance by AZFS, AZFS agrees to supply Customer with a Fuel Cards in an amount approved by AZFS in its sole discretion. AZFS retains sole discretion as to whether and in which quantity AZFS will supply Customer with Fuel Cards under this Agreement. These Terms and Conditions, along with the first page of the Fuel Services Agreement govern all of the services to be provided by AZFS to Customer (collectively the “Services.”)
1.2 Business Purpose. Customer represents and warrants to AZFS that it is a commercial business enterprise, and that the Services will not be used for personal, family, or household purposes.
2. Term and Termination.
2.1 Term. Except as provided in Section 2.2, this Agreement begins on the date of issuance of the first Fuel Card by AZFS , shall continue for a term of twelve (12) months thereafter, and shall automatically renew for successive twelve (12) months periods thereafter unless terminated by either party no less than thirty (30) days prior to the then-current term.
2.2 Termination. Notwithstanding the foregoing, AZFS, in its sole discretion, reasonably exercised, may terminate or suspend this Agreement, or Customer’s use of Fuel Cards supplied hereunder, or reduce Customer’s Credit Limit, including, but not limited to, under the following circumstances: (a) Customer’s performance of its obligations or use of the Fuel Cards violates any federal, state, or local law or regulation; (b) AZFS reasonably determines that a material adverse change has occurred in Customer’s or Guarantor’s financial condition; (c) Customer fails to pay any amount due under any agreement with AZFS; (d) Customer or any Guarantor files for or is petitioned into bankruptcy or Customer makes an assignment for the benefit of creditors; and/or (e) Customer or Guarantor breaches any term of this Agreement or any other Agreement with AZFS. Termination of this or any other Agreement will not affect Customer’s or Guarantor’s obligation to pay any amounts
due upon termination. Customer shall immediately pay all such amounts owing in connection with this Agreement,
without set-off or deduction. AZFS will be entitled to recover all costs of collection, including without limitation,
attorneys’ fees, in the event such amounts are not timely paid.
3. Fees, Invoicing and Payment.
3.1 Fees. Customer agrees to (a) pay AZFS the Transaction Fee identified on page 1 of this Fuel Services Agreement for each use of a Fuel Card; (b) reimburse AZFS all amounts charged by Customer on the Fuel Card(s); and, (c) if requested by AZFS, pay the Monthly Account Maintenance Fee. Customer shall pay AZFS all amounts due under this Fuel Services Agreement via ACH payment no later than the next business day following the date of each use of the Fuel Card. AZFS reserves the right to modify the Fees applicable to the Services from time to time. AZFS will notify Customer electronically of any change it makes to its Fees seven (7) days prior to the effective date of such modification. Any continued use by Customer of the Fuel Cards thereafter shall be deemed approval by Customer of the modified Fees.
3.2 Taxes. Except for AZFS’s income taxes, Customer will pay and/or reimburse AZFS for any and all applicable sales, use, excise, franchise, and other taxes (collectively, “Taxes”), whether federal, state, or local, however designated, which are levied or imposed with respect to Customer’s use of a Fuel Card hereunder.
3.3 Late Payments. Payments not received on or before their due date shall be subject to a late charge
of seventy-five dollars ($75.00) per each late payment and shall thereafter bear interest at the rate of 12.0% per annum until paid in full.
4. Compliance with Law.
Customer agrees that its shall comply with, and shall not use the Services in violation of, any United States or Canadian federal, state, provincial or local laws, regulations, judicial or administrative decisions, executive orders, rules, or interpretations (“Legal Requirements.”)
5. Limitation of Liability.
5.1 AZFS’ cumulative liability for any loss or damage, from any cause whatsoever, will be limited to the amount of the Fees paid to AZFS by Customer under this Agreement in the preceding twelve (12) month period.
5.2 NEITHER PARTY SHALL BE LIABLE UNDER ANY THEORY FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), EXEMPLARY, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Reserve.
To the extent AZFS determines that it is necessary to maintain a Reserve, Customer authorizes and directs AZFS to maintain a Reserve in an amount to be determined by AZFS in AZFS’s sole discretion. In the event AZFS determines to require a Reserve, AZFS shall communicate the amount of Reserve to Customer in writing (“Reserve Requirement.”) To the extent required, AZFS agrees to return to Customer any amount collected by AZFS in excess of the Reserve Requirement on or before the tenth (10 th ) date of each month following collection of said excess amount. Once required, AZFS may, in its sole discretion, increase the Reserve Requirement at any time during the Term, without prior notice, upon the occurrence of one or more of the following events: (a) AZFS in good faith believes itself to be insecure due to a materially-adverse change in the financial condition of Customer; or (b) the Customer fails to pay any obligation to AZFS under this Agreement when due on three (3) separate occasions. During the Term, AZFS may utilize the Reserve to satisfy any amount due from Customer at any time at
AZFS’s sole discretion. Upon imposition of a Reserve Requirement, Customer authorizes AZFS to deduct an amount up to $0.05 for each gallon of fuel purchased utilizing a Fuel Card provided to Customer (“Reserve Fee”) until the amount collected equals the Reserve Requirement. AZFS may maintain the amounts held as a Reserve in common with other customer funds and with AZFS funds. Upon termination of this Fuel Services Agreement, AZFS agrees to return to Customer, without interest, the amount held as a Reserve, less any amounts deducted to satisfy any obligation Customer to AZFS, no later than thirty (30) days following Customer’s return to AZFS of all Fuel Cards.
7. Indemnification
Customer shall indemnify, defend, and hold harmless AZFS, its directors, officers, employees, affiliates, and agents against any and all claims, losses, costs, fines, penalties, damages, and expense, including reasonable attorneys’ fees (collectively, “Claims”) arising out of or connected with (i) the use or misuse of a Fuel Card by Customer, Customer’s employees and agents, and any third party after Customer has taken possession of such Fuel Card; (ii) material breach of this Agreement; (iii) use or misuse of any Service or product thereof or use or misuse of the AZFS Website; and (iv) infringement of any copyright, trademark, service mark, trade secret or other proprietary right of AZFS. Customer will not indemnify AZFS for Claims arising solely from AZFS’s gross negligence or intentionally wrongful acts.
8. Confidential Information; Information Security.
8.1 Confidential Information. “Confidential Information” means all data or information that is competitively sensitive material and/or not generally known to the public; including, but not limited to, information which is marked confidential or proprietary, customer lists (but excluding payment data), technology, inventions, systems, operations, facilities, products, services, discoveries, ideas, concepts, research, development, processes, operating procedures, marketing, business and development plans, pricing, policies and financial information. Confidential Information does not include information which: (i) is or becomes part of the public domain through no fault of the receiving party; (ii) was already known to the receiving party prior to its disclosure; (iii) is lawfully obtained from a third party without obligations of confidentiality; or (iv) is independently developed by the receiving party without reference to any Confidential Information of the other party.
8.2 Disclosure and Use Restrictions. Customer shall not disclose, reproduce, transfer, or use the AZFS’s Confidential Information; provided, however, that Customer may disclose Confidential Information to the extent it must be communicated in response to a valid law, regulation, or court order, provided the Customer uses reasonable efforts to notify AZFS prior to disclosure (unless such notification is prohibited by law, regulation or court order) so AZFS may seek a protective order or otherwise prevent or limit such disclosure.
8.3 Information Security. Each party is responsible for: (a) the security of non-public or personally identifiable information (“Personal Information”) on the systems under its control; and (b) data security issues arising from its systems, or directly resulting from its use of third-party vendors or subcontractors (if any) in connection with the Services. Personal Information will also include any nonpublic personal information of a consumer, each as defined by Section 6809 of the Gramm-Leach-Bliley Act. Each party will maintain information security practices designed to prevent unauthorized or unlawful access to, use, disclosure, or alteration of Personal Information (collectively, a “Security Incident”). In the event of a Security Incident, the affected party will comply with applicable law and in the event Personal Information was compromised and it is reasonably suspected that misuse will result, notify the other party of the Security Incident, subject to any request by law enforcement or other government agency to withhold such notice pending the completion of an investigation. AZFS is not responsible for
and does not control third party telecommunication lines used to provide the Services; and will not be responsible for the security of transmissions using these lines.
8.4 Equitable Relief. AZFS and Customer agree that a breach of this Section 8 will cause irreparable harm such that AZFS will not have an adequate remedy at law; and, therefore, AZFS will be entitled to seek injunctive relief (without posting a bond or other security) against Customer in addition to any other rights or remedies available at law or in equity.
9. Customer data; Data Analytics. Customer shall be responsible for ensuring the validity, accuracy and completeness of all information, data, and instructions (including Personal Information as defined above) provided to AZFS (collectively “Customer Data.”) AZFS shall be entitled to rely upon Customer Data in providing the Services. AZFS shall not be required to act on instructions provided by Customer if AZFS reasonably doubts an instruction’s contents or Customer’s compliance with this Agreement or any Legal Requirements. Subject to the provisions of Section 9 herein, AZFS and/or its affiliates may extract information from the Customer Data provided to AZFS by Customer and use this information with any other data in connection with research and development or creation of data and analytics tools and products in accordance with applicable law. Customer represents that it has sufficient rights (and has made sufficient disclosure to its users) in the information provided hereunder to authorize such use. AZFS or its affiliates will own all right, title, or interest in or to any information, products, services, or intellectual property arising from such data and analytics research and development activities.
10. Responsibility for Fuel Card. Customer shall be solely responsible for each and every use of a Fuel Card
supplied by AZFS to Customer. Customer agrees to promptly notify AZFS of any occasion in which Customer intends not to use the Fuel Card(s) for periods of more than 48 hours (such as vacations or other off time) to enable AZFS to place the applicable Fuel Card on hold in order to prevent misuse of the Fuel Cards. Customer agrees that all Fuel Cards supplied hereunder remain the sole property of AZFS and Fuel Cards shall not be duplicated.
11. Authorization to Conduct Credit/Background Check. Customer authorizes and grants to AZFS, and any contracted service provider of AZFS, continuing consent to obtain and review Customer’s consumer and business credit reports from any and all credit-reporting agencies chosen by in the discretion of AZFS. Customer further grants to AZFS Customer’s continuing consent throughout the Term, to request and receive financial and other information from trade references, Dun and Bradstreet, banks, and other financial institutions (“References”), without regard to whether they are listed herein, and grants AZFS permission and authorization to verify, receive, retain, exchange and obtain business and/or personal credit and other information, including without limitation, financial statements, accounts receivable information, and criminal background checks, as part of AZFS’ ongoing evaluation of Customer, and as necessary to comply with applicable Legal Requirements and AZFS record retention policies and practices. Customer acknowledges and understands that any such investigation directed toward Customer’s References is being conducted for the sole purpose of evaluating Customer and Customer’s credit in connection with the extension of credit to Customer under the Fuel Services Agreement
12. Credit Limit. AZFS shall determine, in its sole discretion, whether to establish a monetary limit and at what level to establish a monetary limit (“Credit Limit”) that will be applicable to Customer’s use of the Services. AZFS may increase or decrease such Credit Limit from time to time, in its sole discretion. It is AZFS’ policy to promptly notify Customer upon establishment of a Credit Limit or any change thereto, but AZFS will not be liable in the event it fails to do so. AZFS does not guarantee that it will establish or maintain any specific available Credit Limit for Customer, and Customer hereby waives any and all claims against AZFS based on AZFS’ determination of Customer’s Credit Limit. Customer agrees not to request or permit transactions using the Services in excess of its Credit Limit. In the event Customer exceeds its Credit Limit, AZFS may, in its sole discretion, demand and receive immediate payment, immediately suspend providing the Services, and/or charge an additional service fee.
13. Security Agreement. Customer hereby grants to AZFS as collateral, to secure all of Customer’s debts, liabilities and obligations hereunder, including all costs and expenses incurred by AZFS in connection with the enforcement of its rights under this Agreement, a security interest in the following property of Customer: All assets including, but not limited to, (a) all personal property, (b) all accounts receivable wherever located or situated, and whether now existing or arising in the future, and whether now owned or at any time in the future acquired by Customer (“Accounts”), together with the proceeds of such Accounts, and (c) all of Customers’ chattel paper, instruments, general intangibles, securities, contract rights, and insurance proceeds associated with or related to the Accounts; (d) all deposit accounts; (e) all proceeds of any of the foregoing Accounts, property, rights, and interests. AZFS may file financing statements and amendments thereto describing as the collateral any or all of the foregoing collateral by any description AZFS deems appropriate in any jurisdiction or office AZFS deems appropriate to perfect AZFS’s security interest in the foregoing. In the event of Customer’s breach of any warranty made in this Agreement or the Customer’s failure to observe or perform any of the provisions or obligations under this Agreement, Customer shall be in default, and AZFS may enforce payment and exercise any and all of the rights and remedies provided under Article 9 of the Uniform Commercial Code.
14. Governing Law. Arizona law will govern the interpretation, validity, and enforcement of this Agreement, without regard to its conflicts of law.
15. Exclusive Jurisdiction of Maricopa County, Arizona Courts. Customer hereby voluntarily submits to,
consents to, and waives any defense to the jurisdiction of courts located in the State of ARIZONA as to all matters
relating to or arising from this Fuel Card Agreement. STATE AND FEDERAL COURTS LOCATED IN THE
COUNTY OF MARICOPA, ARIZONA SHALL HAVE SOLE AND EXCLUSIVE JURISDICTION OF ANY AND
ALL CLAIMS, DISPUTES, AND CONTROVERSIES ARISING UNDER OR RELATING TO THIS
AGREEMENT.
16. Severability. Any provision of this Fuel Card Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Notice. If to Customer, all notices expressly required to be in writing may be (1) mailed, postage prepaid, addressed to the address stated at the beginning of this Agreement, or to such other address provided in writing in accordance
with this section or (2) emailed to Customer at the e-mail address provided above. If to AZFS, all notices expressly required to be in writing may be (1) mailed, postage prepaid, addressed to AZFS, LLC, 6501 E Greenway Pkwy #103-152, Scottsdale, AZ 85254, or to such other address provided in writing in accordance with this section or (2) emailed to AZFS at info@goazfs.com. Any notice so mailed shall be deemed given three (3) days after mailing.
17. Survival of Representations, Warranties and Covenants. All agreements, representations, warranties, and covenants made herein by Customer shall survive the termination of this Agreement and shall continue in effect so
long as any obligation to AZFS contemplated by this Agreement is outstanding and unpaid, notwithstanding any
termination of this Agreement.
18. Jury Waiver. CUSTOMER AND AZFS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS FUEL CARD AGREEMENT.
19. Assignability. This Agreement is not assignable or transferable by Customer and any purported assignment
or transfer is void. This Agreement shall be binding upon the successors of Customer. Customer acknowledges and
agrees that AZFS may assign all or any portion of this Agreement to any person upon written notice to Customer.
20. Integrated Agreement, Amendment, Heading. This Agreement replaces and supersedes any prior agreement between Customer and AZFS related to the specific subject matter herein. This Agreement may not be altered or amended except by written agreement signed by AZFS and Customer. No provision hereof may be waived by AZFS except upon written waiver executed by AZFS. AZFS shall be entitled to recover all attorneys’ fees and other expenses incurred by AZFS as a result of any breach of this Fuel Card Agreement by Customer or any action by AZFS to enforce its rights hereunder.
21. Independent Contractors. AZFS and Customer are independent contractors. Nothing in this Agreement
will be deemed to create a joint venture, partnership, employment, or similar relationship between the parties. Except
as specifically provided for herein, neither party will be liable for any obligation incurred by the other; neither party is an agent or representative of the other; and neither party will represent otherwise.
22. Waiver. No delay or single, partial, failure, abandonment, or discontinuance of AZFS to exercise any right, power or privilege hereunder will affect such right, power or privilege. AZFS’s rights and remedies under this Agreement, at law, and in equity are cumulative and not exclusive. Any waiver, consent, or approval of any failure to comply, breach or default under this Agreement must be in writing, will be effective only to the extent set forth in such writing, and will not continue to apply to additional failures to comply, breaches, or defaults.
23. Fraud/Lost or Stolen Fuel Cards.
23.1 Fraud Prosecution. Customer and AZFS agree to cooperate with each other in preventing and prosecuting any fraudulent activity by any third party with respect to the Services or otherwise arising in connection with any other relationship between the parties anticipated by or set forth in this Fuel Services Agreement. AZFS reserves the right to interrupt, suspend, or terminate Services without notice to Customer if AZFS, in its sole discretion, suspects fraudulent, illegal, or abusive activity. Customer agrees to provide, at no cost to AZFS, any and all documentation and information as AZFS may request, including but not limited to affidavits and police reports. Failure to provide reasonable cooperation shall result in Customer’s liability for all fraudulent usage of Services.
23.2 Lost or Stolen Fuel Cards. Customer shall notify AZFS immediately upon learning of the loss, theft, or possible unauthorized use of a Fuel Card by calling AZFS. Customer agrees to immediately inactivate any of its Fuel Cards that are lost, stolen, or that may be or have been used without proper authority.
23.3 Liability for Unauthorized Use. Notwithstanding the foregoing, Customer agrees it shall be responsible to pay AZFS for all purchases with all Fuel Cards issued to Customer whether the purchase(s) made are by persons authorized by Customer to utilize the Fuel Cards or not. Notwithstanding the foregoing, Customer shall not be required to pay for any purchases made with Fuel Cards more than twelve (12) hours after Customer notifies AZFS that (1) such Fuel Card has been lost or stolen or (2) Customer desires to cancel the applicable Fuel Card. Unauthorized use does not include use by a person to whom Customer has given a Fuel Card.
