TIPALTI SERVICES AGREEMENT
1. Services. Tipalti provides an Accounts Payable Automation Platform which includes various services including a Payor Dashboard where Company may manage its accounts payable functions, and a Supplier Portal accessible to Payees.
- Payor Dashboard. The Payor Dashboard is your portal for your accounts payable functions. From the Payor Dashboard, you can receive, view, and decline/approve Supplier invoices and use other functionality to manage payments to your Suppliers. The Payor Dashboard also provides you with a history of your Supplier payments.
- Supplier Portal. The Supplier Portal, which is integrated into your website, allows you to onboard your Suppliers including collecting Supplier Information, requiring completion of applicable tax forms, approve invoices, and communicating with Suppliers regarding the status of their payments. Suppliers will be able to log into the Supplier Portal and submit invoices for payment, view the status of payments, provide you with any required information, and have a record of the payments they have received from you through the Tipalti Services.
2. Provision of the Services.Subject to the terms of this Agreement, Tipalti shall provide Company with the Services indicated on the Order Form beginning on the Go-Live Date and continuing through the Term of this Agreement. Tipalti shall have the right to amend the Go-Live Date if (i) its initial compliance onboarding of Company is not complete; (ii) Tipalti determines that the technical integration with Company systems is not complete; or (iii) Tipalti determines that not doing so would expose either party to security, financial or reputational risk.
3. Access Code. Tipalti shall provide Company with access codes to access the Tipalti Services. Company may grant Company Users access to the Tipalti Services only for Company business, so long as each Company User has its own log-in credentials and does not share log-in credentials with another Company User or third party. Except as allowed in this Agreement, Company shall not disclose its access codes to any third party, nor allow any third party to access to the Tipalti Services. Company assumes full responsibility for the use of its access codes.
4. Third Party Servicer Access. The Company may use a Third Party Servicer to integrate with or access the Tipalti Services. Company shall be liable for any acts and omissions of Third Party Servicers, for the performance or nonperformance of the integration tool with respect to the Services, and for the effect such integration tool may have on Tipalti’s systems or the Services.
5.1. Payee Access. Company shall integrate a Supplier Portal on the Company website so as to allow Payees to access the Tipalti Services.
5.2 Payee Information. All Payee Information entered through the Supplier Portal shall be owned by Company with Tipalti collecting the information on behalf of Company. Where additional Payee Information is required by Tipalti, Tipalti will first try to obtain such information from the Payee via the Supplier Portal. Notwithstanding the foregoing, it shall be Company’s responsibility to obtain or cause Payees to provide correct and complete information as Tipalti may require, and to immediately notify Tipalti of any incorrect Payee Information, Payment Instruction or other information provided to Tipalti. Any liability arising out of incorrect or incomplete Payee Information or other information provided to Tipalti shall be the Company’s sole responsibility.
5.3. Use of Payee Information. Tipalti shall use the Payee Information solely to provide the Services, comply with Applicable Law (including Tipalti’s compliance program), and as needed to secure the Services including as needed for risk and fraud prevention. Tipalti may send emails or other communication to Payees on behalf of Company, or on its own behalf, in order to supply of the Services or as required by Applicable Law. The language of such correspondence will be based on customizable templates that will be mutually agreed upon between Company and Tipalti, unless otherwise required by the Tipalti Bank or Applicable Law. Tipalti shall not send correspondences to Payees for marketing purposes without Company’s prior written consent.
5.4. Any personally identifiable information or Personal Data, as such term is defined under the EU General Data Protection Regulation 2016/679 (“GDPR” and “Personal Data” respectively) received by Tipalti in connection with the Tipalti Services, including without limitation with respect to the Records (as defined below), and the processing thereof, shall be governed under the terms and conditions set forth in the Tipalti Data Processing Addendum (“DPA”). The parties hereto agree that with respect to any personally-identifiable information and Personal Data included in the information received by Tipalti in connection with the Tipalti Services, including without limitation with respect to the Records, Company is the Controller and Tipalti is the Processor (as such terms are defined under the GDPR and the DPA).
6. Transactions and Records.
6.1. Payment Instructions. Company shall use the Payor Dashboard to provide Tipalti with instructions as to payments that are being processed through the Supplier Portal (“Payment Instructions”). The Payment Instructions shall include: (i) information required by Tipalti, its Bank, correspondents, payment processors and their respective know your customer (“KYC”) processes; (ii) additional Payee Information reasonably requested by Tipalti for the purpose of providing the Services or complying with Applicable Law; and (iii) any and all corrections or updates to the foregoing. Any liability arising out of incorrect or incomplete Payment Instructions shall be the Company’s sole responsibility.
6.2. ACH Debit. You may fund your Tipalti account directly from your Company DDA through the usage of ACH Debits. If you do so, the following will apply:
- Company ACH Consent. You authorize Tipalti to process an ACH debit from your Company DDA in accordance with your Payment Instructions and to pay Fees in accordance with the terms and conditions of this Agreement. You may cancel this authorization by calling Tipalti support, or providing Tipalti a notice of written cancellation at least three days prior to any scheduled transactions.
- Payment Obligations. You agree to maintain sufficient funds your Company DDA as necessary to satisfy all obligations to Tipalti in connection with your Payment Instructions and use of the Tipalti Service, including returns and associated penalties and fees, and to add funds immediately if Tipalti notifies you that your funds are insufficient. If an ACH Debit from your Company DDA is returned to you for any reason, you agree to remain liable for the full payment amount and any associated penalties and fees. You agree that Tipalti may resubmit a returned ACH debit to your Company DDA. Tipalti reserves the right, in its sole discretion, to discontinue your usage of the ACH Debit method of funding your Tipalti account.
- NACHA Rules. By funding your Tipalti Account through ACH Debit, you agree to be bound to the NACHA Operating Rules.
6.3. Payee Rejected or Returned Transactions. If a payment is rejected or returned by the Payee or the Payee’s bank or financial institutions, or a correspondent bank or financial institution, then the Funds shall be either returned to your Tipalti Account, returned to you, or used for payments to Tipalti subject to the Order Form. Funds from rejected Transactions in any currency other than USD will be exchanged back to USD by Tipalti at the then applicable exchange rate
6.4. Records. Tipalti shall collect, store and use records with regard to Transactions, including but not limited to Funds, Company Information, Payee Information, Payment Instructions, Transaction information, including but not limited to successful and rejected Transactions (collectively “Records”). Records shall be available to Company through the Payor Dashboard.
7. Service Timing and Completion. Tipalti shall perform the Services as soon as all of the following have occurred, as determined by Tipalti: (i) completion of Tipalti’s initial and ongoing underwriting in respect of the Company, Payees, and Transactions, (ii) receipt by Tipalti of Payee Information and Payment Instructions; and (iii) receipt by Tipalti of Funds and corresponding Fees for each Transaction. Company must submit Payment Instructions to Tipalti either concurrently with, or prior to, sending Tipalti the corresponding Funds. Tipalti has no obligation to, and will not, send payments to Payees until Tipalti is in receipt of the Funds for the payment. Tipalti’s obligations under this Agreement for each Transaction shall be satisfied on the first to occur of, as determined by Tipalti: (a) transfer of Transaction Funds from the Tipalti Bank to the applicable Payee; or (b) submission of Payment Instructions by Tipalti to Tipalti Bank or other relevant third party. Tipalti shall be under no obligation to initiate or complete Transactions where Tipalti determines that: (A) it has incorrect or incomplete Payment Instructions or Payee Information; (B) Transactions exceed transaction limits of or are in violation of Tipalti’s compliance requirements, those of Tipalti Bank, those of other suppliers to Tipalti or those of the Payee’s financial institution; (C) the transaction appears suspicious or in violation of this Agreement or Applicable Law or (D) the Transaction cannot be completed on account of other factors beyond the control of Tipalti.
8. Limitations on Content. Company may not itself or through any other person: (i) copy, modify, adapt, translate, reverse engineer, decompile, or disassemble, in any way, any portion of the Services and/or content made accessible by Tipalti including any information, pictures, videos, text, graphics, software programs or code used by Tipalti in connection with the Services and material and data obtained from or through the Services (collectively, the “Tipalti Content”), or publicly display, reproduce, create derivative works from, perform, distribute, or otherwise use such Tipalti Content, other than as permitted by Tipalti in writing; (ii) transmit or otherwise make available in connection with these Services any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; or (iii) sell, license, or exploit for any commercial purposes any use of or access to the Services other than permitted by Tipalti.
9. Fees and Payment of Fees.
9.1. Fees. Company shall pay Fees to Tipalti for the Services. Fees shall include, without limitation, Subscription Fees, Transaction Fees, and Fees for attempted or completed Transactions, such other Fees as are set out in the Order Form and other costs incurred by Tipalti in order to supply the Services. Unless otherwise specified in the Order Form, Tipalti shall have the right to amend Fees on thirty (30) days prior electronic notice to Company by e-mail or through the account.
9.2. Payment of Fees. Where indicated on the Order Form, Tipalti shall first attempt to obtain payment of Fees by the method indicated as preferred on the Order Form. However, Company hereby provides Tipalti with a standing Payment Instruction such that Tipalti shall have the right, at its discretion, to initiate Transactions to itself from the Tipalti Bank from Funds for all Fees payable either concurrently with, or immediately following, initiation of Transactions for which the Fees are payable. Fees shall also be payable by any of the following means, as determined by Tipalti: (i) Transactions from the Tipalti Bank; (ii) ACH from Company DDA pursuant to the Company ACH Consent; or (iii) charges to Company Credit Card as per Company Credit Card Authorization, or (iv) by such other means as Tipalti shall require. In the event that Fees, or other liabilities of Company to Tipalti, are not paid to Tipalti concurrently with their related Transactions, then they shall be paid by Company to Tipalti no later than thirty (30) calendar days following the date on which they were first due, as determined by Tipalti. Fees paid are not refundable.
9.3. Late Payment of Fees. If Company does not pay Tipalti all Fees and any other amounts due under this Agreement within thirty (30) days of the date on which they are due, then Tipalti may, in its sole discretion, charge Company interest, for such time that the amount and all accrued interest remain outstanding at the lesser of: (i) the per annum rate equal to the then current Wall Street Journal published prime rate of interest plus two percent (2%), based on a 360 day year, or (ii) the maximum rate permitted by applicable law.
9.4. Payee and Company Bank Fees. For avoidance of doubt, fees and expenses charged by Payee’s bank and intermediary banks used by the Payee bank shall be borne by Company or the Payee and not Tipalti. Company is responsible for fees charged by its own bank and other third parties supplying services to Company.
10. Confidential Information.
10.1. Each party acknowledges that it may directly or indirectly disclose Confidential Information (as defined below) to the other party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information, but in no event with less than a reasonable degree of care. Each party may disclose such Confidential Information to employees and agents who require such knowledge to perform services or obligations under this Agreement. Except as contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of the Agreement.
10.2. Notwithstanding the foregoing, a party may disclose Confidential Information to a third party: (i) with the prior written consent of the party whose Confidential Information is being disclosed; or (ii) if disclosure is required by Applicable Law or to comply with a subpoena, provided that the disclosing party gives the other party prompt written notice (to the extent permitted by law) of such legal requirement prior to the disclosure and provides the other party reasonable opportunity to contest the requirement to disclose the Confidential Information.
10.3. For the purposes of this Agreement, “Confidential Information” means all proprietary, secret or confidential information or data relating to either party and its Affiliates, operations, employees, products or services, clients, customers or potential customers. Confidential Information shall include, but is not limited to, supplier lists, customer lists, bank or other account numbers, pricing information, computer access codes, instruction and/or procedural manuals, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by Applicable Law. Without limitation, the terms of this Agreement shall be Confidential Information of Tipalti.
10.4. The duty to protect the other party’s Confidential Information shall expire ten (10) years from the date of termination of this Agreement. Notwithstanding the above, any and all obligations regarding confidentiality in connection with trade secrets shall remain in effect until the information ceases to be considered as a trade secret. Except as expressly set forth herein, no license or other rights to Confidential Information are granted or implied hereby by either party.
10.5. Notwithstanding any provision herein to the contrary, Company authorizes Tipalti to: (i) collect, store, use or disclose Confidential Information of the Company and disclose it to its Affiliates, Tipalti Bank and other suppliers in order to perform the Services under this Agreement or to assist its Affiliates in performing under any of their agreements with Company, or as otherwise required by Applicable Law; (ii) mention Company’s name and logo in advertising materials including in web sites and press releases; and (iii) retain, during and following the Term hereof, Confidential Information of Company related to suspicious activity on the part of Payees to assist in improving the services provided by Tipalti.
11. Term and Termination.
11.1. Term. This Agreement shall become effective on the day it is agreed to by Company, or the date that Company begins using the Tipalti Services, whichever is sooner (“Effective Date”). This Agreement shall remain in effect for the initial term, as defined in the Order Form (the “Initial Term”) and shall renew automatically for additional and successive renewal terms, as defined in the Order Form (each a “Renewal Term”). If the length of the Renewal Term is not defined in the Order Form, then each Renewal Term shall be a 12-month period. The Initial Term, together with each Renewal Term, if any, shall be referred to herein, collectively, as the “Term”.
11.2. Termination. Either party may terminate this Agreement at the end of a Term by providing the other party with written notice of its intent to terminate ninety (90) days prior to the end of such Term.
11.3 Termination for Cause. Either party shall have the right to suspend performance or terminate this Agreement in the event that the other party is in breach of this Agreement, and such breach is not cured within 30 days of being provided with written notice and opportunity to cure. Either party may immediately terminate this Agreement if the other party is dissolved or liquidated, becomes insolvent or unable to pay debts as they mature, or ceases to so pay, or makes an assignment for the benefit of creditors. Tipalti shall have the right to immediately suspend performance or terminate this Agreement in the event that: (i) Tipalti determines, in its sole discretion, that the Services are being used for fraudulent or criminal activities or in violation of any Applicable Law, the Tipalti’s AML Program or in a manner that Tipalti deems creates excessive regulatory, security, financial or reputational risk; (ii) Tipalti Bank, Tipalti’s other suppliers, or any regulatory, governmental or other law enforcement authority requires Tipalti to terminate or suspend services to or in respect of Company or its respective Payees; or (iii) any of the material representations by the Company hereunder are false or misleading. The suspension of Services may include the freezing of Funds by Tipalti or Tipalti Bank or other correspondent or payment processor where any of them believe they are legally required to do so.
11.4 No Limitation on Remedies. A party’s exercise of its termination rights for reason of material breach hereunder shall in no way restrict or diminish such party’s rights to other remedies available in connection with the material breach.
11.5 Effect of Termination.
(a) Records. Unless otherwise required by Applicable Law, as determined by Tipalti, Tipalti shall destroy all Service and account records (“Records”) not less than thirty (30) days and more than seven (7) years (“Recordkeeping Term”) following any termination hereof. Between termination hereof and the end of such Recordkeeping Term, Tipalti shall use Records only for the purposes of complying with the terms hereof and Applicable Laws.
(b) Fees. In the event of a termination of this Agreement, all Fees owed to Tipalti for the balance of the current Term shall be payable to Tipalti within 30 calendar days of the date of the termination, or the date the Fees are due, whichever is sooner.
Company shall pay all applicable taxes, value added taxes, levies, imposts, duties, fees, deductions, withholdings or other governmental charges which are levied or imposed by reason of this Agreement, other than taxes based on Tipalti’s income.
13. Representations and Warranties.
13.1. Each party represents and warrants that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party; and (iii) the individual executing this Agreement on behalf of a party has authority to bind such party to this Agreement and the performance hereof.
13.2. All forms and due diligence questionnaires and correspondence provided by Company in association with this Agreement, including but not limited to the Tipalti KYC Data Gathering form shall be deemed to constitute representations by Company herein of the veracity of the information contained therein. Company represents that any and all information provided to Tipalti in the course of applying for, setting up and using the Services shall be true and accurate.
13.3. Company represents and warrants to Tipalti that: (i) it is performing under this Agreement as a business and not as an individual consumer; (ii) Company is not using the Services on behalf of a third party; (iii) Company has full and exclusive right, title and interest in Funds; (iv) Company will resolve any dispute or complaint directly with the each Payee that may arise; (v) Company will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (vi) Company is not in breach of any Third Party Servicer Terms or agreements with the financial institution where to the Company DDA is maintained; and (vii) Company’s use of the Services is and will remain in compliance with this Agreement and Applicable Laws.
13.4. Tipalti makes no representations or warranties, expressed or implied, with respect to the Services under this Agreement. Without limitation, Tipalti makes no representation that use of the Services will result in any improvement in the business of Company or its relationships with Payees. For greater certainty, no representation made on the Site, a Tipalti user guide, wiki or other advertising or support materials or correspondence shall be construed as a representation under this Agreement.
14. Intellectual Property.
14.1. Except as expressly specified herein, each party retains all right, title and interest in its products and services including any intellectual property rights contained therein and any derivatives thereof (together, the “Party’s Property”). All use of the Party’s Property shall inure to the benefit of party, and the other party shall not seek to register, record, obtain or attempt to pursue any intellectual property or other proprietary rights or protections in or to the Party’s Property. All rights in the Party’s Property which are not expressly granted herein are reserved.
14.2. Neither party shall assert any intellectual property rights with respect to the other party’s content, materials or technology or any element, adaptation, variation or name thereof. Neither party shall have any right to remove, obscure or alter any notices of intellectual property rights or disclaimers appearing in or on any materials provided by the other party.
15. Indemnification. Company agrees to indemnify, defend, and hold harmless Tipalti, its parent, affiliates, officers, directors, employees from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys’ fees and cost of defense) (collectively “Indemnify”) arising from Company’s (i) breach of this Agreement; (ii) violation of Applicable Law; (iii) Payee dispute of any kind, (iv) usage of the Services from Company’s access code, and (v) any incorrect or incomplete Payment Instructions or Payee Information.
16. LIMITATION OF LIABILITY.
16.1. NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF SALES, GOODWILL, PROFITS OR REVENUES. EXCEPT AS PROVIDED IN THIS SECTION, TIPALTI’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED COMPANY’S DIRECT DAMAGES BASED ON THE AMOUNT OF THE TRANSACTION FEES ACTUALLY PAID BY COMPANY TO TIPALTI HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. NOTWITHSTANDING THE FOREGOING, TIPALTI’S LIABILITY FOR ANY ACTS OR OMISSIONS RESULTING IN LOST FUNDS AND RELATED DAMAGES SHALL, COLLECTIVELY, BE LIMITED TO THE AMOUNT OF THE LOST FUNDS AND TIPALTI’S FEES INDICATED ON THE CORRESPONDING TIPALTI RECEIPT.
16.2. TIPALTI SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED DIRECTLY OR INDIRECTLY BY: (I) AN ACT OR OMISSION OF COMPANY, ITS AFFILIATES, A PAYEE, OR ANY THIRD PARTY OR THIRD PARTY SERVICE PROVIDER; (II) DELAYS, DISRUPTIONS, OR BUGS IN THE SERVICES OR SOFTWARE; (III) TIPALTI’S NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR COMPANY DIMINISHED ABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THIS AGREEMENT OR TIPALTI’S POLICIES OR SERVICES; (IV) INCORRECT OR INCOMPLETE PAYMENT INSTRUCTIONS OR PAYEE INFORMATION; OR (V) TIPALTI OR ONE OF ITS BANKING OR OTHER SUPPLIERS ELECTING TO SUSPEND PROVIDING SERVICES IN RESPECT OF COMPANY OR A PAYEE ON THE BASIS OF ITS LEGAL, COMPLIANCE OR RISK POLICIES OR THOSE OF TIPALTI BANK OR OTHER THIRD PARTIES ASSISTING IN PROVIDING THE SERVICES. TIPALTI’S TAX AND REGULATORY COMPLIANCE SERVICES ARE PROVIDED SOLELY FOR YOUR CONVENIENCE AND ARE NOT INTENDED TO PROVIDE TAX OR LEGAL ADVICE. FOR SUCH ADVICE, YOU MUST CONSULT YOUR ACCOUNTANT OR ATTORNEY, AS APPLICABLE. WHEN PROVIDING THE TAX COMPLIANCE SERVICES, TIPALTI IS NOT ACTING AS A WITHHOLDING AGENT ON YOUR BEHALF.
16.3. Except for monetary obligations hereunder, neither party shall be liable for any failure or delay in performance due in whole or in part to any cause beyond the reasonable control of such party or its contractors, agents or suppliers, including but not limited to utility or transmission failures, failure of phone lines or phone equipment, power failure, strikes or other labor disturbances, acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters.
17.1. Complaints. If you (being the Company) have a complaint, first contact us by email to: firstname.lastname@example.org or by post to: Tipalti Operations, 1810 Gateway Drive, Suite 300, San Mateo, California, 94404.
17.2 Tipalti Bank Account. All Funds received into the Tipalti Bank Account are held by Tipalti in a custodial capacity in an account that is designated as being for the benefit of Tipalti’s customers (“FBO Account”). You agree and appoint Tipalti as your agent with respect to Funds in the FBO Account.
17.3. Independent Contractors. Except as otherwise provided for in this Agreement, the relationships of the parties to this Agreement shall be that of independent contractors. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint ventures or partners with each other.
17.4. Assignment. The Company may not assign or otherwise transfer any or all of its rights or obligations under this Agreement without Tipalti’s prior written consent, and any assignment without such prior written consent will be null and void. Tipalti may assign any of its rights or obligations hereunder to a third party on notice to Company provided that the successor in interest to Tipalti assumes the corresponding obligations of Tipalti hereunder.
17.5. Entire Agreement. This Agreement and its schedules constitute the entire understanding and agreement between the parties and supersedes any and all prior discussions, agreements, promises and correspondence, whether oral or written, with regard to the subject matter hereof or otherwise, including (without limitation) any memorandum of understanding between the parties.
17.6. Amendments. Except as provided for in the introductory paragraph of this Agreement, this Agreement may not be amended except by a document in writing signed by both Tipalti and Company. Notwithstanding the foregoing, Tipalti reserves the right to amend the terms of this Agreement, at its sole discretion, where such amendment is required by Applicable Law or in connection with a new version of the Service, each as determined by Tipalti. Tipalti also reserves the right to: (i) suspend individual payout methods or impose certain restrictions on them; or (ii) amend the Prohibited Activities list at its sole discretion on electronic notice, email notice or notice through the account. Such amendments or suspensions by Tipalti will take effect within twenty-one (21) calendar days from the date of Tipalti’s notice to Company, unless otherwise stated in a notice provided through the account or otherwise pursuant hereto.
17.7. No Waiver. No failure, delay of forbearance of either party in exercising any power or right hereunder will in any way restrict or diminish such party’s rights and powers under this Agreement, or operate as a waiver of any breach or nonperformance by either party of any terms of conditions hereof.
17.8. Severability. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and the unenforceable provision shall be enforced to the maximum extent permissible under Applicable Law. Nothing in this Agreement shall be construed or be deemed to create any rights or remedies in or for the benefit of any third party.
17.9. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. A scanned or faxed version of this Agreement shall be deemed as an acceptable original thereof.
17.10. Notices. All notices and other communications required or permitted hereunder to be given to a party to this Agreement shall be in writing and shall be sent by mail to the following addresses, if to Tipalti: to Tipalti General Counsel, 1810 Gateway Drive, Suite 300, San Mateo, California, 94404, with a copy to Chief Revenue Officer, 1810 Gateway Drive, Suite 300 San Mateo, California, 94404, if to Company to the address indicated on the Company Information Page hereof. Any notice sent in accordance with this Section shall be effective within 3 days of the day it is sent. Any notice of default shall be sent by courier to the addresses specified in this section, with proof of delivery.
17.11. Electronic Signatures. When provided to Company for execution in electronic form, this Agreement and all related electronic documents, shall be governed by the provisions of the Electronic Signatures in Global and National Commerce Act (E-Sign). By pressing “Submit”, “Accept” or “I Agree”, Company agrees (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, (iii) that Company has the ability to print or otherwise store the Agreement and related documents, and (iv) to authorize Tipalti to conduct an investigation of Company’s credit history and that of its principals with various credit reporting and credit bureau agencies for the sole purpose of determining acceptance of this Agreement and ongoing performance hereunder.
17.12. Governing Law, Binding Arbitration and Waiver of Jury Trial. This Agreement will be deemed to have been made and delivered in the State of New York and will be governed as to validity, interpretation, construction, effect and in all other respects exclusively by the laws of the State of New York, without giving effect to its conflicts of laws rules (except for Sections 5-1401 and 5-1402 of the New York General Obligations Law). The parties hereto agree that: (i) any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof (including without limitation the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding this arbitration provision), or to the use of the Services will be settled by binding personal arbitration by one (1) arbitrator, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. If, for any reason, a dispute relating to this Agreement or the transactions contemplated hereby is deemed outside the scope of this agreement to arbitrate, or if this agreement to arbitrate is deemed unenforceable or inapplicable (which decision regarding scope, enforceability, or applicability shall be in the exclusive authority and jurisdiction of the arbitrator as stated above), to the extent outside the scope, unenforceable or inapplicable, such legal suit, action or proceeding shall be instituted exclusively in a state court in the County, City and State of New York, or in the United States District Court for the Southern District of New York; (ii) the parties each waive the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding WITH RESPECT TO THIS AGREEMENT AND REPRESENT THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER. Further, unless both parties otherwise agree in writing, neither the arbitrator nor a judge may consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding relating to this Agreement. If this specific paragraph is held unenforceable, then the entirety of the agreement to arbitrate will be deemed void, but this Section shall otherwise remain enforceable. Except as provided in the preceding sentence, this Section will survive any termination of this Agreement; (iii) the arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules last in effect as of the date the Demand for Arbitration was properly sent, except as modified by this Section (the “AAA Rules”). (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this section; (iv) a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration by first class mail using the form provided by the AAA. Contemporaneously with mailing of the Demand for Arbitration a copy of the Demand for Arbitration must also be sent to email@example.com if to Tipalti, and to the e-mail address indicated on the Company Information Page, if to the Company. If the Company’s email address has been deactivated, not provided, improperly provided, or is otherwise unavailable, the requirement for service of the Demand for Arbitration by email in addition to First Class Mail shall be deemed waived. The Demand for Arbitration must be provided within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two (2) years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach; (v) the arbitrator will be an attorney licensed to practice law in the state of New York who is, at the time of the Demand for Arbitration, practicing in commercial law or banking law. If the parties are unable to agree upon an arbitrator within seven (7) days of actual receipt of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules last in effect as of the date the Demand for Arbitration was properly sent pursuant to this Section; (v) the arbitration will be conducted in New York County in English. If the claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents the parties submit to the arbitrator. If a claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration; (vi) the arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” Section (Section 16) above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If a party prevails in arbitration it will be entitled to an award of attorneys’ fees and expenses, to the extent provided under Applicable Law, and (vii) each party’s responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
17.13. California Companies. If you are a California company, Tipalti Payments, Inc. will provide you with the Money Transmission Services, and Tipalti, Inc. will provide you with the Payment Processing Services. Tipalti, Inc. will receive all payments as agent for the Payee so long as you provide Tipalti, Inc. with Payment Instructions prior to Funds. In such a case, the receipt of Funds by Tipalti, Inc. will constitute payment to the Payee. If, on an exception basis, you send Tipalti, Inc. Funds prior to Payment Instructions, Tipalti, Inc., will instead act as agent for Tipalti Payments, Inc. and transfer the funds to Tipalti Payments, Inc. to be held for your benefit and used for future Money Transmission Services provided to you by Tipalti Payments, Inc. This section does not apply to companies that are not located in California. All non-California companies are entering into this Agreement solely with Tipalti, Inc.
17.14. Survival. Sections 8 through 18 (inclusive) of this Agreement shall survive termination of this Agreement as well as any other sections in order to comply with Applicable Law and as reasonably expected.
For the purposes of this Agreement, the following terms shall have the meanings set out below:
“Account Direction Services” means those services provided by Tipalti where Tipalti does not hold Company funds, but rather passes Payment Instructions from Payor to Payor’s financial institution or Bank.
“Accounts Payable Automation Platform”, “Services”, and/or “Tipalti Services” means any of the following services: supplier management, tax and regulatory compliance, invoice automation, payment reconciliation and reporting, Payor Dashboard, Payee Dashboard, Money Transmission Services, Payment Processing Services, Account Direction Services, Form Completion, Data Gateway, and any other services provided to you under this Agreement, the Order Form or otherwise.
“ACH Debit” means a method of funding your Tipalti account and/or paying Tipalti’s Fees directly from your Company DDA through the Automated Clearing House.
“Affiliate” means, with respect to any party, any corporation, company, partnership or other entity which is directly or indirectly controlled by such party or is directly or indirectly controlled by a person or entity that is the same as that which controls the party. For the purposes of this definition, control shall mean ownership of half or more of the voting interests in an entity.
“Applicable Law” means all applicable laws, statutes, codes, ordinances, orders, decrees, rules, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.
“Company ACH Consent” means that authorization by the Company to Tipalti to debit and credit the Company DDA set out in a schedule hereto.
“Company Credit Card Authorization” means that authorization to Tipalti to charge Fees and other amounts owing to Tipalti hereunder to Company Credit Card set out in a schedule hereto.
“Company Credit Card” means the credit card of Company identified for payment of Fees in the Company Credit Card Authorization.
“Company DDA” means that account of the Company with a U.S. financial institution identified in the ACH Consent.
“Company Information Page” shall mean information concerning the Company and its representatives set out at the beginning of this Agreement and in each Schedule hereto.
“Company User” means an employee or agent of Company that Company permits to use the Service account for the purpose of Company business only.
“Fees” means the fees payable to Tipalti in consideration of the Services as described in the Order Form.
“Funds” means Company money used in connection with the Money Transmission Services or Payment Processing Services.
“Go-Live Date” means the date indicated on the Order Form being the date on which the Services will first be made available to Company.
“Lost Funds” means non-delivery of transaction funds to a Payee as per Payment Instructions.
“Money Transmission Services” consist of Tipalti acting on behalf of Company, taking possession of Company Funds in an account at the Tipalti Bank and transmitting those Funds to Payees as a money transmitter.
“Order Form” means the Tipalti order form indicating the Services that Company wishes to procure hereunder, the applicable Fees and additional terms.
“Payee” or “Supplier” means a person or business (i) with whom Company has a pre-existing contractual relationship; (ii) who has provided a product or service to Company; and (iii) who will use the Tipalti Payment Processing Services to receive payments from Company and/or be the recipient of a payment made by the Payor through Tipalti’s Money Transmission Services.
“Payee Agreement” means an Agreement between Tipalti and the Payee for the use of the Tipalti Payment Processing Services.
“Payment Instructions” means those instructions provided by Company that authorize Tipalti to fulfill payments to the Payees, and is further described in Section 6.1 of this Agreement.
“Payment Processing Services” means a service of Tipalti where Tipalti is appointed by the Payee as its agent for the limited purpose of accepting payments on its behalf subject to the Payee Agreement.
“Payor Dashboard” means the portal through which Company accesses the Tipalti Services.
“Renewal Term” has the meaning set out in the Order Form.
“Subscription Fee” means a Fee that is payable in advance by Company for a specific term or quantity of Services as set out in the Order Form.
“Substantial Change” means any change which imposes material additional obligation on Company, or takes away any material rights.
“Supplier Information” means identification information, payment information, tax information and other related information collected on the Supplier Platform or otherwise.
“Supplier Portal” means a Tipalti-hosted iframe or other internet portal that is integrated into Company’s website and available to its Payees.
“Third Party Servicer Terms” means those terms and conditions applicable between Company and a Third Party Servicer concerning the products or services of the latter.
“Third Party Servicer” means a third party retained by Company to provide products or services to Company.
“Tipalti” means Tipalti, Inc. for all Companies and all Services, including Money Transmission and Payment Processing. Except, if you are a California Company, the Money Transmission services will be provided to you by Tipalti Payments, Inc. and the Payment Processing services and all other Tipalti services will be provided to you by Tipalti, Inc., both of whom are parties to this Agreement for this purpose. Tipalti, Inc. and Tipalti Payments, Inc. are both headquartered at 1810 Gateway Drive, Suite 300, San Mateo, CA 94404.
“Tipalti Bank” means a financial institution within the United States where Tipalti maintains a money services business bank account use for the purpose of receiving Company Funds for transmission to Payees in performance of the Money Transmission Services.
“Tipalti KYC Data Gathering Form” means such forms, questionnaires and correspondence as Tipalti may require Company or its Affiliates to complete or provide prior to or during the Term hereof to gather information concerning the Company.
“Tipalti Setup & Configuration Forms” means such forms, questionnaires and correspondence as Tipalti may Company to complete in order to configure the Services for use by Company;
“Transaction” shall mean an actual or attempted payment transaction or transmission of data by way of the Services.