TIPALTI SOFTWARE SERVICES AGREEMENT
This Tipalti Software Services Agreement, including any Order Forms, and the Data Processing Addendum found on www.tipalti.com/legal or entered into between the parties, forms the agreement (“Agreement”) between Tipalti and its customer (“Customer”) and governs Customer’s use of the Tipalti Services. This Agreement does not apply to, nor grant any rights to Customer regarding, Tipalti’s payment or electronic money services, and is intended to apply to Customers who do not and will not use payment or electronic money services. Tipalti may amend this Agreement at any time by posting a revised version on the Tipalti website. The revised version will be effective at the time Tipalti posts it. In addition, if the revised version includes a Substantial Change, Tipalti will provide Customer with 30 calendar days’ prior notice of the Substantial Change. All capitalized terms are defined herein. The parties hereby agree as follows:
1.1. Provision. Subject to the terms and conditions of this Agreement, Tipalti grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right, during the Term, to access and use the Services specified on the Order Form solely for Customer’s own internal business purposes. Customer’s purchase of Services is not contingent on the delivery of any future functionality or features of the Services, or dependent on any oral or written public comments made by Tipalti regarding future functionality or features of the Services.
1.2. Usage Limitations. Customer shall not itself or through any other person: (1) copy, modify, adapt, translate, reverse engineer, decompile, disassemble, publicly display, reproduce, create derivative works from, perform, distribute, or otherwise use in any way, any portion of the Services or Tipalti Content, other than as permitted by Tipalti in writing; (2) 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 or software, or any other actually or potentially harmful, disruptive, or invasive code or component; (3) access the Service for the purpose of performance testing or benchmark studies; (4) interfere with or disrupt the integrity or performance of any Service, or (5) sell, license, or exploit for any commercial purposes any use of or access to the Services.
1.3. Non-Tipalti Products and Services. Third parties may make available products or services, including, for example, software applications that interoperate with a Service, or implementation or other consulting services. Customer’s acquisition of such products or services, and any exchange of data between Customer and any third-party provider, product, or service is solely between Customer and the applicable third party. Tipalti does not provide any warranties regarding third party applications, products, or services, or their functionality or availability, whether they are designated by Tipalti as “certified” or otherwise. Tipalti is not responsible for any disclosure, modification, or deletion of data submitted to a Service to the extent resulting from access by such third party. Between Tipalti and Customer, Customer is responsible for any acts and omissions of such third parties, for the performance or nonperformance of the third-party product or service with respect to the Service, and for the effect it may have on Tipalti’s systems or the Services.
1.4. Integrations. The Services may contain features designed to interoperate with third party software applications. Tipalti cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation, including, without limitation, where the provider of a third-party application ceases to make the application available for interoperation with the corresponding Service features in a manner acceptable to Tipalti.
2.1. Accounts and Users. Tipalti shall provide Customer with login credentials to access the Services. Customer may grant Customer Users access to the Services only for Customer’s internal business purposes. Unless otherwise permitted by Tipalti, Customer shall not exceed the number of Customer Users that it has purchased under the applicable Order Form. Each Customer User must have their own login, and Customer and Customer Users shall not share login credentials with more than one person, or with any third party. If Customer exceeds the number of Customer Users purchased under the applicable Order Form, Tipalti will notify Customer, and charge the applicable Fees for all additional Customer Users (including any past uncharged Fees as a result of any additional Customer Users). Customer shall execute an additional Order Form for the Customer Users as promptly as practicable, and in any event within 30 days of Tipalti’s notification. Customer shall notify Tipalti if (1) any Customer User is no longer authorized to use the Services so that Tipalti can cancel their credentials, and (2) any Customer User believes their credentials may have been compromised. Customer assumes full responsibility for the use of its login credentials, its Customer Users’ compliance with this Agreement, and for all data submitted to the Service.
2.2. Single Sign-On. If Tipalti offers single sign-on capability, Customer may enable single sign-on (“SSO”) for Customer Users, wherein Customer shall use SSO authentication providers via a third-party application to manage login credentials to access the Services. If Customer enables SSO then (1) Customer is responsible for its SSO use and configuration and shall ensure that it and its SSO authentication provider uses two-factor authentication; (2) Tipalti is not required to provide two-factor authentication; and (3) Tipalti may, in its sole discretion and at any time without notice to Customer, discontinue the SSO configuration.
3.1. Fees. Customer shall pay Fees to Tipalti for the Services as stated in an Order Form or other agreements between the parties. Fees paid are not refundable. Tipalti may amend Fees by providing Customer with 30 days’ prior notice. Upon each renewal, unless Tipalti provides notice of different pricing at least 30 days prior to the applicable Renewal Term, Subscription Fees are subject to an automatic increase of the greater of (1) three percent, or (2) the yearly percentage increase of the Consumer Price Index (All Items, U.S. city average, all urban consumers, not seasonally adjusted, 1982-84=100) measured using the index published by the U.S. Bureau of Labor Statistics for the month prior to the month of renewal. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time discounts will be at Tipalti’s applicable list price in effect at the time of the renewal. In no event will the Subscription Fees for the Renewal Term be lower than the Subscription Fees for the previous Term.
3.2. Late Payment of Fees. If Customer does not pay Tipalti all Fees and any other amounts due under this Agreement within 30 days of the date on which they are due, then Tipalti may charge Customer interest for such time that the amount and all accrued interest remain outstanding at the lesser of: (1) one percent per month, or (2) the maximum rate permitted by Applicable Law.
3.3. Taxes. Customer 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.
4. Confidential Information.
4.1. Obligations. Each party acknowledges that it may directly or indirectly disclose Confidential Information (as defined below) to the other party during this Agreement. All such Confidential Information disclosed hereunder remains the sole property of the disclosing party (or other third party), and the receiving party does not receive any interest in, or rights with respect thereto, except as set forth herein. Each receiving party shall (1) treat the disclosing party’s Confidential Information with the same degree of care and security as it treats its own confidential information, but in no event with less than a reasonable degree of care; (2) not disclose the disclosing party’s Confidential Information to any third party except to its and its Affiliates’ directors, employees, contractors, and legal or financial advisors, who have a need to know the information for the purposes of this Agreement and who have agreed to or are otherwise bound by confidentiality obligations at least as restrictive as those herein; and (3) not use the disclosing party’s confidential information for any purpose outside the scope of this Agreement.
4.2. Disclosures. Notwithstanding the foregoing, a receiving party may share the disclosing party’s Confidential Information: (1) with a third party with the prior written consent of the disclosing party; or (2) if disclosure is required by Applicable Law or to comply with a subpoena, provided that the receiving party gives the disclosing party prompt written notice (to the extent permitted by law) of such legal requirement prior to the disclosure and provides the disclosing party reasonable opportunity to contest the requirement to disclose the Confidential Information.
4.3. “Confidential Information” means all proprietary, secret, or other data relating to the disclosing party, its Affiliates, or either’s operations, employees, products or services, clients, customers, or potential customers, that by its nature or the circumstances of disclosure a reasonable person would deem to be confidential. Confidential Information includes, but is not limited to, supplier lists, customer lists, bank or other account numbers, pricing information, computer access codes, login credentials, instruction and/or procedural manuals, Tipalti Content, and the terms and conditions of this Agreement. Information is not considered Confidential Information to the extent, but only to the extent, that such information is: (1) already known to the receiving party free of any restriction at the time it is obtained; (2) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (3) or becomes publicly available through no wrongful act of the receiving party; or (4) independently developed by the receiving party without reference to any Confidential Information of the other. The terms of this Agreement are deemed Confidential Information of the parties.
4.4. Duration of Confidentiality. The duty to protect the other party’s Confidential Information survives termination and expires seven years from the date of termination of this Agreement, except that all obligations regarding Confidential Information constituting a trade secret will remain in effect until the information ceases to be considered a trade secret under Applicable Law.
4.5. Authorized Uses. Notwithstanding any provision herein to the contrary, Customer authorizes Tipalti to collect, store, and use Customer’s Confidential Information and disclose it to its Affiliates, Tipalti Bank, and other suppliers, to perform and improve the Services under this Agreement or to assist its Affiliates in performing under any of their agreements with Customer, and as otherwise required by Applicable Law. Furthermore, Customer acknowledges that Tipalti may use aggregated and anonymized Customer data for Tipalti’s internal business purposes, such as research, development, and improvement of the Services.
5. Term and Termination.
5.1. Term. As specified in the Order Form, this Agreement is effective on the Effective Date, as defined in the Order Form, will remain in effect for the initial term, as set forth in the Order Form (the “Initial Term”) and renews automatically for additional and successive renewal terms, as set forth in the Order Form (each a “Renewal Term”). If the length of the Renewal Term is not specified in the Order Form, then each Renewal Term will be 12 months. The Initial Term, and each Renewal Term, if any, are referred to herein as the “Term”.
5.2. 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 30 days prior to the end of such Term.
5.3. Termination for Cause. Either party may suspend performance or terminate this Agreement if the other party is in material breach of this Agreement, and the breach is not cured within 30 days of being provided with written notice of the breach. 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 may immediately suspend performance or terminate this Agreement if Customer fails Tipalti’s ongoing compliance reviews, or Tipalti determines in its sole discretion that Customer’s use of the Services creates excessive regulatory, security, financial, or reputational risk.
5.4. No Limitation on Remedies. A party’s exercise of its termination rights for material breach does not restrict or diminish such party’s rights to other remedies available in connection with the material breach.
5.5. Effect of Termination. In the event of a termination of this Agreement, all rights to use the Service granted hereunder automatically terminate, and Customer shall pay all Fees owed to Tipalti for the balance of the current Term no later than 30 calendar days after the date of the termination, or the date the Fees are due, whichever is sooner. During the Term, Customer may download a copy of their transactional data directly from the Services and may request Tipalti’s reasonable assistance with this process at Customer’s expense.
6.1. General Warranties. Each party represents and warrants as of the Effective Date that: (1) it has the full corporate right, power and authority to enter into this Agreement; (2) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (3) the individual executing this Agreement on behalf of a party has authority to bind such party to this Agreement and the performance hereof. Tipalti represents and warrants to the best of Tipalti’s knowledge that, as of the Effective Date, the Services are not the subject of any claims of intellectual property infringement from a third party.
6.2. Disclaimer. TIPALTI MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES UNDER THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITATION, TIPALTI MAKES NO REPRESENTATION THAT USE OF THE SERVICES WILL RESULT IN ANY IMPROVEMENT IN THE BUSINESS OF CUSTOMER OR ITS RELATIONSHIPS WITH SUPPLIERS. TIPALTI’S TAX AND REGULATORY FEATURES ARE PROVIDED SOLELY FOR CUSTOMER’S CONVENIENCE AND ARE NOT INTENDED TO PROVIDE TAX OR LEGAL ADVICE. FOR SUCH ADVICE, CUSTOMER MUST CONSULT AN ACCOUNTANT OR ATTORNEY, AS APPLICABLE. WHEN PROVIDING THE TAX COMPLIANCE SERVICES, TIPALTI IS NOT ACTING AS A WITHHOLDING AGENT ON CUSTOMER’S BEHALF. NO REPRESENTATION MADE ON THE TIPALTI WEBSITE, A TIPALTI USER GUIDE, WIKI, OR OTHER ADVERTISING OR SUPPORT MATERIALS OR CORRESPONDENCE WILL BE CONSTRUED AS A REPRESENTATION UNDER THIS AGREEMENT.
7. Intellectual Property.
7.1. Ownership. Tipalti retains all rights, title, and interest in the Services and Tipalti Content, including any intellectual property rights contained therein and any derivatives thereof. Each party retains all right, title, and interest in its products and services including any intellectual property rights contained therein and any derivatives thereof (for each, their “Property”). All use of Property inures to the benefit of the owning party. Neither party shall seek to register, record, obtain, or attempt to pursue any intellectual property or other proprietary rights or protections in or to the other party’s Property. All rights to Property not expressly granted in this Agreement are reserved. 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 remove, obscure, or alter any notices of intellectual property rights or disclaimers appearing in or on any materials provided by the other party.
7.2. “Feedback” means any suggestion or idea for improving or otherwise modifying Tipalti’s products or services. Nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Tipalti’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback. Tipalti has no obligation to compensate or credit Customer or the individual providing such Feedback.
8.1. Customer shall indemnify, defend, and hold Tipalti, its parent, Affiliates, officers, directors, and employees harmless from and against any third-party lawsuit, claim, liability, loss, penalty, or other expense (including attorneys’ fees and cost of defense) arising from Customer’s (1) breach of this Agreement, and (2) violation of Applicable Law.
9. Limitation of Liability
9.1. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY 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 CUSTOMER’S DIRECT DAMAGES IN AN AMOUNT NO GREATER THAN THE FEES PAID BY CUSTOMER TO TIPALTI HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
9.2. ALL LIMITATIONS OF LIABILITY IN THIS AGREEMENT APPLY: (1) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (2) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE), STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
10.1. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all prior discussions, agreements, promises and correspondence, whether oral or written, regarding the subject matter hereof, including without limitation any memorandum of understanding between the parties.
10.2. Assignment. Customer shall 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 consent will be null and void. Tipalti may assign any of its rights or obligations hereunder to a third party on notice to Customer provided that the successor in interest to Tipalti assumes the corresponding obligations of Tipalti hereunder and is not a competitor to Tipalti.
10.3. 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 Customer.
10.4. No Waiver. No failure, delay, or 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.
10.5. Severability. If any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement will not be affected, and the unenforceable provision will be enforced to the maximum extent permissible under Applicable Law. Nothing in this Agreement will be construed or be deemed to create any rights or remedies in or for the benefit of any third party.
10.6. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. A scanned or faxed version of this Agreement will be deemed as an acceptable original thereof.
10.7. Force Majeure. Except for the obligation to pay Fees, 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 service providers, 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.
10.8. Governing Law, Binding Arbitration, and Waiver of Jury Trial.
|Customer Domiciled In||Governing Law||Venue||Arbitration Rules|
|US and Rest of World (except for UK)||California||San Francisco||Judicial Arbitration and Mediation Services, Inc. (JAMS)|
|UK||England and Wales||London||International Chamber of Commerce (ICC)|
(a) This Agreement is governed by the law of the location specified in the table above according to the location of the Customer, without giving effect to its conflicts of laws rules.
(b) Any dispute, claim or controversy arising out of or relating to this Agreement or to the use of the Services will be settled by binding arbitration in accordance with the rules specified in the table above, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction. THE PARTIES EACH WAIVE THE RIGHT TO A TRIAL BY JURY.
(c) If for any reason a dispute relating to this Agreement is deemed outside the scope of this agreement to arbitrate, or if this agreement to arbitrate is deemed unenforceable, to that extent, such legal suit, action or proceeding shall be instituted exclusively in a court of competent jurisdiction located in the venue specified in the table above according to the location of the Customer.
(d) 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 limitations of liability in this Agreement as to the types and the amounts of damages for which a party may be held liable.
10.9. Notices. All notices and other communications required or permitted hereunder to be given to a party to this Agreement must be in writing and sent by mail and email to the addresses specified below. Any notice sent by mail in accordance with this section will be effective the later of the day it is received, or five days after the day it is sent. Any notice by email in accordance with this section will be effective on the date received if received by 5:00pm PT on a business day, or the next business day if received otherwise. Any notice of default must be sent by courier to the addresses specified in this section, with proof of delivery. Customer shall provide notices to Tipalti at the following address: 1810 Gateway Drive, Suite 300, San Mateo, California, 94404 with a copy to [email protected]
10.10. Personal Information.
(a) Tipalti’s processing of personally identifiable information or personal data, as that term is defined under the EU General Data Protection Regulation 2016/679 (“GDPR”), or otherwise under Applicable Law, received by Tipalti in connection with the Services is governed by the terms and conditions of the Tipalti Data Processing Addendum (“DPA”) located at www.tipalti.com/legal. Each party shall comply with the DPA. For the purposes of GDPR, Tipalti is a processor in connection with providing the Services under the Agreement to the Customer. Separately, where Tipalti processes personal data for an independent purpose to fulfill its own legal obligations, Customer and Tipalti are each separate controllers. Furthermore, the parties acknowledge that Tipalti may use anonymized and aggregated data for the improvement of the Tipalti Services.
10.11. Survival. Sections 4, and 7 through 11 (inclusive) of this Agreement survive termination of this Agreement, as well as any other sections that by their nature, or in accordance with Applicable Law, would reasonably be expected to survive.
“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 means ownership of half or more of the voting interests in an entity.
“Applicable Law” means all applicable laws, statutes, codes, ordinances, orders, rules, whether domestic or foreign, plus all judgments, orders, writs, injunctions, decisions, rulings, and awards of any government authority having jurisdiction.
“Customer User” means an employee or agent of Customer that Customer permits to use the Services for the benefit of Customer’s business, and for whom user access has been purchased.
“Fees” means all fees payable to Tipalti in consideration of the Services, including, without limitation, Subscription Fees, Transaction Fees, and other fees stated in the Order Form or otherwise.
“Order Form” means the Tipalti order form indicating the Services that Customer ordered, the applicable Fees, and additional terms.
“Schedule” means any amendments, exhibits, schedules, or addendums, or other agreements entered into by the parties.
“Services” means all software services offered by Tipalti and all other websites, features, functionalities, and capabilities, plus all updates, upgrades, and other versions of the services made generally available by Tipalti, but excluding any payment or electronic money services.
“Subscription Fee” means the total per-unit or other Fee for access to a particular Service during the Term as stated in the Order Form.
“Substantial Change” means any change which imposes material additional obligations on Customer or takes away any material rights of Customer.
“Tipalti” means Tipalti, Inc. for all customers and all Services except as follows: (1) Tipalti Europe Ltd for all Services provided to Customers in the United Kingdom.
“Tipalti Content” means any information, pictures, videos, text, graphics, software programs or code used or made accessible by Tipalti in connection with the Services or collected by or on behalf of Tipalti related to the usage of the Services.
“Transaction” means a unit-based consumption of the Service, where permitted by the Service.
“Transaction Fee” means the Fees payable per Transaction or certain related processes, as stated in the Order Form.