TIPALTI SERVICES AGREEMENT
This Tipalti Services Agreement, including any Schedules, Order Forms, and any other applicable agreements located at www.tipalti.com/legal forms the agreement (“Agreement”) between Tipalti and its customer (“Customer”) and governs Customer’s use of the Tipalti 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. How this Agreement Applies
This Agreement governs Customer’s use of and access to all Services made available by Tipalti. Depending on the Tipalti entity who is providing the Services, additional terms located in a Schedule will also apply.
If Customer contracts with Tipalti Europe Ltd, the Schedule titled “UK Services Schedule” applies.
If Customer contracts with Tipalti, Inc. and/or Tipalti Payments, Inc., the Schedule titled “Standard Services Schedule” applies.
2.1. 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.
2.2. 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.
2.3. 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.
2.4. 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.
3.1. 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. Customer shall comply, and shall ensure that Customer Users comply, with the Compliance and Acceptable Use Policy located at www.tipalti.com/legal in their use of the Services.
3.2. Go Live Date. Subject to the terms of this Agreement, Tipalti shall provide Customer with the applicable Payment Services beginning on the Go-Live Date. Tipalti may amend the Go-Live Date by providing Customer with prompt notice if (1) its initial compliance onboarding of Customer is not complete; (2) Tipalti determines that the technical integration with Customer systems is not complete; or (3) Tipalti determines that not doing so would expose either party to security, financial or reputational risk.
3.3. Single Sign-On. 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.
4. Funding and Transacting
4.1. Tipalti Account. Customer shall supply the necessary Funds to its Tipalti Account to satisfy all obligations to Tipalti in connection with the Payment Instructions and use of the Services. If Customer or a Customer Affiliate has an insufficient balance in their Tipalti Account, Customer shall provide additional Funds to its Tipalti Account, and Tipalti may offset such amounts from any Tipalti account owned or controlled by Customer.
4.2. Completing Transactions. Customer shall submit Payment Instructions to Tipalti either concurrently with, or prior to, sending Tipalti the corresponding Funds. Tipalti has no obligation to send payments to Payees until Tipalti is in receipt of the Funds for the payment and associated Transaction Fees. Tipalti’s obligations under this Agreement for each Transaction will be deemed satisfied when Funds transfer from the Tipalti Bank to the Payee’s bank, payment service provider, or financial institution.
4.3. Cancellation. Customer will not be able to cancel Payment Instructions once it has confirmed them. However, if Customer asks Tipalti to cancel Payment Instructions, Tipalti may take reasonable efforts to try to stop the Transaction or recover the Funds, but it is not responsible if it is unable to do so.
4.4. Refusal. Tipalti is under no obligation to initiate or complete Transactions where Tipalti determines that: (1) it has incorrect or incomplete Payment Instructions or Payee Information; (2) Transactions exceed transaction limits; or (3) the Transaction appears suspicious or in violation of this Agreement or Applicable Law.
5.1. Payee Access. Tipalti will provide all Payees with a free account from which to access the Payee Portal. Customer may integrate the Payee Portal on the Customer website to allow Payees to submit Payee Information.
5.2. Payee Information. Between Tipalti and Customer, all Payee Information collected on behalf of the Customer is owned by Customer. Customer shall obtain, or cause Payees to provide, correct and complete information as Tipalti may require, and shall immediately notify Tipalti of any incorrect Payee Information, Payment Instruction or other information provided to Tipalti. Customer is responsible for all liability arising out of incorrect or incomplete Payee Information or other information provided to Tipalti.
6.1. 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.
6.2. Payment Method. Where a preferred payment method is stated in the Order Form, Tipalti shall first attempt to obtain payment of Fees by that method. However, Customer hereby authorizes Tipalti to charge any applicable Fees to the Tipalti Account. Tipalti may also require payment of Fees by any of the following means: (1) ACH Debit from Customer DDA pursuant to the Customer ACH Consent; or (2) charges to Customer Credit Card if authorized by Customer.
6.3. 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.
6.4. 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.
6.5. Payee and Customer Bank Fees. All fees and expenses charged by Payee’s bank and intermediary banks used by the Payee bank are the responsibility of Customer or the Payee (as applicable), and not Tipalti. Customer is responsible for fees charged by its Customer’s DDA or other third parties supplying services to Customer.
6.6. Currency Conversions. If Customer requests a currency conversion, a currency conversion fee (spread) will be included in the exchange rate. Exchange rates may fluctuate and are determined by the Tipalti Bank at the time it processes the conversion. If a currency conversion is included in the Payment Instructions, Tipalti estimates the exchange rate. If the estimate is lower than the actual exchange rate at the time of payment, Customer shall pay the deficit. If the estimate is higher, any overage will remain in the Tipalti Account.
7. Confidential Information.
7.1. 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.
7.2. 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.
7.3. “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.
7.4. 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.
7.5. 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 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.
7.6. Records. Tipalti shall collect, store, and use Records for the purpose of providing the Payment Services and in accordance with Applicable Law, and make Records available to Customer through the Payor Dashboard. “Record” means a record of a Transaction, whether successful or rejected, including but not limited to the amount of Funds, Customer information, Payee Information, Payment Instructions, and other Transaction information.
8. Term and Termination.
8.1. Term. As specified in the Order Form, this Agreement is effective on the Effective Date, will remain in effect for the initial term (the “Initial Term”), and renews automatically for additional and successive renewal terms (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”.
8.2. 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.
8.3. 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.
8.4. 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.
8.5. 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.
9.1. 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.
9.2. Customer Warranties. Customer represents and warrants that: (1) it will use the Services only for its internal business purposes only and not for personal, family, or household purposes; (2) it has full and exclusive right, title, and interest in Funds; (3) it will resolve any dispute or complaint directly with the each Supplier that may arise; (4) its use of the Services is and will remain in compliance with this Agreement and Applicable Laws.
9.3. Accurate Information. Customer represents and warrants that all forms, due diligence questionnaires, and correspondence provided by Customer in association with this Agreement or the use of the Services, including but not limited to the Tipalti KYC Data Gathering Forms, plus updates to any of the foregoing, are complete and accurate. Customer shall provide Tipalti with prompt written notice of any material changes to the information provided to Tipalti, including the Tipalti KYC Data Gathering Form.
9.4. 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.
10. Intellectual Property.
10.1. 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.
10.2. “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.
11.1. 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, (2) violation of Applicable Law, (3) usage of the Services from Customer’s login credentials, and (4) Supplier dispute of any kind.
12. Limitation of Liability
12.1. 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.
12.2. TIPALTI SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED DIRECTLY OR INDIRECTLY BY: (1) AN ACT OR OMISSION OF CUSTOMER, ITS AFFILIATES, A SUPPLIER, OR A THIRD PARTY; (2) CUSTOMER’S USE OF AN SSO AUTHENTICATION PROVIDER OR CUSTOMER’S FAILURE TO IMPLEMENT TWO-FACTOR AUTHENTICATION; OR (3) DELAYS, DISRUPTIONS, OR BUGS IN THE SERVICES OR SOFTWARE.
12.3. IF CUSTOMER ACCESSES THE PAYMENTS SERVICES, THE FOLLOWING APPLIES: NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF LOST FUNDS, TIPALTI IS RESPONSIBLE FOR THE FULL AMOUNT OF ANY LOST FUNDS AS INDICATED ON THE CORRESPONDING TIPALTI RECEIPT. TIPALTI SHALL NOT BE LIABLE FOR ANY: (1) INCORRECT OR INCOMPLETE PAYMENT INSTRUCTIONS, PAYEE INFORMATION, OR OTHER INFORMATION PROVIDED TO TIPALTI; OR (2) SUSPENSION OF THE SERVICES BY TIPALTI OR ONE OF ITS BANKING OR OTHER FINANCIAL SERVICES PROVIDERS ON THE BASIS OF ITS LEGAL, COMPLIANCE OR RISK POLICIES.
12.4. 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.
13.1. Language; Complaints. The language of this Agreement is English. Information Tipalti provides to Customer will be in English. If Customer has a complaint, it must first contact Tipalti by email to: [email protected] or by post to: Tipalti Operations, 1810 Gateway Drive, Suite 300, San Mateo, California, 94404.
13.2. Assignment. Either party may assign this Agreement to a successor entity in the event of a merger, acquisition, or corporate reorganization, provided that (1) if Customer is the assigning entity, the assignee company must be approved by Tipalti’s compliance department (as required by law) prior to use of the Services, and must not be a competitor of Tipalti, and (2) the assigning entity must provide the other entity with written notice of the assignment. In such an event the other party may terminate this Agreement within 30 days of receipt of notice of assignment. Except as expressly permitted in this section, Customer shall not assign this Agreement without Tipalti’s prior written consent, and any purported assignment without such consent will be null and void.
13.3. 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.
13.4. 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.
13.5. 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.
13.6. 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.
13.7. 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.
13.8. 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.
13.9. Governing Law, Binding Arbitration, and Waiver of Jury Trial.
|Tipalti Contracting Entity||Governing Law||Venue||Arbitration Rules|
|Tipalti, Inc. and/or Tipalti Payments, Inc.||California||San Francisco||Judicial Arbitration and Mediation Services, Inc. (JAMS)|
|Tipalti Europe Ltd.||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.
13.10. 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]
13.11. 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.
13.12. Survival. Sections 1, 6, and 7 through 14 (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.
For the purposes of this Agreement, the following terms have the meanings set out below:
“ACH Debit” means a method of funding the Tipalti Account and/or paying Fees directly from the Customer 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 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 ACH Consent” means that authorization by the Customer to Tipalti to debit and credit the Customer DDA.
“Customer DDA” means a bank account owned by Customer and used for funding the Tipalti Account.
“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, fees for attempted or completed Transactions, and other fees stated in the Order Form or otherwise.
“Funds” means Customer money held in the Tipalti Account.
“Go-Live Date” means a date after Customer passes Tipalti’s initial compliance review and the Services are first made available to Customer to send payments.
“Lost Funds” means non-delivery of Transaction Funds due to Tipalti’s incorrect execution of Payment Instructions in breach of this Agreement.
“Money Transmission Services” means a Service where Tipalti acts on behalf of Customer by taking possession of Funds and transmitting those Funds to Payees as a money transmitter.
“Order Form” means the Tipalti order form including the Services that Customer ordered.
“Payee” means a person or business (1) with whom Customer has a pre-existing contractual relationship; (2) who has provided a product or service to Customer; and (3) who will be the recipient of a payment made by the Payor through Tipalti’s Payment Services.
“Payee Information” means identification information, payment information, tax information, and all other related information collected through the Services as required for Customer’s usage of the Services.
“Payee Portal” means an internet portal provided by Tipalti to the Payees, from which the Payee may access and use the Services.
“Payment Instructions” means instructions and all relevant information provided by the Payor to Tipalti and required by Tipalti to execute payments to the Payees through the Payment Services.
“Payment Processing Services” means a Service where Tipalti is appointed by the Payee as its agent for the limited purpose of accepting payments on its behalf.
“Payment Services” means Services which enable Customer to make payments to Payees, including but not limited to Money Transmission Services, and Payment Processing Services.
“Payor Dashboard” means the portal through which Customer accesses the Services.
“Registration Information” means the Payee’s personal information collected by Tipalti in order for the Payee to register for and use the Payee Portal. Registration Information does not include any information related to the Transactions between the Customer and the Payee, or any other Customer Confidential Information.
“Schedule” means any amendments, exhibits, schedules, or addendums, or other agreements entered into by the parties.
“Services” means all services offered by Tipalti including, but not limited to, the Payment Services, Payor Dashboard, Payee Portal, and all other websites, features, functionalities, and capabilities.
“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.
“Supplier” means each Payee, and each additional person or business whose information is entered into the Services as a vendor of Customer.
“Tipalti” means Tipalti, Inc. for all customers and all Services except as follows: (1) Tipalti Payments, Inc. for Money Transmission Services provided to Customers in California, and (2) Tipalti Europe Ltd for all Services provided to Customers in the United Kingdom.
Tipalti, Inc. and Tipalti Payments, Inc. are located at 1810 Gateway Drive, Suite 300, San Mateo, CA 94404.
Tipalti Europe Ltd is located at 15 Alfred Place, London WC1E 7EB United Kingdom.
“Tipalti Account” means Customer’s account with Tipalti through which the Services are provided.
“Tipalti Bank” means a bank or financial institution where Tipalti maintains customer Funds.
“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.
“Tipalti KYC Data Gathering Form” means such forms, questionnaires, and correspondence as Tipalti may require Customer or its Affiliates to complete or provide prior to or during the Term hereof to gather information concerning the Customer.
“Transaction” means an actual or attempted payment or unit-based transaction.
“Transaction Fee” means the Fees payable per Transaction or certain related processes, as stated in the Order Form.
Standard Services Schedule
This schedule describes the additional terms and conditions applicable to Customers who contract Tipalti, Inc. and/or Tipalti Payments, Inc. If in conflict with any other part of the Agreement, this Schedule will control.
1. Making Payments.
1.1. Funding Method. Customer may fund its Tipalti Account by wire transfer, or directly from the Customer DDA through the usage of ACH Debits. If Customer chooses to fund its Tipalti Account by ACH Debit, or upon Tipalti’s request if Customer fails to pay any amount owed to Tipalti in accordance with the Agreement, the following will apply:
(a) Customer ACH Consent.Customer hereby authorizes Tipalti to process an ACH Debit from the Customer DDA in accordance with the applicable Payment Instructions, or otherwise for the amount owed to Tipalti. Customer may cancel this authorization by calling Tipalti support or providing a notice of written cancellation which must be received by Tipalti at least three days prior to any scheduled ACH Debit.
(b) Returned ACH Debit. If an ACH Debit is returned to Customer for any reason, Customer remains liable for all amounts that Tipalti sent pursuant to the Payment Instructions and any associated penalties and fees. Customer authorizes Tipalti to resubmit a returned ACH Debit to the Customer DDA.
(c) NACHA Rules. Customer shall comply with the NACHA Operating Rules when funding its Tipalti Account through ACH Debit. Tipalti may discontinue Customer’s usage of the ACH Debit method of funding the Tipalti Account.
1.2. Tipalti Account. All Funds received into the Tipalti Bank are held by Tipalti in a custodial capacity in an account for the benefit of Tipalti’s customers. Customer hereby appoints Tipalti as its agent with respect to Funds in the Tipalti Account.
1.3. Rejected or Returned Transactions. If a payment is rejected or returned by the Payee or the Payee’s bank or financial institution, or a correspondent bank or financial institution, then the Funds will be returned to the Customer’s Tipalti Account. Funds from rejected Transactions in any currency other than USD will be exchanged back to USD by the Tipalti Bank at the then-applicable exchange rate. Customer is responsible for all costs associated with rejected or returned Transactions, including but not limited to penalties and conversion fees.
2. California Companies. If Customer is a California company, Tipalti Payments, Inc. will provide Customer with the Money Transmission Services, and Tipalti, Inc. will provide Customer with the Payment Processing Services. Tipalti, Inc. will receive all payments as agent for the Payee so long as Customer provides 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, Customer sends Funds to Tipalti, Inc. 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 Customer’s benefit and used for future Money Transmission Services provided to Customer by Tipalti Payments, Inc. This section does not apply to companies that are not located in California.
UK Services Schedule
This schedule describes the additional terms and conditions applicable to Customers who contract with Tipalti Europe Ltd. If in conflict with any other part of the Agreement, this Schedule will control.
1.1. Opening a Tipalti Account. To open a Tipalti Account, Customer must be approved by Tipalti. Tipalti may request information about Customer’s business and may also use third party sources to obtain information.
1.2. Criteria for Using the Services. To use the Services, Customer must always satisfy all the following conditions: (1) Customer must use the Service for trade, business, or professional purposes only, and (2) Customer must not be a micro-enterprise, charity, or consumer where: “micro-enterprise” means an enterprise which, at the time this agreement is entered into, is an enterprise as defined in Article 1 and Article 2(1) and (3) of the Annex to Recommendation 2003/361/EC of 6th May 2003 concerning the definition of micro, small and medium-sized enterprises; “charity” means a body whose annual income is less than £1 million and is— (A) in England and Wales, a charity as defined by section 1(1) of the Charities Act 2011 (meaning of “charity”); (B) in Scotland, a charity as defined by section 106 of the Charities and Trustee Investment (Scotland) Act 2005 (general interpretation); (C) in Northern Ireland, a charity as defined by section 1(1) of the Charities Act (Northern Ireland) 2008 (meaning of “charity”); and “consumer” means an individual who is acting for purposes other than a trade, business or profession. If any of these conditions become unsatisfied, Customer shall notify Tipalti immediately and stop using the Service.
2. Making Payments
2.1. Electronic Money Services. For the purposes of the Agreement to which this Schedule applies, “Payment Services” also includes electronic money services provided to Customer by Tipalti.
2.2. Funding with Electronic Money
(a) Customer may add funds to its Tipalti Account by sending funds from a bank account that has been approved by Tipalti in advance. Funds may also be transferred to or from another Tipalti Account. When Tipalti receives funds for Customer Tipalti will credit the Tipalti Account with electronic money. Any electronic money held in the Tipalti Account is not a deposit, and Tipalti does not pay Customer any interest on the balance of any Tipalti Account.
(b) The amount of electronic money added to the Tipalti Account will be the same as the amount that Tipalti receives from Customer, or another customer who is transferring electronic money into your Tipalti Account.
(c) In certain circumstances, Tipalti may refuse to accept a payment into the Tipalti Account, for example, if Tipalti believes a regulatory requirement means Tipalti must reject it.
2.3. Payment Instructions
(a) Customer may submit Payment Instructions to make payments up to the available balance of the Tipalti Account by accessing the Payer Dashboard. By submitting Payment Instructions, Customer is asking Tipalti to first redeem electronic money in the Tipalti Account to the value of the Transaction plus any Fees. When Tipalti calculates the available balance, Tipalti takes into account the amount of any Transactions already scheduled but not yet completed.
(b) When Customer gives Tipalti Payment Instructions, Customer must include any information Tipalti requires to make the payment, including but not limited to Payee Information, the amount of the payment, and the date that the electronic money is to be redeemed so that the payment may be sent out.
(c) Tipalti may rely on the Payment Instructions provided by Customer or any Customer User and Tipalti has no liability for following any Payment Instruction.
2.4. Withdrawing Funds. Customer may withdraw funds from its Tipalti Account at any time by calling customer support and requesting a withdrawal. To withdraw the funds, Customer must first redeem its electronic money. Upon the withdrawal, Tipalti will return the funds to the same bank account Customer used to send Tipalti the funds.
2.5. Payment Timings
(a) Subject to section 2.5(c), (1) if Customer is paying a Payee in the United Kingdom in Sterling or euro, or in the European Economic Area in euro, the Payee’s financial institution will normally receive the funds by the end of the Business Day after Tipalti receives the Payment Instruction, and (2) payments to the UK in a currency other than Sterling or euro will normally be received by or before the end of the fourth Business Day after Tipalti receives the Payment Instruction. Payments to non-EEA countries, with the exception of the United Kingdom, or to EEA countries in currencies other than euro will normally take between 1 and 4 Business Days.
(b) If Customer sends a payment to a Payee who is also a customer of Tipalti, Tipalti will credit that account with electronic money as soon as Tipalti debits the funds from Customer’s Tipalti Account. Payees that have only a Payee Account will not receive electronic money.
(c) Tipalti must receive Payment Instructions before 3:00 p.m. London time on a Business Day. If Tipalti receives them after that time or on a non-Business Day, Tipalti will treat them as received on the next Business Day. If Customer asks Tipalti to make payments on a future date, Tipalti will treat the instructions as received on that date or the next Business Day if the indicated day is not a Business Day.
2.6. Trusted Beneficiary for Purposes of Strong Customer Authentication.
(a) In order for the Payee to register for a Payee Account, Customer must invite them to do so through a unique link that Customer will send to the Payee. When the Payee registers through the link and uploads its bank account details to the Payee Portal, Customer acknowledges that:
(1) On the uploading of such details the Payee is treated by Tipalti as a “trusted beneficiary” for purposes of the Customer’s Payment Instructions; and
(2) In making a payment for the Customer to the bank account details uploaded through the link, Tipalti will be deemed to have acted on the Customer’s Payment Instructions and will have no liability to the Customer or the intended Payee should such bank account details be incorrect.
2.7. 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 will be returned to the Tipalti Account as electronic money or used for payments to Tipalti subject to the Order Form. Funds from rejected Transactions will be exchanged back to their original currency by the Tipalti Bank at the then-applicable exchange rate prior to being returned as electronic money.
3. Payment Services Regulations
3.1. The provisions of Part 6 of the Payment Services Regulations including (without limitation) the following regulations do not apply in relation to the Agreement or the Service: regulations 43 (information required prior to the conclusion of a single payment service contract), 44 (information required after the initiation of a payment order), 45 (information required after receipt of the payment order), 46 (information for the payee after execution), 47 (avoidance of duplication of information), 48 (prior general information for framework contracts), 49 (information during period of contract), 50 (changes in contractual information), 51 (termination of framework contract), 52 (information prior to execution of individual payment transaction), 53 (information for the payer on individual payment transactions), 54 (information for the payee on individual payment transactions), 55 (communication of information), 56 (charges for information), 57 (currency and currency conversion), 58 (information on additional charges or reductions), 59 (burden of proof on payment service provider), 60 (information requirements for account information service providers), 61 (information on ATM withdrawal charges), and 62 (provision of information leaflet).
3.2. The following provisions of Part 7 of the Payment Services Regulations do not apply in relation to the Agreement or the Tipalti Service: regulations 66(1) (charges), 67(3) and (4) (withdrawal of consent), 75 (evidence on authentication and execution), 77 (payer or payee’s liability for unauthorised transactions), 79 (refunds for direct debits), 80 (requests for direct debit refunds), 83 (revocation of a payment order), 91 (defective execution of payer-initiated transactions), 92 (defective execution of payee-initiated transactions) and 94 (liability for charges and interest).
3.3. A period of 30 Business Days will apply instead of the time period set out in regulation 74(1) (notification of unauthorised or incorrectly executed payment transactions) of the Payment Services Regulations.
4. Unauthorised Transactions
4.1. Customer is responsible for all Transactions authorised using Customer’s login credentials and should check its Transaction history regularly and report any unauthorised Transactions to Tipalti.
4.2. Tipalti treats all Transactions made using Customer’s login credentials as authorised with Customer’s consent pursuant to regulation 67(1) and (2) (Consent and withdrawal of consent) of the Payment Services Regulations, unless Customer has asked Tipalti to block or remove authorisation of a Customer User or has previously notified Tipalti that the login credentials used to authorise the Transaction may be compromised (each an “unauthorised” Transaction).
4.3. Where a Transaction is deemed unauthorised under section 4.2, Tipalti shall refund the amount of the Transaction to the Tipalti Account, provided (1) Customer can produce sufficient evidence that the payment was unauthorised; and (2) Customer notifies Tipalti of the unauthorised Transaction within the timeframe provided in section 3.3.
4.4. Tipalti has no further liability to Customer for an unauthorised Transaction. Tipalti is also not responsible, and will not grant a refund, for unauthorised Transactions resulting from Customer’s fraudulent activity.
5. Third Party Rights
5.1. This Agreement does not confer any right or benefit under the Contracts (Rights of Third Parties) Act 1999 on any person who is not a party to the Agreement.
6.1. How Customer Can Contact Tipalti
(a) If Customer wants to get in touch with Tipalti for any reason, Customer can do so by:
(1) email at [email protected]; and/or
(2) post at our registered address of Elm Barn Stert Road, Kingston Blount, Chinnor, OX39 4SB, Oxfordshire, United Kingdom, or our trading address of 15 Alfred Place, London WC1E 7EB United Kingdom
If Customer disagrees with the decision Tipalti makes in relation to Customer’s complaint, Customer may be able to refer the matter to the Financial Ombudsman Service free of charge. The Financial Ombudsman Service provides a way of resolving disputes if Customer is unhappy with something Tipalti has done. Details are available from Tipalti on request or Customer can get further information at www.financial-ombudsman.org.uk.
6.3. How Tipalti Is Regulated
Tipalti Europe Ltd, Elm Barn Stert Road, Kingston Blount, Chinnor, OX39 4SB, Oxfordshire, United Kingdom. Registered in England & Wales, No.:12471817. Tipalti Europe Ltd is authorised by the Financial Conduct Authority as an Electronic Money Institution under the Electronic Money Regulations 2011. Our FRN (Firm Reference number) is 942778.
In addition to the defined terms in the Agreement, the following terms are defined for the purposes of this Schedule:
“Business Day” means Mondays to Fridays except public and bank holidays in England.
“Payment Services Regulations” means the Payment Services Regulations 2017 (S.I. 2017/752) as amended or replaced from time to time.
“Payee Account” means an account type offered only to Payees that does not include electronic money, payment services, or any other type of regulated financial services. A Payee Account allows Payees to use the Payee Portal to select payment preferences and provide necessary information to receive payments.