SAAS SERVICES AGREEMENT

 

By ticking this box you (the “Customer”) are agreeing to enter into this SaaS Services Agreement (“Agreement”) on the date on which you complete your purchase (the “Effective Date”), with BillForward whose place of business is 325 9th St, San Francisco, CA 94103 (“Company”), This Agreement includes and incorporates the Order Form, as laid out at https://www.billforward.io/pricing-us or https://www.billforward.io/pricing-uk as well as the below Terms and Conditions. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

 

TERMS AND CONDITIONS

1. SAAS SERVICES AND SUPPORT

1.1 Subject to the terms of this Agreement and Company’s payment of all applicable Fees (defined below), during the Term (defined below), Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

1.2 Payment Terms:

Monthly in Advance

1.3 Standard Support:

Weekdays 9am - 5pm EST. One business day response time by email. Online chat, phone and email

1.4 Subject to the terms hereof, Company shall provide Standard Support provided Customer is current in payment of any undisputed Fees and any support fees due for premium levels of support.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know­how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); sell, resell, license, sublicense, distribute, rent, or lease the Services or any Software or use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; remove any proprietary notices or labels; permit direct or indirect access to or use of the Services or any Software in a way that circumvents a contractual usage limit; copy the Services or any Software or any part, feature, function, or user interface thereof, frame or mirror any part of the Services or any Software, other than framing on Company’s own intranets or otherwise for Company’s own internal business purposes or as permitted in the Policy (defined below); or access the Services or any Software in order to build a competitive product or service.

2.2 Customer may not remove or export from the United States or allow the export or re­export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. 

2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4 Customer shall be responsible for obtaining, maintaining, and ensuring compatibility with the Services of any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non­public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non­public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing. No rights or licenses are granted except as expressly set forth in Section 1.1. Company reserves all rights not expressly granted in this Agreement.

3.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de­identified form in connection with its business

4. PAYMENT OF FEES

4.1 Customer will pay Company the then applicable fees for the relevant pricing tier, either “Start Up” or “Growth” as laid out at https://www.billforward.io/pricing-us or https://www.billforward.io/pricing-uk and in accordance with the terms therein (the “Fees”).  If Customer’s use of the Services exceeds the Monthly Processing Limit set as laid out in the product description or otherwise requires the payment of additional fees, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Platform Licence Fees will be paid monthly in advance. Monthly Processing Fees (if applicable), will be paid monthly in arrears. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit if any. Inquiries should be directed to Company’s customer support department.

4.2 Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

5. TERM AND TERMINATION

5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then ­current term.

5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or no notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6. WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e­mail of any scheduled service disruption. COMPANY PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY LAW AND EXCEPT AS PROVIDED IN THIS SECTION, COMPANY AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.

7. INDEMNITY

7.1 Company will defend or settle, at its option and expense, any third-party claim brought against Customer to the extent that it is based on an allegation that Customer’s use of the Services as permitted under this Agreement infringes a patent, copyright, or trademark or misappropriates a trade secret of any third party (each, a “Claim”), and, subject to Section 8, Company will pay all damages and costs (including reasonable legal fees) finally awarded by a court of final appeal attributable to such a Claim, provided that Customer notifies Company in writing of any such Claim as soon as reasonably practicable and allows Company to control, and reasonably cooperates with Company in the defense of, any such Claim and related settlement negotiations.

7.2 Customer understands that Company has no obligation to indemnify Customer for any Claim that is based on (i) modification of the Services by any party other than Company; (ii) Customer’s use of the Services other than as authorized by this Agreement and the Policy; (iii) Customer’s failure to use updated or modified Services that Company makes available to Customer that would have avoided or mitigated the Claim; (iv) Customer’s failure to stop using the Services after receiving written notice to do so from Company in order to avoid further infringement or misappropriation; or (v) the combination, operation, or use of the Services with equipment, devices, software, systems, or data that Company did not supply (subparts (i)-(v) are referred to collectively as “Indemnity Exclusions”).

7.3 If Customer’s use of the Services is, or in Company’s reasonable opinion is likely to be, subject to a Claim under Section 7.1, Company may, at its sole option and at no charge to Customer (and in addition to Company’s indemnity obligation to Customer in Section 7.1): (i) procure for Customer the right to continue using the Services; (ii) replace or modify the Services so that it is non-infringing and substantially equivalent in function to the original Services; or (iii) if options (i) and (ii) above are not commercially practicable in Company’s reasonable estimation, Company can terminate this Agreement and all licenses granted hereunder (in which event, Customer will immediately stop using the Services) and refund the Fees that Customer paid for the then-current Term.

7.4 This Section 7 sets forth Company’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to claims of infringement or misappropriation of third-party intellectual property rights.

7.5 Except to the extent that Company is obliged to indemnify Customer in Section 7.1 above, Customer will defend, indemnify, and hold Company harmless from and against any claims that may arise out of or be related to or connected with Customer’s use of the Services (including, without limitation, any Indemnity Exclusion).

 

8. LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY OR ANY OF ITS SUPPLIERS OR LICENSORS HAVE ANY LIABILITY TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFIT, REVENUE, OR DATA, INTERRUPTION OF USE, INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER FOR THE 12 MONTHS PRECEDING THE CLAIM.  THE PARTIES AGREE THAT THIS SECTION 8 REPRESENTS A REASONABLE ALLOCATION OF RISK.

 

9. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous and contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure, and power failures. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e­mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco, CA and the parties irrevocably consent to personal jurisdiction and venue therein. This Agreement may be executed electronically and simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.