These General Terms of Service (these “Terms”) apply to any Services (as defined herein) and are incorporated into and made a part of any services agreement (the “Services Agreement”) between OneNetworks, Inc. (dba Finexio), a Delaware corporation (“Finexio”), and each customer (“Customer”) for whom Finexio provides Services (each of Finexio and Customer, a “Party” and, collectively, the “Parties”). Customer represents and warrants that it has the right and authority to enter into the Services Agreement and to accept these Terms. These Terms are effective as of the earlier of any Effective Date specified in the applicable Services Agreement or when Finexio provides any Services to Customer. These Terms govern Customer’s use of or interactions with Finexio’s products, services, or other offerings (collectively, the “Services”), including but not limited to Finexio’s bill payment service, Finexio’s finance solutions, Finexio’s international payments service, the Finexio websites (each a “Website”), Customer’s Finexio account and/or any other services, features, functionalities, offers or promotions of Finexio. The Services provided to Customer by Finexio are also subject to Finexio’s policies and procedures, as amended from time to time, and Applicable Law. In the event of any conflict between these Terms and any other Services Agreement terms, such other Services Agreement terms shall control to the extent of such conflict. By signing a Services Agreement or utilizing any Services, Customer agrees to these Terms on behalf of itself and any user of the Services in Customer’s name or on its behalf.
1. Definitions: Except as otherwise specifically indicated, capitalized terms used herein have the meanings set forth in Appendix A to these Terms.
(a) Finexio is engaged in the business of providing accounts payable services. The services offered by Finexio include: (i) Payment generation, routing and processing services for payments to Suppliers; (ii) generation of remittance files; (iii) implementation and professional services; (iv) marketing campaigns to enroll Suppliers, including any marketing materials provided by Finexio; (v) customer support and account management services; and (vi) any other services offered from time to time by Finexio in connection with any of the foregoing (which are collectively among the Services).
(b) Finexio will establish, maintain, and provide certain Technology that will be used to facilitate the provisioning of the Services (“Platform”). Customer acknowledges that any access or use of the Platform or any related features, functionality or Services by Customer or any Supplier will be subject to applicable terms and conditions as determined by Finexio in its sole discretion. Finexio may terminate the ability of any Supplier to access or utilize the Platform at any time in its sole discretion.
(c) Finexio may retain and utilize the services of one or more subcontractors or other third parties (each a “Subcontractor”) to perform any of Finexio’s duties or obligations under these Terms, or any other services on its behalf, including software maintenance services, advertising serving technologies, e-mail service providers, Payment processing services, database management, web analytics and other services.
(d) Customer acknowledges and agrees that Finexio will not bear any responsibility or liability with respect to any act or omission of any Supplier, including any fraud, or any act or omission of Supplier or its Affiliate(s), or any of their respective owners, shareholders, partners, employees, agents, representatives or contractors. Customer will at all times ensure that all data furnished to Finexio in connection with these Terms, including all Customer Data, is complete and accurate in all respects. Customer will not use any portion of the Services for any illegal transaction or activity under Applicable Law.
(e) Customer is solely responsible for determining and calculating any and all taxes and duties, including sales, use, transfer, value added, withholding, income, and other taxes and/or duties (“Taxes”) assessed, incurred, or required to be collected, paid, or withheld in connection with amounts received by Customer in connection with the Services, and for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority.
(f) All data transmissions conducted between the Parties pursuant to these Terms shall be conducted in such manner and form as specified in any technical specifications and processes provided by Finexio to Customer from time to time.
(g) From time to time, Customer may request additional Services from Finexio, and except as otherwise provided herein, to the extent mutually agreed, the Parties may thereafter enter into an addendum to the Services Agreement referencing the terms for such Services.
(h) Finexio may change any features, functions, brand, third-party provider, or attributes of a Service, or any element of its systems or processes, from time to time, in its sole discretion. Customer shall not rely on the identification of specific brands associated with or names of third-party providers of a Service as an obligation of Finexio to use any particular brand or third-party provider.
(i) The Services should not be used to pay federal, state, or local taxes, to pay court-ordered fees, or to make any payments to governmental entities principally charged with the promulgation of legislation or regulations, law enforcement, or regulatory supervision. Without limiting the generality of the foregoing, the Services are also not intended for payment of alimony, child support, or other court-directed, governmental fines or penalties, payments to settle securities transactions, or payment in connection with gambling, fraudulent or illegal activities. Finexio will not be liable for penalties, interest, or other damages of any kind if Customer tries to use the Services to remit or pay money for such purposes or for any purposes that do not comply with Applicable Law.
(j) Finexio may reject Payment Instructions with or without cause or prior notice. If it does, Finexio will attempt to notify Customer of the rejection orally, electronically or in writing before the applicable Processing Date.
(k) Customer is responsible for designating a Processing Date that will result in a Payment being made before the date the Payment is due (the “Payment Due Date”). To ensure that critical or time-sensitive Payments are received on time, Customer should consider establishing Processing Dates that are well in advance of the Payment Due Date. Payment requests received by Finexio after the Cutoff Time on a Business Day or at any time on a non-Business Day will be deemed received on the next Business Day.
(l) Finexio will continue to originate recurring Payments through the expiration date Customer originally scheduled for such Payments unless Customer cancels a recurring Payment prior to the applicable Cutoff Time for such cancellations, if any, as provided herein.
(m) The Platform may from time to time provide Customer with access to, or utilize the services of, third parties whose services are provided on terms and conditions that Finexio does not control. Except as expressly set forth herein, Finexio has no liability for such services and no control over the terms and conditions on which they are made available to Customer, which terms and conditions Customer agrees to accept as a condition of receiving such services. Without limiting the generality of the foregoing, by accessing and/or using any cross-border Payment services pursuant to these Terms or the Platform, Customer agrees to be bound by the terms and conditions of any third party provider designated by Finexio to provide cross-border Payment services pursuant hereto.
2.2 Appointment as Agent
(a) Customer hereby:
(i) Appoints Finexio as Customer’s authorized agent for the purposes of providing the Services and performing any additional duties as set forth herein (including contacting Customer’s Suppliers on behalf of Customer for purposes of receiving the Services), and Customer hereby accepts such appointment;
(ii) Authorizes and directs Finexio to instruct Bank to establish and maintain a bank account for the benefit of Customer and to accept instructions from Finexio on the movement of funds to and from that account, and agrees that this account(s) may either be a pooled custodial deposit account among Customers, individual deposit account, or a sub-account associated with a pooled custodial deposit account, in each case at Finexio’s sole discretion (such account, the “FBO Account”), and Customer agrees to fully cooperate in providing Finexio, upon request, with all Customer information required to establish the FBO Account in accordance with the guidelines of the Bank.
(iii) Authorizes Finexio to provide instructions (including but not limited to Payment Instructions) to Bank on behalf of Customer as necessary to transfer funds to or from the FBO Account as contemplated herein or otherwise specified by Customer from time to time; and
(iv) Covenants and agrees to execute and deliver such instruments and take all such other actions as may be reasonable or necessary in order to give effect to the intent of the foregoing.
(c) Customer agrees at all times to ensure that the applicable FBO Account has available funds on deposit sufficient to complete Payments pursuant to these Terms. Funds availability for this purpose will be subject to the availability policies and procedures and other requirements of the financial institution or institutions at which such FBO Account is maintained (or other third parties), including but not limited to the maintenance of funds on reserve or other forms of security, required processing periods in advance of any Payment, and processing cut-off times. Customer promises and agrees to hold harmless, protect and indemnify Finexio from and against any and all liabilities, obligations, costs, losses, damages, expenses, charges, fines, penalties, fees, and demands, including but not limited to attorneys’ fees and expenses of litigation, which may be incurred by, imposed upon, or assessed against Finexio and its officers, directors, employees, agents, Subcontractors, service providers, and other representatives in any way based on or in relation to such policies and procedures and other requirements; to pay all costs, expenses and attorneys’ fees incurred in enforcement of such promise and agreement; and to pay to or on behalf of Finexio any all such amounts immediately upon demand. Without limiting the generality of the foregoing or the other provisions for indemnification hereunder, Customer agrees that it will be responsible for all costs and expenses relating to all non-sufficient funds (“NSF”) or funds transfer recall, return, or reversal occurring in connection with Finexio’s delivery or attempted delivery of the Services for on or behalf of Customer. Finexio reserves the right to, at its sole discretion, suspend current transactions not yet disbursed, prevent future transactions from being disbursed, and cancel outstanding Payments in order to remedy any funding shortfall or other breach of these Terms by Customer. Except as expressly provided by these Terms, Finexio is under no obligation to cancel, reverse, or recall any funds transfers that Customer has instructed to be made into or out of the FBO Account (and shall not be responsible for interest or related losses in connection with such transfers), and if Finexio does in its sole discretion attempt to cancel, reverse, or recall such transfers, Customer agrees to reimburse Finexio for any expenses, losses, or damages it incurs in effecting or attempting to effect such cancellation, reversal, or recall.
2.3 Additional Responsibilities
(a) Customer shall be solely responsible, at its sole expense and in accordance with format and transmission specifications defined by Finexio, for the transmission of any information, data, records or documents (collectively, “Customer Data”) necessary for Finexio to perform a Service, and shall bear any risk of loss resulting from that transmission. If Customer directs Finexio to disclose Customer Data to a third party, Customer authorizes Finexio to complete such disclosure, represents and warrants to Finexio that it has the legal authority to do so, and shall bear any risk of loss or liability associated with that disclosure. In addition, Finexio shall be held harmless from any claim resulting from the third party’s use of that Customer Data, and Finexio may, in its discretion, require the third party to enter into a written agreement with Finexio governing disclosure of that Customer Data.
(b) Customer will designate an employee as a primary contact relating to the Services (“Primary Contact”). Customer may change the individual designated as Primary Contact by providing notice to Finexio, and such change will take effect once Finexio has actually received such notice and had a reasonable period of time to act on it. The Primary Contact shall be responsible for providing any information required by Finexio as described herein and for initial attempts to work with Finexio to resolve any disputes that arise in connection with the Services. Finexio may also permit Customer to designate authorized representatives and other users with distinct Platform access and Service permissions, and Customer acknowledges that it is responsible for administering such user access and permissions and that Finexio is entitled to rely on any associated user designations that Customer may make or permit.
(d) If Customer is a “Covered Entity” as defined under the Health Insurance Portability and Accountability Act of 1996, as amended, and regulations promulgated thereunder (“HIPAA”), and Customer may be disclosing to Finexio any “Protected Health Information” as defined under HIPAA, the Parties agree (i) to enter into a separate Business Associate Agreement as required by HIPAA prior to Customer’s disclosure to Finexio of any such information, and (ii) that such Business Associate Agreement shall remain in full force and effect at all times during the Term.
(e) Finexio may disclose individually identifiable information to its Subcontractors that have agreed to confidentiality obligations consistent with these Terms, subject to any additional obligations of Finexio pursuant to a Business Associate Agreement.
(f) Finexio will use commercially reasonable security measures to protect Customer Data against unauthorized disclosure or use.
(g) Finexio is not responsible for the accuracy, completeness or authenticity of any Customer Data furnished by Customer or a third party that is not an authorized agent of Finexio, and Finexio shall have no obligation to audit, check or verify that Customer Data. If any Customer Data submitted to Finexio by Customer or a third party that is not an authorized agent of Finexio is incorrect, incomplete, or not in the required format, Finexio may require Customer to resubmit the Customer Data or Finexio may correct the Customer Data and bill Customer its then current rates for performing those corrections. Finexio shall notify Customer prior to Customer incurring such expense.
(h) Finexio is not responsible for any computer viruses (including, programs commonly referred to as “malware,” “keystroke loggers,” and/or “spyware”), problems or malfunctions resulting from any computer viruses, or any related problems that may be associated with the use of a third-party online system or services including but not limited to the Platform. Finexio is not responsible for any damage to the computer or operating systems of Customer or for loss of data that results, whether due to any computer virus or otherwise. Customer is responsible for maintaining, protecting, and securing Customer’s operating systems, including anti-virus software, security patches, and firewalls as reasonably determined by Customer. Finexio is not responsible for any errors or failures of any software or systems installed on Customer’s operating systems or accessed through an internet connection. Customer will protect itself and remain vigilant against e-mail fraud and other internet frauds and schemes (including, without limitation, fraud commonly referred to as “phishing” and “pharming”). Customer will educate its employees, agents, representatives and contractors as to the risks of such fraud and train such persons to avoid such risks. In the event that Customer, or any of its employees, agents, representatives, or contractors receives an e-mail or other electronic communication that such party believes, or has reason to believe, is fraudulent, Customer agrees that neither it nor any of its employees, agents, representatives, or contractors will respond to the e-mail, provide any information to the e-mail sender, click on any links in the e-mail, or otherwise comply with any instructions in the e-mail. Customer agrees that Finexio is not responsible for any losses, injuries, or harm incurred by Customer as a result of any electronic, e-mail, or internet fraud.
(i) Customer shall maintain a copy of all Customer Data submitted to Finexio (whether directly or through a third party) to permit reconstruction if ever required in accordance with Customer’s data retention policy. Customer assumes all risk and expense associated with Customer Data reconstruction, except for those expenses attributable to an act or omission of Finexio, Finexio’s failure to perform any Finexio responsibility, or Finexio’s breach of these Terms. If Customer Data reconstruction is ever required, the Parties shall mutually agree on a schedule and the applicable fees for that reconstruction.
(j) To the extent that Customer receives any information from any Supplier, or from Finexio or other third party, related to any Supplier’s use of any portion of the Services (such information, “Finexio Data”), Customer acknowledges and agrees that it will not store, use, disclose, or permit any third party to access such Finexio Data other than as expressly authorized in advance in writing by Finexio. The Parties acknowledge and agree that the terms “Customer Data” and “Finexio Data” may, in certain instances, refer to the same information, and that in such instances such fact shall not impact the rights and obligations associated with such information as referred to by such terms.
(k) Finexio assumes no liability for any errors in application or enrollment forms submitted by Customer or errors related to Payment Instructions, or to changes thereto, and is not obligated to detect errors in such forms or in Payment Instructions.
(l) Finexio is not responsible for confirming application or enrollment forms submitted by Customer or Payment Instructions, or for monitoring or refusing to process inaccurate, untimely or duplicate Customer application or enrollment forms or Payment Instructions.
(m) Customer is solely responsible for any damages, such as late charges, that may be imposed as a result of its failure to select appropriate Processing Dates and transmit Payment Instructions to Finexio in a thoughtful and timely manner.
(n) In the event of any error by Finexio in processing any Customer Data or preparing any report or file hereunder, Finexio’s sole obligation (if any) shall be to correct the error by reprocessing the affected Customer Data or preparing and issuing a new file or report at no additional cost to Customer; provided, however, Finexio’s obligation herein is contingent upon Customer notifying Finexio of the error within one (1) Business Day after Customer receives the improperly processed Customer Data, report or file.
(o) Customer may not recall any portion of any funds that have settled in the FBO Account. In the event of shortfalls in maintaining available funds for Finexio to facilitate Payments on Customer’s behalf, such as NSF, ACH recall, ACH return, or any other event that results in a shortfall, the following shall apply in addition to any other rights and obligations provided herein:
(i). Finexio will notify Customer of the funding shortfall issue as soon as possible;
(ii). Customer will promptly deposit additional funds to the applicable funding account, but no later than two (2) Business Days after Finexio’s written notice, to address such funding shortfall amount;
(iii). Finexio reserves the right to, at its sole discretion, suspend current transactions not yet disbursed, prevent future transactions from being disbursed, and cancel outstanding Payments in order to remedy any funding shortfall;
(iv). Customer will be subject to fees charged by Finexio when a funding shortfall occurs, including as follows: (A) a penalty fee equal to 1% of the total funding shortfall amount shall apply, up to a maximum penalty of $5,000 per day; and (B) if additional funds are not deposited by Customer into the applicable funding account within two (2) Business Days after Finexio’s notice of such shortfall, then such 1% penalty fee will continue to be charged for any outstanding shortfall amount each Business Day thereafter until the funds are re-couped.
(v). Finexio is not responsible for banking charges associated with any wire or other transfer initiated by Customer in order to expedite resolution of the funding shortfall.
2.4 Fees & Incentives
(a) In connection with Finexio’s provision of the Services, Customer agrees to pay to Finexio the fees and other charges as set forth in the applicable Services Agreement. Such fees and other charges begin to accrue upon the earlier of (i) Customer’s first use of any Service or (ii) the date any Service is first available for Customer’s use, regardless of whether or not any Custom Implementation has been completed.
(b) Except as otherwise provided in the Services Agreement, the fees, charges and financial terms applicable to Services shall be unchanged during the first six (6) months of the Term.
(c) Customer shall be solely responsible for, and indemnify and hold Finexio harmless from, all fines, penalties, interest charges, and other late payment fees associated with Payments that are delivered after the applicable due date.
(d) Finexio shall be entitled at any time without prior notice to also pass through any fees and any increases in communications tariffs related to the Services, including, without limitation, government-imposed access fees, fees resulting from changes in regulation or statute, fees or assessments imposed pursuant to any Operating Regulations, transaction costs, and any third-party imposed costs.
(e) Except as otherwise expressly provided hereunder, each Party will bear their own costs and expenses in connection with the performance of their obligations and the provision and receipt of the Services hereunder.
(f) Except as may be provided otherwise in the applicable Services Agreement, Finexio will provide its standard initial train-the-trainer training regarding the use and operation of the Service, third party service or software to Customer by webbased training or in person at a Finexio training location (in which case, travel would be at Customer’s expense) at Finexio’s then current rates and on a mutually agreed date and time. Following such initial training, Customer is responsible for its trainer(s) training Customer’s employees on the use and operation of the Service, third party service or software. Additional training may be provided by Finexio upon Customer’s request, including onsite training at Customer’s location, as mutually agreed to by the Parties regarding topics, duration and fees and expenses.
(g) Finexio may charge a fee for each Payment request presented against insufficient available funds, whether or not Finexio honors or processes the request.
(h) Customer must notify Finexio of any errors related to fees paid or due from Customer to Finexio in connection with provision of the Services within ninety (90) days after the date the error was made. Finexio shall investigate such matters of which it receives such notice and provide a report of its investigation to Customer, together with any adjustment Finexio determines is appropriate, within 30 days after receipt thereof. The reporting of any errors will enable Finexio to recover amounts or prevent the errors from continuing, as reasonably applicable. Finexio will have no obligation to investigate or provide refunds for errors that the Customer reports more than ninety (90) days after the occurrence of such error, absent any gross negligence or willful misconduct by Finexio.
(i) Customer shall pay all fees and other charges to Finexio within thirty (30) days of Finexio’s corresponding invoice date. In the event any undisputed amounts owed by Customer remain unpaid as of such due date, the outstanding balance shall carry interest at the rate of six percent (6%) per annum, or the maximum interest allowed under Applicable Law, whichever is lower, from the due date until paid in full.
Finexio’s Service Implementation (“Implementation”) allows Customers to complete end-to-end payment processing, payment settlement, Supplier enablement, customer notifications, exceptions management, reporting, and platform monitoring as further described in these Terms.
The Finexio Platform is an independent, fully hosted solution that functions without dependency on a Customer accounting, procurement, or Enterprise Resource Planning System.
All Customers must complete a Standard Implementation within a 45-day provisioning period as described below prior to completing any Custom Implementation:
(i) Under “Standard Implementation”, a Supplier File and Payment File will be securely transmitted to Finexio using a Secure File Transfer Process (“SFTP”). All Implementations require Standard Implementation in order to ensure business continuity and redundancy.
(ii) If Customer chooses to integrate the Finexio Platform with its proprietary solution (“Custom Implementation”), Finexio will customize or configure the Platform to integrate with the Customer using file specifications or APIs based upon Customer-specific integration requirements pursuant to a mutually agreed-upon written statement of work.
Finexio will provide Customer with Finexio specifications and other instructions defining required documentation necessary to initiate Service provisioning and complete Implementation. All Customers will be responsible for complying with such instructions and delivering such required documentation no later than ten (10) business days after Finexio provides these requirements to Customer.
For initial provisioning and Implementation, subsequent Implementations, and any other provisioning and/or integration requests, Customer shall provide all required documentation, which may include but is not limited to:
- Executive Sponsor: Customer must appoint a designated company contact for Implementation purposes and to serve as the ongoing point of contact for Implementation and outreach.
- Historical Supplier Spend Data File: This file must contain historical expenditure data. The file, at a minimum, is required to contain a unique Supplier identifier, Supplier name and contact information, aggregate volume by payment rail, and current payment method and information for the last 12 months.
- Supplier Master File: Customer must provide its current list of vendors/payees along with all the related demographic information associated with each vendor.
- Customer Confirmation of Bank's Whitelisting of Finexio FBO Account: Customer must collaborate with its bank to complete Finexio’s Debit Authorization Form.
- High-Resolution Corporate Logo (in JPG or PNG format): This logo will be used to personalize Customer's dashboard and for communications sent to Suppliers.
Finexio and Customer agree to take commercially reasonable steps to complete Implementation and Services integration, including development, configuration and provisioning, testing, quality assurance, approvals, Supplier Enablement activities, training, marketing, and the deployment of Services, within forty-five (45) days of the Effective Date of the Services Agreement for initial Implementation, or from the date of written notice from Finexio for subsequent or secondary Implementation.
In the event that Implementation and Services integration cannot be completed within such forty-five (45) day period, the Parties must agree in writing to an extension not to exceed a total of sixty (60) days from such Effective Date or date of written notice from Finexio.
2.6 System Requirements and Services Availability
(a) In order for Customer to access and use one or more of the Services, Finexio may require that Customer meet certain requirements for computers, hardware, or telecommunications equipment, for Internet access, for software, or for other systems or Technology, or any settings for the foregoing (collectively, the “System Requirements”). Customer is responsible at its sole expense for: (i) meeting the System Requirements, (ii) properly maintaining, in accordance with any applicable third-party provider recommendations, such Technology in good working order, (iii) the performance, functionality, input, output and connectivity of such Technology, (iv) any damage to such Technology, whether in connection with use of the Services or otherwise, and all necessary repairs and/or replacements therefor, (v) having all Technology maintenance, repairs, upgrades and replacements required herein performed by properly trained personnel, whether they are employees of Customer or third-party employees, and (vi) implementing reasonable measures to protect the security of its Technology against unauthorized access to and/or use of the Services or Services data and information entered or delivered through the Platform. Finexio shall have no responsibility for failures, interruption or other defects in the Services which are occasioned by an incompatible, improperly installed or improperly maintained item of Customer Technology. Finexio may add to, modify, or replace System Requirements at its sole discretion and without notice.
(b) Customer will ensure the security and confidentiality of any usernames, accounts, access codes, security devices, or other means of accessing the Platform or any Service. Customer agrees to notify Finexio immediately if Customer believes that any such access means have been stolen, compromised, or otherwise become known to persons other than Customer or its authorized representatives or if Customer believes that any Platform or Service transaction or activity is unauthorized or in error. In the event of any actual or threatened breach of Platform or Service security, Finexio may issue Customer new access means as soon as reasonably practicable, but Finexio shall not be liable to Customer or any third party for any delay in taking such actions. Customer agrees to indemnify, defend all claims, and hold Finexio harmless from any loss, damages, or expenses, including but not limited to attorney’s fees, caused by Customer, Customer’s employees’, or agents’ failure to keep Platform or Security access means secure and confidential.
(c) Finexio will use reasonable efforts to ensure that the Platform can be accessed by Customers in accordance with this Agreement; however, Finexio makes no guarantee that the Platform will be available at all times or for particular purposes. Finexio will make reasonable efforts to provide Customer with notice of planned maintenance or Service outage. Customer accepts the risks associated with the fact that the Platform may not always be available for use or for the completion of particular Payments.
2.7 Books & Records; Audit Rights
(a) Books & Records: Customer shall maintain complete and accurate books of account and records, in accordance with generally accepted accounting principles in the United States, of all financial transactions arising in connection with its obligations pursuant to these Terms for a period of not less than that legally required for such records from the date last recorded or created, but in no event less than three (3) years following the end of the Term. The Parties agree to work together in good faith to reconcile any accounting discrepancies relating to the Services.
(b) Audits: Finexio reserves the right to inspect, or have a third party designated by Finexio inspect, Customer books and records of the other Party that are directly related to the obligations of Customer hereunder, provided that any such inspection shall occur upon no less than ten (10) Business Days prior written notice and at a mutually agreed upon date and time during Customer’s normal business hours and no more frequently than once during any calendar year unless Finexio has a reasonable belief Customer is not acting in compliance with the terms of these Terms or that its activities pose material risk to Finexio, any of its Subcontractors, or other Customers. Customer shall furnish to Finexio or its designee all such information concerning transactions and Customer’s performance of its obligations hereunder as Finexio may reasonably request.
2.8 Transition Assistance
Upon termination of the Services Agreement, Finexio shall cooperate in the transition of the Services to Customer or a replacement service provider and, if requested by Customer, perform ancillary services for additional fees. However, no transition assistance or services shall be provided by Finexio until: (i) Customer and, if applicable, the replacement service provider, have executed Finexio’s confidentiality agreement; (ii) Customer has fully paid all outstanding amounts which are not disputed by Company in good faith; (iii) Customer has completely prepaid Finexio’s fees for transition services; and (iv) the Parties mutually agree on a date for final transition of the Services. Notwithstanding any provision herein to the contrary, the Services Agreement shall continue on the same commercial terms and conditions until the completion of the transition services.
3.2 Ownership of Confidential Information: As between the Parties, each Party’s Confidential Information shall remain the property of that Party. Except as expressly provided nothing contained in these Terms shall be construed as obligating any Party to grant any ownership rights in or license to its Confidential Information to any other Party.
3.3 Use and Disclosure of Confidential Information:
(a) Each Recipient shall hold and maintain in confidence the Confidential Information of the Discloser and shall use and disclose such Confidential Information only for the purpose of performing its obligations or exercising or enforcing its rights with respect to these Terms or as otherwise expressly permitted by these Terms.
(b) Each Recipient may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Applicable Law, including in the course of an examination by a regulatory authority with supervisory and examination authority over such Party; provided (i) that, except in connection with disclosure in the ordinary course of an examination by any such regulatory authority, the Party subject to such Applicable Law shall notify the Discloser of any such use or requirement prior to disclosure of any Confidential Information obtained from the Discloser in order to afford the Discloser an opportunity to seek a protective order to prevent or limit disclosure of the Confidential Information to third parties, and (ii) that the Party subject to such Applicable Law shall disclose Confidential Information of the Discloser only to the extent required by such Applicable Law.
(c) Each Recipient shall (i) limit access to the Discloser’s Confidential Information to those employees, authorized agents, vendors, consultants, service providers and Subcontractors who have a reasonable need to access such Confidential Information in connection with these Terms, and (ii) ensure that any Person with access to the Discloser’s Confidential Information is bound to maintain the confidentiality of Confidential Information in a manner consistent with the obligations of this Section 3. Liability for damages due to disclosure of the Confidential Information by any such third party shall be with the Recipient that disclosed the Confidential Information to the third party.
(d) Each Recipient agrees that any unauthorized use or disclosure of Confidential Information of the Discloser might cause immediate and irreparable harm to the Discloser for which monetary damages might not constitute an adequate remedy. In that event, the Recipient agrees that injunctive relief may be warranted in addition to any other remedies the Discloser may have. In addition, the Recipient shall promptly (but in no event more than seventy-two (72) hours after completing any investigation confirming the existence of the same) provide the Discloser with notice of any security breach that has actually compromised any of the Discloser’s Confidential Information, and of any actual unauthorized misappropriation, disclosure or use by any Person of the Confidential Information of the Discloser and shall take all steps at its own expense reasonably requested by the Discloser to limit, stop or otherwise remedy such misappropriation, disclosure or use, including, but not limited to, notification to and cooperation and compliance with any regulatory authority. This Section 3 supplements any separate written confidentiality agreement or non-disclosure agreement between the Parties, and in the event any such agreement conflicts with the terms hereof, these Terms shall control.
(e) Except as otherwise contemplated in subsection (b) above, in the event that the Recipient is requested or becomes legally compelled to disclose any Confidential Information of the other Party, the Recipient will provide the Discloser with prompt notice of such request(s) to enable the Discloser to seek a protective order to protect and preserve the confidential nature of the Confidential Information. In such event, each Party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information which is being disclosed. Each Party shall immediately notify the other Party upon discovery of any loss or unauthorized disclosure of the Confidential Information of the other Party.
(f) Upon the later of the termination or expiration of these Terms or at any time upon the reasonable request of a Discloser, the Recipient shall return (or destroy if so directed by the Discloser) all Confidential Information of the Discloser in the possession of the Recipient or in the possession of any representative, contractor or third party of the Recipient. Any Confidential Information of the Discloser maintained in an electronic format by the Recipient shall be returned to the Discloser in an industry-standard format or, at the option of the Discloser, deleted and removed from all computers, electronic databases and other media. Notwithstanding the foregoing, a Recipient in possession of tangible property containing the Confidential Information of the Discloser may retain one archived copy of such material for record retention requirements under Applicable Law, subject to the terms of these Terms, which may be used solely for regulatory purposes and may not be used for any other purpose. Compliance by the Recipient with this Section 3.3 shall be certified in writing by an appropriate officer of the Recipient within thirty (30) days of the termination or expiration of these Terms, which certification shall include a statement that no copies of Confidential Information of the Discloser have been retained, except as specifically provided by this Section 3.3.
3.4 Publicity: Notwithstanding anything to the contrary herein, Customer grants Finexio the right to disclose the name of Customer and the existence of the relationship between Customer and Finexio for purposes of marketing and advertising Finexio’s Services.
4. Intellectual Property Rights:
4.1 Ownership: Subject to the terms and conditions of these Terms, each Party and the Party’s Affiliates will exclusively retain all rights, title, and interests in and to Technology, and Intellectual Property Rights therein, conceived, developed, reduced to practice, created, or acquired (collectively, “Created”) by or on behalf of such Party or its Affiliate, whether Created prior to or after the Effective Date. Nothing contained in these Terms shall be construed as constituting a transfer or an assignment by one Party to the other Party of any Technology or Intellectual Property Rights, and except as expressly granted under these Terms or otherwise agreed to in writing by the Parties, neither Party grants the other Party any right, license, or covenant not to sue with respect to any Technology or Intellectual Property Rights. There are no implied licenses granted under these Terms.
4.2 Technology: Subject to the terms and conditions of these Terms, each Party on behalf of itself and its Affiliates, hereby grants to the other Party, its Affiliates and its vendors, Subcontractors, and third-party service providers during the Term, and under the terms and conditions of these Terms, a limited non-exclusive, royalty-free, fully paid up, non-assignable, non-sub-licensable, non-transferable (other than in accordance with Section 10.2), worldwide right and license to use, any items of Technology that the other Party provides or otherwise makes accessible to the other Party in connection with the Services, solely to the extent necessary for the other Party to exercise, perform and comply with its rights and obligations under these Terms in connection with the Services and solely during the Term. This license shall be further subject to any additional terms and restrictions as agreed by the Parties prior to or contemporaneous with the delivery of such Technology. For the avoidance of doubt, nothing herein shall be construed as obligating either Party to provide specific Technology to the other Party, except as expressly contemplated herein.
4.3 Marks: Subject to the terms and conditions of these Terms, each Party (“Mark Licensor”) hereby grants to each other Party (each, a “Mark Licensee”) during the Term a non-exclusive, royalty-free, non-assignable license to use (but not the right to sublicense) the Mark Licensor’s Marks in the United States solely in connection with the Services, and solely for the purpose, and in the format, form, and manner expressly approved in advance, in writing, by the Mark Licensor, which approval shall not be unreasonably withheld, conditioned or delayed. The Mark Licensor and its Affiliates shall retain its Intellectual Property Rights in the Mark Licensor’s Marks and all use of the Mark Licensor’s Marks by the Marks Licensee, and all goodwill arising out of such use shall inure to the sole benefit of the Mark Licensor or its Affiliates. Other than the foregoing license rights, the Mark Licensee shall not obtain any right, title, or other interest in or to the Mark Licensor’s Marks by virtue of these Terms. Upon the later of the expiration or termination of these Terms, the foregoing license rights conveyed by Mark Licensor to Mark Licensee shall cease, and all such rights shall revert to Mark Licensor.
4.4 Feedback: Customer may, but is not required to, provide feedback to Finexio regarding the Services (“Feedback”). Except to the extent that the Parties have agreed in writing to a different set of rights in advance of the disclosure of such Feedback, Customer hereby grants to Finexio an irrevocable, perpetual, royalty-free right to use, disclose and otherwise exploit any Feedback, and the Intellectual Property Rights embodied therein for any purpose.
4.5 No Joint Intellectual Property Rights: The Parties shall not be obligated to jointly develop any Technology in connection with these Terms and shall use best efforts not to do so. If the Parties, in their sole discretion, determine to jointly develop any Technology, the Parties shall first enter into a separate and binding written agreement confirming the scope of such joint development efforts and the respective rights of the Parties in any jointly developed Technology, including ownership of the Intellectual Property Rights in any such jointly developed Technology including any ideas, technology, designs, know-how, methods or processes jointly developed.
5. Representations and Warranties:
As of the Effective Date and at each use of any Services, Customer hereby represents and warrants to Finexio that:
(a) These Terms are valid, binding, and enforceable against Customer in accordance with its terms.
(b) Customer entity is validly existing, in good standing, and is authorized to conduct business in each state in which the nature of Customer’s activities hereunder makes such authorization necessary.
(c) Customer has the full power and authority to execute and deliver these Terms and to perform all its obligations under these Terms. The provisions of these Terms and the performance by Customer of its obligations under these Terms are not in conflict with Customer’s charter, bylaws or any other organizational document to which Customer is a party or by which it is bound.
(d) There are no pending or, to the knowledge of Customer, threatened, claims or litigation against Customer that would adversely impact Customer’s ability to perform its obligations under these Terms.
(e) The information Customer provides to Finexio for delivery and/or provision of Services hereunder, including but not limited to the information related to the Customer’s legal name, address, DUNS/Equifax number, TIN, phone and other contact details, is true and correct.
(f) Customer shall only use the Services for its own internal business purposes and not for any personal, household, or family purpose or otherwise for any consumer purpose.
(g) No Payment made by, through, or in any way utilizing the Platform or any Service will be for any personal, household, or family purpose or otherwise for any consumer purpose.
(h) Customer’s use of and access to any Services, including, without limitation, Customer Data and any other data or information Customer may provide or generate through its use of or access to the Platform, complies with all Applicable Law and shall not cause Finexio itself to violate any Applicable Law.
6.1 Transaction Screening
Customer shall comply with all Applicable Law and with Finexio’s policies. Finexio is required to act in accordance with the laws of various jurisdictions relating to the prevention of money laundering and the implementation of sanctions, including economic or financial sanctions or trade embargoes imposed, administered, or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State. Finexio is not obligated to execute payment orders or effect any other transaction where a party to the transaction is a person or entity with whom Finexio is prohibited from doing business by any law applicable to Finexio, or in any case where compliance would, in Finexio’s opinion, conflict with Applicable Law or market practice or its own policies and procedures. Where Finexio does not execute a payment order or effect a transaction for such reasons, Finexio may take any necessary action, including freezing or blocking funds. Transaction screening may result in delays in the posting of transactions and/or funds availability. Finexio may direct Customer (a) to make changes to payment activity, including to cease and desist transactions involving particular parties from time to time, and (b) not to use its Finexio account to send payments with certain characteristics. Customer agrees to comply with such directions.
6.2 Know Your Customer
To assist in the prevention of the funding of terrorism and money laundering activities, Applicable Law may require Finexio and/or Bank to obtain, verify, and record information that identifies each person who enters into a relationship with Finexio. What this means for Customer: when Customer enters into a relationship with Finexio, Finexio may ask for Customer’s name, address, date of birth (for natural persons), and/or other information and documents that will allow Finexio to identify Customer. Finexio may also obtain certain information from third parties regarding Customer. For purposes of this provision, Customer, to the extent required by Applicable Law, shall include any authorized person or other Customer signatory.
To fulfill Finexio’s “know your customer” responsibilities, Finexio will request information from Customer from time to time, inter alia, regarding Customer’s organization, business, and, to the extent applicable, authorized persons and beneficial owner(s) of Customer, and Customer shall procure and furnish information to Finexio in a timely manner. Finexio may also request further information and/or documentation from Customer as may be required by Finexio’s sponsored commercial bank(s) or Applicable Law. The accuracy of any information and/or documentation furnished by Customer is the sole responsibility of Customer and Finexio is entitled to rely on the information and/or documentation without making any verification whatsoever (except for the authentication under the security procedures, as applicable). Customer represents and warrants that all such information and/or documentation is true, correct and not misleading and shall advise Finexio promptly of any changes. Customer agrees to provide complete and accurate responses to Finexio’s requests within the timeframes specified. Customer will notify Finexio in writing if any monies it places with Finexio are subject to restrictions or otherwise held or received by Customer in a capacity other than previously disclosed to Finexio, including monies subject to encumbrances, monies received as intermediary, processor, or payment service provider, or arising from undisclosed business or similar sources. Customer agrees to promptly disclose to Finexio transaction activity that is suspicious or violates Applicable Law or sanctions. If Customer fails to provide or consent to the provision of any information required by this Section, Finexio may suspend or discontinue providing any Service without further notice.
6.3 Consent for Due Diligence
Without limiting the generality of the foregoing, Customer authorizes Finexio and its Subcontractors, agents, and/or service providers to conduct a comprehensive due diligence review of Customer prior to and during the course of Customer’s receipt of Services. Customer further agrees to provide any information requested by Finexio or its Subcontractors, agents, and/or service providers relating to Finexio’s due diligence review of Customer. Customer authorizes Finexio and its Subcontractors, agents, and/or service providers to obtain and rely on such third party reports or other records as such parties may determine in order to complete such due diligence reviews.
7.1 Customer Indemnification: In addition to other rights and remedies as set forth in these Terms or available under Applicable Law, Customer agrees to indemnify, defend and hold harmless Finexio, and its Affiliates, sureties, officers, directors, agents, employees, parents and subsidiaries, from and against any and all liability, damages, costs, or expenses, including reasonable legal fees and expenses, for any third party claim or demand (“Claim”) arising out of or related to:
(a) Customer’s breach of any representation, warranty, covenant or obligation under these Terms;
(b) Gross negligence, fraud or willful misconduct on the part of Customer or any of its officers, directors, employees, representatives, or any of their respective officers, directors and employees;
(c) Any actions taken by Finexio in accordance with or in good faith reliance upon information or instructions provided by Customer or any of its agents or representatives;
(d) Obligations owed to any Customer or other third party by Customer, or any third party retained by Customer; and
(e) Any actual or alleged infringement or misappropriation of any Intellectual Property Rights of any third party by Customer.
The defense obligation of Customer attaches if the Claim alleges any of the foregoing violations, breaches, acts or omissions.
7.2 Finexio Indemnification: Finexio agrees to indemnify, defend and hold harmless Customer from and against any and all Claims alleging infringement or misappropriation by a Service of any intellectual property rights of any third party, provided these obligations shall not apply to the extent the Claim arises directly or indirectly from (i) Customer’s use of the Services in combination with any data or any software, hardware, or other Technology not provided by Finexio or its Subcontractors; (ii) Customer’s use of a Service in a manner or for a purpose not specifically described and permitted by the applicable Services Agreement and in conformity with any applicable System Requirements; (iii) any modification, change, amendment, customization, or adaptation of any Service not made wholly by Finexio or its Subcontractors; or (e) Customer’s failure to implement corrections or changes provided by Finexio. If a Claim covered by this section has been asserted, or in Finexio’s opinion is likely to be asserted, Finexio may, at its option and as the sole remedy for such Claim: (1) procure for Customer the right to continue using the Service; (2) replace or modify the Service; or (3) terminate the applicable Service or Services Agreement and refund all pre-paid fees covering future use of the Service.
7.3 Indemnification Procedures: If any Claim is asserted against either Party (the “Indemnified Party”) by any person who is not a party to these Terms in respect of which the Indemnified Party may be entitled to indemnification under the provisions of Sections 7.1 or 7.2 above, written notice of such Claim shall promptly be given to the Party from whom indemnification may be sought (the “Indemnifying Party”). The Indemnifying Party shall have the right, by notifying the Indemnified Party within ten (10) Business Days of its receipt of the notice of the Claim, to assume the entire control (subject to the right of the Indemnified Party to participate at the Indemnified Party’s expense and with counsel of the Indemnified Party’s choice) of the defense, compromise or settlement of the matter, including, at the Indemnifying Party’s expense, employment of counsel of the Indemnifying Party’s choice. The Indemnified Party must provide reasonable cooperation in the defense and the failure to do so will be deemed a waiver by the Indemnified Party of any and all right to indemnification by the Indemnifying Party. Except as otherwise expressly set forth in section 7.2, the Indemnifying Party shall not compromise or settle a Claim against the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed; provided that the Indemnifying Party may, however, effect a compromise or settlement of any action without the Indemnified Party’s consent if the following conditions are met: (a) there is no admission of guilt or liability by the Indemnified Party; (b) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; (c) the compromise or settlement entered into between the parties to the matter shall expressly provide that the compromise or settlement entered into between the parties, and all discussions between and among the parties to the matter surrounding the compromise or settlement, shall be kept confidential; such compromise or settlement also shall stipulate that no press releases or other public statements may be made concerning such compromise or settlement without the prior written consent of the Indemnified Party; and (d) the Indemnified Party is made aware of the proposed compromise or settlement as reasonably early as practicable, and the proposed compromise or settlement includes the claimant’s or the plaintiff’s unconditional release of the Indemnified Party from all liability in respect of the Claim.
8. Limitation of Liability; Disclaimer of Warranties:
8.1 Limitation of Liability: IN NO EVENT WILL FINEXIO (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS, OR SUPPLIERS) BE LIABLE TO CUSTOMER FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THE TERMS, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THE TERMS OR OTHERWISE ARISING FROM THE TERMS, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF FINEXIO HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF FINEXIO TO CUSTOMER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED THE FEES PAID OR PAYABLE TO FINEXIO HEREUNDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.2 Disclaimer of Warranties: THE SERVICES ARE PROVIDED “AS-IS,” WITHOUT WARRANTIES OF ANY KIND. FINEXIO (AND ITS AGENTS, AFFILIATES AND SUPPLIERS) HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO OR ARISING OUT OF THE TERMS, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
9. Term and Termination:
9.1 Term: Unless earlier terminated as provided herein, the term of each Services Agreement will commence on the Effective Date and continue until the fifth (5th) anniversary thereof (the “Initial Term”). Each Services Agreement shall automatically renew for additional 3-year periods following its Initial Term (each such period being a “Renewal Term”, and the Initial Term together with any Renewal Terms being the “Term”) unless either Party sends notice of non-renewal to the other Party at least one hundred and twenty (120) days prior to the end of the Initial Term or then-current Renewal Term. Except as expressly set forth herein, these Terms shall be coterminous with the applicable Services Agreement.
(a) Customer may terminate any Services Agreement upon thirty (30) days’ written notice to Finexio for Finexio’s material breach that remains uncured at the end of such notice period. Finexio may suspend or terminate the Services and any Services Agreement (including these Terms) immediately upon written notice to Customer if Customer breaches any of the terms or conditions of such Services Agreement (including these Terms) or any of Customer’s representations, warranties or covenants hereunder, or for any other reason, or for no reason, in its sole discretion. If Finexio suspends or terminates a Services Agreement for a reason other than Customer’s material breach thereof, it will generally provide advance written notice of such action but is under no obligation to do so unless this is required under Applicable Law. Upon expiration or termination of a Services Agreement, Customer’s right to use the Services will immediately cease.
(b) In addition to any other termination rights provided elsewhere in these Terms, either Party shall have the right to terminate any Services Agreement (including these Terms) upon occurrence of one or more of the following events:
(i) Either Party: (A) voluntarily commences any proceeding or filing any petition seeking relief under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, liquidation or similar law; (B) applies for or consents to the appointment of a receiver, trustee, custodian, sequestrator or similar official for such Party or for a substantial part of its property or assets, (C) makes a general assignment for the benefit of creditors, or (D) takes corporate action for the purpose of effecting any of the foregoing;
(ii) The commencement of an involuntary proceeding or the filing of an involuntary proceeding or the filing of an involuntary petition in a court or competent jurisdiction seeking: (A) relief in respect for any other Party, or of a substantial part of its property or assets under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (B) the appointment of a receiver, trustee, custodian, sequestrator or similar office for the other Party for a substantial part of its property or assets, or (C) the winding up or liquidation, of the other Party, if such proceeding or petition shall continue un–dismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall continue unstayed and in effect for sixty (60) days;
(iii) Violation of Applicable Law relating to the performance of these Terms rendering either of the Parties unable to substantially perform these Terms, provided that the Parties cannot find a legally workable solution to avoid violating Applicable Law within a reasonable amount of time; or
(iv) Upon direction from any regulatory authority for either Party to cease or materially limit performance of such Party’s obligations under these Terms.
9.3 Rights and Obligations Upon Termination: The Parties’ rights to terminate the Services Agreement will be in addition to, and not in lieu of, any other remedies they may have by virtue of (a) a breach or default with respect to such Services Agreement (including these Terms) or (b) any other event which permits a termination. Furthermore, the termination or expiration of the Services Agreement will not relieve the Parties of any obligations due at or before the time of such termination or expiration or prejudice any claim of either Party.
10.1 Notices: Except where otherwise required by law, Customer agrees that Finexio may provide Customer with any notice required or allowed hereunder by sending Customer an e-mail to any e-mail address that Customer provides to Finexio in connection with the Services, by posting on or otherwise delivering such notice electronically through the Platform, or by delivering such notice in writing by mail or overnight courier to the address Finexio then has on file for Customer. Such notice to Customer shall be deemed given upon the earliest of Finexio’s sending such e-mail, completing such Platform posting or other electronic delivery, or delivering such written notice. Except as otherwise expressly provided herein, all notices to be given to Finexio hereunder shall be effective only when made in writing and actually delivered (by mail, overnight courier, special courier or as mutually agreed upon) to Finexio at 924 N. Magnolia Avenue, Suite 202 PMB 1310, Orlando, FL, 32803, or such other address of which Finexio has notified Customer pursuant to this Section 10.1.
10.2 Assignment: Customer may not assign the Services Agreement, in whole or in part, to any third party without the prior written consent of Finexio.
10.3 Entire Agreement: Each Party agrees that the Services Agreement, including all schedules, appendices, and exhibits hereto, and all documents referenced herein, is the complete and exclusive statement of the mutual understanding of the Parties, and supersedes and cancels all previous written and oral agreements, communications and other understandings, relating to the subject matter of the Services Agreement. Each Party acknowledges that it is not relying on any information, conditions, covenants, warranties or representations provided to it or to any of its Affiliates or representatives at any time except as expressly stated in these Terms.
10.4 Survival, Severability and Waiver: All provisions of these Terms which by their nature are meant to extend beyond the expiration or termination of these Terms and will survive the expiration or termination of these Terms. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the remaining provisions of these Terms will otherwise remain in full force and effect and enforceable. The failure by either Party to insist upon strict performance of any of the provisions contained in these Terms will in no way constitute a waiver of its rights as set forth in these Terms, at law or in equity, or a waiver of any other provisions or subsequent default by the other Party in the performance of or compliance with any of the terms and conditions set forth in these Terms.
10.5 Force Majeure: Finexio is not responsible for any breach or delay in the performance of its obligations pursuant to these Terms for reason of fire, flood, riot, act of terrorism, strike, labor conflict, freight embargo, delay in shipping, fortuitous event, act of a public enemy, of war, of civil disorder, of interruption, of a failure or an interruption of the Internet, phone service, or any other interconnection service or of electronic or mechanical equipment, of any law, of any rule or of any regulation, current or future, or of any act on the part of a government that would delay or prevent the performance of its obligations pursuant to these Terms, or for any other cause reasonably beyond the control of Finexio.
10.6 Relationship of Parties: Each Party agrees that, except as otherwise provided herein with respect to Finexio acting as the authorized agent of Customer, they are independent contractors to each other in performing their respective obligations hereunder. Nothing in these Terms or in the working relationship being established and developed hereunder will be deemed or is intended to be deemed, nor will it cause, any of the Parties to be treated as partners, joint ventures, or otherwise as joint associates for profit. Customer does not have any authority of any kind to bind Finexio in any respect whatsoever.
10.7 No Third-Party Beneficiaries: Except as stated in these Terms, these Terms do not create any right or cause of action in or on behalf of any person or entity other than the Parties.
10.8 Dispute Resolution: These Terms will be governed by, construed and enforced in accordance with the laws of the State of Florida, without regard to any conflict of laws principles purporting to apply the laws of a different jurisdiction. Jurisdiction and venue for the formal resolution of any disputes relating to these Terms will lie exclusively in the Federal and State Courts located in Orlando, Florida. The Parties agree to waive any right to have a jury participate in the resolution of any dispute or claim between the Parties or any of their respective Affiliates which may arise under these Terms. Each Party agrees that service of process in any action or proceeding hereunder may be made upon such Party by certified mail, return receipt requested, to the address for notice set forth herein. In any action or proceeding between the Parties to enforce rights under these Terms, the prevailing Party will be entitled to recover costs and attorneys’ fees from the other Party.
10.9 Construction: The headings, captions, headers, footers and version numbers contained in these Terms are inserted for convenience only and shall not affect the meaning or interpretation of these Terms. The singular includes the plural, and the plural includes the singular. All references to “herein,” “hereunder,” “hereinabove,” or like words shall refer to these Terms as a whole and not to any particular section, subsection, or clause contained in these Terms. The terms “include” and “including” are not limiting. Reference to any agreement or other contract includes any permitted modifications, supplements, amendments, and replacements.
10.10 Amendment: Any term of these Terms may be amended by Finexio at any time by making an updated version of these Terms available on its Website or otherwise through the Platform. Unless otherwise specified by Finexio or required by Applicable Law, such amendments shall take effect immediately upon being made available by Finexio through such means. In addition, Customer’s continued use of the Platform or any use of any Service after any amendment takes effect will constitute Customer’s agreement to such amendment. Customer may not amend or modify these Terms without the prior written consent of Finexio.
10.11 Counterparts and Electronic Communications: Each Services Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Such counterparts may be delivered via facsimile, electronic mail or other transmission method. Any counterpart so
delivered shall be deemed to have been duly and validly delivered for all purposes. Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from Finexio or anyone communicating on its behalf, Customer expressly consents for it and any of its authorized representatives to be contacted by Finexio and anyone communicating on its behalf for any and all purposes arising out of or relating to these Terms or Customer’s use of the Services electronically or at any telephone number provided by Customer or such representatives or at which such Persons may be reached.
Except as otherwise specifically indicated, the following capitalized terms have the following meanings in these Terms (such meanings to be equally applicable to both the singular and plural forms of the terms defined).
a. “Affiliate” means, with respect to any Person, any other Person that directly or indirectly Controls, is Controlled by, or is under common Control with such Person.
b. “Applicable Law” means any and all applicable laws, treaties, conventions, directives, regulations, Operating Regulations, ordinances, and judicial decisions in courts and tribunals of competent jurisdiction that relate to the Services or a Party, including any subsequent amendments, modifications and revisions thereto, or subsequent versions thereof.
c. “Bank” means CASS Commercial Bank or such other federally-insured depository institution as Finexio may designate from time to time.
d. “Business Day” means any day other than a Saturday, Sunday or a day on which Bank is not open for business.
e. “Claim” has the meaning set forth in Section 7.1.
f. “Confidential Information” has the meaning set forth in Section 3.1.
g. “Control” means, with respect to any Person, the possession, direct or indirect, of the power to vote fifty-one percent (51%) or more of the securities that have ordinary voting power for the election of directors of such Person, or to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or by contract or otherwise.
h. “Created” has the meaning set forth in Section 4.1.
i. “Customer Data” has the meaning set forth in Section 2.3.
j. “Custom Implementation” has the meaning set forth in Section 2.5.
l. “Cutoff Time” means the time communicated by Finexio through the Platform or otherwise for completing or cancelling a Payment.
m. “Effective Date” means the commencement date for the Services as specified in the applicable Services Agreement.
n. “FBO Account” has the meaning set forth in Section 2.2.
o. “Feedback” has the meaning set forth in Section 4.4.
p. “Finexio Data” has the meaning set forth in Section 2.3.
r. “HIPAA” has the meaning set forth in Section 2.3.
s. “Indemnified Party” has the meaning set forth in Section 7.3.
t. “Indemnifying Party” has the meaning set forth in Section 7.3.
u. “Implementation” has the meaning set forth in Section 2.5.
v. “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, publicity and privacy rights, and mask works; (b) trademarks, and trade name rights and similar rights, service marks, domain names, trade dress, logos, and other distinctive brand features, whether or not registered; (c) trade secret rights; (d) patents and industrial property rights; (e) publicity and privacy rights in marketing, advertising, or other public facing materials (including rights to use the name, likeness, image of persons); and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses “(a)” through “(d)” above.
w. “Mark Licensee” has the meaning set forth in Section 4.3.
x. “Mark Licensor” has the meaning set forth in Section 4.3.
y. “Marks” means, with respect to a Party, the trademarks, service marks (whether registered or at common law), trade names, business names, logos, internet domain names or other proprietary designs and designations service marks, including names and other distinctive marks or logos, which identify such Party.
z. “Operating Regulations” means the by-laws, operating regulations, terms and conditions, rules, guidelines, policies and procedures of any card association or payment network used to process any Payment, or applicable to any payment method used to make any Payment, through the Services, as any or all of the foregoing may be amended and in effect from time to time.
aa. “Payment” means any payment instructed or otherwise authorized by Customer pursuant to the Services.
bb. “Payment Due Date” has the meaning set forth in Section 2.1.
cc. “Payment Instructions” means information about a Payment provided by Customer including but not limited to payee name, payee account information, invoice number, invoice date, invoice due date, amount, and other details required of or requested from Customer when using a Service.
dd. “Person” means any natural or legal person, including any corporation, partnership, limited liability company, trust or unincorporated association or other entity.
ee. “Platform” has the meaning set forth in Section 2.1.
ff. “Primary Contact” has the meaning set forth in Section 2.3.
gg. “Processing Date” means the date a Payment is to be processed, which shall be determined subject to any applicable Cutoff Time and other adjustment as set forth in these Terms.
hh. “Qualified Volume” means completed Payment volume denominated in US dollars that qualifies for revenue sharing as determined by Finexio in its sole discretion.
ii. “Recipient” has the meaning set forth in Section 3.1.
jj. “Services” means the payment solutions, technology and related services provided or supported by Finexio as further described herein.
kk. “Standard Implementation” has the meaning set forth in Section 2.5.
ll. “System Requirements” has the meaning set forth in Section 2.5.
mm. “Subcontractor” has the meaning set forth in Section 2.1.
nn. “Supplier” means any payee to whom Customer has or intends to make Payment to through use of the Services.
oo. “Taxes” has the meaning set forth in Section 2.1.
pp. “Technology” means any processes, methods, know-how, designs, information, data, software programs in both source and object codes, application programming interfaces, documentations, specifications, techniques, software development toolkits, products, devices, apparatuses, equipment, and other forms of technology, and all Intellectual Property Rights therein but excluding the Marks.
PAYMENT CONFIRMATION AGREEMENT
THIS PAYMENT CONFIRMATION AGREEMENT (as amended, supplemented or modified from time to time, this “Agreement”), is between (“Customer”, “you”, “Buyer”), and Finexio SCF, LLC, a Delaware limited liability company (together with its successors and assigns, “Finexio”). This Agreement applies if and to the extent Finexio purchases Buyer’s payables as described herein.
WHEREAS, Buyer from time to time acquires goods or services in the ordinary course of business from suppliers and has or will have certain accounts payable owing and payable by Buyer to such suppliers;
WHEREAS, subject to, and in accordance with the terms of this Agreement, with respect to Finexio’s purchase of such payables from suppliers from time to time, Finexio will act as payment agent for Buyer; and
WHEREAS, the parties desire to set out the terms and conditions pursuant to which Finexio will act as payment agent for Buyer with respect to such payables.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
Section 1. Definitions. The following terms have the respective meanings indicated below:
1.1 “Affiliate” shall mean, as to any Person, any other Person (a) that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, (b) who is a director or officer (i) of such Person, (ii) of any subsidiary of such Person, or (iii) of any Person described in clause (a) above with respect to such Person, or (c) which, directly or indirectly through one or more intermediaries, is the beneficial or record owner (as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended, as the same is in effect on the date hereof) of ten percent (10%) or more of any class of the outstanding voting securities or other equity or ownership interests of such Person.
1.2 “Applicable Law” shall mean any and all federal, state, local and/or applicable foreign statutes, ordinances, rules, regulations, court orders and decrees, administrative orders and decrees, and other legal requirements of any and every conceivable type applicable to the Payables, Finexio and the applicable Supplier and/or Buyer.
1.3 “Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to be closed.
1.4 “Collections Account” shall have the meaning set forth in Section 2.2(a).
1.5 “Confirmed Payable” shall have the meaning set forth in Section 2.1.
1.6 “Contract” shall mean a contract between Buyer and a Supplier, or an invoice sent or to be sent by a Supplier, pursuant to or under which a Payable shall arise or be created, or which evidences a Payable.
1.7 “Finexio Platform” shall mean the system of processing, paying and settlement related to the purchase, sale and payment of Payables through one or more computerized systems and related services, equipment and software, including, without limitation, e-mail and Internet or intranet websites, for purposes of (a) the offer of such Payables that are subject to this Agreement by a Supplier to Finexio for sale and the purchase by Finexio from such Supplier of such Payables subject to the terms and conditions of the applicable Receivables Purchase Agreement, and (b) payments and settlements in respect of such Payables.
1.8 “Governmental Authority” shall mean any federal, state, municipal, national, local or other governmental department, court, commission, board, bureau, agency or instrumentality or political subdivision thereof, or any entity or officer exercising executive, legislative or judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case, whether of the United States or a state, territory or possession thereof, a foreign sovereign entity or country or jurisdiction or the District of Columbia.
1.9 “Insolvency Event” shall mean, with respect to any Person, (a) the filing by a specified Person of a petition for its bankruptcy or reorganization under the U.S. Bankruptcy Code or the laws of any state of the United States or the filing by a specified Person of a similar petition in any other jurisdiction, (b) the commencement against a specified Person with or without its consent or approval of any proceeding seeking its bankruptcy, liquidation or reorganization, appointment of a receiver or trustee of its assets, or comparable relief, which proceeding has not been dismissed or discontinued within thirty (30) days after its filing, (c) the conversion at any time of an involuntary proceeding of the type described in clause (b) into a voluntary proceeding with the consent of a specified Person, (d) the entry by a court of competent jurisdiction of a final and unappealable order granting any relief of the type described in clause (a) or (b) above, (e) failure by such Person generally to pay its debts as such debts become due or admission by such Person in writing its inability to pay its debts generally, (f) any assignment for the benefit of its creditors or (g) taking by such Person of any action to authorize any of the actions set forth in this definition.
1.10 “Invoice Amount” shall mean, with respect to a Payable, the amount of such Payable, as confirmed by Buyer through the Finexio Platform.
1.11 “Maturity Date” shall mean, with respect to a Payable, the maturity date of such Receivable, as confirmed by the Buyer through the Finexio Platform.
1.12 “Payables” shall mean accounts owing and payable to a Supplier by Buyer arising pursuant to the sale by such Supplier of goods or services in the ordinary course of business to Buyer.
1.13 “Person” or “person” shall mean any individual, sole proprietorship, partnership, corporation (including any corporation which elects subchapter S status under the US Internal Revenue Code), limited liability company, limited liability partnership, business trust, unincorporated association, joint stock corporation, trust, joint venture or other entity or any Governmental Authority.
1.14 “Purchased Confirmed Payable” shall have the meaning set for forth in Section 2.2(a).
1.15 “Receivables Purchase Agreement” shall mean each Receivables Purchase Agreement entered into by and between a Supplier and Finexio with respect to Confirmed Payables purchased by Finexio.
1.16 “Solvent” shall mean, at any time with respect to any Person, that at such time such Person (a) is able to pay its debts as they mature and has (and has a reasonable basis to believe it will continue to have) sufficient capital (and not unreasonably small capital) to carry on its business consistent with its practices as of the date hereof, and (b) the assets and properties of such Person at a fair valuation are greater than the indebtedness of such Person, and including subordinated and contingent liabilities computed at the amount which such person has a reasonable basis to believe represents an amount that can reasonably be expected to become an actual or matured liability.
1.17 “Supplier” shall mean each of Buyer’s suppliers that has entered into a Receivables Purchase Agreement, together with its successors and assigns.
1.18 “Transaction Documents” shall mean, collectively, the following (as the same now or hereafter exist or may at any time be amended, supplemented, restated or replaced): (a) this Agreement; and (b) the other documents to be executed and delivered in connection with any of the foregoing; sometimes being referred to herein individually as a “Transaction Document”.
1.19 “UCC” shall mean the Uniform Commercial Code as in effect in the State of New York, and any successor statute, as in effect from time to time.
Section 2. Confirmed Payables.
2.1 Confirmed Payables. Buyer and Suppliers may from time-to-time notify each other of Payables through the Finexio Platform. In relation to each such Payable, Buyer shall notify Finexio using the Finexio Platform of the Invoice Amount, the Maturity Date and such other details reasonably requested by Buyer with respect to such Payable, and Buyer’s agreement to pay such Payable (each Payable so notified by Buyer, a “Confirmed Payable”).
(a) In relation to each Confirmed Payable that Buyer has been notified through the Finexio Platform has been purchased by Finexio (each such Confirmed Payable, a “Purchased Confirmed Payable”), Buyer shall settle the same by payment of the Invoice Amount of such Purchased Confirmed Payable on the Maturity Date of such Purchased Confirmed Payable to the account specified in Exhibit A (such account, together with such other account(s) that Finexio may from time-to-time notify Buyer, the “Collections Account”).
(b) Buyer’s obligation to settle Purchased Confirmed Payables is irrevocable, absolute and unconditional and is not subject to any claim, abatement, deduction, reduction or setoff of any kind, including, without limitation, by reason of any default or dispute arising under the Contract relating to such Confirmed Payable.
2.3 Transfer of Confirmed Payables. Buyer acknowledges and agrees that (a) Finexio and each Supplier are party to a Receivables Purchase Agreement, pursuant to, and subject to terms and conditions of, which, such Supplier may offer to sell Confirmed Payables and certain related rights of such Supplier to Finexio, and Finexio may, in its sole discretion, elect to accept such offer and purchase such Confirmed Payables, in exchange for consideration as set forth therein and (b) Finexio may from time to time, in its sole discretion, sell or otherwise dispose of all or any portion of Purchased Confirmed Payables or any interest therein to third parties, on such terms and subject to conditions as mutually agreed by Finexio and such purchasers; provided, however, that (i) no such sale or disposal shall impose on Buyer any greater obligation or liability under this Agreement than it would have been under if no such sale or disposal had taken place, and (ii) Finexio shall not sell or otherwise dispose of all or any portion of the Purchased Confirmed Payables or any interest therein to a law firm. Buyer hereby consents to any such sales, disposals and purchases of Confirmed Payables.
2.4 No Assumption of Obligations Relating to Payables. Finexio and any third party purchaser or acquirer of a Payable shall not have any obligation or liability to Buyer or any obligor in respect of a Payable (including any obligation to perform any of the obligations of any Supplier under any Payable or related Contract). No such obligation or liability is intended to be assumed hereunder by Finexio or any third party purchaser or acquirer and any such assumption is expressly disclaimed.
Section 3. Finexio Platform.
3.1 Use of Finexio Platform. Buyer hereby agrees to use the Finexio Platform in accordance, and comply, with policies and procedures of Finexio with respect thereto and in effect from time to time in all respects. To the extent necessary, Finexio shall grant a license to Buyer for the use of the Finexio Platform, on such terms and subject to such conditions, as reasonably determined by Finexio.
Section 4. Representations and Warranties.
4.1 Mutual Representations and Warranties. Each of Buyer and Finexio represents and warrants as follows: (a) it has been duly organized, is validly existing and in good standing, with the power and authority to conduct its business and enter into each Transaction Document and perform its obligations thereunder; (b) it has obtained all necessary licenses, qualifications and approvals in all jurisdictions in which the conduct of its business requires it; (c) each Transaction Document executed and delivered by it will constitute, a legal, valid, and binding obligation of such party, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws; and (d) the consummation of the transactions contemplated by the Transaction Documents to which it is a party, and the fulfillment of the terms hereof or thereof will not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or passage of time or both) a default under its organizational documents or any material agreement to which it is a party or by which it is bound or violate any law or any order, rule, or regulation applicable to it.
4.2 Buyer Representations and Warranties. In order to induce Finexio to enter into this Agreement and to make purchases hereunder, Buyer hereby represents and warrants to Finexio as of the date hereof and on each date that Finexio notifies Buyer of the purchase of a Confirmed Payable through the Finexio Platform:
(a) Proceedings. There is no suit, action, litigation, investigation or proceeding, or governmental or administrative investigation or inquiry, pending or to the best of Buyer’s knowledge, threatened, before any Governmental Authority, asserting the invalidity of any Payable or any Transaction Document to which Buyer is a party, seeking to prevent the consummation of any of the transactions contemplated by any Transaction Document to which Buyer is a party, that would prevent or prohibit Buyer from complying in full with the provisions of this Agreement, or that would have any material impairment of the right or ability of Buyer to carry on its business substantially as now conducted, or in any material liability on the part of Buyer.
(b) Government Approvals. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for Buyer’s due execution, delivery and performance of any Transaction Document to which it is a party.
(c) Financial Condition. Buyer is Solvent. There is no outstanding or pending petition for the winding up, liquidation or bankruptcy of Buyer. There has been no event that results, or would reasonably be expected to result, in (i) a material adverse change in (A) the business, condition (financial or otherwise), operations, commercial relationships with any Supplier or properties of Buyer, or (B) the ability of Buyer to fulfill its obligations to Finexio under this Agreement or any other Transaction Documents, or (ii) the impairment of the validity or enforceability of, or the rights, remedies or benefits available to, Finexio with respect to Buyer since its last fiscal year end financial statements. Upon request by Finexio, Buyer shall provide such financial information in respect of itself as may be reasonably requested by Finexio from time to time.
(d) Quality of Title. Each Payable is represented by a valid Contract, has not been assigned or pledged, and Buyer is not in default of any of its obligations under any Transaction Document. Each such Payable is freely assignable without consent, condition or restriction. No effective financing statement or other instrument similar in effect covering any such Payables is on file in any recording office except such as may be filed (i) in favor of a Supplier in accordance with the Contracts, or (ii) in favor of Finexio in accordance with the Receivables Purchase Agreement. Such Payable is not subject to any right of rescission, set-off, counterclaim or defense, nor will the operation of any of the terms of the Transaction Documents, or the exercise of any right thereunder, render any Transaction Document unenforceable, in whole or in part and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto.
(e) Accuracy of Information. No information at any time furnished in writing (including in electronic form) by Buyer to Finexio for purposes of or in connection with any Transaction Document or any transaction contemplated hereby or thereby is, or will be, inaccurate in any material respect as of the date it was furnished or as of the date as of which
such information is dated or certified, or omits or will omit to state any material fact necessary to make such information not materially misleading.
Section 5. Buyer Covenants.
5.1 Affirmative Covenants.
(a) Compliance with Laws, Etc. Buyer will comply in all material respects with all Applicable Laws, licenses, approvals, orders and other permits applicable to it and duly observe in all material respects all requirements of any Governmental Authority.
(b) Preservation of Corporate Existence. Buyer will preserve, renew and keep in full force and effect its corporate or limited liability company existence and rights and franchises with respect thereto and maintain in full force and effect all licenses, trademarks, tradenames, approvals, authorizations, leases, contracts and permits necessary to carry on its business.
(c) Payables Review. Buyer will, from time to time as requested by Finexio, at reasonable times and upon reasonable prior notice, provide Finexio electronic copies of records and data and such other records and data as Finexio may reasonably request, as well as access to employees who have relevant knowledge, related to Purchased Confirmed Payables, for the purposes of managing, verifying, and auditing the records and data related to Purchased Confirmed Payables and ensuring accurate payments under the terms of the Transaction Documents. To the extent such documentation contains attorney-client privileged information, Buyer may redact sufficient information to conceal the identity of any information subject to attorney-client privilege.
(d) Keeping of Records and Books of Account. Buyer will maintain accurate and complete books, records, accounts and other information relating to Purchased Confirmed Payables.
(e) Performance and Compliance with Payables and Contracts. Buyer will, at its expense, timely and fully perform and comply in all material respects with all provisions, covenants and other promises required to be observed by it under the Contracts and all purchase orders and other agreements related to Purchased Confirmed Payables.
(f) Location of Records. Buyer will keep its principal place of business and chief executive office and the offices where it keeps its books and records at the address as provided to Finexio as of the date hereof or at such other locations as Buyer may establish after the date hereof within the continental United States, provided Buyer gives Finexio thirty (30) days prior written notice of the intended opening of any such new location and executes and delivers.
(g) Marking of Records and Data Processing Reports. Buyer will mark its records (whether electronic or otherwise) which relate to Purchased Confirmed Payables with a legend, acceptable to Finexio, evidencing that Purchased Confirmed Payables are subject to this
Agreement. In the event that any such electronic records are printed and distributed or shown to any person other than Buyer or Finexio, such legend shall be included with such printed records.
(h) Contract Breach: Buyer will notify Finexio of any dispute or default arising under a Contract immediately upon becoming aware of the same.
(i) Supplier Insolvency: Buyer will notify Finexio of an Insolvency Event in relation a Supplier immediately upon becoming aware of the same.
5.2 Negative Covenants.
(a) Payables Amendments. Buyer will not, without Finexio’s prior written consent, agree to any extension of the time for payment, or reduction of the amount, of any Purchased Confirmed Payables, compromise, compound or settle the same, or agree to a release, in whole or in part, from payment thereof, or make any other amendments, waivers, modifications, renewals, supplementations or restatements to any terms of Purchased Confirmed Payables.
Section 6. Additional Rights and Obligations in respect of Confirmed Payables.
6.1 Responsibilities of Buyer.
Settlement of Confirmed Payables; Rights of Finexio. Buyer shall pay all amounts payable in respect of any Purchased Confirmed Payables directly to Finexio as set forth herein. Any payments or collections in respect of Purchased Confirmed Payables and any remittances, checks, bills and other proceeds of Purchased Confirmed Payables shall be the absolute property of Finexio, and Finexio shall be entitled to deal with the same in its sole discretion.
6.2 Further Action Evidencing Purchases.
(a) Additional Documents and Actions. From time to time, at its expense, Buyer will promptly execute and deliver all further instruments and documents, and take all further action that Finexio may reasonably request in order to enable Finexio to exercise or enforce any of its rights under this Agreement or any other Transaction Document.
Section 7. Termination
7.1 Rights to Terminate. Finexio or Buyer may each terminate this Agreement at any time upon thirty (30) days’ written notice to the other party. In addition, Finexio may terminate this Agreement immediately upon written notice to Buyer in the event:
(a) Buyer fails to pay any obligations to Finexio when due;
(b) Buyer fails to perform any of the covenants contained in any Transaction Document;
(c) any representation, warranty or statement of fact made by Buyer to Finexio in any Transaction Document or otherwise in connection with the transactions contemplated hereunder shall when made or deemed made be false or misleading in any material respect; or
(d) Buyer dissolves or suspends or discontinues doing business or shall be subject to an Insolvency Event.
7.2 Effect of Termination. In the event that Finexio terminates this Agreement as a result of events described in Section 7.1, all amounts then owing from Buyer in respect of any Purchased Confirmed Payables or hereunder shall be immediately due and payable, and Finexio shall be entitled to exercise any rights and remedies available to Finexio at law or equity. Without in any way limiting the forgoing, termination shall not affect any rights created or obligations incurred under this Agreement prior to termination.
Section 8. Indemnification
8.1 Indemnities by Buyer. Without limiting any other rights which Finexio may have hereunder or under Applicable Law, Buyer hereby agrees to indemnify Finexio and its assigns (each of the foregoing Persons being individually called a “Finexio Indemnified Party”), on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Finexio Indemnified Amounts”) arising out of or as a result of the breach of any representation or warranty made by Buyer under or in connection with this Agreement, any failure of Buyer to perform its duties or obligations in accordance with the provisions of this Agreement, any amounts Finexio may be required to surrender or return as provided herein and any taxes and any liability related thereto that may at any time be asserted in respect of the transactions contemplated hereunder or related to Purchased Confirmed Payables (but not taxes imposed on Finexio with respect to its overall net income); excluding, however, Finexio Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Finexio Indemnified Party.
8.2 Indemnities by Finexio. Without limiting any other rights which Buyer may have hereunder or under Applicable Law, Finexio hereby agrees to indemnify Buyer and its assigns (each of the foregoing Persons being individually called a “Buyer Indemnified Party”), on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Buyer Indemnified Amounts”) arising out of or as a result of the breach of any representation or warranty made by Finexio under or in connection with this Agreement, any failure of Finexio to perform its duties or obligations in accordance with the provisions of this Agreement, any amounts Buyer may be required to surrender or return as provided herein and any taxes and any liability related thereto that may at any time be asserted in respect of the transactions contemplated hereunder or related to Purchased Confirmed Payables (but not taxes imposed on Buyer with respect to its overall net income or that were included on the original invoice that corresponds with the Purchased Confirmed Payable); excluding, however, Buyer Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Buyer Indemnified Party.
8.3 Limitation on Claims.
(a) Finexio and Buyer each agrees not to assert, and hereby waives, any claim against the other party on any theory of liability for special, indirect, exemplary, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, any Transaction Document or any transaction contemplated hereby or thereby.
(b) Finexio and Buyer will each be excused from the performance of its obligations under this Agreement (other than payment obligations), and shall have no liability to the other party, for failure of, or delay in, its performance under this Agreement resulting from, in whole or in part, delays caused by any act of God, natural disaster, fire or other catastrophe, war (whether declared or not), civil disturbance, strikes, pandemic, court order, force majeure, electrical or computer failure, interruption of communication or computer facilities, or any other event beyond its control. Finexio shall be entitled to rely conclusively upon any notice or instruction it receives from Buyer, and shall have no obligation to investigate or verify the authenticity or correctness of any such notice or instruction.
Section 9. Miscellaneous
9.1 Amendments. The provisions of this Agreement may from time to time be amended, modified or waived only in writing and signed by Finexio and Buyer. Any amendment, waiver or consent effected in accordance with the terms hereof shall be effective only in the specific instance and for the specific purpose for which given.
9.2 Notices, Etc.
Except as otherwise expressly provided herein, all notices to be given to a Party hereunder shall be effective only when made in writing and actually delivered (by mail, overnight courier, special courier or as mutually agreed upon) to such Party at the address shown on the signature page below for such Party, or such other address of which the Party to receive such notice has notified the other Party pursuant to this Section 9.1.
If to Finexio:
924 N Magnolia Avenue
Suite 202 PMB 1310
Orlando FL 32803
Attention: Ernest Rolfson
Email Address: firstname.lastname@example.org
(a) Notices and other communications to Finexio and Buyer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by Finexio or as otherwise determined by Finexio. All such notices and other communications through the Finexio Platform or otherwise delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) (i) are and shall be deemed to be “authenticated” (as such term is defined in the UCC) for purposes of any agreements, records, demands, notices or other communications, as the case may be, and (ii) in the case notices and communications effected through the Finexio Platform, are and shall be deemed received on the date when recorded on the Finexio Platform, whether or not Buyer may have actually accessed and used the Finexio Platform on or after the date such notice was so recorded.
9.3 No Waiver; Cumulative Remedies. No failure or delay on the part of Finexio or Buyer in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on Finexio or Buyer in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by Finexio under this Agreement shall, except as may otherwise be stated in such waiver or approval, be applicable to subsequent transactions. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
9.4 Binding Effect; Assignability; Survival of Provisions. This Agreement shall be binding upon and inure to the benefit of Finexio, Buyer and each of their respective successors and permitted assigns. Buyer may not assign its rights hereunder or any interest herein without the prior written consent of Finexio. Finexio shall have the right without notice to or consent of Buyer to sell, transfer, subdivide, negotiate or grant participations in all or any part of any Transaction Document on such terms as Finexio determines; provided, however, that (a) no such sale, transfer, subdivision, negotiation or participation shall impose on Buyer any greater obligation or liability under this Agreement than it would have been under if no such sale, transfer, subdivision, negotiation or participation had taken place, and (ii) Finexio shall not sell, transfer, subdivide, negotiate or grant participations in all or any part of this Agreement to a law firm. The Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until the date after the termination hereof on which Finexio has received payment in full in cash for all Purchased Confirmed Payables and Buyer has paid and performed all of its obligations under the Transaction Documents in full. The provisions of Section 8 and Section 9.10 shall survive and remain in full force and effect after any termination of this Agreement.
9.5 Governing Law; Consent to Jurisdiction. The validity, interpretation and enforcement of this Agreement and any dispute arising out of the relationship between the parties hereto, whether in contract, tort, equity or otherwise, shall be governed by the internal laws of the State of New York but excluding any principles of conflict of laws or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York. Each party hereto irrevocably consents and submits to the non-exclusive jurisdiction of the Supreme Court of New York in New York County and the United States District Court for the Southern District of New York and waive any objection based on venue or forum non conveniens with respect to any action instituted therein arising under this Agreement or in any way connected with or related or incidental to the dealings of the parties hereto in respect of this agreement or the transactions related hereto, in each case whether now existing or hereafter arising, and whether in contract, tort, equity or otherwise, and agree that any dispute with respect to any such matters shall be heard only in the courts described above.
9.6 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE.
9.7 Costs and Expenses. In addition to the obligations of Buyer under Section 8, Buyer agrees to pay all reasonable costs and expenses, including reasonable attorneys’ fees and expenses, in connection with the enforcement against Buyer of this Agreement or any Purchased Confirmed Payables.
9.8 Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by electronic means shall have the same force and effect as the delivery of an original executed counterpart of this Agreement.
9.9 No Partnership or Joint Venture. Nothing contained in this Agreement shall be deemed or construed by the parties hereto or by any third person to create the relationship of principal and agent or of partnership or of joint venture or give rise to any fiduciary relationship.
9.10 Confidentiality. Each party agrees to maintain the confidentiality of the Transaction Documents and all material, non-public information provided by it to the other in connection with the Transaction Documents and the transactions contemplated hereby and thereby; provided, that, (a) the foregoing does not apply to information that (i) was, is or becomes generally available to the public, or (ii) was or becomes available to the other party on a non-confidential basis prior to its disclosure to such party pursuant to this Agreement from a source other than the other party that is not known to such recipient to be subject to confidentiality obligations, (b) each party may disclose any portion of such information, (i) in accordance with its customary regulatory compliance procedures, (ii) if requested or required to do so pursuant to (A) any Federal or state securities laws, (B) oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand, or any order or demand in connection with any civil or criminal judicial, administrative or congressional proceeding or similar process, (C) other Applicable Law or (iii) in connection with any suit, action or proceeding for the purpose of defending itself, reducing its liability or protecting or exercising any of its claims, rights or remedies, and (c) Finexio may disclose such information to any prospective participant with Finexio in connection with the purchase of the Confirmed Payables, and Finexio agrees that such prospective participant shall agree to be bound by confidentiality provisions similar to those contained in this Section 9.10.
9.11 Entire Agreement. This Agreement (including the documents referred to herein) constitutes the entire agreement among the parties to this Agreement and supersedes any prior understandings, agreements or representations by or among the parties, written or oral, to the extent they relate in any way to the subject matter hereof.
9.12 Third-Party Beneficiaries. Except as expressly provided herein, this Agreement is solely for the benefit of the parties hereto and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
9.13 Patriot Act; OFAC. To help fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each person or corporation who opens an account and/or enters into a business relationship. None of the requesting payments or other transactions hereunder will violate the Trading With the Enemy Act (50 USC §1 et seq., as amended) or any of the foreign assets control regulations of the United States Treasury Department or any enabling legislation or executive order relating thereto. Neither Buyer nor any of its subsidiaries or other Affiliates is or will become a “blocked person” as described in the Trading with the Enemy Act, any foreign asset control regulations or executive order or engages or will engage in any dealings or transactions, or be otherwise associated, with any such “blocked person”.