These General Terms of Service are an agreement (the “Terms”) between OneNetworks, Inc. (Dba Finexio)., a Delaware corporation (“Finexio”) and you and any person or organization for which you act that has a Finexio account (“Customer” or “you”) (each of Finexio and Customer, a “Party” and, collectively, the “Parties”). You represent and warrant that you are of legal age and have the right and authority to enter into the Terms on your own behalf and on behalf of the Customer, if applicable. The Terms are effective as of the date of Customer’s accepting the Terms (the “Effective Date”). The Services provided to you by Finexio are subject to the terms and conditions of the Terms and to the following, which are incorporated herein by this reference: (i) the terms or instructions appearing in the Services Agreement or any addendum thereto; (ii) Finexio’s policies and procedures, as amended from time to time, that apply to the Services; and (iii) state and federal laws and regulations and payment network rules, as applicable.
1. Definitions: Except as otherwise specifically indicated, the following capitalized terms have the following meanings set forth in Exhibit A
(a) Finexio is engaged in the business of providing accounts payable services. The services offered by Finexio include: (i) generation, routing and processing services for payments to Customers; (ii) generation of remittance files; (iii) implementation services; (iv) marketing campaigns to enroll Providers, 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 (collectively, the “Services”).
(b) Finexio will establish, maintain and provide an online application which will be used to facilitate the provision of the Services (“Platform”), and which will be made available for use by Customers through such means as may be mutually agreed upon by the Parties from time to time. The Parties shall mutually agree on a method for integrating their respective networks, applications and work environment platforms, including the Platform, as required for Finexio to provide the Services, and shall perform those integration functions as mutually agreed upon by the Parties. Customer acknowledges that each Customer wishing to access or utilize the Platform or any related features, functionality or services will be required to agree to the applicable terms and conditions, as determined by Finexio in its sole discretion. Finexio may terminate the ability of a Customer to access or utilize the Platform at any time in its sole discretion.
(c) Finexio may modify the Services from time to time at Finexio’s sole discretion for any purpose deemed appropriate by Finexio.
(d) 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 the 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.
(e) Customer acknowledges and agrees that Finexio will not bear any responsibility or liability with respect to any act or omission of any Customer, including any fraud, or any act or omission of Customer or its Affiliate(s), or any of their respective owners, shareholders, partners, employees, agents, representatives or contractors, with respect to any Customer. Customer will at all times ensure that all data furnished to Finexio in connection with the 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, including under the laws and regulations applicable to any Customer.
(f) 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.
(g) All data transmissions conducted between the Parties pursuant to the 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.
(h) From time to time, Customer may request additional Services from Finexio, and the parties may thereafter enter into an addendum to the Services Agreement referencing the Terms for such Services.
(i) 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, provided that such changes do not (i) increase Customer’s total costs of receiving the Service; (ii) require material changes to Customer’s facilities, systems, software or equipment; or (iii) have a material adverse impact on the functionality, interoperability, performance or resource efficiency. Customer shall not rely on 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. If Customer requests a change to a Service, the parties shall negotiate the terms for such change, which terms will be set out in a mutually agreed upon change order, addendum, or other similar document.
(j) This Service should not be used to pay federal, state, or local taxes, courts or other governmental entities. Finexio will not be liable for penalties, interest, or other damages of any kind if Client tries to use the Service to remit or pay money for taxes, or to courts or governmental agencies, or for any purposes that do not comply with Applicable Law. The Service is also not intended for payment of alimony, child support, taxes or other court-directed or government payments, fines or penalties, payments to settle securities transactions or payment in connection with gambling, fraudulent or illegal activities.
(k) Finexio may reject Payment Instructions with or without cause or prior notice. If it does, Finexio will attempt to notify Client of the rejection orally, electronically or in writing before the Processing Date.
(l) Finexio recommends that Client enter a Processing Date that is at least six Business Days before the date the payment is due (without regard to any grace period)(the “Payment Due Date”).
(m) Finexio will continue to originate recurring payments through the expiration date Client originally scheduled for such payments unless Client cancels a recurring payment prior to its respective Cutoff Time for cancellations, as provided herein.
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, and Processor hereby accepts such appointment;
(ii) Customer 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. At Finexio’s option, the account may either be a pooled custodial deposit account among Customers, individual deposit account or a sub-account associated with a pooled custodial deposit account (such account, the “FBO Account”).
(iii) Authorizes Finexio to provide 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;
2.3 Additional Responsibilities
(a) Customer shall be solely responsible for the transmission of any information, data, records or documents (collectively, “Customer Data”) necessary for Finexio to perform a Service at Customer’s expense, and shall bear any risk of loss resulting from that transmission until Finexio confirms receipt. Finexio shall bear the risk of loss resulting from Customer Data transmitted to Customer until Customer confirms receipt. If Customer directs Finexio to disclose Customer Data to a third party, Customer shall provide Finexio with written authorization to do so and 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 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 who will be responsible for all matters relating to the Services (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written (including electronic) notice to Finexio.
(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 third-party contractors that have agreed to confidentiality obligations consistent with the 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. 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 Customer, or from Finexio or other third party, related to any Customer’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 Enrollment Form errors or related to Client’s Payment Instructions or to changes thereto and is not obligated to detect errors in Client’s Payment Instructions.
(l) Finexio is not responsible for confirming such information, or for monitoring or refusing to process inaccurate, untimely or duplicate Payment Instructions.
(m) Client 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. To ensure that critical or time-sensitive payments are received on time, Client should consider establishing Processing Dates that are well in advance of the Payment Due Date.
2.4 Fees & Incentives
(a) In connection with Finexio’s provision of the Services, Customer agrees to pay to Finexio the fees and incentives as set forth in the Services Agreement.
(b) Except as otherwise provided in the Services Agreement, the fees, charges and financial terms of the Terms shall be unchanged during the first twelve (12) months of the Term, and are subject to increase or modification by Finexio, thereafter no more than once every six (6) months upon no less than thirty (30) days prior notice to Customer. You shall be solely responsible for all penalties, interest charges, and other late payment fees associated with payments that are delivered after the due date as set forth in the Services Agreement.
(c) Finexio also shall be entitled at any time without prior notice to pass through any access fees and/or increase in communications tariffs related to the Services, including, without limitation, government imposed access fees, fees resulting from changes in regulation or statute, transaction costs, and any third-party imposed fees.
(d) 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.
(e) Except as may be provided otherwise in the 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 web based 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.
(f) Finexio may charge a Fee for each payment request presented against insufficient available funds, whether or not Finexio honors or processes the request.
2.5 Books & Records; Audit Rights
(a) Books & Records. Each Party 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 the 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 further agree to work together in good faith to reconcile any accounting discrepancies. Each Party shall at all times have reasonable access to all information and documents related to the subject matter hereof which it requires to comply with Applicable Law and which may be in the control or possession of any other Party.
(b) Audits. Each Party (the “Reviewing Party”) may, at its own expense, inspect, or have a third party designated by the Reviewing Party inspect, the books and records of the other Party (the “Reviewed Party”) that are directly related to the obligations of the Reviewed Party 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 the Reviewed Party’s normal business hours, and no more frequently than once during any calendar year unless the Reviewing Party has a reasonable belief that the Reviewed Party is not acting in compliance with the terms of the Terms. The Reviewed Party shall furnish to the Reviewing Party or its designee all such information concerning transactions and the Reviewed Party’s performance of its obligations hereunder as the Reviewing Party may reasonably request.
2.6 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 made a reasonable deposit or 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.
3.1 Confidential Information: Each Party acknowledges that it may receive Confidential Information of the other Party. For purposes of the Terms, “Confidential Information” means the Terms, including any schedule, exhibit, attachment or amendment hereto; any Customer information, and all proprietary information, data, trade secrets, business information, financial data and budgetary or proprietary business information, income or sales data or projections, Customer lists, Vendor information, business operations, policies, procedures and techniques, advertising summary or tracking reports or other reports generated in accordance with the Terms, schematics, ideas, techniques, know how, concepts, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements, patents, copyrights, trade secrets or other intellectual property of any kind or nature, plans for future development and new product or service concepts, contemplated products or services, research, development, and strategies which a Party (“Discloser”) discloses, in writing, orally or visually, to the other Party (“Recipient”) or to which Recipient obtains access in connection with the negotiation or performance of the Terms. Confidential Information shall not include information that: (i) is already rightfully known to the Recipient at the time it obtains Confidential Information from the Discloser; (ii) is or becomes generally available to the public other than as a result of disclosure in breach of the Terms or any other confidentiality obligations; (iii) is lawfully received on a non-confidential basis from a third party authorized to disclose such information without restriction and without breach of the Terms; (iv) is contained in, or is capable of being discovered through examination of, publicly available records or materials; or (v) is developed by a Party without the use of any proprietary, non-public information provided by the other Party. Except as otherwise specifically provided in the Terms, each Party covenants and agrees that it will not, publish, communicate, divulge, or disclose to any Person any Confidential Information of the other Party, except in the performance of the terms of the Terms.
3.2 Ownership of Confidential Information: As between the Parties, each Party’s Confidential Information shall remain the property of that Party. Nothing contained in the Terms shall be construed as obligating any Party to disclose its Confidential Information to any other Party, or as granting to or conferring on a Party, expressly or impliedly, any rights or license to the Confidential Information of any other Party, and any such obligation or grant shall only be as provided by other provisions of the Terms.
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 the Terms or as otherwise expressly permitted by the 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 the 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 money 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 twenty-four (24) hours after discovery of same) advise the Discloser by telephone and in writing via facsimile or e-mail to the Discloser’s designated representative of any security breach that may have compromised any of the Discloser’s Confidential Information, and of any unauthorized misappropriation, disclosure or use by any Person of the Confidential Information of the Discloser which may come to its attention 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, the 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 written 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 the 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 the 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 the 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 the 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 the 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 the 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 the Terms.
4.2 Technology: Subject to the terms and conditions of the 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 the Terms, a limited non-exclusive, royalty-free, fully paid up, non-assignable, non-sub-licensable, non-transferable (other than in accordance with Section 9.2), 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 the 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 the 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 the Terms. Upon the later of the expiration or termination of the 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: No Joint Intellectual Property Rights. The Parties shall not be obligated to jointly develop any Technology in connection with the 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:
5.1 Customer Representations and Warranties: Customer hereby represents and warrants to Finexio that:
(a) The 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 the Terms and to perform all its obligations under the Terms. The provisions of the Terms and the performance by the Customer of its obligations under the 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) As of the Effective Date of the Terms, 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 the Terms.
5.2 Finexio Representations and Warranties: Finexio hereby represents and warrants to Customer that:
(a) The Terms are valid, binding, and enforceable against Finexio in accordance with its terms.
(b) Finexio is a Delaware corporation, validly existing, in good standing and is authorized to conduct business in each state in which the nature of Finexio’s activities hereunder makes such authorization necessary.
(c) Finexio has the full power and authority to execute and deliver the Terms and to perform all its obligations under the Terms. The provisions of the Terms and the performance by the Finexio of its obligations under the Terms are not in conflict with Finexio’s charter, bylaws or any other organizational document, agreement, contract, lease or obligation to which Finexio is a party or by which it is bound.
(d) As of the Effective Date of the Terms, there are no pending or, to the knowledge of Finexio, threatened, claims or litigation against Finexio that would adversely impact Finexio’s ability to perform its obligations under the Terms.
6.1 Customer Indemnification: 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 the 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.
6.2 Finexio Indemnification: Finexio agrees to indemnify, defend and hold harmless Customer and its Affiliates, sureties, officers, directors, agents, employees, parents and subsidiaries, from and against any and all Claims arising out of or related to:
(a) Finexio’s breach of any representation, warranty, covenant or obligation under the Terms;
(b) Gross negligence, fraud or willful misconduct on the part of Finexio, any of its officers, directors, employees, representatives, or any of their respective officers, directors and employees;
(c) Any actions taken by Customer in accordance with or in good faith reliance upon information or instructions provided by Finexio or its agents or representatives;
(d) Obligations owed to any third party by Finexio or any third party retained by it; and
(e) Any actual or alleged infringement or misappropriation of any intellectual property rights of any third party by Finexio.
The defense obligation of Finexio attaches if the Claim alleges any of the foregoing violations, breaches, acts or omissions.
6.3 Indemnification Procedures: If any Claim is asserted against either Party (the “Indemnified Party”) by any person who is not a party to the Terms in respect of which the Indemnified Party may be entitled to indemnification under the provisions of Sections 6.1 or 6.2 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 waiver by the Indemnified Party of any and all right to indemnification by the Indemnifying Party. 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.
7. Limitation of Liability; Disclaimer of Warranties:
7.1 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 OFSUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAYCONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITHTHE TERMS, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED INCONNECTION WITH THE TERMS OR OTHERWISE ARISING FROM THE TERMS, INCLUDINGWITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS ORLOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICTLIABILITY, OR OTHERWISE, EVEN IF FINEXIO HAS BEEN ADVISED OF THE POSSIBILITY OFDAMAGES. THE TOTAL LIABILITY OF FINEXIO TO CUSTOMER, WHETHER BASED INCONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILLNOT EXCEED THE FEES PAID OR PAYABLE TO FINEXIO HEREUNDER IN THE TWELVE-MONTHPERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THEFOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIALPURPOSE OF ANY LIMITED REMEDY.
7.2 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.
8. Term and Termination:
8.1 Term: The Terms will commence on the Effective Date and continue in effect for as long as Finexio is performing Services pursuant to the Services Agreement, unless earlier terminated as provided therein (the “Term”).
(a) Customer may terminate these Terms 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 the Services immediately upon written notice to Customer if Customer breaches any of the terms or conditions of the Terms or any of Customer’s representations, warranties or covenants hereunder, or may terminate the Terms upon thirty (30) days’ written notice to Customer for Customer’s material breach that remains uncured at the end of such notice period, provided that, in the event that Customer fails to pay any amounts due under the Terms, Finexio may terminate the Terms upon ten (10) days’ written notice to Customer. Upon expiration or termination of the Terms, Customer’s right to use the Services will immediately cease.
(b) In addition to any other termination rights provided elsewhere in the Terms, either Party shall have the right to terminate the 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) Upon any change to or enactment of any Applicable Law, or published change in the interpretation thereof by any regulatory authority, which would have a material adverse effect upon: (A) the subject matter hereof; (B) such Party’s ability to perform its obligations hereunder; or (C) such Party’s expected risks or benefits under the Terms; provided that the Parties, after good faith discussions, cannot find a mutually agreeable solution within a reasonable amount of time;
(iv) Violation of Applicable Law relating to the performance of the Terms rendering either of the Parties unable to substantially perform the Terms, provided that the Parties cannot find a legally workable solution to avoid violating Applicable Law within a reasonable amount of time; or
(v) Upon direction from any regulatory authority for either Party to cease or materially limit performance of such Party’s obligations under the Terms.
8.3 Rights and Obligations Upon Termination: The Parties’ rights to terminate the Terms 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 the Terms or (b) any other event which permits a termination. Furthermore, the termination or expiration of the Terms 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.
9.1 Notices: 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.
9.2 Assignment: Neither Party may assign the Terms to any third party without the prior written consent of the other Party, provided however, (i) either Party may, upon written notice to the other Party, assign the Terms to any entity Controlling, Controlled by, or under common Control with the assigning Party, and (ii) Finexio may, upon written notice to Customer, assign the Terms or to any entity merging with or acquiring substantially all of the stock or assets of Finexio.
9.3 Entire Agreement: Each Party agrees that the Terms, including all schedules 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 Terms. 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 the Terms.
9.4 Survival, Severability and Waiver: All provisions of the Terms which by their nature are meant to extend beyond the expiration or termination of the Terms and will survive the expiration or termination of the Terms. If any provision of the 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 the 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 the Terms will in no way constitute a waiver of its rights as set forth in the 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 the Terms.
9.5 Force Majeure: Finexio is not responsible for any breach or delay in the performance of its obligations pursuant to the 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 the Terms, or for any other cause reasonably beyond the control of Finexio.
9.6 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 the 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.
9.7 No Third-Party Beneficiaries: Except as stated in the Terms, the Terms do not create any right or cause of action in or on behalf of any person or entity other than the Parties.
9.8 Dispute Resolution: The Terms will be governed by, construed and enforced in accordance with the laws of the State of Florida, without regard to that state’s conflict of laws principles. Jurisdiction and venue for the formal resolution of any disputes relating to the 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 THE 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 the Terms, the prevailing Party will be entitled to recover costs and attorneys’ fees from the other Party.
9.9 Construction: The headings, captions, headers, footers and version numbers contained in the Terms are inserted for convenience only and shall not affect the meaning or interpretation of the Terms. The singular includes the plural, and the plural includes the singular. All references to “herein,” “hereunder,” “hereinabove,” or like words shall refer to the Terms as a whole and not to any particular section, subsection, or clause contained in the Terms. The terms “include” and “including” are not limiting. Reference to any agreement or other contract includes any permitted modifications, supplements, amendments, and replacements.
9.10 Amendment: Any term of the Terms may be amended, modified or terminated and the observance of any term of the Terms may be waived only with the prior written consent of the Parties.
1. Definitions: Except as otherwise specifically indicated, the following capitalized terms have the following meanings in the Terms (such meanings to be equally applicable to both the singular and plural forms of the terms defined).