General Terms of Service

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. (d/b/a Finexio), a Delaware corporation (“Finexio”), and each customer (“Customer”) for whom Finexio provides Services (as defined herein) (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 first 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, whether or not Customer enters into a separate Services Agreement for such Services (in cases where there is no such separate Services Agreement, these Terms shall constitute the applicable Services Agreement for such Services).  These Terms include any Schedule hereto that further describes the delivery of specific Services made available to Customer by 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.

The Parties acknowledge and agree that if there is any inconsistency between these Terms and any other Services Agreement terms, such other Services Agreement terms shall control, but only to the extent of such conflict.  The Parties further acknowledge and agree that if there is any inconsistency between the terms set forth in a Schedule to these Terms and any other provisions of these Terms, the terms of such Schedule shall control, but only to the extent of the conflict.  By signing a Services Agreement or utilizing or receiving 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 Section 11 (Definitions) of these Terms.

2. Services:

2.1 General

(a) Finexio is engaged in the business of providing accounts payable, payments, and related Services to payors and payees as Customers hereunder.  The Services offered by Finexio and made available to particular Customers vary from time to time and are subject to Finexio’s approval.  

(b) Finexio will establish, maintain, and provide certain Websites and other 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 will be subject to applicable terms and conditions as determined by Finexio in its sole discretion.  Finexio may terminate the ability of any Customer 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 services, Payment processing services, database management, web analytics, and other services.

(d) Customer will at all times ensure that all data furnished to Finexio in connection with these Terms, including all Customer Data (as defined herein), 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 relation to amounts transferred or 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 amendment or other adjustment to the applicable Services Agreement(s) reflecting the complete set of Services to be provided to Customer.

(h) Finexio may change any features, functions, brand, Subcontractor, Bank, 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, Subcontractor, Bank, or third-party provider.

(i) 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.    

2.3 Additional Responsibilities

(a) Customer shall be solely responsible, at its sole expense and in accordance with format and transmission specifications defined by Finexio, for furnishing any information, data, records, or documents (collectively, “Customer Data”) requested by Finexio in connection with its performance of a Service, and shall bear any risk of loss resulting from such data furnishing (including in circumstances where a third party, such as a Customer payee, furnishes Customer Data to Finexio on Customer’s behalf).  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.

(c) 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.

(d) Finexio will use commercially reasonable security measures to protect Customer Data against unauthorized disclosure or use.

(e) 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.

(f) Customer shall maintain a copy of all Customer Data furnished to Finexio (whether directly or through a third party) or otherwise pursuant to Finexio’s request 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.

(g) 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.

(h) To the extent that Customer receives any information from any other 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 such information shall constitute Confidential Information of Finexio and that Customer will not store, use, disclose, or permit any third party to access such Finexio Data other than as expressly permitted herein or 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 Finexio Data may be based on or derived from Customer Data, and that such circumstances shall not impact the rights and obligations associated with such information pursuant to these Terms.  

(i) Finexio assumes no liability for any errors in application or enrollment forms submitted by Customer or to changes thereto, and is not obligated to detect errors in such forms.

(j) Finexio is not responsible for confirming application or enrollment forms submitted by Customer, or for monitoring or refusing to process inaccurate, untimely or duplicate Customer application or enrollment forms.

(k) 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.

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 (as defined in Schedule I hereto) has been completed.

(b) Except as otherwise provided in the applicable Services Agreement, the fees, charges and financial terms applicable to Services shall be unchanged during the first six (6) months of the Term.

(c) 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.

(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) 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.

(f) Any payment or other amounts to be provided or otherwise made available to Customer pursuant to the Services may be offset by any amounts due to Finexio under the applicable Services Agreement or otherwise pursuant to these Terms.  

(g) 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.  

2.5. 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) In connection with the Platform and certain Services, Customer may be required to establish an account with Finexio and provide certain enrollment or onboarding information.  Such information shall constitute Customer Data and may include information about Customer’s financial transactions and experiences and other sensitive non-public information, including Customer’s bank or other payment account information and preferences.  Customer represents, warrants, and agrees that: (1) all such information it provides will be complete, accurate, and current; (2) it shall maintain and promptly update such information to keep it accurate and current; and (3) it has the full right, power, and authority to provide such information.  Although in its sole discretion it may take steps to do so in order to comply with Applicable Law or otherwise operate its business, Finexio has no duty or obligation to monitor, update, maintain, or review any aspect of such information.    

(c) Customer is solely responsible for resolving any disputes that may arise between Customer and any other Customer or other person because of Customer’s use or attempted use of the Platform or any Services.  Accordingly, Finexio is not responsible for, or a party to, Customer’s relationship with any other Customer and, notwithstanding anything in these Terms or other provisions of the applicable Services Agreement to the contrary, disclaims any and all obligation to in any way resolve any disputes between Customer and such other Customer in connection with Customer use or attempted use of the Platform or any Services.  

(d) 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 that the security procedures applicable to the Services are commercially reasonable in light of the size, type, and frequency of Payments hereunder and the nature of Customer’s use of the Services generally.  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 Service access means secure and confidential.  

(e) 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 facilitation of Customer’s completion or receipt of particular Payments.

2.6 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’s books and records 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, any Bank, 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.

2.7 Transition Assistance:  Upon termination of a Services Agreement, Finexio shall cooperate in the transition of the applicable 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 and unless:  (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 in writing 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. Confidentiality:

3.1 Confidential Information:  Each Party acknowledges that it may receive Confidential Information of the other Party.  For purposes of these Terms, “Confidential Information” means any Services Agreement other than these Terms, including any schedule, exhibit, attachment, or amendment thereto; payee lists or other payee information; proprietary data, trade secrets, financial data, and budgetary or other proprietary business information; income or sales data or projections; business operations, policies, procedures, and techniques; advertising summary or tracking reports or other reports generated in accordance with these Terms; schematics, ideas, techniques, know how, concepts, development tools and processes, computer printouts, computer programs, design drawings and manuals; improvements, patents, copyrights, trade secrets or other intellectual property of any kind or nature; and any 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, visually, or otherwise) to the other Party (“Recipient”) or to which Recipient otherwise obtains access in connection with the negotiation or performance of these 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 generally becomes available to the public other than as a result of disclosure in breach of these 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 these 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.  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 accordance with these Terms.  

3.2 Ownership of Confidential Information:  As between the Parties, and except as expressly provided herein, each Party’s Confidential Information shall remain the property of that Party.  Except as expressly provided herein 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 only be permitted to use or disclose the Confidential Information of the Discloser as set forth in these Terms.  Customer shall not use, share with third parties, retain, or otherwise process Confidential Information of Finexio other than as necessary to perform Customer’s obligations or exercise Customer’s rights with respect to these Terms.  On a perpetual basis, Finexio may use, retain, share with third parties, and otherwise process Customer Data and other Confidential Information of Customer to provide or improve the Services, to develop new products and services, for its own marketing purposes, and for any other purposes not prohibited by these Terms, any Services Agreement, or Applicable Law.  These Terms incorporate the privacy policy, as modified from time to time, available on the Platform at https://www.finexio.com/privacy-policy (the “Finexio Privacy Policy”), and to the extent of any conflict between the Finexio Privacy Policy and other provisions of these Terms, the Finexio Privacy Policy shall control to the extent of such conflict.  By signing a Services Agreement or when using any Service or the Platform, Customer acknowledges that it has read, understood, and agreed to the Finexio Privacy Policy.  Each Discloser represents and warrants that it has all right, power, and authority to provide Confidential Information to the other Party on the terms and conditions described herein and that it will provide and obtain any disclosures or consents from any Person (including but not limited to any of Discloser’s officers, directors, employees, agents, suppliers, or payees) necessary to obtain or maintain such right, power, and authority.  

(b) Each Recipient may disclose Confidential Information of the other Party to the extent Recipient is directed to do so pursuant to a summons order or other judicial or governmental process issued by a regulatory authority or court or if such disclosure is otherwise required 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 promptly 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 or otherwise preserve its confidential nature, (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, and (iii) that the Party subject to such Applicable Law will only otherwise 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.  For avoidance of doubt, this subsection (b) shall not apply to the disclosure of Confidential Information by a Recipient pursuant to an agreement entered into by such Party to the extent such disclosure is for purposes otherwise permitted by these Terms.

(c) Each Recipient shall (i) limit access to the Discloser’s Confidential Information to those employees, authorized agents, vendors, consultants, service providers, Subcontractors, and other Persons who have a reasonable need to access such Confidential Information consistent 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.  Any liability for damages due to disclosure of the Confidential Information by any such Person shall be with the Recipient that disclosed the Confidential Information to the third party.

(d) Each Recipient agrees that any use or disclosure of Confidential Information of the Discloser not authorized by these Terms 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 in contravention of these Terms, and of any actual unauthorized misappropriation, disclosure or use by any Person of the Confidential Information of the Discloser in contravention of these Terms, 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; provided, however, that for avoidance of doubt the Parties agree and acknowledge that the foregoing provisions of this subsection (d) shall not apply to any use or disclosure of, or access to, the Discloser’s Confidential Information consistent with the terms of these Terms.  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) Upon the later of the termination or expiration of these Terms or at any time upon the Finexio’s reasonable request, Customer shall return (or destroy if so directed by Finexio) all Confidential Information of Finexio that is in the possession of Customer or in the possession of any representative, contractor or third party of Customer.  Any Confidential Information of Finexio maintained in an electronic format by Customer shall be returned to Finexio in an industry-standard format or, at the option of Finexio, deleted and removed from all computers, electronic databases and other media.  Notwithstanding the foregoing, to the extent Customer is a Recipient in possession of tangible property containing the Confidential Information of Finexio, Customer may retain one archived copy of such material for purposes of complying with record retention requirements under Applicable Law, subject to the terms of these Terms, which copy may be used solely for such compliance purposes and may not be used for any other purpose.  Compliance by Customer with this Section 3.3 shall be certified in writing upon Finexio’s request by an appropriate officer of Customer 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 Finexio (as 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 the 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, 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, and nothing in this section 4.2 shall limit or modify either Party’s rights under section 10.2 hereof to assign, sublicense, or transfer such Technology right and license. Except as otherwise provided herein, neither Party shall, with respect to the other Party’s Technology, (a) use, copy, modify, reconfigure, divide, sublicense or distribute such Technology or related materials; (b) relicense, sublicense, rent, lease or lend such Technology or related materials or use the such Technology or related materials for third-party training, hosting, or time sharing; (c) remove or modify from such Technology or related materials any markings or any notice of the Party’s or its licensors' proprietary rights; (d) make such Technology or related materials available in any manner to any third party for use in the third party's business operations; (e) cause or permit reverse engineering (unless required by Applicable Law for interoperability), disassembly or decompilation of such Technology (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by such Technology); (f) disclose results of any program benchmark tests; or (g) re-host or use the Technology or related materials on equipment, operating systems or a platform other than approved compatible equipment as set forth in any applicable System Requirements.

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.  For avoidance of doubt, nothing in this section 4.3 shall limit or modify either Party’s rights under section 10.2 hereof to assign, sublicense, or transfer such license.

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 their terms.

(b) Customer is validly existing, in good standing, and is authorized to conduct business in each jurisdiction 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 and Customer Information, 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 or received 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. Compliance:

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 or receive 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 or receives with or through Finexio are subject to restrictions or otherwise controlled, 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. Indemnification:

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”) and for any Finexio Loss arising out of or related to:

(a) Customer’s breach of any representation, warranty, covenant or obligation under these Terms;

(b) 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 a Claim alleges or any Finexio Loss relates to 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 these Terms including the applicable Services Agreement or not 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, or there is otherwise Finexio Loss, 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 or such Finexio Loss, 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 (or any other matter giving rise to any Finexio Loss) 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 and any Finexio Loss.

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 SUBCONTRACTORS) 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, SHALL NOT EXCEED THE LESSER OF $500 OR THE AMOUNT OF FEES ACTUALLY PAID TO FINEXIO BY CUSTOMER 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.  CUSTOMER AGREES THAT FINEXIO WOULD NOT ENTER INTO THE SERVICE AGREEMENT, TO WHICH THESE TERMS ARE INCORPORATED AND ARE PART OF, WITHOUT THESE LIMITATIONS ON FINEXIO’S LIABILITY.  IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, FINEXIO’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.  

8.2 Disclaimer of Warranties:  THE SERVICES ARE PROVIDED “AS-IS,” WITHOUT WARRANTIES OF ANY KIND. FINEXIO (AND ITS AGENTS, AFFILIATES AND SUBCONTRACTORS) 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 any separate Services Agreement.  

9.2 Termination:

(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 applicable Services Agreement(s) 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. Miscellaneous:

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 these Terms including any Services Agreement, in whole or in part, to any third party without the prior written consent of Finexio.  Finexio reserves the right to assign these Terms including any Services Agreement, in whole or in part, or any right or obligation therein, to any third party in its sole discretion.  

10.3 Entire Agreement:  Each Party agrees that each Services Agreement, including these Terms and all schedules, appendices, and exhibits thereto, and all documents referenced therein, 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 thereof.  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, 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:  Finexio may add to or otherwise amend these Terms 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 additions or other 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.  The Terms shall be binding in accordance with the terms hereof.  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.

11.  Definitions:

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 such depository institution(s) or other financial institution(s) as Finexio may determine 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. “Effective Date” means the commencement date for the Services as specified in the applicable Services Agreement, or, if no such date is specified, when Finexio first provides any Services to Customer.

k. “Feedback” has the meaning set forth in Section 4.4.

l. “Finexio Data” has the meaning set forth in Section 2.3.

m. “Finexio Loss” means any fines, penalties, liabilities, damages, expenses, third-party costs (including legal fees), or similar amounts paid by Finexio or an Affiliate of Finexio.

n. “Finexio Privacy Policy” has the meaning set forth in Section 3.3.

o. “HIPAA” has the meaning set forth in Section 2.3(g).

p. “Indemnified Party” has the meaning set forth in Section 7.3.

q. “Indemnifying Party” has the meaning set forth in Section 7.3.

r. “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.

s. “Mark Licensee” has the meaning set forth in Section 4.3.

t. “Mark Licensor” has the meaning set forth in Section 4.3.

u. “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.

v. “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.

w. “Payment” means any payment (i) instructed or otherwise authorized by Customer or (ii) sent or transferred to Customer, as applicable pursuant to the Services.

x. “Person” means any natural or legal person, including any corporation, partnership, limited liability company, trust or unincorporated association or other entity.

y. “Platform” has the meaning set forth in Section 2.1.

z. “Primary Contact” has the meaning set forth in Section 2.3.

aa. “Qualified Volume” means completed Payment volume denominated in US dollars that qualifies for revenue sharing as determined by Finexio in its sole discretion.

bb. “Recipient” has the meaning set forth in Section 3.1.

cc. “Services” means the payment solutions, technology and related services provided or supported by Finexio as further described herein.

dd. “System Requirements” has the meaning set forth in Section 2.5.

ee. “Subcontractor” has the meaning set forth in Section 2.1.

ff. “Taxes” has the meaning set forth in Section 2.1.

gg. “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.

SCHEDULE I – PAYOR SERVICES

This Schedule applies if and to the extent that the Customer indicates in the applicable Services Agreement that it engages Finexio to provide accounts payable and related Services to Customer in a payor capacity, and Finexio agrees to do so, which services may include:

(i) Payment generation, routing and processing services for Payments to Suppliers (as defined herein);

(ii) generation of remittance files;

(iii) implementation and professional services;

(iv) marketing campaigns for Customers 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.

(collectively, for purposes of this Schedule, constituting Services).

This Schedule is entered into pursuant to the Terms to which it is attached, and capitalized words not otherwise defined herein shall have the meaning otherwise set forth in the Terms.  By using the Services, Customer agrees to be bound to terms and conditions in this Schedule as modified from time to time.

1. Implementation.

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 described in this Schedule.

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. Appointment as Agent.

(a) Customer hereby:

(i) Appoints Finexio as Customer’s authorized agent for the purposes of providing the Services, performing additional duties incident thereto, and as otherwise set forth herein (including contacting Suppliers or logging into or otherwise accessing any Supplier or other third-party platform, account, or other system on behalf of Customer for purposes of the Services and transmitting relevant information to or from such third parties or systems), and Finexio hereby accepts such appointment;

(ii) Authorizes and directs Finexio to instruct one or more Banks to establish and maintain one or more bank accounts for the purpose of facilitating Services and to accept instructions from Finexio (directly or through any Subcontractors) on the movement of funds to and from such account or accounts, and agrees that these accounts may be pooled custodial deposit accounts maintained for the benefit of various Customers, individual deposit accounts, or sub-accounts associated with any such accounts, in each case at Finexio’s sole discretion (any such account, an “FBO Account”), and Customer agrees to fully cooperate in providing Finexio, upon request, with all Customer information required to establish or maintain any such FBO Account in accordance with the guidelines of the applicable Bank;

(iii) Authorizes Finexio (directly or through any Subcontractors) to provide instructions (including but not limited to Payment Instructions) to such Bank on behalf of Customer as necessary to transfer funds to or from such 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.

(b) Customer agrees that Finexio may describe or otherwise reflect the terms of this Section 2, and any related portions of this Schedule or the Terms generally, in any terms of use or other documents that Finexio may deem necessary or prudent.  In accepting appointment as the authorized agent of Customer as described herein, Finexio assumes no liability for any acts or omissions of any Customer or any third party.  Customer will cooperate with Finexio and execute all commercially reasonable documents which may be necessary to perform its obligations hereunder.

(c) Customer agrees at all times to ensure that any applicable FBO Account has available funds on deposit sufficient to complete Payments pursuant to this Schedule.  Funds availability for this purpose will be subject to the availability policies and procedures and other requirements of the Bank 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 Cutoff 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 this Schedule by Customer.  Except as expressly provided by this Schedule, Finexio is under no obligation to cancel, reverse, or recall any funds transfers that Customer has instructed to be made into or out of any 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.        

3. Additional Acknowledgments and Responsibilities.

Customer acknowledges and agrees that:

(a) 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.

(b) 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.

(c) 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.

(d) 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.  

(e) 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.

(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) prior to furnishing Finexio with any Customer Data related to a particular Supplier, Customer shall ensure that its privacy policy (“Customer Privacy Policy”) permits, and Customer has otherwise obtained from such Supplier all consents and authorizations which may be required under Applicable Law for, Customer to provide Finexio with such Customer Data, and for Finexio to store, use and disclose such Customer Data as permitted by this Schedule or elsewhere within the Terms, including for the evaluation of payment plan options which may be offered to such Supplier.  Notwithstanding anything herein to the contrary, Finexio may freely use and exploit (including disclosure to third parties) any information collected from Customer or generated by Finexio in the course of providing the Services that Finexio has aggregated and/or anonymized so that the information does not individually identify Customer or any Supplier.  Customer shall provide Finexio with such confirmation of the foregoing as Finexio may request from time to time.

(h) Finexio may disclose individually identifiable information to its Subcontractors  as permitted by this Schedule or elsewhere within the Terms, subject to any additional obligations of Finexio pursuant to a Business Associate Agreement.

(i) Finexio assumes no liability for any errors related to Payment Instructions, or to changes thereto, and is not obligated to detect errors in such Payment Instructions.

(j) Finexio is not responsible for confirming Payment Instructions, or for monitoring or refusing to process inaccurate, untimely or duplicate Payment Instructions.

(k) 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.

(l) 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.

(m) Customer may not recall any portion of any funds that have settled in an FBO Account.

(n) Finexio may charge a fee for each Payment request presented against insufficient available funds, whether or not Finexio honors or processes the request.

(o) 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 FBO Account or other 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.

4. Additional Definitions.

a. “Custom Implementation” has the meaning set forth in Section 1 of this Schedule.

b. “Customer Privacy Policy” has the meaning set forth in Section 3(g) of this Schedule.

c. “Cutoff Time” means the time communicated by Finexio through the Platform or otherwise for completing or cancelling a Payment.

d. “FBO Account” has the meaning set forth in Section 2(a)(ii) of this Schedule.

e. “Implementation” has the meaning set forth in Section 1 of this Schedule.

f. “NSF” has the meaning set forth in Section 2(c) of this Schedule.

e. “Implementation” has the meaning set forth in Section 1 of this Schedule.

g. “Payment Due Date” has the meaning set forth in Section 3(d) of this Schedule.

h. “Payment Instructions” means information about a Payment provided by Customer including but not limited to Supplier’s name, Supplier’s account information, invoice number, invoice date, invoice due date, amount, and other details required of or requested from Customer when using a Service.

i. “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 this Schedule.

j. “Standard Implementation” has the meaning set forth in Section 1 of this Schedule.

k. “Supplier” means any payee to whom Customer has or intends to make Payment to through use of the Services.

SCHEDULE II – FINEXIO EXPRESS SERVICES

This Schedule applies if and to the extent that the Customer indicates in the applicable Services Agreement that it engages Finexio to provide Finexio Express Services to Customer in a payee capacity, and Finexio agrees to do so.

This Schedule is entered into pursuant to the Terms to which it is attached, and capitalized words not otherwise defined herein shall have the meaning otherwise set forth in the Terms.  By using the Services, Customer agrees to be bound to terms and conditions in this Schedule as modified from time to time.

Customer acknowledges that Automated Clearing House (ACH) credit entries and other transactions made in connection with Finexio Express Services are subject to Applicable Law, are contingent on the applicable originator’s compliance with any service terms applicable to such transactions, may be revocable prior to final settlement, and are otherwise subject to the terms and conditions of the applicable Services Agreement including the Terms.  

Customer agrees to promptly correct and refund, and to permit Finexio to take steps to correct, refund, adjust, and/or reverse, any payments made to Customer in error.  Customer agrees to bear any fees, including processing or other related charges, incurred in connection with transactions processed by Finexio as described herein.  Customer understands and acknowledges the necessity of a reasonable time frame for the processing of such transactions.

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