KwikTag Cloud SaaS Agreement
KWIKTAG SUBSCRIPTION SERVICE AGREEMENT
This Paymerang Subscription Service Agreement contains the terms and conditions that govern the access and use of the Service (as defined below) and is entered into by and between Paymerang, LLC, a Virginia limited liability company with its principal place of business located at 7401 Beaufont Springs Drive, Suite 300, Richmond, Virginia 23225 (“Paymerang”) and the person or entity (“Customer”) identified in any Paymerang order executed by Paymerang and Customer (“Order”) that specifically references this Agreement. For purposes of this Agreement, Paymerang and Customer may be referred to individually as a “Party” and jointly as the “Parties”.
This Agreement is made effective, and Customer agrees to be bound by its terms and conditions when: (i) Customer accesses the KwikTag Service or (ii) upon the date specified in any Order (the “Order Effective Date”), whichever occurs first. Customer representative or authorized Paymerang Reseller representative warrants and represents they have the legal authority to bind such legal entity to this Agreement. The Parties hereby agree as follows:
When used in this Agreement with initial letters capitalized, in addition to terms defined elsewhere in this Agreement, the following terms have the following meaning:
“Account(s)” means all account(s) created by Customer via the KwikTag Service that provides any person or entity with access to the KwikTag Service.
“Administrative Console” means the software control functions associated with the KwikTag Service used to manage the KwikTag Service and Accounts provided to Customer under the terms and conditions of this Agreement.
“Administrator(s)” means a person designated by Customer to have an Account with the authority to access and/or utilize the Administrative Console.
“API” means the application programming interface used by Customer to access certain functions of the KwikTag Service.
“Applicable Laws” means any and all international, Federal, state and/or local laws, regulations and/or ordinances, including Data Protection Laws, applicable to the Software and the Professional Services provided hereunder and the duties and obligations of the parties hereunder.
“Bandwidth Limit” maximum amount of data sent by the KwikTag Service to a client web browser in response to requests including data served in response to both secure requests and non-secure requests for content and metadata.
“Confidential Information” means all proprietary information disclosed by one Party to the other Party during the Term of this Agreement, whether or not marked or identified as such, including but not limited to: (a) materials related to the functions and operations of the Service; (b) Content; (c) the terms of this Agreement including all Orders and pricing thereto, and (d) each Party’s strategic roadmaps, product plans, client and customer information, product designs and architecture, software, technology and technical information, security audit reviews, business and marketing plans, and other business processes. Confidential Information other than Content, will not include information that was: (i) already known to a Party at the time of disclosure by the other Party; (ii) was disclosed to a Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of a Party has become, generally available to the public; or (iv) was independently developed by a Party without use of the other Party’s Confidential Information.
“Content” means electronic files, materials, data, text, audio, video, images or other content transmitted, stored, retrieved, or processed by Customer and Users using the KwikTag Service.
“Data Protection Laws” ” means any and all applicable international, Federal, state and/or local laws, regulations and/or ordinances relating to cybersecurity, data security, data privacy or similar issues, including, without limitation, (i) the European Union General Data Protection Regulation (“GDPR”) (Commission Regulation 2016/679 of 27 Apr. 2016); (ii) the UK Data Protection Act of 2018 and the UK General Data Protection Regulation (collectively, the “UK GDPR”); (iii) the California Consumer Privacy Act (“CCPA”) (Cal. Civ. Code §§ 1798.100 to 1798.199) as amended by the California Privacy Rights Act (Prop 24, Nov. 3, 2020); (iii) the Virginia Consumer Data Protection Act (the “VCDPA”) (Va. Code §§59.1-575-585); (iv) the Colorado Privacy Act (“CPA”) (Colo. Rev. Stat. §§ 6-1-1301-1313); (v) the Connecticut Data Privacy Act (“CDPA”) (Conn. Gen. Stat. §§42-515-525); (vi) the Utah Consumer Privacy Act (“UCPA”) (Utah Code §§13-61-101-404); (vii) the Federal Trade Commission Act (15 U.S.C. §§41-58); (viii) the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (Pub. L. 104-191, 110 Stat. 1936 (1996)) and the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH Act”) (Pub. L. 111-5, §13001, 123 Stat. 227 (2009)); (ix) the New York DFS Regulation (“23 NYCRR Part 500”) and (x) any similar law or regulation applicable to the actions or omissions of the parties hereunder, each as amended or supplemented by other laws, regulations or ordinances at any time.
“Fee(s)” means the amounts payable to Paymerang as specified in an applicable invoice, supported by an Order.
“Indemnified Party” means a Party entitled to indemnification from the other Party under the terms and conditions of this Agreement.
“Indemnifying Party” means a Party obligated to indemnify the other Party under the terms and conditions of this Agreement.
“Invoice Count” refers to the total number of electronic documents that have been processed by the Kwiktag service on behalf of the Customer.
“KwikTag Service” means the online service operated by Paymerang that permits Customer and Users to access, share, maintain, modify, and process date and information using the Software.
“KwikTag Service Plan Upgrade” means Paymerang may from time to time provide Customer with the right to obtain access for additional Users, or features and functionality available in the next level of the KwikTag Service plan.
“Malware” means any software program or code intended to destroy, interfere with, corrupt, or cause undesired effects on program files, data or other information, executable code or application software macros.
“Order” means an Paymerang quote or other ordering document agreed to in writing by the Parties under this Agreement which is accepted as set forth in Section 2.2.
“Order Effective Date” means the date the Customer representative or authorized Paymerang Reseller representative executes the Order.
“Page Count” refers to the total number of pages contained within each individual document that has been processed by the Kwiktag Service, as utilized by the customer.
“Service Level Commitments” means the Paymerang Support Services specified in Exhibit B and any applicable Order.
“Software” means the document management and process automation platform software provided by Paymerang that allows a User to use certain functionality in connection with certain features of the KwikTag Service that is installed on a device that is owned or controlled by Customer or that is otherwise accessed by Users.
“Storage Capacity Limit” means total size of electronic data storage used for storing Content and databases.
“Subscription Period” means the time commencing on the Order Effective Date and continuing for the period of time specified in the applicable Order, or if no such period is specified, a period of one (1) year.
“Support Services” means the services specified in an applicable Order and as further described in Exhibit B to this Agreement.
“Taxes” means any value added, sales, use and other taxes (other than taxes on Paymerang’s income), export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement that are imposed by any government or other authority.
“Term” means the period of equal to the Subscription Period and any automatic extensions, subject to termination as set forth herein.
“User(s)” means, collectively, any person or entity who is permitted to store, retrieve, or manage Content or who is otherwise provided with access to the KwikTag Service by Customer.
“User Guide” means Paymerang’s then current published written or electronic documentation specifying the functionality of the KwikTag Service and made generally available by Paymerang to its customers or its users.
2. Access and Use of the KwikTag Service
2.1 Grant of License. Subject to Customer’s continued compliance with the obligations of this Agreement, including the timely payment of all applicable Fees, Paymerang hereby grants Customer the non-exclusive, non-transferable, revocable right and License during the Term only to: (i) allow Administrators to access and use the Administrative Console to create and administer Accounts registered to Customer and (ii) allow Users to store and retrieve Content using the KwikTag Service solely through registered Accounts.
2.2 Order Process; Delivery. Orders will be deemed accepted by Paymerang when the KwikTag Service has been invoiced by Paymerang. Unless otherwise specified in an Order, and subject to Customer’s payment terms, Paymerang will make the KwikTag Service available to Customer upon completion of the applicable professional services.
2.3 Restrictions on Use of the KwikTag Service. The KwikTag Service is subject to the following unless otherwise specified on invoice; (a) 200 Gigabyte (200gb) Bandwidth Limit;(b) 500 Gigabytes Storage Capacity Limit. Without limiting any other remedies under this Agreement if Customer exceeds the applicable Bandwidth Limit or Storage Capacity Limit, reasonable restrictions will be placed on Customer’s Account(s) until any such excess usage is adequately mitigated or eliminated by Customer. Customer agrees that it is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, written or audible communications of any nature submitted by any User or otherwise used through its Account. Customer agrees not to use or permit the use of the KwikTag Service: (i) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (ii) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (iii) in any manner that is likely to damage, disable, overburden, or impair the KwikTag Service or interfere in any way with the use or enjoyment of the KwikTag Service by others; (iv) to introduce any Malware or other malicious activity in Customer’s or an User’s use of the KwikTag Service; (v) in breach of any U.S. denied party-list, embargoed country restriction, applicable national export law or regulation; or (vi) in any way that constitutes or encourages conduct that could constitute a criminal offense.
2.4 Suspension of Service. Paymerang reserves the right to suspend any access to or use of the KwikTag Service that Paymerang reasonably believes is in breach of this Agreement. Paymerang agrees to provide Customer with notice of any such suspension or disablement before its implementation unless such suspension or disablement is necessary to comply with legal process, regulation, order, or to otherwise prevent imminent harm to the KwikTag Service or any third party, in which case Paymerang will notify Customer to the extent allowed by applicable law of such suspension or disablement as soon as reasonably practicable thereafter. Customer may lose access to the KwikTag Service during any period of suspension and Paymerang shall not be liable for compliance with service or support commitments during any such period of suspension.
3. Content Security; Data Privacy
3.1 Security. Without limiting this Section 3, Section 4 (Customer Responsibilities), Section 6.4 (Disclaimer of Warranties), or Section 14 (Data Protection) Paymerang will implement commercially reasonable administrative, physical, and technical measures designed to secure the KwikTag Service and the Content against accidental or unlawful loss, access, or disclosure. The KwikTag Service leverages third party service providers which are SSAE 16 compliant and the identity of these third-party service providers can be made available to Customer under an appropriate non-disclosure agreement.
3.2 Content and Data in the United States. The KwikTag Service is available worldwide and is currently hosted in the United States through third party service providers. Paymerang reserves the right to store and process information outside of the United States and will use commercially reasonable efforts to provide Customer with written notice at least thirty (30) days in advance of any such changes in hosting locations.
4. Customer Responsibilities
4.1 Establishment of Accounts. Customer will comply with the procedures set forth in Exhibit A in establishing and maintaining Accounts. Customer will promptly appoint an Administrator for the Administrative Console. Paymerang will initially provide the necessary passwords or other unique identifiers to the Administrator to access the Administrative Console. Customer’s Administrator will be solely responsible for the assignment and management of Accounts and providing access to the KwikTag Service for Users. Customer will ensure that all Users do not share any password with any other person or permit any User or other person to access the Service using the credentials of another User. In the event of termination or withdrawal of a User, Customer may reassign the Account to a new User, at no additional cost, subject to continued compliance with the terms and conditions of this Agreement.
4.2 Content and Metadata. Customer will: (i) be solely responsible for the nature, quality, and accuracy of the Content and metadata; (ii) ensure that the Content and metadata (including the storage or transmission thereof) complies with the this Agreement and any and all applicable laws, and regulations; (iii) promptly handle and resolve any notices and claims relating to the Content and metadata; (iv) promptly handle and resolve any notices sent to Customer by any person claiming that any Content violates any person’s rights, including take-down notices pursuant to the Digital Millennium Copyright Act or the local law equivalent legislation, regulation or precedent; and (v) maintain appropriate security, and protection of the devices accessing the KwikTag Service. Paymerang has no liability to Customer or any third party for any reason as a result of (i) any unauthorized disclosure or access to Customer’s Account or Content as a result of the actions or inactions of any Customer or User, including loss or theft of any User credential; or (ii) any deletion, destruction, damage or loss of Content and metadata caused by or at the direction of Customer or any User.
4.3 Notification of Unauthorized Use. Customer will immediately notify Paymerang in writing of any unauthorized use of any Account, Content or the KwikTag Service that comes to Customer’s attention. In the event of any such unauthorized use by any third party that obtained access to the KwikTag Service directly or indirectly through Customer or through any User, Customer will take all steps necessary to terminate such unauthorized use and will provide Paymerang with such cooperation and assistance related to any such unauthorized use as Paymerang may reasonably request.
4.4 Image Ingestion into the KwikTag Service. Customer is solely responsible for the configuration and operation of any of device used to store or retrieve documents to and from the KwikTag Service.
5. Support and Service Level Commitments.
5.1 Support Services. Subject to payment of the corresponding Fees and substantial compliance with the terms and conditions of this Agreement, Paymerang will provide Support Services. Upon Paymerang’s request, Customer will provide Paymerang with remote access to Customer’s computer systems as reasonably required for Paymerang to perform any Support Services and other obligations provided for under this Agreement.
5.2 Service Level Commitments. Provided that Customer remains in substantial compliance with the terms and conditions of this Agreement, Paymerang will use commercially reasonable efforts to meet the Service Level Commitments specified in Exhibit B and as set forth in any applicable Order. The sole and exclusive remedy for any breach of any Service Level Commitments is set forth in Exhibit B; provided, however, that Customer may terminate this Agreement subject to the notice and cure provisions of Section 10.3.
6. Warranties and Disclaimer
6.1 Paymerang Service Warranty. Paymerang warrants that during the Term, the Service will perform substantially in accordance with the functions specified in the User Guide under normal use and circumstances. Subject to the notice and cure provisions of Section 10.3, Customer’s sole and exclusive remedy and Paymerang’s entire liability for a breach of this warranty shall be for Paymerang to use commercially reasonable efforts to modify the Service to substantially achieve in all respects the functionality described in the User Guide and if Paymerang is unable to restore such functionality, Customer shall be entitled to terminate the applicable Order and receive a pro-rated refund of the subscription fees paid to Paymerang for the corresponding remaining portion of the Term. The warranties set forth herein are made to and for the benefit of Customer only. This warranty does not apply to any Services provided during a free trial period.
6.2 Mutual Warranties. Each Party represents and warrants to the other that (i) this Agreement has been duly authorized, executed and delivered, and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (iii) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
6.3 Customer Warranties. Customer represents and warrants to Paymerang that (a) Customer or its licensors own all right, title and interest in and to the Content and metadata; (b) Customer has all rights in the Content to grant the rights to Paymerang contemplated by this Agreement; and (c) none of the Content will violate the terms of Section 2.4 (Restriction on the use of the KwikTag Service)
6.4 Disclaimer of Warranties. Except as provided in this Section 6 and to the maximum extent permitted by applicable law, Paymerang specifically disclaims all representations, conditions or warranties of any kind, whether express, implied, statutory or otherwise, including, without limitation, any warranty that the KwikTag Service will be uninterrupted, error-free or free of harmful components, or any implied warranty or condition of, satisfactory quality, fitness for a particular purpose, or non-infringement, and any warranty arising out of any course of performance, course of dealing or usage of trade. Some jurisdictions do not allow the exclusion of implied warranties or conditions. In such an event the above exclusion will not apply solely to the extent prohibited by law.
7. Proprietary Rights
7.1 Content Ownership by Customer. Customer or its licensors own all right, title and interest in and to the Content. Customer hereby grants Paymerang the right to copy, transmit, use, and disclose the Content solely to provide the KwikTag Service to Customer or any User or to comply with any request of a governmental or regulatory body, including subpoenas or court orders, as otherwise required by law.
7.2 Ownership of KwikTag Service by Paymerang. Paymerang or its licensors own and reserve all right, title, and interest in and to the Software, the KwikTag Service and all hardware, software and other items used to provide the KwikTag Service, other than the licenses explicitly granted to Customer hereunder. No title to or ownership of any proprietary rights related to the Software or the KwikTag Service is transferred to Customer or any User pursuant to this Agreement or any transaction contemplated by this Agreement. All rights not explicitly granted to Customer are reserved by Paymerang. In the event that Customer provides Paymerang with any suggestions, improvements, or modifications regarding any features, functionality or performance for the Software or the KwikTag Service, such features, functionality or performance shall be deemed to be automatically assigned under this Agreement to, and shall become the sole and exclusive property of Paymerang, without any compensation being due or payable to Customer.
8. Government Users
If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the US Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Service constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government User as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212
9. Fees and Payment
9.1 Fees. Customer agrees to pay all Fees set forth on all invoices under this Agreement. In the event that the Parties mutually agree in writing to any extension of a Subscription Period or any KwikTag Service Plan Upgrade, Customer will pay Paymerang the then-current list price for such extension or KwikTag Service Plan Upgrade, unless otherwise set forth in the applicable invoice. Subject to any credits applicable to any Service Level Commitments hereunder, if any, all Fees are nonrefundable. All Fees and other amounts specified in this Agreement are specified in US dollars. After the Initial Term, Paymerang may increase the Fees it charges for the KwikTag Service. Any increase in the Fees will take effect at the beginning of Customer’s next Subscription Period, or at such later date as may be specified in the applicable invoice.
9.2 Invoicing and Payment Terms. Unless otherwise specified in an applicable invoice, Customer will pay all Fees within thirty (30) days of the date of the applicable invoice issued by Paymerang. In the event Customer disputes any Fees, Customer will provide written notice of the disputed amount within fifteen (15) days after receiving such invoice and timely pay any undisputed portion of such invoice. The Parties will negotiate in good faith to resolve any disputed invoice or portion thereof within thirty (30) days of notice of dispute. All amounts payable by Customer under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Customer will promptly reimburse Paymerang for any cost or expense incurred in connection with any collection efforts undertaken by Paymerang in connection with any past due amount owed under this Agreement. If Paymerang has not received payment within thirty (30) days after the due date, and without prejudice to any other rights and remedies of Paymerang, interest shall accrue on such due amounts at an annual rate equal to ten percent (10%) per annum commencing on the due date and continuing until fully paid, whether before or after judgment.
9.3 Taxes. Fees are exclusive of Taxes and Customer agrees to promptly pay or reimburse Paymerang for all Taxes arising out of this Agreement. For purposes of this Agreement, Customer hereby confirms that Paymerang can rely on the shipping information set forth in any applicable Order as being the place of supply for sales tax purposes. If Customer is legally entitled to an exemption from the payment of any Taxes, Customer will promptly provide Paymerang with legally sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption. Unless otherwise prohibited by law, Paymerang will apply the benefits of any requested tax exemption to charges occurring under Customer’s Account after the date Paymerang receives and reasonably processes such tax exemption certificates.
10. Term and Termination
10.1 Term of Agreement. This Agreement will commence on the Order Effective Date and will remain in effect for the duration of the Term, subject to extension and early termination as set forth below.
10.2 Automatic Renewal. Unless this Agreement is terminated as set forth for herein, the Order(s) under this Agreement will automatically renew for 1 year periods unless either Party provides the other Party with written notice of its intent not to renew the applicable Order(s) least thirty (30) days prior to the end of the then-current Subscription Period or any then in effect extension. For the avoidance of doubt, any discounts offered by Paymerang to Customer during a prior Subscription Period will not apply to any subsequent Subscription Period or extension thereof unless specifically agreed in writing by the Parties.
10.3 Termination for Cause. Either Party may terminate this Agreement for cause: (a) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured after the expiration of such thirty (30) period; or (b) if the other Party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding. Any failure by Customer to timely pay Fees owing hereunder or to comply with Section 2, Section 4.1, or Section 5 will constitute a material breach of this Agreement. In the event of a material breach by Paymerang not cured within the thirty (30) day period noted above, Customer will be entitled to a pro rata refund of the Fees paid to Paymerang for the remainder of the then current Term.
10.4 Post-Termination Obligations. Upon termination or expiration of this Agreement for any reason: (i) Customer will have no further rights to access the KwikTag Service hereunder; (ii) Customer will, within five (5) days of such termination or expiration, destroy all copies of the API, the documentation and Confidential Information of Paymerang, including any copies of the product documentation in written or electronic form and any copies of the Software stored on Customer’s servers or other systems; and (iii) if requested by Paymerang, Customer will promptly provide to Paymerang a written certification signed by an authorized Customer representative certifying that all copies of the API, the Software, the User Guide and Confidential Information of Paymerang have been destroyed. For a period of fifteen (15) days following the expiration or termination of the Agreement and/or applicable Subscription Period, and subject to Customer’s prior written request, Paymerang will grant Customer limited access to the KwikTag Service solely for purposes of retrieving Content from the KwikTag Service. After such period, Paymerang will have no obligation to maintain the Content and will delete the Content unless prohibited by law.
10.5 Surviving Provisions. Upon any expiration or termination of this Agreement, the following sections will survive: Sections 1, 2.4, 4.2, 4.3, 6.4, 7, 9, 10.4, 11, 12, 13, 14, and 15.
11.1 By Paymerang. Paymerang will defend Customer against any third party claim (“Claim”) that the KwikTag Service infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret, to the extent that such misappropriation is not the result of Customer’s actions or inaction, and will indemnify Customer for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement. To the extent permitted by law, Paymerang will have no liability to Customer for any claim that arises out of: (i) any unauthorized use, reproduction, or distribution of the KwikTag Service by Customer; (ii) use of the KwikTag Service in combination with any other software or equipment not provided or supported by Paymerang; or (iii) any modification or alteration of the KwikTag Service by anyone other than Paymerang, without the written approval of Paymerang. In the event of a claim pursuant to this section, Paymerang may, at Paymerang’s option and expense,: (i) obtain for Customer the right to continue using the KwikTag Service; (ii) modify the KwikTag Service to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable, as determined by Paymerang in its sole discretion, terminate this Agreement and refund Customer on a pro-rated basis any Fees pre-paid to for the remaining Term.
The provisions of this Section 11.1 state the sole, exclusive and entire liability of Paymerang to Customer and constitute Customer’s sole remedy with respect to a Claim.
11.2 By Customer. Customer agrees to defend, indemnify, and hold harmless Paymerang from and against any claims, actions or demands, including, without limitation, reasonable legal fees, arising or resulting from Customer’s breach of this Agreement, or Customer’s and Customer’s end users’ access to, use, misuse or illegal use of the Software or Customer’s violation of Applicable Laws. Paymerang will provide Customer notice of any such claim, suit, or proceeding. Paymerang reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case Customer agrees to cooperate with any reasonable requests to assist Paymerang’s defense of such matter.
11.3 Indemnification Process. As a condition of receiving indemnification under this Agreement, the Indemnified Party will provide the Indemnifying Party with (i) prompt written notice of the claim; (ii) complete control over the defense and settlement of the claim, provided, that the Indemnifying Party will not settle any claim without the Indemnified Party’s prior written permission, which will not be unreasonably withheld, delayed or conditioned, in the event the settlement fails to unconditionally release the Indemnified Party from all liability pertaining to such claim; and (iii) such assistance in connection with the defense and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request.
11.4 Exclusive Remedy. This Section 11 states the Indemnified Party’s sole and exclusive remedy against, and the Indemnifying Party’s sole liability to, the other Party for any claim for indemnification under the terms and conditions of this Agreement. Notwithstanding the foregoing, Paymerang will have the right to terminate Customer’s right to use the KwikTag Service pursuant to Section 10.3.
12. Limitation of Liability
12.1 Exclusions. Nothing in this Agreement shall limit or exclude Paymerang’s liability for: (i) death or personal injury caused by its negligence; (ii) fraud or fraudulent misrepresentation; or (ii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
12.2 Limitation of Liability.
NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE OR SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PAYMERANG’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THIS AGREEMENT CLAIMED BY CUSTOMER OR BY ANY THIRD PARTY ARISING FROM THE USE OF THE SOFTWARE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) THE AGGREGATE OF ALL SOFTWARE LICENSE FEES PAID TO PAYMERANG DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.3 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF PAYMERANG WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. IN THESE STATES, PAYMERANG’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITED LIABILITY PROVISION SHALL OPERATE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY FINDING THAT ANY OR ALL REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT FAIL IN THEIR ESSENTIAL PURPOSE.
13.1 Definition. Either Party may disclose Confidential Information to the other Party during the Term of this Agreement.
13.2 Protection. Each Party agrees that it will: (i) use no less than a reasonable standard of care to safeguard the Confidential Information received from the other Party; and (ii) will only use Confidential Information disclosed hereunder: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the Parties’ ongoing business relationship.
13.3 Permitted Disclosure. Neither Party will disclose Confidential Information in violation of the terms and conditions of this Agreement, to any third party, without the prior written consent of the other Party. Notwithstanding the foregoing each Party may disclose Confidential Information, including the terms and conditions of this Agreement, without the prior written consent of the other Party: (a) as compelled by law or a court order provided that to the extent legally and reasonably permissible the disclosing Party provides the Party that owns the Confidential Information prior notice of such compelled disclosure and reasonable assistance, at that Party’s expense, if that Party seeks to contest such disclosure; (b) in confidence, to legal counsel, accountants, banks, and financing sources and their advisors; (c) in connection with the enforcement of this Agreement or rights under this Agreement; or (d) in connection with an actual or proposed merger, acquisition, or similar transaction, provided that any third party being provided with access to the Confidential Information is bound by a reasonable non-disclosure agreement containing restrictions that are reasonable consistent with the restrictions on disclosure set forth herein.
14. Data Protection
14.1 Customer Responsibility for Customer Data. Customer has and will retain sole responsibility for: (a) all Customer data, information, messages and other materials, in any form or format (collectively, “Customer Data”), including its content, development and use; (b) all information, instructions and materials provided by or for the Customer in connection with the Software or Professional Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including data base management systems), and networks, whether operated directly by Customer or through the use of third party systems (collectively, “Customer Systems”); (d) the security and use of Customer’s and its users’ log-in credentials (“Customer Credentials”) for all Customer accounts and for all access to the Software; and (e) all access to and use of the Software and Documentation directly or indirectly by or through the Customer, Customer Systems or its users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
14.2 Protection of Customer Data, Systems and Credentials. Customer shall employ and maintain throughout the Term all necessary physical, administrative and technical controls and security safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Software; and (b) control the content and use of Customer Data, including the uploading or transfer of Customer Data.
14.3 Data Security. Customer shall implement and maintain an information security program that includes administrative, electronic, technical, physical and other security measures and safeguards reasonably designed, at a minimum, to: (a) ensure the confidentiality, integrity and availability of all Customer Confidential Information and Customer Data; (b) protect against any unauthorized access to or use of such Customer Confidential Information and Customer Data; (c) protect against any anticipated threats or hazards to the security or integrity of Customer Confidential Information and Customer Data; (d) limit access to Customer Confidential Information and Customer Data to only Customer personnel who have a reasonable need for such information; (e) instruct all persons who have access to Customer Confidential Information and Customer Data of the obligation to maintain the confidentiality thereof; and (f) ensure the proper, secure and lawful disposal of Customer Confidential Information and Customer Data as required or appropriate.
14.4 Security Breach. Customer shall: (a) provide Paymerang with the name and contact information of a person qualified to serve as Paymerang’ primary security contact for Customer with regard to Customer’s obligations relating to a Security Breach (as defined below); (b) notify Paymerang of a Security Breach affecting Customer Systems, Customer Data and/or Customer Credentials as soon as practicable, but no later than seventy two (72) hours after Customer determines that a Security Breach has occurred; and (c) regularly update Paymerang as to the progress toward and status of Customer’s remediation of any Security Breach. Immediately following Customer’s notification to Paymerang of a Security Breach, the parties shall coordinate with each other to investigate and remediate the Security Breach and prevent any further Security Breach at Customer’s expense in accordance with applicable Laws. As used herein, “Security Breach” means any unauthorized access to or use, disclosure, alteration, or destruction of Customer Confidential Information and/or Customer Data.
14.5 Compliance with Data Protection Laws
(a) Each party represents and warrants that (i) it will duly perform and fully comply with all terms and conditions of this Agreement, the Data Processing Addendum and all Applicable Laws, including all Data Protections Laws, as applicable to such party, and that (ii) its collection, use and transfer of all personal data hereunder is lawful and authorized under Applicable Laws.
(b) GDPR / UK GDPR & International Law. In furtherance of each party’s duties and obligations with regard to the collection, use and processing of personal data under applicable International Data Protection Laws, each party does hereby agree to execute and fully perform, in physical or electronic click-wrap form (at Paymerang’ option), the Data Processing Addendum attached hereto or submitted herewith, together with any and all Standard Contractual Clauses applicable to cross-border transfers of personal data. The parties agree to amend and revise the Data Processing Addendum as necessary due to changes in Data Protection Laws or adoption or amendment of the EU-US Data Privacy Framework or changes in the data handling and processing activities of the parties. For purposes of GDPR and the UK GDPR, Paymerang shall be considered the “processor,” the Cloud Provider shall be considered the “sub-processor” of Paymerang and the Customer shall be considered the “controller” of all “personal data” (including Customer Data) used, collected and/or uploaded with or into the Software by the Customer or otherwise shared or made available to Paymerang hereunder (as each such italicized term is defined in Applicable Laws).
(c) U.S. Data Protection Laws. For purposes of all U.S. Data Protection Laws, including but not limited to CCPA, Paymerang shall be considered a “service provider” or “contractor” (as defined in CCPA) or a “processor” (as defined in other U.S. Data Protection Laws) to the Customer and the Customer shall be considered the “business” (as defined in CCPA) or the “controller” (as defined in other U.S. Data Protection Laws) of all “personal information” (including Customer Data) used, collected and/or uploaded with or into the Software by the Customer or otherwise shared or made available to Paymerang hereunder (as each such italicized term is defined in Applicable Laws). In addition, in its role as a service provider, contractor or processor under Applicable Laws, Paymerang does hereby agree that Paymerang:
i. will process the personal information provided or made available to Paymerang solely for the business purpose of performing the Professional Services and providing the functionalities and benefits of the Software and for no other commercial purpose except as permitted by Applicable Laws;
ii. will not sell or share the personal information in violation of Applicable Laws or in excess of the authorization provided by Customer and will honor any and all affirmative consent or opt-in or opt-out requirements as required under Applicable Laws;
iii. will not retain, use or disclose the personal information outside of the business relationship between the parties; provided that, Paymerang may use the personal information internally to improve the quality of its services or to prevent, detect or investigate data security incidents or protect against malicious, deceptive or illegal activity but may not use it to perform services on behalf of another person;
iv. will not combine the personal information received from Customer with personal information which it receives from another person or collects from its own interaction with the applicable data except as permitted by Applicable Laws;
v. will notify the Customer if Paymerang engages another person to assist it in processing personal information for a business purpose for the Customer and its contract with such other person shall impose the same restrictions thereon as required for service providers, contractors or sub-processors hereunder or under Applicable Laws;
vi. will notify the Customer if Paymerang determines that it can no longer meet its obligations under Applicable Laws; and
vii. will carry out Customer’s requests and instructions with regard to data requests, regulator audits, security incident or Security Breach investigations and otherwise in good faith in accordance with Applicable Laws.
15.1 Relationship of the Parties. The Parties are independent contractors and neither Party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. This Agreement will not be construed to create an association, joint venture, or partnership between the Parties or to impose any partnership liability upon either Party. This Agreement shall not be construed so as to confer any rights or benefits on any third parties.
15.2. Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Paymerang’s employees, agents or subcontractors in connection with this Agreement. Customer will use reasonable efforts to promptly notify Paymerang at contracts@Paymerang.com should Customer learn of any violation of this restriction.
15.3 Press Release; References. Neither Party will issue a public statement or press release regarding this Agreement (except as otherwise authorized under this Section 15.3 (Press Release; References)) without the prior consent of the other Party. Notwithstanding the foregoing, Paymerang may, during the Term, reference Customer as an Paymerang customer or user of the KwikTag Service subject to Customer’s trademark and logo usage guidelines and standards as provided to Paymerang by Customer from time to time.
15.4 Notices. Any notice or other communication under this Agreement given by any Party to any other Party will be in writing and will be effective upon delivery as follows:
|If to PAYMERANG, LLC:||If to CUSTOMER|
|Legal Department||Name: _________________ _____|
|7401 Beaufont Springs Drive, Ste 300||Title: __________________ _____|
|Richmond, VA 23225||Address: ___________________________|
|Email: email@example.com||City, State, Zip: ____________________|
With a copy to:
Ibrahim A. Moiz, General Counsel
15.5 No Waiver. The failure of or delay of either Party to exercise any right or remedy provided under this Agreement or at law will not constitute or be construed as a waiver or relinquishment of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
15.6 No Assignment. Customer will not, directly, indirectly, by operation of law or otherwise, assign all or any part of this Agreement or its rights or obligations hereunder or delegate performance of any of its duties hereunder without the prior written consent of Paymerang. Paymerang may assign this Agreement without obtaining Customer’s consent: (a) to an affiliate of Paymerang; or (b) in connection with a successor in interest in a merger, reorganization, or a sale of all or substantially all of the assets of Paymerang. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and assigns.
15.8 Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void, or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision will be interpreted so as to reasonably effect the intent of the Parties. The Parties will promptly replace such void or unenforceable provision with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
15.9 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to its conflicts of law principles. Each Party hereby irrevocably consents to submit to the exclusive jurisdiction of the courts of the Commonwealth of Virginia or of the United States District Courts located in or having jurisdiction over Chesterfield County, Virginia in any lawsuit, claim, or other proceeding arising out of or relating to this Agreement. Each Party irrevocably waives any objection to the laying of venue in such courts and further agrees not to plead that any such lawsuit, claim, or other proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY EXPRESSLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
15.10 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision, including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes, the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party (i) provides the other Party with prompt notice of the nature and expected duration of the event, (ii) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (iii) provides periodic notice of relevant developments, and (iv) provides prompt notice of the end of such event.
ADDITIONAL SPECIFICATIONS FOR ACCOUNTS & CUSTOMER RESPONSIBILTY
Paymerang will provide Customer with access to the KwikTag Service subject to the terms and conditions of the Agreement and any applicable Order. Paymerang will provide a designated Customer representative with a login or user ID and associated password to allow access to the Administrative Console, which is accessible via web browser. The Administrative Console may be used to create or delete Accounts, up to the number of Accounts specified by the Agreement. Should a Customer User forget his/her password, the Administrator will have the right to reset it from the Administrative Console. Accounts for Customer Users may only be created through the Administrative Console.
SERVICE LEVEL COMMITMENTS AND SUPPORT SERVICES
Definitions for Exhibit B
“Customer Support Group” means Customer’s employees who have been trained on the Service and who are familiar with Customer’s business practices.
“Customer User Community” means all Customer’s Users.
“Downtime” means any period during which Customer is unable to access or use the KwikTag Service because of an Issue, excluding Scheduled Downtime.
“Issue” means a single, reproducible issue or problem materially or significantly affecting the functionality of the KwikTag Service.
“Professional Services” means additional services offered by Paymerang and associated with the KwikTag Service, including, without limitation, any custom development, third party integrations, data modeling, training and knowledge transfer.
“Scheduled Downtime” means a time period identified by Paymerang not to exceed 4 hours per calendar quarter and subject to 24 hours’ prior notice wherever practical as provided to Paymerang’s general customer base, in which Paymerang intends to have any downtime of the KwikTag Service or related systems.
“Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in such calendar month, divided by the total number of minutes in such calendar month.
“User Administration Support” means issues that impact the usability of the KwikTag Service and are addressable through the adjustment of User access privileges, processes or procedures.
“Scanned Page counts” means the total number of scanned pages the system will process per day as specified in the customer order. Paymerang has identified processing of pages will not exceed 4 hours per document unless the Scanned Page Counts exceeds “Scanned Page Counts Per day” specified on the customer order. Single documents with over 100 pages may exceed 4 hours.
“KwikTag Versioning” means the identifier of a KwikTag release. KwikTag version numbers take the form of X.Y.Z. X is the major version, Y is the minor version, Z is the patch version.
Scope of Service Level Commitments.
Paymerang’s obligations do not extend to Issue(s) or errors caused by:
(a) Third party hardware or software;
(b) Use of the KwikTag Service in violation of the terms of the Agreement;
(c) Use of the KwikTag Service other than in accordance with any user documentation or the reasonable instructions of Paymerang;
(d) Services, circumstances or events beyond the reasonable control of Paymerang, including, without limitation, any Force Majeure events, the performance and/or availability of local ISPs employed by Customer, or any network beyond the demarcation or control of Paymerang.
Scheduled Downtime and Guaranteed Up Times
Paymerang will use commercially reasonable efforts to provide at least 24 hours’ prior notice before implementing any Scheduled Downtime.
SLA’s for Backup and recovery of service
(a) Customer data is backed up every 24 hours, providing a Recovery Point Objective (RPO) of 24 hours. In the event of a failure, the most recent backup will be restored within 24 hours.
(b) In case of failures requiring recovery of database and content, Paymerang will use recover the KwikTag service within 3 business days.
Paymerang will provide support services to assist Customer in resolving Issues, upgrade of patch releases and limited upgrades for minor releases (“Support Services”), Support Services do not include (a) physical installation or removal of the KwikTag Software and any documentation; (b) visits to Customer’s site; (c) any Professional Services associated with the KwikTag Service, including, without limitation, any custom development, third party integrations, data modeling, training and knowledge transfer; (d) major Software upgrades and new features released with a minor version; (e)Workflow changes; (f) the set-up, configuration and use of the KwikTag Service. These services will be subject to the Parties’ execution of a Professional Services Statement of Work (“PS SOW”) bound by the terms of this Agreement and payment of the applicable Fees.
Customer will ensure that Customer User Community addresses all Issues through Customer Support Group. Customer Support Group will:
(a) Validate and recreate Issue(s);
(b) Resolve procedural Issue(s);
(c) Provide first-level User Administration Support;
(d) Report all unresolved problems to Paymerang’s support; and,
(e) Provide additional information for testing and analysis purposes to assist with Issue resolution.
Issue Prioritization: Any issues reported by Customer to Paymerang and accepted by the Paymerang support team will be classified as an Issue or a Request and assigned a priority. The following priorities and their meanings are used herein:
|Priority||Level of Impact||Description|
|P1||Production Stoppage||System down, inoperable, and/or unusable or extremely high Client concern requiring immediate escalation to the highest levels – NO VALID WORKAROUND|
|P2||Production Warning||Major impact. Some elements of the system working, but severely impacting the Client’s production environment.|
|P3||Production Slowdown||Medium impact. Client able to continue in production but system capabilities reduced.|
|P4||Annoyance||Minor impact. A bug or problem exists but can be handled routinely.|
|P5||Question or Request||Routine question related to system functionality or usage. Enhancement requests. Production, configuration, or workflow consulting will be handled through separate engagements.|
Paymerang will provide an acknowledgement of a reported Issue to Customer and respond within the target time frame specified below (“Response”). The Target Response Time is the maximum amount of time that Paymerang targets from the initial request for support made by the Client to the first meaningful/documented Client contact made by phone, voicemail, or email from Paymerang regarding the request for support, as documented in the help desk Incident.
|Hours of Operation and Response Time||Standard Support|
|Hours of Operation||6 AM to 6 PM Arizona Time (MST) Monday – Friday|
|Support Access Method||Web/Phone|
|Support Response Method||Email/Phone|
|Number of Support Requests||Unlimited|
|Target Response time for all Cases||Within 2 Business Hours|
Resolution to an Issue is subject to verification and reproduction of the Issue by Paymerang, with Customer’s reasonable assistance verifying and reproducing the Issue. Resolution(s) may include a temporary workaround, patch or bypass supplied by Paymerang, or a computer or operating routine. Once Paymerang has resolved an Issue, Customer will be required to test and accept the fix and/or work on data Issues if data has been impacted.