This Tesorio Master Cash Flow Performance Subscription Agreement (the “Agreement”) is between Tesorio, Inc., a Delaware corporation located at 831 Mitten Road, Suite 216, Burlingame, CA 94010 (“Tesorio”). and each party (a “Customer”) that executes an Order Form for the Service defined below. This Agreement consists of these terms, each order form for Services that has been executed by Tesorio and Customer (each an “Order Form”) and all exhibits and amendment of any of the foregoing. By executing the initial Order Form, Customer agrees to all the terms set forth below.
(1.1) “Applicable Law” means each federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to a party.
(1.2) “Beta Features” means pre-production Service features, functionalities, and/or Modules.
(1.3) “Customer Data” means all data entered by the Customer manually into the product or pulled into the product via Tesorio’s integrations.
(1.4) “Fees” means the fees charged by Tesorio for Services described on each Order Form.
(1.5) “Models” means Tesorio’s proprietary models and analytics used to deliver the Service.
(1.6) “Modules” means the Service components selected by Customer in an Order Form.
(1.7) “Prohibited Content” means content that: (a) is illegal under Applicable Law; (b) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (c) contains indecent or obscene material; (d) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (e) promotes unlawful or illegal goods, services, or activities; (f) contains false, misleading, or deceptive statements; (g) contains any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would: (i) cause the Service to cease functioning; (ii) in any way damage or corrupt data, storage media, programs, equipment, or communications; or (iii) otherwise interfere with the operations of the Service, including, without limitation, trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices.
(1.8) “Reports” means the data sets, forecasts, models, calculations, analytics, and related information Customer creates using the Service.
(1.9) The “Service(s)” consists of: (a) the Tesorio Cash Flow Performance software as made available by Tesorio in a Software as a Service mode and all improvements, enhancements or modifications thereto, (b) support services, and (c) setup services identified on the Order Form.
(1.10) “Software” means the proprietary source and object code, underlying structure, ideas, know-how, algorithms and AI models underyling and used to provide the Service.
(1.11) “User(s)” means employees, contractors, or agents authorized by Customer to access and use the Services under its account.
(2.1) Use Rights. During each subscription term, Tesorio will provide to Customer the Service as identified on each Order Form. Each Order Form will specify the Modules Customer wishes to use. Customer may use the Service to support its internal business operations subject to the terms of this Agreement and the Order Form. Customer may at any time subscribe to use additional Modules on execution of a new Order Form.
(2.2) Subscription Term. Customer’s Service subscription is for the time period specified in the Order Form, or if no such term is stated, then for one year, in either case subject to the provisions of this Agreement.
(2.3) Renewal. The subscription term will automatically renew for additional one year periods unless either party notifies the other in writing at least 30 days prior to expiration of the then-current term, so long as Tesorio makes the Service available. Tesorio will invoice Customer for each renewal period at least 30 days prior to expiration of each subscription term.
(2.4) Orders by Affiliates. Customer’s Affiliates may subscribe to use the Service on execution of additional Order Forms referencing this Agreement. On execution of an Order Form by Tesorio and the Affiliate, the Affiliate will be bound by the provisions of this Agreement as if it were an original party hereto.
(2.5) Support. Support consists of problem diagnosis and resolution of errors in the Service within a time reasonable under the circumstances and considering the impact of the problem on Customer. Support is available between 9:00 AM and 9:00 PM Eastern Time, Monday through Friday, not including national holiday. Tesorio will respond: (a) within 24 hours to support requests received Monday through Thursday, (b) on Monday for support requests received Friday and Saturday, and (c) by Tuesday for support requests received on Sunday.
(2.6) Beta Features. From time to time, Tesorio may invite Customer to try Beta Features. Customer may accept or decline any such trial in its sole discretion. Beta Features are for evaluation purposes only and not for production use, are not considered part of the Service under this Agreement, are not supported, and may be subject to additional terms. Tesorio may discontinue Beta Features at any time in its sole discretion and may never make them generally available.
(2.7) Customer Data Export and Deletion. During the subscription term or within 30 days thereafter on Customer’s request, Customer may export Customer Data from the Service. After the post-termination period, Tesorio may delete Customer Data in accordance with its standard schedule and procedures. If Customer elects to proactively delete its account at any time, all associated Customer Data will be deleted permanently and cannot be retrieved.
(3.1) Limitations on Use. Customer will not and will not authorize, permit, or encourage any User or any third party to: (a) allow anyone other than Users to access and use the Service; (b) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Service; (c) modify, adapt, or translate the Service; (d) make any copies of the Service; (e) resell, distribute, or sublicense the Service, or use any of the foregoing for the benefit of anyone other than Customer and its Users; (vi) remove or modify any proprietary markings or restrictive legends placed on the Service; (vii) use the Service in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (viii) introduce, post, or upload to the Service any Prohibited Content. Notwithstanding any other provision of this Agreement Customer’s has no right to download or access source code underlying the Service. Customer acknowledges its use of the Reports is limited to internal business purposes.
(4.1) No Ownership Assignment. This Agreement is for SAAS use rights. Neither party will assign ownership rights in any of its assets to the other pursuant to this Agreement, and neither party grants the other any rights or licenses not expressly set out in this Agreement.
(4.2) What Customer Owns. Customer owns all right, title and interest in and to the Customer Data as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, and all intellectual property rights related to any of the foregoing.
What Tesorio Owns. Tesorio owns and retains all right, title and interest in and to: (a) the Services and Software, and (b) all intellectual property rights related thereto.
(5.1) Payment Terms. Tesorio will bill through an invoice. Full payment for invoices issued in any given month must be received by Tesorio within 30 days after the mailing date of the invoice (which may be sent by email). Except as otherwise provided herein all fees are noncancelable and nonrefundable. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. If Customer believes that Tesorio has billed Customer incorrectly, Customer must contact Tesorio no later than 60 days after the date of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Tesorio’s customer support department. Without limiting its other remedies, Tesorio may suspend Services for nonpayment of fees.
(5.2) Taxes. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on Tesorio’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Tesorio hereunder. If an applicable tax authority requires Tesorio to pay any taxes that should have been payable by Customer, Tesorio will advise Customer in writing, and Customer will promptly reimburse Tesorio for the amounts paid.
(6.1) Authority. Each of Tesorio and Customer represents and warrants that: it has the full right, power and authority to enter into and fully perform this Agreement; the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; its entry herein does not violate any other agreement by which it is bound; and it is a legal entity in good standing in the jurisdiction of its formation and shall continuously remain in good standing during the term of this Agreement.
(6.2) Tesorio further warrants that:
(7.1) Confidential Information. Subject to the limitations in Section 6.2, all information disclosed by one party to the other party during the term of this Agreement, whether in oral, written, graphic or electronic form, shall be deemed to be “Confidential Information”. Confidential Information of Tesorio includes non-public information regarding features, functionality and performance of the Services and Software. Confidential Information of Customer includes all Customer Data.
(7.2) Exceptions. Confidential Information does not include information which: (a) is part of the public domain at the time of disclosure; (b) becomes a part of the public domain through no fault of the receiving party or persons or entities to whom the receiving party has disclosed, transferred or permitted access to such information; (c) becomes available to the receiving party on a non-confidential basis from a source legally entitled to share the information without confidential treatment; (d) is independently developed by the receiving party without use of or access to the disclosing party's Confidential Information; or (e) is released from the confidentiality obligations herein by written consent of the disclosing party.
(7.3) Nondisclosure. Each party covenants that it will not disclose any Confidential Information of the other party to any person or entity except: (a) to agents of the receiving party who have a need to know such information, who are subject to confidentiality agreements with the receiving party at least as protective of the disclosing party’s Confidential Information as this Agreement, or (b) pursuant to the terms of a valid and effective subpoena or court order, provided that the receiving party immediately notifies the disclosing party (to the extent permitted) of the existence, terms and circumstances surrounding such a request so that the disclosing party may seek appropriate protective action. Neither party may use the other party's Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement.
(7.4) Return; Destroy; Protect. On the disclosing party’s request, the receiving party must return or destroy all Confidential Information of the disclosing party which has been supplied to or acquired by the receiving party other than: (a) records the receiving party has a separate legal right or obligation to retain; and (b) copies of Confidential Information created in the ordinary course of the receiving party’s business and retained in accordance with its internal document retention and information technology policies. To the extent the receiving party retains information disclosed by the disclosing party, the receiving party will continue to protect such information in accordance with Section 6.3: (x) for so long as it meets the definition of Confidential Information above; (y) if it constitutes a trade secret or personal data for so long as required under Applicable Law.
(7.5) Customer Identification. Tesorio may identify Customer as a user of the Services and may use Customer’s name and logo in Tesorio’s customer list, press releases, blog posts, advertisements, and website.
(8.1) Indemnification by Tesorio.
(8.2) Indemnification by Customer. Customer at its own expense will defend, indemnify and hold Tesorio and its Related Parties harmless against any Costs arising from or relating to Claims alleging that Customer Data or Customer’s use of the Service violates of applicable laws, rules, or regulations.
(8.3) Indemnification Procedure.
(9.1) No Consequential Damages. In no event shall either party or its agents and suppliers (including their directors, officers, employees, representatives, agents and suppliers) be liable for any indirect, incidental, special or consequential damages, including without limitation procurement of substitute products or services or loss of profits, revenue, data or data use, even if such party has been advised of the possibility of such damages. Nothing in this Agreement will limit Customer’s liability for misappropriation of Tesorio’s intellectual property rights in the Service.
(9.2) Direct Damages. The aggregate, cumulative liability of each party (including its directors, officers, employees, representatives, agents and suppliers) under this Agreement shall be limited to the Fees paid or payable by Customer to Tesorio during the twelve month period prior to the event giving rise to any claim, or $100 if Customer is using Beta Features or a trial of a Service. The foregoing shall not limit Customer’s payment obligations.
(10.1) Term. This Agreement will continue from the Effective Date until the earlier of: (a) the expiration of all Service subscriptions, or (b) termination pursuant to Section 9.2 below.
(10.2) Termination for Cause. In addition to any other remedies it may have, either party may terminate this Agreement upon written notice (or without notice in the case of nonpayment), if the other party: (a) materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within 30 days after written notice describing the breach; or (b) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets. If Tesorio terminates this Agreement for Customer’s breach, Customer remains obligated to pay the balance due on Customer’s account for the remainder of the Term, computed in accordance with the applicable Order Form(s), and will be billed for such unpaid fees.
(10.3) Effect of Termination. On termination of a subscription term or this Agreement, Customer must cease using the Services as of the effective date of the termination.
(10.4) Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
(11.1) No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever to any third party.
(11.2) Notices. All notices under this Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested to Customer at the address on the Order Form and to Tesorio at the address identified on its website.
(11.3) Enforceability. If any provision of this Agreement is adjudicated invalid or unenforceable, this Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. To the extent permitted by applicable law, the parties waive any provision of law that would render any clause of this Agreement prohibited or unenforceable in any respect.
(11.4) Force Majeure. If the performance of this Agreement or any obligations (other than payment obligations) hereunder is prevented or interfered with by any act or condition beyond the reasonable control of a party hereto, that party upon giving prompt notice to the other party shall be excused from such performance during such occurrence.
(11.5) Assignment. This Agreement may not be assigned by either party without the other party’s consent, whether by operation of law or otherwise; provided that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party. Any other purported assignment shall be void.
(11.6) Integration. This Agreement is the complete statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by Tesorio in lieu of or in addition to Tesorio’s Order Form, Customer’s purchase order shall be binding only as to the following terms: (a) the Services ordered and (b) the appropriately calculated Fees due. Other terms shall be void.
(11.7) Amendment; Waiver. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. From time to time Tesorio may modify this Agreement. Unless another agreement between the parties supersedes this Agreement, changes become effective for Customer upon renewal of the then-current subscription term or entry into a new Order Form after the updated version of this Agreement goes into effect. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
(11.8) Governing Law and Jurisdiction; Attorney Fees. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement must be brought in the federal or state courts in the Northern District of California, U.S.A., and the parties agree to the exercise of jurisdiction by such courts. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.