This Supplier Agreement (the “Agreement”) governs your access to and use of Tesorio’s SaaS Services. Please read the terms and conditions of the Agreement carefully as they create a binding contract between the company or entity you represent (“Supplier”) and Tesorio, Inc. (“Tesorio”, “we”, or “us”) as of the date you accept this Agreement (the “Effective Date”).
By clicking the “ACCEPT” button below, you accept and consent that you have the right to legally bind Supplier to an agreement and that Supplier is legally bound by and will abide by the then-current terms and conditions of the Agreement. On behalf of Supplier, you further represent and warrant that this Agreement creates a binding contract between Tesorio and Supplier. Tesorio and Supplier may be referred to individually as a “Party” and collectively as the “Parties”.
This Agreement may be updated from time to time in Tesorio’s sole discretion. Except as provided below, all changes are effective thirty (30) days after posting of the changes on the Tesorio website (currently, www.tesorio.com) through which the SaaS Services are accessed, and apply to all access to and use of the Services thereafter. Each time an Authorized User of Supplier clicks “ACCEPT” or accesses the Services using an Authorized User’s User Name and Password, the Authorized User thereby consents to legally bind Supplier to this Agreement and any changes reflected in the then-current version of this Agreement are immediately binding upon Supplier.
1.1. “Authorized User” means a user, including you, who is authorized by Supplier to access and use the Services on behalf of Supplier, and has the authority to bind Supplier to comply with this Agreement.
1.2. “Buyer” means a company or entity which has entered into a Buyer Agreement with Tesorio for the purpose of facilitating Buyer’s ability to obtain discounts on pre-approved and non-disputed invoices submitted by its suppliers in exchange for the Buyer’s agreement to make early payments on those invoices, all as automated by Tesorio’s SaaS Services.
1.3. “Buyer Agreement” means a separate agreement entered into between Buyer and Tesorio
1.4. “SaaS Services” means the Services as delivered by Tesorio remotely over the Internet, which facilitate payment discounts from the early payment of non-disputed invoices using the SaaS Services. As used herein, the SaaS Services include: (a) access to the Tesorio website through which the SaaS Services are made available; and (b) use of the Services Software which is made available as part of the SaaS Services. The SaaS Services do not include processing the payment of any invoices and Tesorio shall have no responsibility or liability for such payments.
1.5. “Services Software” means (i) any proprietary Tesorio computer software program or application, or programs or applications of Tesorio’s third party licensors, utilized by Tesorio in the establishment, operation, and/or the provision of the SaaS Services including any data processing and storing applications, databases, domains, website templates, email servers, and standard operations software applications, (ii) all source code, documentation, updates, upgrades, and derivative works thereof.
1.6. “Supplier” means the entity or organization entering into this Agreement with Tesorio which provides goods or services to Buyer(s), invoices the Buyer, and utilizes the SaaS Services to facilitate accelerated payments of non-disputed invoices in exchange for a discount on the non-disputed invoiced amount.
1.7. “Tesorio Intellectual Property” includes, without limitation, the SaaS Services and all components thereof, including the Services Software; algorithms; tools; methodologies; proprietary systems, methods, and apparatus involved in delivering the SaaS Services; work product or deliverables created or provided by Tesorio; all confidential business information; and any patent rights, copyrights, trade secrets, trade names, service marks, trademarks, moral rights, or know-how related to the same; and all modifications or derivative works of any of the above.
1.8. “You” (or “you”) means an Authorized User of Supplier.
2. RIGHT TO USE THE SAAS SERVICES; RESTRICTIONS
2.1. License and Grant of Access. Subject to Supplier’s compliance with the terms of this Agreement, Tesorio hereby grants Supplier a non-exclusive, non-transferable, limited right to access and use the SaaS Services. Supplier shall have no other rights in and to Tesorio’s Intellectual Property other than that expressly granted in this Agreement.
2.2 Means of Access. Tesorio shall provide instructions and functionality to enable each Authorized User to create a unique login credential (“User Name” and “Password”) to be used to access the SaaS Services. Supplier and each Authorized User are responsible for maintaining the confidentiality of the User Name and Password and shall be solely responsible and liable for all activities that occur under each User Name and Password. Supplier shall immediately notify Tesorio of any unauthorized use of any User Name or Password
2.4. Conditions of Access. Tesorio will use commercially reasonable efforts to make the SaaS Services available twenty-four (24) hours per day, seven (7) days a week, except for planned and emergency downtime and other outages or delays caused by Supplier or its Authorized Users or by factors or circumstances beyond Tesorio’s reasonable control (including acts of God, internet service provider failures or delays or other failures or delays caused by factors outside of Tesorio’s hosted computing environment). Tesorio reserves the right to modify the SaaS Services in its sole discretion.
2.5. Geographic Restrictions. Tesorio is a U.S.-based company, which operates the SaaS Services, and stores all associated content and data, in the United States (either itself or through a third party hosting provider). If Supplier’s data is being transferred or provided under foreign laws governing data collection and use that are different from U.S. law, then Supplier represents and warrants that it has all necessary consents and authorizations to transfer such data to Tesorio and for Tesorio to process and store such data. Supplier is obligated to notify Tesorio of any additional prerequisites which must be satisfied under applicable foreign law in order to appropriately transfer Supplier’s data or allow us to use or process it, and Tesorio will work in good faith with Supplier to seek to address the legal requirements in a commercially reasonable, mutually agreeable manner.
3. PROPRIETARY RIGHTS
3.1. Title to Technology. All interest, title and right in and to Tesorio Intellectual Property, in whole or in part, shall be, vest with and remain the exclusive property of Tesorio and its third party licensors. All rights not expressly granted hereunder are reserved by Tesorio.
Supplier grants Tesorio a license to use, reproduce, perform, display and share Supplier Data as is reasonably necessary in order to provide the SaaS Services and otherwise perform our obligations contemplated hereunder, including by sharing Supplier Data with third parties (such as our third party hosting provider, which is currently Amazon) that support the provision of the SaaS Services and, further, by sharing it with Buyers in furtherance of the intended uses of our SaaS Services. In addition, Supplier grants Tesorio a license to de-personalize (remove any personally identifying information protected under applicable law) and aggregate any of the Supplier Data to determine usage trends, perform analytics, improve the SaaS Services, promote and market the effectiveness of the SaaS Services, sell such aggregated data to any third party, or for any other business or commercial purpose. Tesorio shall have no obligation or liability in connection with any of Supplier Data which Tesorio anonymizes or otherwise de-personalizes, unless and to the extent prohibited by applicable law.
3.3. Supplier’s license of Name and Logos. Supplier hereby grants a limited, non-transferable license to Tesorio for Tesorio to use Supplier’s name and logos to identify Supplier as a user of the SaaS Services for Tesorio’s marketing and public relations purposes, including marketing materials, advertisements, customer lists, press releases, presentations, and publications during the Term of this Agreement. Tesorio shall obtain Supplier’s prior written consent for any other uses of Supplier’s name, logos, and trademarks.
4. SUPPLIER OBLIGATIONS
4.1. Discounts on Invoices. Through the use of the SaaS Services, Supplier may elect to accept specified discounts on approved, undisputed invoices submitted to Buyer in exchange for Buyer’s agreement to make a corresponding early, discounted payment on those invoices. For the applicable invoices, Supplier will designate its acceptance of a discount through the use of the SaaS Services. Supplier may have the option of: (a) designating its acceptance of early, discounted payments on specific invoices (the “Case-by-Case Option”); or (b) designating its acceptance of early, discounted payments on all invoices submitted to Buyer over a specified time period (the “Auto-Accel Option”) Where Supplier selects the Case-by-Case Option, Supplier thereby agrees to accept the applicable discounts on the corresponding invoices which are approved by Buyer. Where Supplier selects the Auto-Accel Option, it agrees to automatically accept the applicable discounts for all invoices which are approved by Buyer during the designated period of time specified by Supplier (the “Auto-Accel Automation Period”). For all such payments made by Buyer, Supplier agrees to accept the accelerated, discounted payment in full and final settlement of the invoice and waives its right to claim any additional amount (including its right to claim the face amount of the invoice). Supplier agrees that Buyer is a third party beneficiary of this Agreement for purposes of enforcing Supplier’s agreement to accept all applicable discounts and its waiver of its right to claim any additional amount.
From time to time, Tesorio may send an e-mail to one or more registered Authorized Users (for these purposes, a “registered Authorized User” is an employee or agent of Supplier who has registered with Tesorio to utilize the SaaS Services on Supplier’s behalf and who has provided, among other information, his/her e-mail address) which would offer Supplier the opportunity to accept specified early payment options (with corresponding applicable discounts) with respect to certain invoiced amounts. These e-mails may enable Supplier to accept early payment options on designated individual invoices or on specified groups of invoices (such as all outstanding invoices). In the event that any such Authorized User accepts such e-mail offer (where acceptance may take the form of a response to such e-mail, a “click” of an embedded link to indicate acceptance or agreement, or other affirmative action which reflects the acceptance of or agreement to one or more options presented by the e-mail), Supplier agrees that such acceptance shall represent and confirm a binding agreement of Supplier to accept the applicable discount(s) and a further acknowledgment that the ensuing arrangement is governed by, and subject to the terms and conditions of, this Agreement. Upon written notice to Tesorio, Supplier may designate that only certain individuals (at specified e-mail addresses to be provided by Supplier) are authorized to accept the terms of an e-mail offer described above and, after receipt and processing of such request, Tesorio shall only send such e-mail offers to those designated individuals. Absent such notification, all registered Authorized Users shall have the right and authority to bind Supplier for purposes of this provision.
Notwithstanding anything to the contrary herein, Supplier understands and agrees that the discounts apply only to invoices which have been approved, and are not disputed, by Buyer and for which Buyer has agreed via the SaaS Services to make early payment in exchange for the applicable discount. Supplier understands and agrees that, to the extent that Buyer notifies Tesorio that it is cancelling its agreement to make discounted payments to Supplier, then the arrangement described hereunder will terminate at such time and no further invoices from Supplier will be subject to early payment (unless, and to the extent, thereafter agreed to by Buyer and Supplier pursuant to the terms hereof).
4.2. Tesorio’s Role. Supplier acknowledges and agrees that Tesorio offers the SaaS Services as a tool which helps facilitate a business arrangement between Buyer and Supplier and, in this regard, Tesorio does not serve as an agent or representative of Buyer or Supplier. Tesorio is not a party to, or guarantor of, any arrangement between Buyer and Supplier and has no responsibility or liability in connection with any such arrangement. While Tesorio will provide certain payment instructions to Buyer consistent with Supplier’s corresponding designations (as described in Section 4.1 above), SUPPLIER EXPRESSLY UNDERSTANDS AND AGREES THAT TESORIO SHALL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR THE PAYMENT OF ANY AMOUNTS DUE, OR ALLEGED TO BE DUE, TO SUPPLIER AND SUPPLIER COVENANTS THAT IT WILL NOT BRING ANY CLAIM OR SUIT AGAINST TESORIO FOR BUYER’S, OR ANY OTHER PARTY’S, DELAY OR FAILURE TO PAY ALL OR PART OF ANY SUCH AMOUNTS. Supplier recognizes and agrees that Buyer is solely responsible and liable for making required payments (if any) of pre-approved, undisputed invoices which are due and owing to Supplier.
4.3. Term of Agreement. For those invoices designated for early payment under the Auto-Accel Option as described in Section 4.1 above, Supplier’s agreement to automatically accept early, discounted payments shall last for the “Auto-Accel Automation Period”. Subject to the restrictions below, Supplier may cancel its then-current Auto-Accel Automation Period (including any Auto-Accel Automation Renewal Period described in Section 4.4) by sending an email to email@example.com. Any requests to cancel the Auto-Accel Automation Period will become effective after Tesorio receives and processes the applicable notice from Supplier and notifies Buyer that Buyer-approved invoices submitted thereafter are not subject to the discount terms of the cancelled Auto-Accel Option. Generally, we would expect that this period of time for the change to become effective would be approximately seven (7) days. Any undisputed invoices for which Tesorio has instructed Buyer to pay on an accelerated, discounted basis prior to the processing of Supplier’s notice of change will be processed and paid under the discount structure then in effect and Supplier agrees to accept such discounted payments as payment in full for the applicable invoices.
4.4 Renewal. Unless Supplier has notified Tesorio of a change or cancellation of the then-current Auto-Accel Automation Period or Auto-Accel Automation Renewal Period at least seven (7) days prior to the expiration of such period (subject to the terms of Section 4.3 above), or unless Tesorio notifies Supplier of its election to cancel the Auto-Accel Option at least seven (7) days prior to the expiration of any such period described above, then the discount arrangement then in effect will be renewed for a renewal period equal in length to the then-expiring period (i.e., the “Auto-Accel Automation Renewal Period”), provided that Buyer agrees to the continuation of such arrangement.
4.5 Indemnity. Supplier shall indemnify, defend and hold Tesorio harmless against any claim or action brought by a third party arising out of or relating to a breach of this Agreement by Supplier or a failure by Supplier to honor its representations, covenants and warranties hereunder, including any claim or action brought by Buyer in connection with Supplier’s agreement to accept discounted payments hereunder.
5. TERM AND TERMINATION
5.1. Term. This Agreement shall commence on the Effective Date and, unless otherwise terminated as provided below, will continue in effect in accordance with Section 4 above for so long as the SaaS Services are provided by Tesorio to Supplier.
5.2. Termination by Tesorio. Tesorio party may terminate this Agreement, upon written notice if: (i) Supplier materially breaches any term or condition of this Agreement and fails to correct the breach within ten (10) days after receipt of written notice thereof; (ii) Tesorio’s agreement with Buyer terminates or expires, or Buyer notifies Tesorio that it wishes to cease making early payments to Supplier; or (iii) Supplier enters into bankruptcy, becomes insolvent, ceases business activities or otherwise evidences financial distress. In addition, Tesorio may terminate this Agreement for convenience by providing at least thirty (30) days prior written notice to Supplier.
5.3. Effect of Termination. Upon expiration or termination of this Agreement, Supplier’s access to the SaaS Services will be de-activated and Supplier shall immediately discontinue use of the SaaS Services and return all Tesorio materials, documents and Confidential Information then in its possession. Upon request within thirty (30) days after termination, Tesorio will make available to Supplier for download a file containing a copy of Supplier Data in an industry standard format which Tesorio designates for this purpose. After such 30-day period, Tesorio may, without obligation to do so, delete any or all of the Supplier Data without liability. Conversely, Tesorio may maintain a copy of the Supplier Data in accordance with Tesorio’s then-current data retention and usage policies and practices and, among other uses, as contemplated by Section 3.2 above. The terms of Sections 3, 5, 6, 7, 8 and 9 hereof shall expressly survive expiration or termination of this Agreement.
6.1 DISCLAIMER. THE SAAS SERVICESAND ANY RELATED SOFTWARE, SERVICES AND/OR RELATED MATERIALS MADE AVAILABLE TO SUPPLIER IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TESORIO DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES TO THE FULLEST EXTENT OF THE LAW, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTY OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. TESORIO DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT THE SAAS SERVICES OR ANY RELATED SOFTWARE OR MATERIALS, WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.
6.2 Supplier’s Warranty. Supplier represents and warrants that (i) its Authorized Users have authority to act on behalf of Supplier; and (ii) all Supplier Data or other materials submitted by Supplier to Tesorio hereunder do not and will not (A) infringe on any third party’s rights, including any Intellectual Property Rights, (B) violate any applicable law, statute, ordinance or regulation; or (C) contain viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines.
7. LIMITATION OF LIABILITY
7.1. IN NO EVENT SHALL TESORIO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT WILL THE LIABILITY OF TESORIO UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100). THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE, SHALL APPLY TO ALL CAUSES OF ACTION (INCLUDING NEGLIGENCE) AND SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSES OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
8. ADDITIONAL TERMS AND CONDITIONS
8.1. Notices. Any notice required or permitted under the terms of this Agreement shall be delivered in person, by FAX, overnight courier service, or mailed by first class, registered, or certified mail, postage prepaid, to:
If to Tesorio: Attention: Tesorio, Inc, 831 Mitten Road, Suite 216, Burlingame, CA 94010;
If to Company: Attention the name of the individual you entered during the registration process, at the address you entered during the registration process.
All such notices shall be deemed to have been given upon receipt.
8.2. In addition, Company shall indemnify, defend and hold harmless Tesorio and its directors, officers, members, managers and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorneys’ fees), that may at any time be incurred by reason of any claim arising out of or relating to the performance of the Services Software, the delivery of the Services, a breach of this Agreement by Company, or any claim that is inconsistent with a Company’s representations or warranties to Tesorio contained in this Agreement.
8.2. Government. The SaaS Services may not be used by any governmental agency or body absent the parties entering into a separate amendment or agreement in advance of any such use
8.3. Assignment and Subcontracting. Tesorio reserves the right, in its sole discretion, to subcontract the provision of any or all of the Services herein, and to assign this Agreement in whole or in part. Neither this Agreement nor any rights under this Agreement may be transferred or assigned by Supplier without the prior written consent of Tesorio
8.4. Choice of Law, Venue and Jurisdiction. All matters relating to the SaaS Services and this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed solely in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule. Any claim or dispute related to or arising under the terms of this Agreement will be adjudicated in the state and federal courts located in Philadelphia, Pennsylvania, and the parties expressly consent to the sole jurisdiction of such courts for resolving any such claim or dispute.
8.5. Limitation of Right to Bring Claim. Any cause of action or claim you may have arising out of or relating to this Agreement or the SaaS Services must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
8.6. Force Majeure. Nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, blackouts, governmental acts or orders or restrictions, failure or delay of the Internet or power supply, or acts of God or terrorism, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party.
8.7. Independent Contractors. The relationship of Tesorio and Supplier established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
8.8. Integration Clause. This is an integrated Agreement and together with all other documents linked hereto and incorporated herein, this constitutes the entire, final, complete and exclusive agreement between the Parties regarding the subject matter hereof and supersedes all previous agreements, intentions, or representations, oral or written, relating to the subject matter of this Agreement.
BY CLICKING THE “ACCEPT” BUTTON BELOW, YOU ACCEPT AND CONSENT THAT YOU HAVE THE RIGHT TO LEGALLY BIND SUPPLIER TO AN AGREEMENT, THAT SUPPLIER IS LEGALLY BOUND BY AND WILL ABIDE BY THE THEN-CURRENT TERMS OF THIS AGREEMENT AND THAT SUPPLIER’S AUTHORIZED USE OF THE SERVICES IS CONTINGENT UPON AGREEMENT TO THIS AGREEMENT. ON BEHALF OF SUPPLIER, YOU FURTHER REPRESENT AND WARRANT THAT THIS AGREEMENT CREATE A BINDING CONTRACT BETWEEN TESORIO AND SUPPLIER.