This Tesorio Cash Flow Management Software as a Service Agreement (the “Agreement“) is between the entity that signed the order form (the “Order“) into which this agreement is incorporated (“Customer“) and Tesorio, Inc., located at 831 Mitten Road, Suite 216, Burlingame, CA 94010 (“Tesorio“). This Agreement and the Order state the terms and conditions which govern the use of the Tesorio Service.
(1) The Services
The “Service” consists of (a) the Tesorio Cash Flow Management Software as made available by Tesorio in a “Software as a Service” mode (the “Software“) (b) the Support Services (“Support“), and (c) the Setup service, as defined on the Order Form (“Setup“).
(a) Software. Each Order will state the modules of the Software that Customer’s users may use. Customer may at any time purchase the right to use additional modules by issuing a purchase order (“PO“) to Tesorio.
(b) Support. Support consists of problem diagnosis and resolution of errors in the Software within a time reasonable under the circumstances and considering the impact of the problem on Customer. Support is available between 9:00 AM and 6:00 PM Pacific Time, Monday through Friday, not including national holidays (“Support Hours“). Tesorio will respond (i) within 24 hours to Support calls received Monday through Thursday, (ii) on Monday for Support calls received Friday and Saturday, and (iii) by Tuesday for Support calls received on Sunday.
Customer may use the Service purchased by each Order to support its internal business operations during the term stated on each Order and any Renewal Terms (defined below) agreed to by the parties.
The initial term for the Services will be that which is stated on the Order. Additional one-year renewal terms (each, a “Renewal Term“) will automatically be added unless either party provides a written notice of non-renewal to the other at least thirty days before the start of a Renewal Term. Customer agrees to send Tesorio a PO prior to each Renewal Term unless Customer does not customarily issue purchase orders for services like the Services. The Renewal Term(s) will be governed by the original Order, the renewal Order, and this Agreement.
(3) Tesorio Warranties
Tesorio warrants that:
(a) Software Operation. The Software will operate substantially in conformity with the documentation that is provided with the Software (the “Documentation“). If Customer reports that it doesn’t, the Remedy (as defined below) is that Tesorio will either update the Software to comply with the warranty or provide a reasonable workaround.
(b) Setup. Tesorio will perform the Setup services in a diligent, professional and technically correct manner. If Tesorio doesn’t meet this standard, the Remedy is that Tesorio will either reperform the services at no charge or refund an amount equal to the fees allocable to the nonconforming services.
(c) Customer Data. Tesorio will maintain commercially reasonable administrative, physical, and technical safeguards for the protection and security of any Customer data managed, stored, and processed by the Software (the “Data“). If Data is lost or damaged by Tesorio, the Remedy is that Tesorio will restore the affected Data from Tesorio’s most recent backup of such Data. Tesorio’s security, data backup, and business continuity policies will be made available upon request.
(d) Noninfringement. The Software will not infringe the intellectual property rights of any third party. If a third party claims that it does, the Remedy is that Tesorio will perform its obligations under the IP Claims section below.
In this Section, “Remedy” means Customer’s sole and exclusive remedy and Tesorio’s sole obligation(s) in connection with a breach of a warranty.
THE PARTIES AGREE THAT TESORIO IS NOT A FINANCIAL ADVISOR AND THAT ANY FINANCIAL INFORMATION PROVIDED BY TESORIO OR THE SOFTWARE IS PROVIDED AS-IS WITHOUT A WARRANTY OF ANY KIND. TESORIO RECOMMENDS THAT ANY SUCH FINANCIAL INFORMATION BE REVIEWED WITH CUSTOMER’S FINANCIAL ADVISORS PRIOR TO USE.
THE WARRANTIES PROVIDED IN THIS SECTION ARE THE ONLY WARRANTIES PROVIDED BY TESORIO IN CONNECTION WITH THE SERVICES. THE PARTIES AGREE THAT NO OTHER WARRANTIES, EXPRESS OR IMPLIED, SHALL APPLY OR EXIST, INCLUDING THE WARRANTY OF MERCHANTABILITY OR THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
(4) Customer Obligations
(a) Conduct. Customer agrees that it shall not attempt to (i) disrupt the Service, (ii) interfere with another’s use of the Service, (iii) use the Service for any illegal, unethical, or improper reasons such as publishing defamatory or obscene content.
(b) Export. Customer acknowledges that the Service is subject to the export rules, laws, regulations, controls, and restrictions of the United States (“Export Laws“) and agrees that it shall fully abide by and comply with the Export Laws, such as not exporting any portion of the Service to a person, entity, or country to which exporting the Service is prohibited by the Export Laws. If Customer exports any portion of the Service, it is responsible for obtaining any permits which may be required to do so and it agrees to abide by the export laws and regulations of the country to which it has made the export. Customer warrants that Customer is not an entity or person to which access to the Service is prohibited by the Export Laws. If Tesorio must incur any expense such as legal fees or penalties as a result of Customer’s breach of this Section, Customer will promptly reimburse Tesorio for any such expenses.
(5) Customer Data and Tesorio Intellectual Property
(a) Tesorio Use of Customer Data. Customer agrees that Tesorio may use any Customer data Customer enters or downloads into the Software or otherwise provides to Tesorio only (i) as part of the Services, (ii) to contact Customer’s customers regarding Tesorio services, including providing information to them that may improve Customer’s usability and the quality of the Services, and (iii) in aggregated and anonymized form for Tesorio’s other internal purposes such as statistical analysis and industry benchmarking. Tesorio agrees that such Customer data will be Confidential Information (defined below).
(b) Tesorio’s Intellectual Property. Customer acknowledges that Tesorio and its licensors own all intellectual property rights in and to the Software and to the models and analytics that are created using the Software (the “Models“). Customer agrees that the only rights it has to the Software and the Models are those expressly granted by this Agreement and each Order. Customer shall own all intellectual property rights in and to the output created by the Software and the Models.
Customer agrees that (i) it shall not resell, distribute, disclose, demonstrate, or otherwise make the Software, Models, or the Documentation available or accessible to any third party, including Tesorio competitors and investment firms and, (b) it shall not attempt to reverse engineer or discover the source code of the Software or the Models.
(6) Payment and Taxes
Customer agrees to pay invoices from Tesorio within thirty (30) days of the date it receives each invoice. If Customer has a reasonable basis to dispute an invoice, Customer may withhold payment of the disputed portion until the dispute has been resolved, provided that Customer (a) notifies Tesorio in writing of the dispute within fifteen days of its receipt of the invoice and (b) works with Tesorio in good faith and in a timely way to resolve the dispute.
Customer agrees that it shall pay all taxes which Tesorio is obligated by law to collect from its customers in connection with the Services, such as sales tax.
(7) Confidential Information
(a) Confidential Information. During the course of our business relationship, the parties may disclose information to each other that the disclosing party (the “Discloser“) considers being its confidential or proprietary information (“Confidential Information“). Confidential Information includes information such as business plans, customer names, financial information, product information, methods and processes, pricing, customer information. If the information is not marked as “confidential”, it shall still be considered Confidential Information if a reasonable person would understand it to be confidential or proprietary under the circumstances of its disclosure.
(b) Obligations. The parties agree to not disclose the other’s Confidential Information to any third party and to use no less than reasonable and appropriate measures to protect the Confidential Information from access by or disclosure to third parties.
(c) Exceptions. The obligations of the preceding section shall not apply to (a) information that it is in the public domain through no acts or omissions of the party receiving it (the “Receiver“), (b) information that the Receiver already has in its possession without an obligation of confidentiality, and (c) information that the Receiver develops on its own without reference to the Discloser’s Confidential Information.
Additionally, the Receiver may disclose the Confidential Information (a) to its contractors, legal advisors, and financial advisors with a need to know and who are under a confidentiality obligation with the Receiver that does not allow them to disclose the Confidential Information or, (b) as may be required by law or a legal process, provided that the Discloser is given an opportunity to challenge or narrow the disclosure requirement to the extent the Receiver is legally permitted to allow the Discloser do so.
(8) Third Party Claims
(a) IP Claims. Tesorio shall, at its expense, defend Customer against claims by a third party alleging that the Services infringe the intellectual property rights of the third party (“IP Claim“). Additionally, Tesorio shall pay any final judgment or settlement of the IP Claim and reimburse Customer for any reasonable expenses it necessarily incurs in responding to the IP Claim. Customer agrees that it shall (a) promptly provide written notice to Tesorio following its receipt of the IP Claim, (b) authorize Tesorio to assume sole control of the settlement of the IP Claim, and (c) provide Tesorio with such assistance with the IP Claim as Tesorio may reasonably request.
Tesorio shall have no obligations for any IP Claim that is based on (a) a modification of the Services not made by Tesorio or (b) a combination of the Services with a third party product other than those stated in the Documentation as being required or compatible with the Services.
If Customer’s use of the Services is enjoined or if Tesorio reasonably believes it will be, Tesorio shall either (a) obtain the right for Customer to continue to use the enjoined component(s), (b) replace the enjoined components with non-infringing components, or (c) if neither of the preceding options is commercially reasonable for Tesorio to provide, then Tesorio may terminate the Services and refund to customer any unused Services fees as of the date of the termination.
This section states Tesorio’s entire obligation and Customer’s sole remedy in connection with an IP Claim.
(b) Claims Against Tesorio. Customer shall, at its expense, defend Tesorio against claims by a third party alleging harm to the third party caused by Customer (“Customer Claim“). Additionally, Customer shall pay any final judgment or settlement of the Customer Claim and reimburse Tesorio for any reasonable expenses it necessarily incurs in responding to the Customer Claim. Tesorio agrees that it shall (a) promptly provide written notice to Customer following its receipt of the Customer Claim, (b) authorize Customer to assume sole control of the settlement of the Customer Claim, and (c) provide Customer with such assistance with the Customer Claim as Customer may reasonably request.
Settlements. Tesorio may not settle an IP Claim and Customer may not settle a Customer Claim without the other’s consent if the settlement would require the party being defended to (i) pay any amounts not reimbursable to the defended party by the other party or, (ii) require the defending party to make an admission of wrongdoing or fault.
(9) Limitation of Liability for Damages
The parties agree that their liability to the other for damages for any disputes, actions, or claims related to this Agreement, whether such dispute, claim, or action is for breach of contract, tort, or otherwise, shall be as follows:
(a) No Consequential Damages. Except as stated in the following sentence, neither party shall be liable to the other for consequential, indirect, or punitive damages, however arising and whether or not foreseeable. This limitation shall not apply to damages caused by (a) a party’s gross negligence or willful misconduct, or (B) Customer’s breaches of the Tesorio Intellectual Property section.
(b) Limit to Amount. Except as stated in the following sentence, neither party shall be liable to the other for damages of any kind in an amount greater than the fees paid or owed for the Services that are the subject of the breach. This limitation shall not apply to damages caused by (a) a party’s breach of the Confidential Information section of this Agreement, (b) a party’s negligence or willful misconduct, and (c) Customer’s breaches of the Tesorio Intellectual Property, Conduct, or Export.
Termination. Either party may terminate this Agreement or an Order for a breach of this Agreement or the Order if (i) the breach is curable and the breaching party does not cure the breach within thirty days of its receipt of written notice of the breach or (ii) if the breach is not curable and breaching party does not provide reasonable assurances of actions taken to prevent a recurrence of the breach.
If this Agreement is terminated but Orders are still in effect, this Agreement will continue to govern those Orders. If an Order is terminated, then Customer must cease using the Services on the effective date of the termination and promptly destroy any login credentials to the Services it possesses associated with the terminated Order and require its contractors that may be using the Services to do the same. Upon Customer’s request, Tesorio will promptly return Customer’s Confidential Information, other than as may be retained in its routine data backup files.
(11) General Terms
(a) Plain Language. That parties confirm that they intend for the plain language of this Agreement and all Orders to clearly and unambiguously express their intent at the time of contracting. Implied meaning or interpretation that is not reasonably evident from the plain language of this Agreement or an Order shall have no legal effect. Each use of “includes”, “including”, or “such as” shall mean “includes, without limitation”, “including without limitation, or “such as, without limitation”, respectively. Each use of “section” means “section of this Agreement”. Section headings are provided for convenience and have no independent meaning.
(b) Purchase Orders. If Customer issues purchase orders to Tesorio under this Agreement or in connection with an Order (each, a “PO”), they shall only serve to confirm the applicable quantities and prices and Customer’s commitment of funds to the purchase. No terms on the PO shall apply or be of any legal effect. Tesorio may reject a PO if it is incorrect or inaccurate.
(c) Governing Law. Any legal dispute regarding this Agreement shall be governed by the law of California, without giving effect to any conflict of laws principle that would require using the law of a different state.
(d) Arbitration. The parties agree to work in good faith to resolve any dispute in a timely manner. If the parties are unable to do so, the dispute shall be resolved by binding arbitration in Burlingame, California in accordance with the rules of the American Arbitration Association by three (3) arbitrators. The award rendered by the arbitrators shall be final and binding, and judgment may be entered upon it in any court of competent jurisdiction in the state of California.
(e) Injunctive Relief. The parties agree that certain breaches of this Agreement or an Order could cause irreparable harm for which money damages would be insufficient or difficult to determine. As such, and as a permitted exception to the requirement to arbitrate all disputes in the Arbitration section above, the parties agree that each party may seek injunctive relief in a court of competent jurisdiction without limiting its other rights and remedies. Any actions for equitable relief under this Agreement or an Order may only be brought in the state or federal courts of San Mateo County in the state of California.
(f) Assignment. Except in connection with a change of control or a sale of assets, neither party may assign this Agreement or an Order without the written consent of the other. Any attempted assignment in conflict with the preceding sentence shall be considered ineffective and void.
(g) Waiver and Severability. A party’s failure to enforce its rights under this Agreement may not be construed as a waiver of its right to do so. If a provision of this Agreement or an Order is found to be unenforceable, (i) it shall be enforced to the extent possible to effectuate the parties’ intent and (ii) the other provisions of the Agreement or Order shall remain in full force and effect without modification.
(h) Relationship of the Parties. This Agreement and the Orders are between two independent entities and the parties agree that neither may act on behalf of the other.
(i) Third Parties. Customer may allow its contractors to use the Services, but if it does, it agrees that it shall be liable to Tesorio for any acts and omissions of those contractors that, if done or not done by Tesorio, would be a breach of this Agreement or an Order. Except as stated in the previous sentence, there are no intended or implied third party beneficiaries of this Agreement or any Order.
(j) Excused Performance. Each party’s performance under this Agreement or an Order will be excused for as long as the performance is made impracticable as a result of a “force majeure” event such as a natural disaster, accident, strike, external infrastructure failure, or the negligent or malicious acts of a third party.
(k) Notices. Notices in connection with this Agreement shall be sent to the parties’ addresses stated in this Agreement and shall be sent by tracked US mail or a nationally recognized delivery service such as UPS or FedEx.
(l) Publicity. Tesorio may include Customer and its logo in Tesorio’s public list of customers, but all other use of Customer’s name or logo must be approved by Customer prior to use by Tesorio.
(m) Feedback. If Customer provides feedback to Tesorio about the Services, Customer agrees that Tesorio may use that feedback (less any Customer Confidential Information included in it) as it sees fit.
(n) Entire Agreement and Order of Precedence. The parties agree that this Agreement and any Orders are the entire and exclusive set of terms governing the Services. No other oral or written communications, including POs, made prior to or at the time the parties acceptance of execution of this Agreement or an Order shall have any legal force or effect. Changes to this Agreement or an Order may only be made by a written amendment signed by both parties. In the event of a conflict or ambiguity between this Agreement and an Order, the terms of the Order shall take precedence and prevail.