DocuPhase Terms and Conditions

These DocuPhase Terms and Conditions (the “Terms and Conditions”) shall govern each order or statement of work (each, an “Order”) executed by the entity identified as Customer in such Order (“you” or “your”) and DocuPhase, LLC (“DocuPhase”), a Delaware limited liability company, with its principal place of business located at 13577 Feather Sound Dr. Ste 200, Clearwater, FL 33762 (each a “party” and collectively, the “parties”). The parties have read and understand these Terms and Conditions and, upon execution of the applicable Order, are legally bound to these Terms and Conditions, together with the applicable Order, schedules, exhibits, and other attachments referenced in these Terms and Conditions or the applicable Order (collectively, this “Agreement”).

Version Updated: October 2024

1.     GENERAL

These Terms and Conditions set forth the terms and conditions pursuant to which you shall access and use the Software and Services set forth in the applicable Order. Capitalized terms not otherwise defined in this Agreement have the meaning set forth in line within the text and within the Schedules.

2.     SERVICE AND SOFTWARE LICENSE TERMS

2.1            Generally. DocuPhase offers to customers licenses to the software program or programs specifically identified in the applicable Order (the “Software”) and SaaS Services, Payment Processing Services, Professional Services and any other services specified in the applicable Order (collectively, the “Services”). You have purchased access to the Software, as indicated in the Order, either as (a) a hosted, annual subscription to the SaaS Service (as defined below) (the “SaaS Subscription”) or (b) as an on-premises, device-based license to the Software (the “Software License”).

2.2            End Users. Only End Users may access or use the Software and Services. Each End User must keep its login credentials confidential, and you will promptly notify DocuPhase if you become aware of any compromise of any End User login credentials or other unauthorized access to or use of the Software and Services through its or its End Users accounts or login credentials. You are responsible for your End Users’ compliance with this Agreement and any actions taken by your End Users through the Software and Services. You and your End Users will comply with all Laws in your and their activities under this Agreement. You may permit your authorized consultants, contractors and agents (“Third Party Providers”) to access and use the Software, but only on your behalf in connection with their provision of services to you, subject always to the Agreement. You are responsible for all Third Party Providers’ actions in relation to the Software.

2.3            SaaS Subscription. This Section only applies to SaaS Service.

a.      Access Rights. Subject to the terms and conditions of this Agreement, DocuPhase hereby grants to you a non-exclusive, non-transferrable (except as set forth in Section 13.4), limited right for your End Users to remotely access and use the Software via the internet through the use of web browser as software-as-a-service (“SaaS Service”) in accordance with the Documentation within your Scope of Use.

b.     Removal; Suspension. DocuPhase has no obligation to monitor any content uploaded to the SaaS Service. Nonetheless, if DocuPhase deems such action necessary based on a determination that you have violated a material provision of this Agreement or in response to reasonably detailed takedown requests received in accordance with Law, then DocuPhase may (i) remove Customer Material from the SaaS Service; or (ii) to suspend your access to the SaaS Service. DocuPhase also reserves the right to suspend your access to the SaaS Service (y) to address technical, security or other emergency issues; or (z) if DocuPhase believes that you have violated any provision of this Agreement or that your actions endanger the operation of the Software or SaaS Service, other users, the public or DocuPhase, or require DocuPhase to act under Law. In such circumstances, DocuPhase will use commercially reasonable efforts to notify you of the reason(s) for suspension as soon as practicable and promptly reinstate your access to the SaaS Service upon resolution of the issue(s). In no event will DocuPhase be responsible to you for damages suffered because of a suspension or deletion of Customer Material in accordance with this Section 2.3b. Notwithstanding Section 2.3(b)(z) above, if you have failed to make payment when due under this Agreement, DocuPhase will provide written notice to you of such failure and will only suspend your account if such failure is not cured within seven (7) days of the date of such notice.

2.4            Software License. This Section only applies to Software purchased under a Software License.

a.      License. Subject to the terms and conditions of this Agreement, DocuPhase hereby grants to you a non-exclusive, non-transferable (except as set forth in Section 13.4 of the Agreement), personal license to (i) install and copy one (1) instance of the Software on one (1) server within your Scope of Use; and (ii) use the Documentation in connection therewith. This license includes the right to retain one (1) copy of the Software and Documentation for backup or archival purposes solely in support of your excise of the license granted herein, provided that all titles, trademark symbols, copyright symbols and legends and other proprietary markings are fully reproduced without modification. If you wish to migrate your instance of the Software from the server where it is originally installed to another server, you are encouraged to contact your DocuPhase Account Manager and request server migration assistance (which would be billed separately as a Professional Service). You may permit a third party to host the Software solely for the benefit of and access by the Licensed Parties, provided that such third party hosting provider agrees to be subject to and bound by this Agreement.

b.              Verification and True-Up.

(i)              Verification. Upon DocuPhase’s written request no more than one time in each twelve (12) month period you agree to provide DocuPhase with a signed statement verifying that the Software and Documentation are being used in full compliance with the Agreement and the Scope of Use. If the foregoing verification activity reveals an underpayment of any amounts payable to DocuPhase, you will promptly remit the full amount of such underpayment to DocuPhase. You shall be responsible for any fees attributable to use in excess of the Scope of Use.

(ii)             True-Up. DocuPhase reserves the right to conduct a usage analysis (a “True Up”) at any time during the Subscription Term upon written notice to you. If the True-Up reveals that your use of the Software exceeds the consumption thresholds (e.g., Quantity/Monthly Volume) specified in the applicable Order, DocuPhase will issue a new Order to account for the difference between the quantities purchased and the actual usage. Fees for the excess usage will be detailed in the new Order, and you agree to pay such fees in accordance with the payment terms outlined in Section 5.2.

2.5            Other Services. DocuPhase will perform (i) Support Services, and (ii) any Professional Services, Payment Processing Services and other Services set forth in an applicable Order, pursuant to this Agreement and any additional product-specific terms provided in Schedule 2 to this Agreement (the “Product Terms”) for the Subscription Term. In the event of a conflict between the Product Terms and these Terms and Conditions, the Product Terms shall control.

2.6            Change Orders. You may submit written request(s) to DocuPhase to change the scope or performance of the Services described in an Order but subscription amounts may never be decreased. DocuPhase shall, within a reasonable time after its receipt of your request, provide you with a written estimate of: (a) the likely time required to implement the change; (b) any necessary variations to the Fees and other charges for the Services arising from the change; (c) the likely effect of the change on the Services; and (d) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties shall negotiate in good faith the terms of such change, including a reasonable and equitable adjustment to the Fees or work schedule, as applicable (each a “Change Order”). Neither party shall be bound by any Change Order unless and until it is mutually agreed upon in writing.

3.     USE LIMITATIONS; RIGHTS RESERVED

3.1            Use Limitations. You will not (and not permit anyone else to): (a) modify, translate, or create derivative works based on any element of the DocuPhase Technology; (b) encumber, transfer, rent, donate, assign, lease, or otherwise use the DocuPhase Technology in any time-sharing or service bureau arrangement; (c) lease, license, sell, sublicense, or otherwise transfer your access to or use of the DocuPhase Technology or otherwise provide the benefit of use of the Services or Software to any third party; (d) use the DocuPhase Technology to process data of any non-subscriber third party for a fee or any other consideration; (e) market, sell, distribute, sublicense, manufacture, or otherwise commercially exploit the DocuPhase Technology; (f) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the DocuPhase Technology, including the use of any similar means to discover the source code of the DocuPhase Technology or to discover the Confidential Information therein; (g) publish or disclose to third parties any evaluation of the DocuPhase Technology without DocuPhase’s prior written consent; (h) alter or remove any printed or on-screen copyright, trademark, patent, proprietary, or other legal notice contained on or in any DocuPhase Technology and shall cause all such notices to be reproduced on all copies thereof; (i) use or permit the use of the DocuPhase Technology other than for its intended purpose, including without limitation, in a manner (1) contrary to applicable Law; (2) that infringes, violates or misappropriates the rights of any third parties, including the privacy rights or Intellectual Property Rights of such parties; or (3) that is unlawful, harassing, defamatory (untrue and damaging to others), abusive, threatening, or obscene.

3.2            Reservation of Rights. Subject to the limited rights expressly granted in this Agreement, DocuPhase reserves all rights, title and interest in and to the DocuPhase Technology, and any software or services used in relation to the DocuPhase Technology, including all Intellectual Property Rights therein. Except as expressly set forth in Section 2, all right, title, and interest in and to the DocuPhase Technology, and all service marks, trademarks, trade names, and logos of DocuPhase, together with all suggestions, contributions, or modifications thereto and copies of all of the foregoing, will remain in possession of DocuPhase and its licensors.

4.     OWNERSHIP

4.1            DocuPhase Ownership. DocuPhase and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to all Intellectual Property Rights in the DocuPhase Technology, except as otherwise expressly set forth in an applicable Order. You have no title to, ownership of, or any Intellectual Property Rights whatsoever in, any of the DocuPhase Technology or any improvements thereto developed by DocuPhase in connection with the Services.

4.2            Customer Ownership. You and your licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Customer Material, including all Intellectual Property Rights therein. You grant to DocuPhase the right and license to use the Customer Material to provide the Services.

4.3            Limited Feedback License. You hereby grant to DocuPhase, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under your Intellectual Property Rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the Services or Software, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the Software or any other products or services. You provide any Feedback “as is” without warranty of any kind.

5.     FEES AND PAYMENT TERMS.

5.1            Fees. You agree to pay DocuPhase a fee for the SaaS Service or the Software License, as applicable (the “Subscription Fees”), in the amount and according to the terms set forth in the applicable Order. You agree to pay DocuPhase a fee for the Services provided under this Agreement (“Services Fees” and with the Subscription Fees, the “Fees”) in the amount and according to the terms set forth in the applicable Order. Unless otherwise set forth in the applicable Order, any pre-paid Fees for Professional Services shall expire twelve (12) months after the effective date of the applicable Order, after which all unused hours or fees in relation thereto will be forfeited.

5.2            Payments. Fees are non-cancellable and non-refundable except if you terminate for an uncured material breach by DocuPhase in which case DocuPhase will refund you: (i) the amount of any pre-paid Subscription Fees on a pro-rata basis, calculated from the effective date of termination; and (ii) the amount of any pre-paid but undelivered Services Fees as of the effective date of termination, calculated in reference to the milestones or deliverables set forth in the applicable Order. Unless otherwise set forth in the applicable Order, Subscription Fees shall be paid annually in advance. Unless otherwise set forth in the applicable Order, all Services Fees are due thirty (30) days from your receipt of a DocuPhase invoice. All Fees paid, and expenses reimbursed under this Agreement, are in USD. Fees and expenses payable by you pursuant to this Agreement may not be withheld or offset by you against other amounts for any reason.

5.3            Expenses. You shall reimburse DocuPhase for all reasonable travel and expenses incurred by DocuPhase in connection with the performance of the Professional Services , provided that such travel and expenses have been approved by you in advance of being incurred. All expenses shall be in accordance with the DocuPhase Travel Policy, a copy of which is available upon request.

5.4            Late Fees. You agree to pay a late fee of two percent (2%) per month (not to exceed the maximum allowed under applicable Law) on all balances not paid when due.

5.5            Taxes. The Fees and other amounts quoted in the Order do not include tax. You are responsible for paying all governmental sales, use, withholding, excise, value added, ad valorem taxes, or duties imposed on your access to and use of the Services, other than taxes based on DocuPhase’s net income or profits. To the extent that DocuPhase is required to collect such taxes, the applicable tax will be added to your invoice. If you are exempt from the payment of taxes, you must provide DocuPhase with an original certificate that satisfies applicable legal requirements. Tax exemption will only apply as of the date that such certificate is provided.

6.     CUSTOMER OBLIGATIONS.

6.1            Technical Requirements. You are responsible for procurement and maintenance of the equipment, software, and internet access required to be able to access and use the Software. Acquiring, installing, maintaining, and operating equipment and internet access is solely your responsibility. DocuPhase does not represent or warrant that the SaaS Services will be accessible through all web browser releases.

6.2            Use of Software and Services. You shall not, and shall not permit others, in using the Software or Services to: (a) publish, ship, distribute, or disseminate material or information that encourages conduct that could constitute a criminal offense or give rise to civil liability; (b) engage in any conduct that could violate applicable Law, constitute a criminal offense or give rise to civil liability for DocuPhase; (c) misrepresent or in any other way falsely identify your identity or affiliation, including through impersonation or altering any technical information in communications using the Software or Services; (d) transmit or upload any material through the Software or Services containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing DocuPhase’s, or any other person’s or entity’s, network, computer system, or other equipment; (e) interfere with or disrupt the Software, Services, networks, or servers connected to the DocuPhase systems or violate the regulations, policies, or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Software; (f) attempt to gain unauthorized access to the Software, Services, other DocuPhase customers’ computer systems, or networks using the Software through any means; or (g) interfere with another party’s use of the Software. DocuPhase has no obligation to monitor your use of the Software. However, DocuPhase reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable Law.

6.3            Services.

a.      Access and Assistance; Customer Material. You shall provide such access to your premises, facilities, and computer systems and networks as may reasonably be requested by DocuPhase for the purposes of performing the Services. You shall respond promptly to any DocuPhase request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for DocuPhase to perform the Services. You shall timely provide such Customer Materials as set forth in the applicable Order or as DocuPhase may reasonably request in order to carry out the Services and ensure that all such Customer Materials are complete and accurate in all material respects.

b.     Delay in Performance. If DocuPhase’s performance of its obligations under this Agreement is prevented or delayed by any action or failure to act by you or your agents, subcontractors, consultants, or employees, DocuPhase shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by you, in each case, to the extent arising directly or indirectly from such prevention or delay, and DocuPhase’s obligation to perform will be extended by the same number of days as your prevention or delay. If such prevention or delay on your part results in additional work or incremental cost to DocuPhase, DocuPhase reserves the right to charge you additional Fees, as reasonably determined by DocuPhase.

6.4            Data Usage.

a.      License. Subject to this Agreement, you grant DocuPhase a non-exclusive, worldwide right to use, copy, store, transmit, display (privately, and not publicly) and modify Customer Materials solely to the extent necessary to provide, support and maintain the Software and Services.

b.     Warranty. You represent, warrant and covenant that you have made all legally-mandated disclosures and have obtained and will maintain all rights, consents and permissions as necessary to legally use Customer Materials with the Software and Services and grant DocuPhase the rights in Section 6.4, all without violating or infringing third-party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to the Customer Materials.

c.      Prohibited Data. Except as expressly permitted in the applicable Order or otherwise agreed to by DocuPhase in writing, you shall not transfer to DocuPhase any of the following categories of data: (i) biometric or genetic data, including but not limited to sensitive identifiable human subject research, or health or medical information/data covered by the Health Insurance Portability and Accountability Act (HIPAA); (ii) education records, student loan application or financial aid information or any data covered by the Family Educational Rights and Privacy Act (FERPA); or (iii) debit or credit card numbers or information covered by Payment Card Industry Data Security Standard (PCI DSS) standards (collectively, “Prohibited Data”). You shall be solely responsible and liable for your provision to DocuPhase of any Prohibited Data, and shall defend, indemnify, and hold harmless DocuPhase from and against any claims and losses (including attorneys’ fees) arising out of your provision to DocuPhase of Prohibited Data. You shall reimburse DocuPhase for any reasonable expenses that DocuPhase incurs as a result of your provision to DocuPhase of Prohibited Data, including but not limited to expenses incurred as the result of an audit, to secure Prohibited Data, or to remove Prohibited Data from DocuPhase’s systems.

7.     SECURITY

7.1            Security. DocuPhase will deploy commercially reasonable security precautions designed to protect against unauthorized access to any Customer Materials stored by DocuPhase in connection with your or your End Users’ operation of the Software. DocuPhase will exercise reasonable efforts to deploy corrections within the Software or make updates available to you for security breaches made known to DocuPhase.

7.2            SOC Reporting. DocuPhase completes an annual independent audit of internal control policies, procedures, security and availability, which is conducted (and report issued) by an accredited third-party firm (each, a “SOC Report”). The SOC Report will be delivered to you on an annual basis at no cost upon request and will be deemed the Confidential Information of DocuPhase.

7.3            No Circumvention of Security. Neither you nor any End User may circumvent or otherwise interfere with any user authentication or security of the Software. You will immediately notify DocuPhase of any breach, or attempted breach, of security known to you.

8.     NON-DISCLOSURE AND CONFIDENTIALITY

8.1            Disclosure. Each party may disclose to the other party certain Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers. “Confidential Information” means any non-public or proprietary information that is of value to its owner and is treated as confidential, including without limitation, trade secrets, technology, information pertaining to business operations and strategies, information pertaining to customers, pricing, and marketing, and the terms of this Agreement which is either marked as confidential or proprietary or by its nature can reasonably be expected to be confidential or proprietary, whether presented in oral, printed, written, graphic or other tangible form; “Disclosing Party” refers to the party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Receiving Party” refers to the party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Receiving Party’s employees or agents.

8.2            Requirement of Confidentiality and Non-Use. The Receiving Party agrees: (a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its Affiliates’ officers, employees, consultants, and legal advisors who have a “need to know,” who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 8; (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under the Agreement; and (c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. The obligations in this Section 8 shall survive termination and continue for so long as the applicable information constitutes Confidential Information. Confidential Information shall not include information that: (w) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (x) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (y) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (z) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.

8.3            Compelled Disclosure. If the Receiving Party becomes legally required to disclose any Confidential Information, the Receiving Party shall provide: (a) prompt written notice of such requirement (if legally permissible) so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.

8.4            Data Use. You agree that data derived by DocuPhase from DocuPhase’s performance of the Services or input by you may be used by DocuPhase for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, improvement and troubleshooting of the Software and Services and creation of statistical rules and de-identified versions of such data. The results of such de-identification (“De-identified Data”) may be used by DocuPhase for any lawful purpose, including making such De-Identified Data publicly available. Notwithstanding anything contained in this Agreement, De-identified Data shall not contain (i) any information that identifies or can be reasonably used to identify an individual person, or (ii) any information that identifies or can be reasonably used to identify you, your Affiliates or your suppliers.

8.5            Return of Confidential Information. Each party agrees to promptly return all the other party’s Confidential Information at the Disclosing Party’s request or, at the Disclosing Party’s option, certify the destruction of such material.

9.     LIMITED WARRANTY; DISCLAIMER

9.1            Limited Warranty. DocuPhase warrants that during the applicable Subscription Term, the Services and Software will, under normal use and service, substantially conform to, and perform in all material respects with, the functions described in the applicable Documentation. If any such Services or Software fail to comply with the foregoing warranty, you shall provide written notice to DocuPhase prior to the expiration of the warranty period set forth above, which must describe in reasonable detail the nature of the non-conformity. In such event, DocuPhase shall use reasonable efforts to repair or rectify such non-conformity. If DocuPhase is unable to repair or rectify such non-conformity, then DocuPhase may terminate this Agreement (including without limitation the licenses granted in this Agreement) with respect to the non-conforming Services or Software and in such event, DocuPhase will refund to you on a pro-rata basis, as applicable, the portion of Fees paid to DocuPhase prior to termination applicable to the access and use of such non-conforming Services after the termination date. THE REMEDY SET FORTH IN THIS SECTION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AND DOCUPHASE’S SOLE OBLIGATION FOR ANY BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.

9.2            Exclusions. The warranty set forth in Section 9.1 does not cover defects or non-conformities arising from (a) use of the Software or the Documentation not authorized in this Agreement; (b) any modification to the Software made by any person or entity other than DocuPhase that is not previously approved by DocuPhase; (c) any use of the Services or Software by you or your End Users beyond the scope of the express rights licenses granted in this Agreement; (d) any use of the Services or Software in combination with other software, hardware or data; or (e) DocuPhase’s compliance with your request for changes to the DocuPhase Technology or with your designs, specifications or instructions.

9.3            Mutual Representations and Warranties. Each party represents, warrants and covenants to the other party that: (a) such party has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) such party’s execution of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by such party to any third party to keep any information or materials in confidence or in trust.

9.4            Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 9, THE DOCUPHASE TECHNOLOGY IS PROVIDED “AS-IS” AND DOCUPHASE EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS TO THE OTHER PARTY REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING: (I) ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY DOCUPHASE; AND (II) NO WARRANTY IS MADE THAT USE OF THE SERVICES, DOCUPHASE TECHNOLOGY OR ANY DELIVERABLES, WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES, DOCUPHASE TECHNOLOGY OR DELIVERABLES, WILL BE CORRECTED, OR THAT THE FUNCTIONALITY OF THE SERVICES, DOCUPHASE TECHNOLOGY OR DELIVERABLES WILL MEET YOUR REQUIREMENTS. DocuPhase is not liable for any losses, damages, or costs that YOU may suffer arising out of or relating to hacking, tampering, or other unauthorized access or use of the Services, YOUR ACCOUNT OR CUSTOMER MATERIAL, or YOUR failure to use or implement anti-fraud or data security measures. DOCUPHASE is not liable for delays, failures or problems inherent in use of the Internet and electronic communications or other systems outside DOCUPHASE’S control. YOU may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period. DOCUPHASE IS NOT LIABLE FOR ANY THIRD-PARTY CONTENT ACCESSIBLE THROUGH THE DOCUPHASE TECHNOLOGY. THE SOFTWARE (AS WITH TECHNOLOGY GENERALLY), MAY HAVE ERRORS OR BUGS AND MAY ENCOUNTER UNEXPECTED TECHNICAL PROBLEMS. ACCORDINGLY, FROM TIME TO TIME, YOU MAY EXPERIENCE DOWNTIME AND ERRORS IN THE OPERATION, FUNCTIONALITY OR PERFORMANCE OF THE SOFTWARE. YOU SHALL PUT IN PLACE REASONABLE INTERNAL PROCEDURES AND PROCESSES TO ENABLE YOURSELF TO MINIMIZE ANY INCONVENIENCE AND ANY ADVERSE IMPACT OF ANY SUCH DOWNTIME OR ERROR.

10.   LIMITATION OF LIABILITY

10.1         Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2         Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO DOCUPHASE PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10.3         Exceptions. The exclusions and limitations in Section 10.1 and Section 10.2 shall not apply to: (a) the license limitations set forth in this Agreement, including Section 3.1, Section 3.2; and Section 6.2; (b) breaches of Section 8 (except for claims, losses or damages from a data breach or security incident implicating any personally identifiable information contained in Confidential Information, which will remain subject to Sections 10.1 and 10.2); (c) a party’s obligations under Section 11 and (d) a party’s willful misconduct, gross negligence or fraud.

11.   INDEMNIFICATION

11.1         DocuPhase Indemnification. Subject to Section, 11.3, DocuPhase shall indemnify, defend, and hold harmless you, your Affiliates and your and their respective officers, directors, managers, employees, agents, successors, and permitted assigns (“Customer Indemnitees”) against any third party claim, suit, action, or proceeding (each, an “Action”) based on a claim that the Software or Services infringe any Intellectual Property Right or misappropriate any trade secret of a third party, and shall pay all settlements entered into and damages awarded against the Customer Indemnitee (including reasonable outside counsel fees, if any only if DocuPhase fails to take sole control of such Action as provided in Section 11.3) to the extent based on such an Action; provided, however, that DocuPhase shall have no obligations under this Section 11.1 with respect to claims to the extent arising out of: (a) any express instruction, information, designs, specifications, or other materials provided by you to DocuPhase; (b) use of the Software or Services in combination with any materials, software, or equipment not supplied to you or specified by DocuPhase in writing; or (c) any modifications made to the Software or Services by or on behalf of any person or entity other than DocuPhase. If the Software or Services, or any part thereof, become, or in the opinion of DocuPhase may become, the subject of a claim of infringement or misappropriation, DocuPhase may, at its option: (i) procure for you the right to use such Software or Services free of any liability; (ii) replace or modify the Software or Services to make it non-infringing; or (iii) terminate this Agreement and refund to you any portion of the Fees prepaid by you for the infringing Software or Services. THE FOREGOING STATES THE ENTIRE LIABILITY OF DOCUPHASE WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICES OR SOFTWARE OR OTHERWISE, AND YOU HEREBY EXPRESSLY WAIVE ANY OTHER LIABILITIES OR OBLIGATIONS OF DOCUPHASE WITH RESPECT THERETO.

11.2         Customer Indemnification. Subject to Section, 11.3, you shall indemnify, defend and hold harmless DocuPhase, its Affiliates and their respective officers, directors, employees, agents, successors, and permitted assigns against all Actions arising from or related to a claim that: (a) you have violated any applicable Law; (b) you have breached or alleged to have breached Sections 3.1, 3.2, or 6.2; or (c) that any Customer Material provided by you and DocuPhase’s receipt or use thereof in performance of the Services, infringes any Intellectual Property Right, violates a privacy right or Law, or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded (including any reasonable outside counsel fees, if any only if you fails to take sole control of such Action as provided in Section 11.3) against DocuPhase to the extent based on such an Action.

11.3         Indemnification Procedures. The indemnifying party shall solely control the defense and settlement of the applicable Action. The party seeking indemnification shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of the Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that requires the indemnified party to pay monies or admit liability or subjects the indemnified party to any ongoing affirmative obligation without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 11.3 shall not relieve the indemnifying party of its obligations under this Section 11 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.

12.   TERM AND TERMINATION

12.1         Agreement Term. This Agreement shall commence on the Effective Date of the applicable Order and shall continue until the later of (a) the completion of and payment for all Software and Services under all Orders or (b) the expiration of the last Subscription Term under this Agreement, unless earlier terminated as provided for below.

12.2         Subscription Term. The Subscription Term for the applicable Software and/or Services shall be as set forth in the applicable Order, unless earlier terminated as provided for below. For clarity, failure to use the DocuPhase Technology as of the date that the Subscription Term commences (the “subscription term start date” per the applicable Order) will not be deemed a basis for disputing or refusing to pay all applicable Fees. The Subscription Term shall automatically renew upon expiration and the term of the applicable Order shall be extended for successive one-year renewal terms (each, a “Renewal Term”) at DocuPhase’s then-current list price, unless either party provides written notice of non-renewal at least thirty (30) days’ prior to expiration of the preceding period of the Subscription Term.

12.3         Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, each party shall have the right to terminate this Agreement or an Order: (a) if the other party commits a material breach of this Agreement, the applicable Order, and such breach remains uncured thirty (30) days after written notice of such breach is delivered to such other party; or (b) if the other party makes an assignment for the benefit of creditors or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy or similar Laws.

12.4         Effect. Termination of an Order shall not effectuate a termination of this Agreement or otherwise affect any other outstanding Order unless no other Orders remains outstanding, in which case this Agreement may terminate pursuant to Section 12.1. Upon expiration or termination of this Agreement for any reason, (a) all outstanding Orders and all license rights granted under this Agreement shall terminate; (b) all rights, licenses, and access to the Software granted by DocuPhase to you under this Agreement or such Order, as applicable, will immediately cease; and (c) unless otherwise deleted by you prior to termination, your Customer Material will be retained in the Software for seven (7) days and permanently deleted thirty (30) days thereafter.

12.5         Survival. The rights and obligations of the parties set forth in this Section 12.5 and Sections 3.2, 4, 5, 8, 9.4, 10, 11, 12.4 and 13, will survive any such termination or expiration of this Agreement according to their respective terms.

13.   GENERAL

13.1         Governing Law. This Agreement shall be governed by and construed exclusively in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (other than New York General Obligations Law Sections 5-1401 and 5-1402). The United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties. Each party irrevocably submits to the exclusive jurisdiction of the courts of the State of New York for the purpose of any suit, action or other proceeding arising out of this Agreement. Each of the parties hereby waives the right to: (a) trial by jury of any suit, action or proceeding; and (b) participate in a class action relating to this Agreement.

13.2         Conflicting Terms. Notwithstanding the content of your purchase order or any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.

13.3         Notice. All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when (a) delivered by hand or (b) delivered or rejected upon delivery by a nationally recognized overnight courier service to the address set forth on the Order, as may be amended by the parties by written notice to the other party in accordance with this Section 13.3. Notice is effective upon delivery to the notice address (or rejection thereof).

13.4         Assignment. Neither party may assign or transfer this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided that either party may assign the Agreement without consent to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation, or asset acquisition. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

13.5         Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

13.6         Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.

13.7         Amendments. This Agreement may only be amended or modified by an agreement in writing signed by each party; provided, however, that, except as otherwise agreed to by the parties in the applicable Order, you agree that any Renewal Term shall be subject to the then-current version of these Terms and Conditions, as available at the link set forth in the applicable Order. Alternatively, DocuPhase may specify that a modification to the Terms and Conditions will take effect during your then-current Subscription Term, following a reasonable notice period; in this case, if you notify DocuPhase in writing of your objection to the modifications prior to the specified effective date, DocuPhase will allow you (as your exclusive remedy) to terminate any affected Order and receive a refund of any pre-paid, unused fees for the terminated portion of the applicable Subscription Term for the Order. For the avoidance of doubt, modifications to Terms and Conditions or Product Terms under this Section 13.7 that are not mutually agreed in writing will not materially decrease the overall functionality, security, or privacy of the Software and Services. Continued use of the Software and Services by you after the effective date of the modification will constitute your acceptance of the modified terms.

13.8         Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13.9         Subcontractors. DocuPhase may use Affiliates and subcontractors and permit the foregoing to exercise DocuPhase’s rights, but DocuPhase remains responsible for its overall performance under this Agreement.

13.10       Force Majeure. Neither party shall be liable for any loss or damage resulting from the delay or failure to comply with this Agreement to the extent that such delay or failure is caused, directly or indirectly, by circumstances beyond that party’s (“Impacted Party”) reasonable control, including but not limited to the following force majeure events (“Force Majeure Events”): Acts of God; pandemic, epidemic, outbreak of disease; flood, fire, earthquake or explosion; war, invasion, hostilities (whether war is declared or not), terrorist acts, riot or other civil unrest; government order or Law; actions, embargoes or blockades in effect on or after the effective date of the applicable Order; action by any governmental authority; national or regional emergency; strikes, labor stoppages or slowdowns or other industrial disturbances not caused by the Impacted Party’s own employees; or shortage of adequate power or transportation facilities. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, of the nature and duration of the Force Majeure Event and resume performance as soon as reasonably possible. If any condition constituting a Force Majeure Event continues for a period twenty (20) calendar days, the party not claiming the Force Majeure Event may terminate this Agreement upon five (5) calendar days’ written notice. In the event that either party terminates the Agreement as a result of the Force Majeure Event, neither party shall be liable for any loss or damage resulting from the termination.

13.11       Equitable Relief. Each party acknowledges that a breach by a party of Section 3 or Section 8 may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at Law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at Law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

13.12       No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

13.13       Relationship of Parties. Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.

13.14       Publication. You agree that DocuPhase may disclose your name, logo and tradename (the “Customer Brand”) in a factual listing of its customers, in any media, whether printed, electronic or on-line. For avoidance of doubt, DocuPhase will not use the Customer Brand for any other purpose without your explicit consent.

13.15       No Contingencies. The Software and Services in each Order are purchased separately and not contingent on purchase or use of other DocuPhase products and services (even if listed in the same Order). Your purchases are not contingent on delivery of any future functionality or features.

 

SCHEDULE 1
DEFINITIONS

1.     “Affiliate” means, with a respect to a party, any entity that directly or indirectly controls, is directly or indirectly controlled by or directly or indirectly is under common control with such party, where “control” means the ownership of, or the power to vote, directly or indirectly, more than fifty percent (50%) of an entity’s shares or voting rights or the ability to control and direct the management or policies of that entity.

2.     “Customer Material” means the data or information that you upload or create while using the Services.

3.     “Documentation” means the online user guides, documentation and help and training materials published on the DocuPhase website or accessible through the Services, as may be updated by DocuPhase from time to time.

4.     “DocuPhase Technology” means the Services (including the Software), Documentation, DocuPhase Confidential Information, and all Intellectual Property Rights in or related to all of the foregoing.

5.     “End User” means, as applicable, any individual a Licensed Party permits or invites to use the Software or Services.

6.     “Fees” means the Subscription Fees, Professional Services Fees and all other fees to be paid as expressly set forth in this Agreement.

7.     “Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how and other Confidential Information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

8.     “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

9.     “Licensed Party(ies)” means the Customer, its Affiliates and their respective independent contractors that use the DocuPhase Technology solely for performing services for Customer.

10.   “Payment Processing Services” means DocuPhase’s payment processing services as referenced in the applicable Order, if applicable.

11.   “Professional Services” means those consulting, integration, configuration, implementation, and similar services more particularly set forth on an Order.

12.   “Scope of Use” means your authorized scope of use for the Software and Services specified in the applicable Order, which may include: (a) number and type of End Users, (b) numbers of licenses, copies or instances or (c) entity, division, business unit, website, field of use or other restrictions or billable units.

13.   “Subscription Term” means the term so identified in the applicable Order for the SaaS Service or the Software License, as indicated in the applicable Order.

 

Schedule 2

Product Terms

The following Product Terms apply to the Services specified below, and, where you order such Services, supplement the Agreement to which these Product Terms are attached. Capitalized terms used and not defined in the Product Terms have the meanings given to them in the Agreement.

  1. Payment Processing Services Additional Terms.

  • Generally.

  1. In connection with the Payment Processing Services, you authorize us to act as your agent for the purposes of holding, receiving, and disbursing funds on your behalf.

  1. Establishing a Payment. Upon purchase of Payment Processing Services under an Order, DocuPhase shall make payments to suppliers, vendors, and other third parties for accounts payable invoices you designate via the accounts payable module within the Software (the “AP Payment Module”). Payments will be completed using the Payment Methods made available by DocuPhase from time to time, which may include, but are not limited to, payment by check, automated clearing house (ACH), wire transfer, or virtual card (collectively, the “Payment Methods”). The Payment Method for supplier payouts will be determined as follows: 

  1. DocuPhase Optimized Method. DocuPhase will select the optimal payment method designed to maximize efficiency and benefits for both you and your suppliers. This method may be adjusted periodically to leverage the most advantageous payout solutions available. 

  1. Customer Preferred Method. You may request a preferred Payment Method within the Software for Payment Processing Services. DocuPhase will consider such a request but may select an alternative method if it provides superior benefits or efficiency in DocuPhase’s sole discretion. 

  1. Supplier Preferred Method. Upon your request, DocuPhase will take the Payment Method requested by a Supplier/Vendor registered in the Supplier Portal into consideration but DocuPhase may select an alternative method if it provides superior benefits or efficiency in DocuPhase’s sole discretion.

  1. Restricted Industries. Except where prohibited by law, you may not use the Payment Processing Services for the following businesses or business activities: (1) any illegal activity or goods; (2) paraphernalia that may be used for illegal activity; (3) buyers or membership clubs; including dues associated with such clubs; (4) credit counseling or credit repair agencies; (5) credit protection or identity theft protection services; (6) direct marketing or subscription offers or services; (7) infomercial sales; (8) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit, including re-importation of pharmaceuticals from foreign countries); (9) unauthorized multi-level marketing businesses; (10) inbound or outbound telemarketers; (11) prepaid phone cards or phone services; (12) rebate based businesses; (13) up-sell merchants; (14) bill payment services; (15) betting, including lottery tickets, sports related gambling, casino gaming chips, off-track betting, and wagers at races; (16) manual or automated cash disbursements; (17) prepaid cards, checks, insurance or other financial merchandise or services; (18) sales of money-orders or foreign currency; (19) wire transfer money orders; (20) high-risk products and services, including telemarketing sales; (21) automated fuel dispensers; (22) adult entertainment oriented products or services (in any medium, including internet, telephone, or printed material); (23) sales of (i) firearms, firearm parts or hardware, and ammunition; or (ii) weapons and other devices designed to cause physical injury; (24) internet/mail order/telephone order of age restricted products (e.g., tobacco); (25) occult materials and services; (26) hate or harmful products; (27) escort services; (28) bankruptcy attorneys or collection agencies engaged in the collection of debt; (29) if you are a local, state, or federal government entity; (30) collecting funds for political contributions (including but not limited to campaign-related donations or funds to support the operations of a political action committee, political party, or candidate); or (31) taking donations if you are a non-profit entity that regularly does business in California or holds property for charitable purposes in California. In addition, you may not use the Payment Processing Services if you are connected in any way to any other business that conducts illegal activities, sells illegal goods, or facilitates the sale of illegal goods, for example, cannabis, even if you do not use the Payment Processing Services in relation to that specific business. 

Funding and Settlement

  1. Funding Requirement. DocuPhase will establish and maintain a bank settlement account for the benefit of customers and solely for the purpose of receiving funds and making payments to suppliers on behalf of customers (“Settlement Account”). You must fund the Settlement Account via ACH debit with sufficient funds to cover all payments you request to be paid via the Payment Processing Services. The funded amount shall be calculated based on the payment instructions provided by Customer and the anticipated payments to suppliers.

  1. Funding Instructions. You will at all times provide complete, accurate and timely payment details, including the ‘remit to’ address, amount, and other relevant and required information in the AP Payment Module, and provide clear and accurate funding instructions to DocuPhase. The instructions shall specify the amount to be pre-funded, the suppliers to be paid, and the corresponding payment details.

  1. Disbursement of Funds. Upon receipt of pre-funded amounts in the Settlement Account, DocuPhase shall disburse funds to your suppliers in accordance with the payment instructions provided in the AP Payment Module. Disbursements will occur only after the funds have cleared, fully settled and exceeded any reversal period for ACH payments (typically two (2) days) in the Settlement Account.

  1. Hold on Disbursements. DocuPhase reserves the right to delay certain disbursements until the funds have remained in the Settlement Account for a period exceeding the two-business-day window during which the originating bank can reverse an ACH payment under NACHA rules. This safeguard ensures the funds' irrevocability before disbursement.

  1. ACH Reversal Scenarios. an ACH payment can be reversed within five (5) business days from the settlement date if it was sent in error. This includes situations such as duplicate payments or payments sent in the incorrect amount. An ACH payment may be returned by the receiving bank if there is an issue with the account, such as the account being closed or non-existent. Administrative returns are typically initiated within two business days of the transaction being received by the receiving bank.

  1. Insufficient Funds. In the event that the pre-funded amount is insufficient to cover the payments to be made, DocuPhase shall notify you promptly, and you shall provide additional funds as necessary to cover all requested payments. DocuPhase shall not be obligated to make any payments that exceed the amount available in the Settlement Account and will not be liable for failing to make such payments.

  • Compliance with OFAC Sanctions: DocuPhase shall not disburse funds to any individual or entity that is listed on the Office of Foreign Assets Control (OFAC) sanctions list. It is the Customer’s responsibility to ensure that the payment instructions provided do not direct payments to any individual or entity on the OFAC sanctions list. If DocuPhase identifies a potential match with the OFAC sanctions list, the disbursement will be held, and the Customer will be notified. The Customer is solely responsible for ensuring compliance with all applicable laws and regulations regarding payments, including but not limited to OFAC sanctions.

  • Security and Compliance: Each of the parties will maintain commercially reasonable (as appropriate for their respective businesses) administrative, technical and physical safeguards to protect data in its possession or under its control from unauthorized access, accidental loss and unauthorized modification. DocuPhase will make commercially reasonable efforts to provide the Payment Processing Services in manner consistent with PCI-DSS requirements that may apply to DocuPhase.

  • Fraud Prevention: DocuPhase reserves the right to implement and modify fraud prevention measures as necessary in its discretion to protect both customers and suppliers.

  • Payment Methods. Once the Payment Method below is selected in the AP Payment Module and the Settlement Account is funded as Subject to 1.2 of the Schedule 2, DocuPhase will proceed as follows.

  1. Check. DocuPhase shall issue paper checks to your suppliers as requested.

  1. ACH. DocuPhase shall initiate ACH transfers to your suppliers’ bank accounts. ACH payments shall be processed in accordance with the rules and regulations of the National Automated Clearing House Association (NACHA) and applicable Law. You must provide complete and accurate bank account information for the supplier in order to use the ACH Payment Method. DocuPhase shall not be liable for any return, reversal or other failure (or any related costs) arising from your acts and omissions, including failure to obtain your customer’s authorization for an ACH debit entry. DocuPhase is permitted to document and store ACH authorizations, including timestamp and applicable ACH credentials.

  2. Wire Transfer. DocuPhase shall execute wire transfers to your suppliers’ bank accounts. Wire transfers shall be processed in accordance with applicable banking regulations and requirements and applicable Law. International wire transfers may be subject to additional fees and processing times.

  1. Virtual Card. DocuPhase shall facilitate payments to suppliers using virtual cards, subject to the terms and conditions of the virtual card provider. Virtual card payments shall be processed electronically and in a manner designed to be secure.

  • Rebate Payment. Rebates on Qualified Purchases are paid monthly in arrears, within 45 days after the end of the preceding month. The rebate amount will be net of any chargebacks, credits, or other adjustments and will not exceed the net interchange we receive from the transaction prior to issuing the rebate.

  • Qualified Purchase. To be considered a Qualified Purchase, the payment must meet all the following criteria:

  1. Payment Method: The payment must be processed using a virtual credit card issued through our services.

  2. Compliance: The purchase must adhere to all applicable terms and conditions of the AP Payment Services agreement.

  3. Timeliness: The transaction must be successfully completed within the designated billing cycle.

Fees and Charges  

Service Fees. Fees for the Payment Processing Services are provided in the applicable Order, which includes a schedule of Fees, including but not limited to fees for check, ACH, wire transfer, and virtual card payments. Fees for such Payment Methods are subject to change by DocuPhase and third parties, and any changes will be communicated to Customer in writing at least thirty (30) days in advance.

  1. Additional Charges. The Customer is responsible for any additional fees resulting from returned or rejected payments, insufficient funds, or any other payment processing issues that are not caused by DocuPhase's gross negligence. Any changes in fees related to third-party services will be passed through to the Customer at the actual cost incurred by DocuPhase.

  1. Invoice and Payment Terms. DocuPhase shall invoice you for the Fees identified in the Order. You will pay each invoice within thirty (30) days of the invoice date. Late payments may be subject to interest charges as outlined in the Terms and Conditions.

Representations and Warranties.

  1. By Customer. In addition to the representations and warranties in the Terms and Conditions, you represent, warrant and covenant that you have the authority and approvals to authorize payments to your suppliers and that all payment instructions provided to DocuPhase are accurate, complete, timely and comply with Law. You will indemnify, defend and hold DocuPhase harmless from any claims arising from your failure to provide accurate, complete and authorized payment instructions and related information.

  1. By DocuPhase. DocuPhase represents, warrants and covenants that it will provide all Payment Processing Services in a professional, workmanlike manner consistent with generally recognized industry practices for similar services. As your sole and exclusive remedy and DocuPhase’s sole and exclusive liability for a breach of the warranty set forth in this Section 10b, DocuPhase will use commercially reasonable efforts to re-perform the Payment Processing Services at no additional charge to you. If DocuPhase is unable to correct such deficiencies after commercially reasonable efforts, DocuPhase may, upon written notice to you, terminate this Agreement as to the Payment Processing Services and refund to you: (i) any unused and prepaid Fees associated with such Payment Processing Services; and (ii) any unused funds in the Settlement Account. 

Limitation of Liability; Indemnification

  1. Exclusion of Liability. In addition to the limitations of liability outlined in the Terms and Conditions, DocuPhase will not be held liable for any: (i) payment delays, lost checks, or issues with payments to your suppliers caused by service interruptions on your part; (ii) actions or omissions by third parties that result in DocuPhase's inability to fulfill its obligations under these Payment Processing Services Additional Terms, including suspension, termination, restriction, or delays in performance; (iii) losses or damages arising from inaccurate or incomplete payment instructions provided by you; or (iv) unauthorized access to or use of your account or the Payment Processing Services due to your failure to safeguard login credentials.

  1. Indemnity. In addition to the indemnification obligations in the Terms and Conditions, you will indemnify, defend and hold harmless DocuPhase, its Affiliates and their respective officers, directors, employees, agents, successors, and permitted assigns from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (i) your breach of any representation, warranty or covenant set forth in these Payment Processing Services Additional Terms; (ii) your failure to maintain a sufficient balance in the Settlement Account to cover your obligations under these Payment Processing Services Additional Terms; (iii) DocuPhase’s completing or attempting to complete your request for the cancellation, amendment or reversal of an entry; (iv) DocuPhase’s issuance of duplicate entries (if such entries occur due to DocuPhase’s compliance with your instructions/requests); (v) any claim or dispute between you and a supplier or other third party in connection with the Payment Processing Services; and (vi) Your violation of any applicable laws or regulations related to payment processing or financial transactions.

Remedies 

  1. Cancellation. You shall not have the right to cancel, amend, or reverse an ACH entry after its receipt by DocuPhase. However, DocuPhase may, in its sole discretion, use reasonable efforts to act on your request to cancel, amend or reverse an entry before transmitting to the ACH network or processing such payment. DocuPhase shall have no liability if it fails to effect such requests.

  1. Violation of Rules. In addition to the term and termination rights set forth in the Terms and Conditions, DocuPhase may suspend or terminate your use of the Payment Processing Services for violation of any NACHA or other related ACH or applicable payment network rules (the “Network Rules”) or if required by Law or a regulatory authority. 

  1. Audit. You permit DocuPhase and its authorized third parties to audit, inspect, and review your policies and processes for purposes of ensuring your compliance with these Payment Processing Services Additional Terms and the Network Rules no more than once in any twelve (12) month period. You agree to cooperate with any such audit and to respond to reasonable requests for information necessary to complete such audit in a timely manner. Each party shall bear its own costs in connection with an audit under this Section; provided, however, that if the audit reveals any material non-compliance by you in connection with this Agreement, then you shall pay the full cost of such audit and reimburse DocuPhase for its expenses and costs in connection therewith promptly upon receipt of an invoice for such expenses and costs.

  1. Professional Services Additional Terms.

  • Generally. The parties may from time to time during the Term agree to execute one or more Orders that include Professional Services. Unless otherwise agreed by the parties, each Order will describe: (a) the Professional Services to be performed and any related deliverables, documentation or other materials to be provided by DocuPhase (b) your responsibilities in connection with such delivery; and (c) the anticipated delivery date(s) and Fees for the Professional Services.

  • Ownership. Pursuant to the applicable Order, DocuPhase may develop or provide documents, work product, and other materials that are delivered to you in the course of performing the Professional Services (collectively, “Developed Materials”). As between you and DocuPhase, all right, title, and interest in and to the Developed Materials, including all Intellectual Property Rights therein, are and will remain with DocuPhase. You have no right, license, or authorization with respect to any of the Developed Materials except as expressly set forth in Section 3 of this Schedule 2.

  • Customer Access to Developed Materials. Unless otherwise set forth in the applicable Order, DocuPhase hereby grants you during the Term, a limited, nonexclusive, non-transferrable, non-sublicensable right to access and use the Developed Materials during the Term solely for your internal business purposes and at all times subject to the terms and conditions of the Agreement.

  • Continuous Legal Compliance. You are responsible for maintaining ongoing compliance with these Terms, Network Rules, and applicable Laws at all relevant times.

  1. Support Services Additional Terms.

  • Generally. DocuPhase will provide the following maintenance and support services to you (“Support Services”) in connection with the SaaS Service:

a.      Availability Description. Except as otherwise provided in an Order, DocuPhase will use commercially reasonable efforts to keep the SaaS Service operational on a 24/7 basis except for planned downtime, scheduled or emergency maintenance or any unavailability caused by circumstances beyond DocuPhase’s reasonable control including, but not limited to, flood, fire, earthquakes, Internet service provider failures or delays or availability issues (including downtime or service outages). DocuPhase may, if practical, but is not obligated to, provide you with prior notice of any scheduled or emergency maintenance.

b.     Maintenance Schedule. Most maintenance or upgrade activities for the Software and SaaS Services are scheduled to occur during low peak hours, as reasonably determined by DocuPhase with reference to its customer service metrics. The extent of new features or functionality available following such maintenance or upgrade activity will depend on your then-current Software or SaaS Service subscription entitlement.

c.      Technical Support Named Contacts. DocuPhase customer service and technical support in relation to the Services are provided to DocuPhase customers only. For the avoidance of doubt, you are responsible for providing first line support to your End Users. Within thirty (30) days of the effective date of the applicable Order, you must provide DocuPhase with the name and contact information for not more than three (3) named contact(s) who are authorized by you to access the Support Services and submit support cases. Your authorized named contact(s) may be changed on written notice to DocuPhase.

d.     Support Schedule. Details regarding DocuPhase maintenance and support are available here: Subscription Maintenance & Support - DocuPhase.