Subscription Services Agreement

Revision Date: July 22, 2024

This Subscription Services Agreement (together with the Order Form signed by Procurify and the Customer, the “Agreement“) is an agreement between the company or other legal entity that has executed an Order Form (the “Customer“) and Procurify Technologies Inc. (“Procurify“, Procurify and Customer, the “Parties” and each, a “Party“). By (i) executing an Order Form that references this Subscription Services Agreement; (ii) accessing or using the Services (as defined below), including the use of free Services; or (iii) clicking a box indicating acceptance, Customer is agreeing to the terms and conditions in this Agreement.

1. Definitions

“Acceptable Use Policy” means the Acceptable Use Policy posted to the Website, as it may be updated from time to time.

“Affiliate” means regarding a legal entity, an entity owned by, controlling, controlled by, or under common control with, directly or indirectly, a party (but only for as long as such entity meets these requirements). For this purpose, one entity “controls” another entity if it has the power to direct the management and policies of the other entity, for example, through the ownership of voting securities or other equity interests, representation on its board of directors or other governing body, or by contract.

“Applicable Laws” means all applicable laws, treaties, rules, regulations, ordinances, court, or governmental orders, whether international, federal, state, provincial, municipal, or local, to which the applicable Party is subject and that are related to the Services.

“Claim” means an action, allegation, cause of action, cease and desist letter, charge, citation, claim, demand, directive, lawsuit, or other litigation or proceeding, or notice.

“Customer Data” means any data, information, content, records, and files that Customer (or any of its Users) loads, receives through, transmits to, or enters into the Platform or otherwise provides to Procurify, including any and all Intellectual Property Rights in any of the foregoing.

“Damages” means assessments, fines, bona fide settlements, costs, damages, expenses (including attorneys’ and accountants’ fees), judgments, liabilities, losses, or penalties, incurred in connection with a Claim.

“De-Identified Data” means anonymized, de-identified, or aggregated Customer Data and other information relating to the Services and the Platform and the Customer’s use of them such that the Customer is no longer identified or identifiable by reference to such data or with the combination of that data with other datasets.

“Fees” means the applicable fees set out in the Order Form for the Services.

“Financial Services Partner” means a financial services, financial products, or payments processing partner selected by Procurify to provide certain integrated financial functionality to the Platform.

“Intellectual Property Rights” means any right, title, and interest, throughout the world, in and to any products, services, or technology, including but not limited to rights arising from copyrights, patents, mask works, trademarks, service marks, trade secrets, inventions (whether or not patentable), know-how, authors’ rights, moral rights, rights of attribution, any other proprietary rights, and all applications and rights to apply for registration or protection of such rights in any country.

“Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations, adaptations, addition or removal of features, maintenance releases, bug fixes, corrections, and results from processing in any form or medium, and “Modify” has a corresponding meaning.

“Order Form” means the document signed by both Customer and Procurify setting out the number of Users and Fees for the Services.

“Order Form Term” means the period of time to which the Customer will have access to the Services purchased under an Order Form.

“Personal Information” means information about an identifiable individual.

“Platform” means the software, hardware, websites, associated mobile app(s), and systems used by Procurify to host and make available the software as a service platform that provides streamlined purchasing processes for businesses, including to carry out and document requests, approval, purchases, receipt, and payment for purchases and which is known as “Procurify”.

“Privacy Policy” means the Privacy Policy posted to the Website, as it may be updated from time to time.

“Professional Services” means all professional services related to the Platform provided by Procurify to the Customer, such as implementation, training, consulting, configuration, and other similar services.

“Professional Services Addendum” means the Professional Services Addendum posted to the Website, as it may be updated from time to time.

“Services” means the Platform, the Professional Services, the Website, and any related or additional services connected with the foregoing.

“SOW” has the meaning given in the Professional Services Addendum.

“Term” has the meaning set out in Section 16(b).

“Users” means individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Platform.

“Website” means any websites used by Procurify to provide the Services, including the website located at www.procurify.com.

2. Use of the Platform and Services

  • Access and Use. Subject to Customer’s compliance with the terms and conditions of this Agreement and paying Fees owed under an applicable Order Form, Procurify will make the Platform available to Customer during the applicable Order Form Term on a non-exclusive, non-transferable (except permitted by this Agreement) basis.
  • Order Forms. Access to the Services will be subject to the Parties executing an Order Form. Each Order Form is non-cancellable, non-downgradable and the Fees stated in the Order Form are, except as otherwise provided in this Agreement, non-refundable. Fees stated in each Order Form are final except as otherwise provided in this Agreement. Each Order Form Term is a non-divisible, continuous commitment, regardless of the invoice schedule stated in the Order Form, and pricing agreed to by Procurify is based on a purchase by the Customer of the Services stated in the Order Form for the entirety of the Order Form Term.
  • Affiliates. Under the terms and conditions of this Agreement and the applicable Order Form, the Customer may permit additional Affiliates, or employees and independent contractors of its Affiliates to become Users to access and use the Platform and Services in accordance with this Agreement. If a Customer Affiliate desires to access and use the Customer’s Services and be billed directly by Procurify for its access and use of the Services, that Affiliate may enter into an Order Form directly with Procurify. That Order Form, as well as the Affiliate’s access to and use of Services, will form part of the Agreement and be subject to its terms. The Affiliate and the Customer will be jointly and severally liable to Procurify for Affiliate’s and its Users’ compliance with the terms of this Subscription Services Agreement and the Order Form.
  • Platform Upgrades; Future Functionality. Procurify may make Modifications to the Platform; provided that Procurify will not make any Modifications that materially decrease the functionality of the Customer’s use of the Platform during an Order Form Term other than in accordance with Section 11(g). The Customer acknowledges and agrees that its purchase of Services is not dependent on Procurify making any new functionality or feature available in the future that is not already a part of the Platform as covered by the applicable Order Form (each a “Potential Enhancement”). Unless agreed upon in writing with the Customer, which may be through an Order Form or SOW, Procurify has no obligation to make any Potential Enhancement available in any jurisdiction or region.
  • Beta Testing. Customer may be selected and subsequently choose to participate in testing new Platform features. Such features will be identified as “beta” or words or phrases with a similar meaning (each, a “Beta Product“). Customer acknowledges and agrees that Beta Products are provided “as-is” without any warranty or guarantee of any kind. Customer is encouraged to report any faults or feedback relating to Beta Products to Procurify. The Customer’s right to use Beta Products will expire on the date that Procurify makes a version of the Beta Products available as a new add-on, feature, functionality, or enhancement to the Platform that Procurify makes available generally to its customers (an “Enhancement“), access to which may, in Procurify’s discretion, be subject to an Order Form or Fees. Procurify may discontinue Beta Products and may never make them generally available as an Enhancement. Customer is encouraged to report any faults or feedback relating to Beta Products to Procurify.
  • Scheduled or Emergency Downtime or Suspension. Procurify may suspend or limit access to the Platform or any component of the Platform for (i) scheduled maintenance, typically (but not necessarily) performed outside of normal operating hours commencing on Saturdays at 11am PST, and typically lasting no more than 5 hours, and with, if commercially practicable, 24 hours’ prior notice to the Customer via email or by posting a notice of upcoming scheduled downtime in the Platform or on the Website; (ii) emergency or unscheduled maintenance, including as needed to comply with any Applicable Law or to otherwise protect Procurify from potential legal liability or harm to its reputation or business, with reasonable advance notice to the Customer if commercially practicable to provide.

3. Reservation of Rights

  • Ownership of Platform. Procurify expressly reserves all rights, title, and interest in, and Customer will not acquire any right, title, or interest in: (i) the Platform (or any part thereof) and any other materials or content provided by Procurify under this Agreement, including any and all Modifications to any of the foregoing; and (ii) all Intellectual Property Rights in any of the foregoing. All right, title and interest in the foregoing will remain with Procurify (or Procurify’s third party suppliers or licensors, as applicable). For greater certainty, while the Platform is made available to the Customer pursuant to Section 2 of this Agreement, it is not “sold” to Customer.
  • Procurify Branding. Procurify’s trademarks (whether registered or unregistered), trade names, service marks, graphics, and logos (collectively, the “Marks“) used in connection with the Services are Procurify’s property. Other trademarks, trade names, service marks, graphics, and logos used in connection with the Service are the property of their respective owners (collectively “Third-Party Marks“). The Marks and Third-Party Marks may not be copied, imitated, or used, in whole or in part, without the prior written permission of Procurify or the applicable owner. Procurify reserves all Intellectual Property Rights in and to its Marks. Subject to the foregoing, Procurify grants the Customer a revocable, non-exclusive, and non-transferable license to use the Marks solely in connection with its use of the Services and for no other purpose.
  • License of Customer Graphics. The Customer grants Procurify and its Affiliates a royalty-free, non-exclusive, worldwide, license during the Term to use and display the Customer’s graphics, service marks, logos, and trademarks:
    • on the Platform as required for Procurify to provide the Services and for the purpose of performing its obligations under this Agreement;
    • in Procurify’s print and online marketing materials (including its website) and may refer to Customer as being a customer of Procurify.
  • Ownership and Use of Feedback. If the Customer provides Procurify with content, information, ideas, suggestions, or other materials, the Customer agrees for itself and its Users that it gives Procurify a royalty-free, irrevocable, transferable right and license to use all reviews, comments, feedback, suggestions, ideas, and other submissions disclosed, submitted, or offered to Procurify in connection with the Customer’s use of the Services (collectively, “Submissions”) in however manner Procurify desires and for whatever purpose, including to copy, modify, delete, adapt, publish, translate, create derivative works from, sell, profit from, or distribute such Submissions or incorporate such Submissions into any form, medium, or technology (including the Services) throughout the world. Procurify is under no obligation to compensate the Customer in any way for Submissions, to maintain any Submissions in confidence, or to respond to any Submissions.

4. Third Party Services; Beta Testing

  • Non-Procurify Services. Customer may choose to integrate or otherwise use the Services with other services not provided by Procurify (“Non-Procurify Services“). Non-Procurify Services are provided by third parties and subject to third parties’ terms. The Non-Procurify Services may present the Customer with terms of service that the Customer must accept before the Customer can access those Non-Procurify Services. The Customer should review the third-party terms and conditions before acquiring, using, or requesting the Non-Procurify Service. Any third-party terms do not modify this Agreement. Procurify takes no responsibility for Non-Procurify Services, makes no guarantees as to their accessibility and performance, and, to the fullest extent permitted by law, will not be liable to Customer or any other person for any Damages arising out of the use of Non-Procurify Services. Procurify reserves the right to suspend the Services to the extent that customer does not comply with third party terms, or any other terms applicable to the Non-Procurify Services.
  • Punchouts. Procurify may make available to the Customer a link within the Platform through which a supplier of goods or services allows the Customer to browse its product catalogs and then purchase goods or services from the supplier (a “Punchout“), which purchases are then recorded within the Platform to make use of its procurement functionalities. Punchouts are Non-Procurify Services; Procurify is not the supplier of the products and services available through a Punchout. The Customer agrees to assume all risk and liability from its use, purchase, or order of products or services acquired through a Punchout. Procurify makes no representations, warranties, guarantees, or endorsements of any kind regarding a Punchout and the products or services made available to the Customer through a Punchout. Without limiting the foregoing, Procurify is not liable to the Customer for any liability relating to the accuracy, advertising, merchantability, suitability for a particular purpose, quality, performance, availability, shipping, refund or returns, harm resulting from, advertising, or any other general liability related to a product or service available through a Punchout. Procurify does not process payments for any purchase through a Punchout and is not liable for cardholder data and Personal Information processing in connection with a purchase made through a Punchout. The Customer is advised to refer to the sales and services terms and conditions and any other terms of the supplier of a product or service available through a Punchout.
  • Spending Card. The Spending Card service allows users to submit a request through the Platform for certain funds to be added to a designated debit card through an integration with a Financial Services Partner (“Spending Card“). The Customer will be presented with and required to accept the terms and agreements of the Financial Services Partner prior to using the Spending Card service. Any services provided by the Financial Services Partner pursuant to any such request are Non-Procurify Services (as defined above). Use of the Spending Card service is subject to the additional Spending Card Terms.
  • Bill Pay. The Bill Pay service, through an integration with a Financial Services Partner, allows Customers to create (a) an account represented by a virtual bank account number that enables the Customer to store, spend, and manage money (the “Financial Account”), and (b) make electronic payments and funds transfers to and from the Customer’s Financial Account (the “Bill Pay Services“). The Customer will be presented with and required to accept the terms and agreements of the Financial Services Partner prior to using the Bill Pay Services. Any services provided by the Financial Services Partner as part of the Bill Pay Services are Non-Procurify Services (as defined above). Use of the Bill Pay service is subject to the additional Bill Pay Terms.

5. Professional Services.

  • Scope and Terms. To the extent that any Procurify Professional Services are listed in the Order Form, Procurify will perform such services in accordance with this Agreement and the Professional Services Addendum and any SOW related to the Professional Services. The Professional Services Addendum is hereby incorporated by reference and forms part of this Agreement.
  • Ownership of the Deliverables under Professional Services. Unless otherwise stated in the applicable SOW and subject to the Intellectual Property Rights expressly reserved by Procurify under this Agreement and the Intellectual Property Rights of Procurify’s third-party licensors, all work product and deliverables created for or delivered to the Customer under an applicable SOW as Professional Services (“Deliverables“) and all Intellectual Property Rights in the same are owned and held by Procurify or its licensors or third party suppliers, as applicable. During the Order Form Term applicable to the Professional Services, Procurify grants the Customer a limited, revocable, worldwide, non-exclusive, non-transferable, non-sublicensable, license to use Deliverables for the Customer’s own business purposes.

6. Data

  • Security Standards. Procurify has implemented and will maintain commercially reasonable organizational and technical safeguards to protect Customer Data against unauthorized access, use or disclosure of Customer Data in accordance with the Data Processing Addendum which is hereby incorporated by reference and forms part of this Agreement.
  • Use of Customer Data. Customer will retain ownership of all Customer Data. Procurify and its Affiliates, agents, subprocessors, and subcontractors agree to only process Customer Data in accordance with the Agreement and Applicable Laws, as is necessary to provide the Services, and to comply with other documented reasonable instructions provided by the Customer where such instructions are consistent with the terms of this Agreement. The Customer grants Procurify a non-exclusive, worldwide, royalty-free right to use, host, copy, store, transmit, modify, and display Customer Data (i) as is necessary to provide the Services, (ii) to perform its obligations and exercise its rights under this Agreement, and (iiii) for any other purposes authorized by this Agreement. The Customer acknowledges and agrees that Procurify may transmit Customer Data to subprocessors to facilitate the delivery of Services under this Agreement. Procurify agrees to inform those subprocessors of the terms of this Agreement and to make them subject to contractual terms and conditions for the protection of Customer Data similar to those that apply to Procurify under this Agreement and Applicable Law.
  • Use of De-identified Data. Procurify and its Affiliates are permitted to create and use De-identified Data to (i) provide, improve, and enhance the Services and the Platform, (ii) for development, diagnostic, and corrective purposes, (iii) to develop and distribute benchmarking, insights, and other relevant metrics for Procurify’s customers and third parties, (iv) to create, develop, and distribute additional products and services, and (v) for any other lawful business purpose. As between Procurify and the Customer, Procurify owns and retains all right, title, and interest in and to De-identified Data, including all related Intellectual Property Rights.
  • Removal of Data. If Procurify determines in its reasonable discretion that any Customer Data (i) violates Applicable Law, including applicable privacy laws, or (ii) the access to or use of the Customer Data would expose Procurify to civil or criminal liability, then Procurify has the right, but not the obligation, to remove (or request that the Customer remove) the Customer Data. If Customer subscribes to a free account offered by Procurify or if Customer’s account is suspended, Customer acknowledges that any data Customer enters into the Platform may be permanently lost and not recoverable.
  • Correction to Customer Data. In the event of any loss of or the corruption to Customer Data during the transmission of data through the Platform that is not attributable to Procurify’s breach of the Agreement or its gross negligence or willful misconduct, the Customer’s sole and exclusive remedy is for Procurify to restore the Customer Data from the latest back-up of such Customer Data maintained by Procurify, if any, in accordance with its then-current archiving procedures.
  • Prohibited Data. In this subsection, “Prohibited Data” means financial account identifiers (e.g., credit card numbers or bank account numbers), government issued identifiers (e.g., social insurance numbers), health records or any information pertaining to an individual’s health, or other types of sensitive or special category data that is subject to specific or elevated data protection requirements under Applicable Laws, including privacy laws. Unless agreed to in writing between the Customer and Procurify, the Customer agrees to not request or upload and to ensure that no Users upload into the Platform or Services, or otherwise submit or make accessible to Procurify, any Prohibited Data. The Customer agrees to notify Procurify immediately if it becomes aware that Prohibited Data has been uploaded to the Platform. Procurify has the right to delete, segregate, or quarantine any Prohibited Data from the Platform and will use reasonable efforts to provide the Customer with at least 10 business days’ notice prior to exercising this discretion so the Customer can export such Prohibited Data from the Platform. Procurify will not be responsible for any Prohibited Data it receives and disclaims any liability and Damages arising from Prohibited Data used on the Platform, including liability and Damages for any failure to protect the Prohibited Data.

7. Privacy

Customer agrees (on Customer’s behalf and on behalf of each User) to Procurify’s access, use, collection, storage and disclosure of Customer’s and each User’s Personal Information for the purposes authorized under this Agreement. The Customer represents and warrants to Procurify and its Affiliates that it has all necessary rights, consents, or permissions under privacy laws to collect, use, access, disclose, control, store, process, or otherwise use all Personal Information it uses in connection with the Services or incorporates into Customer Data, including the Personal Information of Users. The Customer agrees to comply with all privacy laws regarding the use of Personal Information in connection with the Services. Customer understands that Personal Information, including the Personal Information of Users, will be treated in accordance with Procurify’s Privacy Policy. The Privacy Policy is hereby incorporated by reference and forms part of this Agreement.

8. Artificial Intelligence and Automated Decision Making.

  • AI Models; Inputs. Procurify may offer or integrate with certain artificial intelligence features as part of the Service (each, an “AI Model“), including to help the Customer and its Users to create content, analyze documentation, organize information, automate decision making, and more. Any such AI Model integrated into the Service and the Customer’s use of the AI Model is subject to the terms of the Agreement. The Customer is responsible for ensuring that any summary, text, instructions, or other content it makes available while using the features of the AI Model (collectively, “Inputs“) are appropriate and permissible under the Agreement.
  • Outputs. Use of an AI Model may result in content, materials, data, visuals, metrics, insights, optimizations, recommendations, and other output generated or provided by the AI Model (collectively, “Outputs“). Since AI Models are a new technology that is still being developed and tested, Outputs sometimes are inaccurate, may contain errors, and may not be free from bias. That being the case, the Customer is advised to carefully review the resulting Outputs before relying on them. If third-party data sources, third-party information, or proprietary materials are used by the Customer with the AI Model, the Customer agrees to ensure that its use of any Output does not violate the Intellectual Property Rights or proprietary rights of Procurify or any third party. The Customer is not required to use any such Outputs and is free to and should modify them as appropriate to ensure compliance with this Agreement and Applicable Laws. The Customer also acknowledges and agrees that any Outputs may not be protectable under copyright or other Intellectual Property Rights, proprietary rights, or other Applicable Law. Procurify makes no warranties or representations, express or implied, that the Output is protectable under any law. Due to the nature of generative artificial intelligence, Outputs may not be unique, and the AI Model may generate or provide the same or similar Output for the Customer as it generates or provides for other parties. Outputs for other users are not considered Customer Data or the Customer’s content.
  • AI Models are Non-Procurify Services. AI Models are Non-Procurify Services. Without prejudice to any of Procurify’s other rights, the Customer acknowledges and agrees that Procurify leverages certain third parties to provide AI Models, including to generate Outputs and to process and store Inputs and Outputs in private hosting environments. By using an AI Model, the Customer authorizes and agrees that such third parties may access, use, and store any Inputs and Outputs pursuant to their relevant terms and privacy policies.
  • License to Procurify to use Inputs and Outputs. Without limiting Procurify’s rights otherwise stated in the Agreement, by using an AI Model, the Customer agrees that Procurify and its Affiliates may process Inputs and Outputs (including any intellectual property contained therein or embodied thereby) into De-identified Data to be used for any purpose, including to develop and improve an AI Model and for machine learning purposes to research, develop, and improve an AI Model, the Services, and similar products and features.
  • Languages and Other Limitations. Customer acknowledges that AI Models may only be available in certain languages and subject to certain limitations (e.g., restrictions on use for certain types of customers or for certain purposes). The Customer agrees to comply with any such restrictions or limitations.
  • Availability of AI Models. The laws and regulations governing artificial intelligence and related technology are uncertain and evolving, and the ability to use an AI Model or Outputs may be adversely impacted in the future by changes to Applicable Laws, and so the Customer acknowledges and agrees that Procurify may modify, suspend, discontinue, or limit use of the AI Model without notice or compensation if required, in Procurify’s reasonable discretion, to comply with Applicable Laws related to AI Models.
  • Automated Decision Making. The Customer acknowledges that some jurisdictions have enacted legislation regarding automated decision making tools, including the right of individuals to submit observations regarding automated decision making with their Personal Information or the right to have human intervention where a decision is made using automated means. Procurify and the Customer agree to cooperate with each other regarding any such data subject rights exercised under applicable privacy laws.
  • Compliance. The Customer agrees to use the AI Model in (and any Outputs) in full compliance with this Agreement, Applicable Laws, and the Acceptable Use Policy.

9. Customer User Account; Use Restrictions

  • Customer User Account. Upon Customer’s request, Procurify will issue an account (a “Customer User Account“) to Customer for use by its Users. Customer will ensure that Users only use the Platform through the Customer User Account. Customer will not allow Users to share the Customer User Account with any other person. Customer will promptly notify Procurify of any actual or suspected unauthorized use of the Platform through a Customer User Account. Procurify reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose, including use contrary to the Acceptable Use Policy, or if Customer fails to pay any Fees within 30 days following the date that the applicable Fees have become due.
  • Users; Use Restrictions. Customer acknowledges and agrees that it is responsible for the compliance by all Users with this Agreement, any guidelines and policies published by Procurify from time to time, and the activities of all Users on the Platform. Without limiting the generality of any of the foregoing, Customer will, and will ensure that its Users and any other person (including any Users) to whom it grants access to the Platform, adhere to the Acceptable Use Policy, which may be updated by Procurify from time to time.
  • Usage Limits. When using the Platform, the Customer agrees to any usage limits Procurify sets for the Platform, including any quantities described in an Order Form. The Customer agrees that it will not bypass or exceed those usage limits.

10. Email and Web Support

Customer will have access to support services generally made available by Procurify to its Customers, as described in the Support Level Agreement, as modified by Procurify from time to time. Without limiting Procurify’s other rights, Procurify may suspend Customer’s access to the support services upon notice if Customer has not paid any Fees within 30 days of the date that such Fees become due.

11. Fees; Payment; Refund Policy

  • Fees. Customer will pay to Procurify the Fees during the Term in accordance with the payment terms set out herein and in the Order Form. If Customer’s usage exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage in accordance with Procurify’s then-current rates and Customer will pay the additional fees in accordance with this Agreement. Unless otherwise noted on an Order Form, all Fees are identified in US dollars and are payable in advance.
  • True-up. Procurify may conduct a usage analysis (the “True Up“) on the Customer’s use of the Platform at any time during the Term using the mechanisms available for such purposes in the Platform and provided that the analysis does not interfere with the Customer’s use of the Platform. If the True Up reveals that the Customer’s use of the Platform exceeds any thresholds set out in an Order Form, including the number of Users specified in the applicable Order Form, Procurify will issue an order form for the difference between the quantities purchased in the existing Order Form and the consumption reflected in the True Up. Unless specified in the applicable Order Form, the Fees for such excess use shall be based on Procurify’s then-current unit costs. The Customer agrees to pay for such excess use in accordance with the payment terms in the Agreement.
  • Invoicing. Procurify will prepare and send to the Customer, at the then-current contact information on file with Procurify, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in the Order Form, Customer will pay all invoiced amounts within 30 calendar days of the invoice date. Without limiting Procurify’s other rights, Procurify may suspend Customer’s access to the Platform and any related services upon notice if Customer has not paid any Fees within 30 days of the date that such Fees become due.
  • Disputed Invoices or Charges. If Customer believes Procurify has charged or invoiced Customer incorrectly, Customer must contact Procurify no later than 30 days after having been charged by Procurify or receiving such invoice in which the error or problem appeared in order to receive an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
  • Late Payment. Customer may not withhold or “setoff” any amounts due under this Agreement. Procurify reserves the right to suspend Customer’s access to the Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of 2% compounded monthly (26.82% annually), or the maximum legal rate (if less) per month or fraction thereof, plus all expenses of collection, until fully paid.
  • Certain Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, and Customer will pay, indemnify and hold harmless Procurify from same, other than taxes based on the net income or profits of Procurify.
  • Refund Policy. If Procurify removes any material functionality described in the Order Form from the Platform, Customer may, upon providing notice to Procurify within 30 days of such removal, request a refund pursuant to this Section. To submit a refund request, Customer shall (i) reference this Section; and (ii) submit a support request, in writing, describing the material removal of functionality and how it has affected Customer’s operations. If Procurify is unable to make available equivalent functionality in the Platform within 30 days of such request, then Customer may, as its sole remedy, terminate the applicable Term and receive a refund of any prepaid, unused subscription fees (except for any Fees regarding applicable Professional Services) paid to Customer for the unused period of any such terminated Term. Notwithstanding the foregoing, this warranty shall not apply to any deficiency due to any modification or defect that is made or caused by someone other than Procurify.
  • Payment by Credit Card. By providing credit card billing information to Procurify for the payment of Fees, Customer authorizes Procurify to charge such credit card for Fees and any other payment to be made under this Agreement by the applicable date that such payment becomes due.

12. Confidential Information

  • Definitions. For purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser disclosed by Discloser to Recipient or otherwise coming into the possession of Recipient during the Term that is marked as “confidential” or that a reasonable person would understand to be confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. Subject to the rights, licenses, and permitted uses under this Agreement, the Customer’s Confidential Information includes Customer Data.
  • Confidentiality Covenant. This Section 12 supersedes any previously agreed upon non-disclosure or confidentiality agreement between the Parties regarding the Services. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential Information of the Discloser to any person, except to its own personnel or Affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Recipient will be deemed to have discharged its confidentiality obligations under this Section 12 (Confidential Information) if Recipient uses the same degree of care in safeguarding the Confidential Information of Discloser as it uses in protecting its own confidential information of a similar nature from unauthorized disclosure.
  • Exceptions to Confidentiality. Notwithstanding Section 12(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its employees, accountants, internal and external auditors, legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services related to Procurify’s business; or (iii) in the case of Procurify, to potential assignees, acquirers or successors of Procurify if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Procurify.

13. Warranty; Disclaimer

  • Customer Warranty. Customer represents and warrants to, and covenants with Procurify as follows: (i) the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by Applicable Laws, to enable Procurify to provide the Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to Procurify and to or from all applicable third parties; (ii) the Customer has the legal power and authority to enter into this Agreement, and that any employee or agent of the Customer executing an Order Form has all necessary authority to bind the Customer to the terms and conditions of this Agreement; and (iii) the Customer’s use of the Services and acceptance of this Agreement does not and will not violate Applicable Laws, the rights of any third party (including Intellectual Property Rights), or the terms of any contract or agreement to which the Customer is bound.
  • GENERAL DISCLAIMER. Except for the warranties stated expressly in this Agreement, an Order Form, or a SOW: (i) the Platform, Services, any content made available by Procurify on the Platform, Beta Products, and all other Services are provided “as is”; and (ii) Procurify specifically excludes all other warranties, conditions and other terms, whether express, implied, statutory, or otherwise, including implied warranties of merchantability, title, non-infringement, and fitness for a particular purpose, and any warranties arising from course of dealing or course of performance; in each case to the maximum extent permitted by Applicable Laws. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, PROCURIFY EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY CUSTOMER DATA OR OTHER INFORMATION USED BY CUSTOMER IN CONNECTION WITH THE SERVICES (OR ANY PART THEREOF), AND THE RESULTS BASED ON SUCH CUSTOMER DATA OR INFORMATION BEING USED WITH THE SERVICES, ARE OR WILL BE ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. Procurify will not be liable or responsible for any delays, interruptions, delivery or service failure, or any other problems or Damages arising from the Customer’s use of the internet, electronic communications, or any other systems.

14. Indemnification

  • Customer Indemnity. Customer shall defend and indemnify Procurify and its Affiliates (and their respective directors, employees, representatives, agents, and contractors) from and against all third party Claims and resulting Damages arising out of, related to, or based on the Customer Data or its use by Procurify as permitted in this Agreement.
  • Procurify Indemnity.
    • Subject to the other terms of this Section, Procurify shall defend and indemnify Customer and its Affiliates (and their respective directors, employees, representatives, agents, and contractors) from and against all third party Claims and resulting Damages arising out of, related, or based on such third party’s allegation that Customer’s use of the Platform in accordance with this Agreement infringed such third party’s Intellectual Property Rights.
    • In the defense or settlement of any Customer Claim that alleges that the Platform infringes or misappropriates third-party Intellectual Property Rights, Procurify may obtain the right for the Customer to continue using the Platform, replace or Modify the Platform (so long as such modified Platform is substantially equivalent in functionality and performance) so that it becomes non-infringing or, if these remedies are not reasonably available and without any additional liability or obligation to the Customer, terminate this Agreement on 2 business days’ notice to the Customer and refund the Customer a prorated amount equal to the prepaid unused Fees for access to the Platform for the unexpired portion of the Term. This section states the Customer’s sole and exclusive rights and remedies, and Procurify’s and its Affiliates’ and each of their respective officers’, directors’ employees’, agents’, and sub-contractors’ entire obligations and liability for infringement of any Intellectual Property Right.
  • Exclusions. Customer and its Affiliates and their respective, officers, directors, employees, agents, or sub-contractors will not be liable to Procurify under subsection (a) above to the extent that: (1) the Claim is based on modification of Customer Data by Procurify or by any party under Procurify’s control (other than modification at the request of the Customer); (2) the Claim arises as a result of any use or disclosure of the Customer Data by Procurify not permitted by this Agreement or Applicable Law. Procurify and its Affiliates and their respective, officers, directors, employees, agents, or sub-contractors will not be liable to the Customer under subsection (b) above to the extent that the alleged infringement is based on: (1) a Modification of the Platform by the Customer or anyone on the Customer’s behalf (including a Modification made by Procurify at the Customer’s direction that Procurify does not make generally available to all its customers) to the extent that Claim would not have occurred absent such Modification; (2) use of the Platform in a manner contrary to the instructions given by Procurify or in contravention of the terms of this Agreement; (3) use of the Platform in combination with other products, software, or data not supplied or authorized by Procurify or intended to be integrated with the Platform by the means Procurify makes available, including Non-Procurify Services; or (4) use of the Platform after notice of a potential, alleged, or actual infringement from Procurify or any appropriate authority or third party.
  • Indemnification Procedure. The Party seeking indemnification under this section (the “Indemnitee“) will provide the other Party (the “Indemnitor“) with prompt written notice of any Claim for which indemnity is sought. If the Indemnitor is notified, the Indemnitor will promptly hire experienced and competent legal counsel and will have sole control of the defense and all negotiations for the compromise or settlement of the Claim and will, subject to the limitations on liability stated in this Agreement, pay any Damages regarding the Claim. The Indemnitor will also reimburse the Indemnitee for its reasonable costs and expenses incurred in cooperation with and providing assistance to the Indemnitor. However, the Indemnitor may not settle any Claim without the Indemnitee’s consent if the proposed settlement would be in the Indemnitee’s name, impose monetary or other liability or an admission of fault or guilt on the Indemnitee, or would require the Indemnitee to be bound by an injunction.
  • Reduction of Indemnification Obligations. Indemnification by either Party under this Agreement may be reduced to the extent of loss actually proven as directly attributable to the breach of the Agreement, gross negligence, or willful misconduct of the other Party.

15. Limitation of Liabilities

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

  • AMOUNT. EXCEPT FOR (I) DAMAGES OR LOSSES CAUSED BY A PARTY’S INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OR (II) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN WHICH CASE TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED $1,000,000.00, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. THE FOREGOING LIMITATIONS ON LIABILITY DO NOT APPLY TO THE CUSTOMER’S OBLIGATION TO PAY FEES OWING TO PROCURIFY FOR THE SERVICES.
  • TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; OR (IV) ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
  • Disclaimer of Liability for Security Incidents. To the maximum extent permitted by Applicable Law, in no event will Procurify be liable for any Damages resulting from unauthorized access to or use of the Platform or Customer Data or information contained within the Platform, except to the extent that Procurify’s breach of its security standards expressly stated in this Agreement results in the unauthorized access.

16. Term and Termination

  • Term of Agreement. This Agreement will commence on the earlier of the Customer (i) executing an Order Form that references this Subscription Services Agreement; (ii) accessing or using the Services; or (iii) clicking a box indicating acceptance of this Agreement, and will continue until all applicable Order Forms or SOWs have expired or terminated according to their terms or until this Agreement has been terminated according to its terms.
  • Order Form Term; Renewals. The Order Form Term will automatically renew for successive 12 month periods on the same terms (each, a “Renewal Period” and collectively with the initial term and all Renewal Periods, the “Term“) unless (i) either party gives the other written notice of non-renewal at least 60 days in advance of renew date, (ii) a superseding Order Form is entered into by the Parties (for clarity, any such superseding Order Form shall automatically renew in accordance with this Section, unless otherwise agreed by the Parties), or (iii) the Order Form is terminated according to its terms, Section 16(c), or any other right of termination expressly provided to a Party by this Agreement. Procurify may increase the Fees during any Renewal Period upon at least 90 days’ prior notice to Customer, provided that Procurify will not increase the Fees during a Renewal Period by more than 7% unless otherwise agreed by the Parties in writing. For avoidance of doubt, the foregoing does not limit any permitted Fee increases during the Term pursuant to Section 11(a).
  • Termination for Cause and Certain Events. Either Party may, in addition to other relief, terminate this Agreement or any applicable Order Form:
    • if the other Party commits a material breach of any provision of this Agreement and fails within 30 days after receipt of notice of such breach to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to cure the breach, in each case unless the material breach is not capable of being cured, in which case the non-breaching Party may immediately terminate the Agreement or applicable Order Form;
    • immediately upon the other Party commencing or becoming subject to reorganization, winding up, insolvency, or bankruptcy proceedings under any national, federal, state, or provincial statute or law applicable to the Party or ceases to operate in the ordinary course of its business.

    If this Agreement is terminated by the Customer in accordance with this subsection, Procurify will refund the Customer a pro rata portion of any prepaid unused Fees covering the remainder of the Term after the effective date of termination. If this Agreement is terminated by Procurify in accordance with this subsection, the Customer will pay any unpaid Fees covering the remainder of the Order For Term of all Order Forms.

  • Effect of Termination (Agreement). Immediately in the event of any termination of the Agreement or expiration of the Term:
    • Subject to any rights provided for in an Order Form or SOW that survive termination, all Order Forms or SOWs then in-effect will immediately terminate, and Procurify will cease all Services on the effective date of termination or expiration of the Term, and any right the Customer has to access the Platform under this Agreement will immediately terminate;
    • Each Party will promptly return and make no further use of any materials and other items (and all copies of them) belonging to the other Party. Provided, however, that the foregoing does not limit Procurify’s rights of use regarding De-identified Data or to copies of Customer Data made as a matter of routine information technology backup that Procurify must retain pursuant to Applicable Law or chooses to store in accordance with its record retention policy (including for tax and audit purposes), with such Customer Data being subject to the confidentiality and security provisions in this Agreement or under Applicable Law for so long as it is retained.
    • Procurify may erase or otherwise destroy the Customer Data in part or in whole unless Procurify receives, no later than 90 days after the effective date of termination or expiration of the Term, written notice from the Customer requesting the most recent extraction of the Customer Data. Within 30 days of receiving such notice, Procurify will provide the Customer with a copy of its Customer Data in a format reasonably requested by the Customer and commercially practical for Procurify to provide.
  • Effect of Termination (Order Form or SOW). If the Customer has more than one Order Form or SOW effective (for example, for additional or ancillary Procurify products or Professional Services), then in the event of any termination or expiration of one Order Form or SOW, Procurify will cease providing the applicable terminated or expired Services subject to that Order Form or SOW upon the effective date of termination or expiration of that Order Form or SOW and the Agreement will continue to apply to any other unexpired, currently effective Order Forms or SOWs.
  • Fees. Termination will not relieve the Customer of its obligation to pay all Fees and undisputed charges accrued and payable before the effective date of termination or non-refundable Fees due to the end of the applicable Order Form Term.
  • Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Reservation of Rights), Section 5(b) (Ownership of the Deliverables under Professional Services), Section 6 (Data), Section 8(d) (License to Procurify to use Inputs and Outputs), Section 12 (Confidential Information), Section 13 (Warranty; Disclaimer) Section 14 (Indemnity), Section 15 (Limitation of Liabilities), Section 16(h) (Survival), and Section 17 (General Provisions).

17. General Provisions

  • Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first class mail postage prepaid to the official contact designated by the Parties and immediately after being received by the other Party’s server. Notices must be in writing and sent: (i) if to Procurify, to [email protected] or to PO Box 28190, RPO West Pender, Vancouver, BC, V6C 3T7 Canada and (ii) if to Customer, to the current postal or email address that Procurify has on file with respect to Customer. Procurify may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Procurify through the Platform current at all times during the Term.
  • Assignment. Neither Party may assign any of its rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. In the event an assignment is made as permitted by this subsection, the assignor Party shall notify the non-assigning Party in writing of the assignment. Additionally, if such an assignment is made by Customer the assignee or surviving party must agree in writing to be bound by the terms of this Agreement and assume the obligations of the Customer. Any assignment in violation of this subsection will be void.
  • Enurement. This Agreement will enure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
  • Choice of Law. This Agreement, and any disputes related to this Agreement or any Order Form, will be governed by the governing laws of the jurisdiction stated below as determined by the Customer’s domicile, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The Parties will initiate any disputes in connection with this Agreement in the forum located in the place of venue stated below as determined by the Customer’s domicile, and irrevocably attorn to the exclusive personal jurisdiction and venue of such forum.
    Customer’s Domicile Governing Law Forum Venue
    United States Delaware Delaware Court of Chancery or Delaware Superior Court State of Delaware
    Canada British Columbia Provincial Court of British Columbia or the Supreme Court of British Columbia Vancouver, British Columbia
    All other jurisdictions England and Wales International Chamber of Commerce (ICC) London, England

    Any Claims or disputes arising out of or in connection with this Agreement submitted to the ICC shall be finally settled by arbitration using the English language in accordance with the arbitration rules and procedures of the ICC then in effect, by one or more commercial arbitrator(s) with substantial experience in the industry and in resolving complex commercial contract disputes. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each Party shall have the right to institute an action in any court of proper jurisdiction for injunctive relief.

  • Notice to U.S. Government End Users. The Software and the Website, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users:
    • only as Commercial Items,
    • with the same rights as all other end users, and
    • according to the Agreement.

    Published and unpublished rights are reserved under the copyright laws of the United States. The manufacturer is Procurify Technologies Inc.

  • Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The term “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
  • Conflicting Terms. If there is any conflict or inconsistency between the terms, obligations, or conditions in this Subscription Services Agreement, an Order Form or SOW, or any other document referenced in this Subscription Services Agreement, the terms, obligations, and conditions in the Order Form control to the extent of the conflict unless otherwise expressly stated. The following order of precedence will apply thereafter in ascending order: the Subscription Services Agreement, SOW, and then any other document referenced, unless expressly stated that a provision supersedes specified terms in any of the foregoing agreements, as applicable.
  • Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond either Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, epidemic, strikes or other labour problems (other than those involving Procurify’s employees), Internet service provider failures or delays, or the unavailability or Modification by third parties of third party websites.
  • Severable. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
  • Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
  • Independent Contractors. The Parties are independent contractors, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
  • Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all other communications, whether written or oral.
  • Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, PROCURIFY MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT“), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY PROCURIFY, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER). THE CUSTOMER’S CONTINUED USE OF THE PLATFORM AFTER SUCH AMENDMENT IS ACKNOWLEDGMENT OF AND AGREEMENT WITH SUCH AMENDMENT. Where an amendment or update to the Agreement or a hyperlinked document adds significant additional obligations on Customer, materially reduces Customer’s rights, or materially reduces Procurify’s obligations, Customer has the right, exercisable no later than 30 days after such change has been posted, as Customer’s sole remedy, to terminate this Agreement or any Order Form by notice to Procurify and Procurify will refund any prepaid unused Fees regarding the then-remaining Order Form Term.
  • English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.