Terms of Service - TermSync

Terms of Service

THESE TERMSYNC TERMS OF SERVICE, ALL MUTUALLY EXECUTED ORDER FORMS, AND ANY APPLICABLE EXHIBITS AND ADDENDUMS THERETO, WHICH ARE INCORPORATED HEREIN BY REFERENCE (“TERMS OF SERVICE”), CONSTITUTE A CONTRACT BETWEEN YOU (“YOU” OR “YOUR”) AND ESKER, INC. (“ESKER”), AND GOVERN THE USE OF AND ACCESS TO THE TERMSYNC SERVICE AND WEBSITE, WHICH IS LOCATED AT https://www.termsync.com/login, (COLLECTIVELY “THE SERVICE”) BY YOU, YOUR AGENTS, AND YOUR END USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE.

BY ACCEPTING THESE TERMS OF SERVICE, OR BY ACCESSING OR USING THE SERVICE, YOU WILL ALSO BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE. IF AN EMPLOYEE OF YOURS IS REGISTERING ON YOUR BEHALF, THAT EMPLOYEE REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND YOU TO THESE TERMS OF SERVICE. IF THE EMPLOYEE DOES NOT HAVE SUCH AUTHORITY, YOU MAY NOT USE THE SERVICE. IF YOU ARE A DIRECT COMPETITOR OF ESKER (AS DETERMINED IN ESKER’S REASONABLE, SOLE DISCRETION), YOU MAY NOT ACCESS THE SERVICE UNLESS YOU OBTAIN ESKER’S PRIOR WRITTEN CONSENT. ADDITIONALLY, YOU MAY NOT ACCESS THE SERVICE FOR THE PURPOSES OF MONITORING ITS AVAILABILITY, PERFORMANCE, OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

RECITAL. Esker offers a web-based solution that enables Vendors and Customers to streamline the accounts receivable and/or customer payment processes of their Business-to-Business and/or Business-to-Customer transactions. Specifically, Esker provides access to a platform for both those who sell a product or service (the “Vendor”) and those who pay for such product or service (the “Customer”). The Vendor provides Esker information about customer interactions, specifically open and new invoice information. The information is entered through the Service or by providing Esker with information via email or FTP. Vendors are able to more efficiency manage their accounts receivable process by utilizing tools such as automated payment reminders to customers, to-do lists for their team members, scheduled reports, and performance management tools. Depending on account settings chosen by the Vendor, the Customer is then presented with payment and communication options through email and can choose to enter the Service to perform actions such as pay an invoice, dispute or delay a transaction, ask a vendor a question or submit a message to the vendor, and apply credits to a transaction. Esker is not a collection agency. Esker does not resolve or attempt to resolve payment disputes or disagreement between Vendors and Customers. It is a Vendor’s obligation to collect all money to which Vendor believes it is entitled.

  1. TYPES OF ACCOUNTS. You may either have a Vendor Account, a Customer Account, or both. Each account must have at least one person designated to act on Your business’s behalf. The number of people permitted to use Your account are determined by the type of account and the level of service. You shall notify Esker immediately in the event of any unauthorized access to or use of Your account or any suspected or known breach of security of Your account. As a convenience to You, Vendors are able to process payments from Customers via Automated Clearing House (“ACH”), in the United States, Single Euro Payments Area in Europe, Bankers’ Automated Clearing Services in the United Kingdom, or credit cards through the Service via third parties who specialize in such services. If Vendor selects this feature, Esker will assist You in setting-up such services with the third party. You shall enter into a separate contract with the third party for their services. You must notify Esker that a contract is in place prior to accessing this feature in the Service. These Terms of Service do not apply to the services provided by the third parties. When the ACH option is selected, Esker shall transmit and process the applicable transactions initiated by the Vendor through the Service in accordance with the National Automated Clearing House Association as currently in effect and as amended from time to time (the “Rules”) which are found at www.fms.treas.gov/ach. Vendor shall comply with the Rules. Vendor agrees to assume the responsibilities of an “Originator” under the Rules.
  1. TERM, RIGHT OF ACCESS & DATA PROTECTION. These Terms of Service commences on the Effective Date specified in the Order Form and shall automatically renew for successive terms as specified in the Order Form unless either party gives notice of termination as provided herein. Esker hereby grants You a nonexclusive, nontransferable, revocable right to access and use the Service solely for its own internal business purposes. Any rights not expressly granted in these Terms of Service are reserved by Esker. The Service does not include Internet access. You acknowledge and agree that You must: (a) provide for Your own access to the Internet and pay any service fees associated with such access, and (b) provide all equipment necessary for You to make such connection to the Internet, including a computer and modem. Esker’s Privacy Policy is located at http://ww2.termsync.com/privacy-policy/#.WBpbV-R0yUk and is incorporated herein by reference.
  1. PAYMENT. Esker will invoice You monthly for the applicable fees as specified in the Order Form. When applicable; You shall pay, in addition to the other amounts payable under these Terms of Service, all local, state and federal excise, sales, use or similar legal taxes (but excluding any income taxes) levied or imposed upon Esker as a result of the transactions under these Terms of Service. Payment of all fees shall be in United States dollars unless otherwise agreed by the parties in writing. You may pay by invoice to Esker, wire transfer, ACH, or bank check drawn on a United States bank account. You shall pay all applicable wire transfer fees charged to You by Your financial institution that are associated with Your payments to Esker. Esker may on an annual basis automatically increase any fees. Such annual fee increase will not occur more than once in any twelve (12) month period and such annual fee increase will not exceed the last recorded annual percentage change in the Consumer Price Index for All Urban Consumers (CPI-U) as published by the United States Department of Labor’s Bureau of Labor Statistics.
  1. RESTRICTIONS OF USE. You shall not: (a) rent, license, sublicense, sell, resell, transfer, offer, assign, distribute, copy, modify, alter, translate, decompile, disassemble, reverse engineer, or otherwise commercially exploit or make available to any third party the Service in any way; (b) infringe Esker’s or any third party’s copyright, patent, trademark, trade secret, or other Intellectual Property Rights; (c) use the Service in a manner that violates any applicable local, state, and federal laws and regulations; (d) facilitate any viruses, Trojan horses, worms, or other computer programming routines that may damage, bypass, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or information on or related to the Service, or involving the Esker Technology; (e) share Esker User licenses between more than one individual; provided that You may reassign from time-to-time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service on Your behalf; or (f) Provide or submit false, inaccurate, or misleading information to Esker or Third Parties or refuse to cooperate in any investigation confirming any of Your information.
  1. DISCLAIMER OF WARRANTIES. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, AND NEITHER ESKER, ITS PARENT COMPANY, NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS MAKE ANY WRITTEN OR ORAL, EXPRESS, IMPLIED, OR STATUTORY REPRESENTATIONS, WARRANTIES, OR COVENANTS TO YOU OR YOUR END USERS REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF. ESKER DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, ERROR-FREE, FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, OR THAT THE SERVICE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. ESKER, ITS PARENT COMPANY, AND EACH OF ITS LICENSORS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, AVAILABILITY, SECURITY, OR ACCURACY. FURTHERMORE, COMMUNICATION CONNECTIONS BETWEEN ESKER AND YOU ARE THE PROPERTY AND RESPONSIBILITY OF A THIRD PARTY. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, AND BANKING AND FINANCIAL SYSTEMS. COMMUNICATION CONNECTIONS ARE SUBJECT TO SUSPENSION WITHOUT NOTICE FOR AN UNDETERINABLE AMOUNT OF TIME DUE TO EVENTS BEYOND ESKER’S CONTROL AND NOT DUE TO ITS FAULT OR NEGLIGENCE. ESKER DOES NOT GUARANTEE OR WARRANT THE CONTINUITY OR QUALITY OF SUCH COMMUNICATION CONNECTIONS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES, SO, TO THE EXTENT NOT ALLOWED BY LAW, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO THE PARTIES. IN THESE JURISDICTIONS, ESKER’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
  1. INDEMNIFICATION. You shall defend, indemnify, save, and hold harmless Esker, its parent company, directors, officers, shareholders, employees, agents, licensors, and service providers from and against any and all third party claims, suits, actions, proceedings, demands, damages (including without limitation liquidated damages), losses, liabilities, fines, penalties, costs and expenses, professional fees (including without limitation reasonable attorneys’ fees), interest, awards, judgments, settlement payments, arising out of, resulting from, or occurring in connection with Your use of the Service, including but not limited to a violation of any applicable law, infringement of any intellectual property or other right of any person or entity, or a breach of any part of these Terms of Service.
  1. LIMITATION OF LIABILITY.
    7.1 PARTYS AGREE THAT UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, AND STRICT LIABILITY) OR OTHERWISE, SHALL ESKER BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST SALES OR BUSINESS, LOSS OF PROFIT, ANTICIPATED PROFITS, ANTICIPATED SAVINGS, LOSS OF USE OF EQUIPMENT, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA, DATA PROTECTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. ESKER’S TOTAL CUMULATIVE LIABILITY FOR ANY CLAIMS, DIRECT LOSSES, OR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY YOU TO ESKER DURING THESE TERMS OF SERVICE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIMS, LOSSES, OR DAMAGES AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. YOU HEREBY RELEASE ESKER, ITS PARENT COMPANY, AND EACH OF ITS LICENSORS AND SERVICE PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE AFOREMENTIONED LIMITATION. SOME JURISDICTIONS DO NOT ALLOW FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO, TO THE EXTENT NOT ALLOWED BY LAW, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO THE PARTIES. IN THESE JURISDICTIONS, ESKER’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

    7.2 YOUR ACCESS TO AND USE OF OTHER THIRD PARTY SERVICES IS GOVERNED SOLELY BY THE TERMS AND CONDITIONS OF SUCH ENTITIES. ESKER DOES NOT ENDORSE, NOR IS IT RESPONSIBLE OR LIABLE FOR, AND MAKES NO REPRESENTATIONS AS TO ANY ASPECT OF SUCH THIRD PARTY SERVICES, INCLUDING, WITHOUT LIMITATION, THEIR CONTENT OR THE MANNER IN WHICH THEY HANDLE DATA OR ANY INTERACTION BETWEEN THEM AND YOU. YOU KNOWINGLY, INTENTIONALLY, AND IRREVOCABLY WAIVE ANY AND ALL CLAIMS AGAINST ESKER WITH RESPECT TO SUCH THIRD PARTY SERVICES. ESKER SHALL NOT BE LIABLE UNDER ANY THEORY OF LAW, CONTRACT, TORT, (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, AND STRICT LIABILITY) OR OTHERWISE, FOR ANY DAMAGES OR LOSSES CAUSE OR ALLEGED TO BE CAUSE BY OR IN CONNECTION WITH YOUR ENABLEMENT, ACCESS OR USE OF ANY SUCH THIRD PARTY SERVICES, OR YOUR RELIANCE ON THE PRIVACY PRACTICES, DATA SECURITY PROCESSES, OR OTHER POLICIES OF SUCH THIRD PARTY SERVICE PROVIDER. YOU MAY BE REQUIRED TO REGISTER FOR OR LOG INTO SUCH THIRD PARTY SERVICES ON THEIR RESPECTIVE WEBSITES. BY ENABLING ANY THIRD PARTY SERVICES, YOU ARE EXPRESSLY PERMITTING ESKER TO DISCLOSE YOUR LOGIN AS WELL AS ANY DATA THAT IS NECESSARY TO FACILITATE THE USE OF ENABLEMENT OF SUCH THIRD PARTY SERVICES.

  1. CONFIDENTIALITY.
    8.1 “Confidential Information” is defined as any information relating to or disclosed in the course of these Terms of Service, which is or should be reasonably understood to be confidential or proprietary to the Disclosing Party. Confidential Information shall not include information: (a) already lawfully known to the Receiving Party without obligation of confidentiality; (b) disclosed in published materials without fault of the Receiving Party; (c) generally known to the public without fault of the Receiving Party; (d) lawfully obtained from a third party not under any obligation to maintain the confidentiality of either Party; (e) required by applicable law or regulations to be released; or (f) independently developed by the Receiving Party, provided the person or persons developing the same have not had access to relevant proprietary information of the Disclosing Party. Each Party agrees that it shall not disclose to any third party any Confidential Information of the other Party, which it learns during the course of its performance of these Terms of Service, without the prior written consent of such other Party. Notwithstanding the foregoing, the Receiving Party may make disclosures required by court order, provided the Receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or protective order and has allowed the Disclosing Party to participate in the proceedings.

    8.2 All of the Confidential Information provided by the Disclosing Party under these Terms of Service, including any copies or reproduction thereof, remains the exclusive property of the Disclosing Party. Immediately upon a request by the Disclosing Party at any time, the Receiving Party will turn over to the Disclosing Party all Confidential Information of the Disclosing Party and all documents or media containing any such Confidential Information and any and all copies or extracts thereof. In lieu of the return of such items, the Disclosing Party, at its sole option, may request the Receiving Party destroy all tangible items containing the Confidential Information and provide written certification of such destruction to the Disclosing Party. Each party acknowledges that unauthorized disclosure or use of the Confidential Information by Receiving Party may cause irreparable harm and damage to the business of the Disclosing Party which may be difficult to ascertain and which may not be adequately compensated by damages at law. Therefore, each Party agrees that, in the event of a breach or threatened breach of the terms of these Terms of Service, the Disclosing Party is entitled to seek an injunction prohibiting any unauthorized disclosure or use of its Confidential Information. Any such injunctive relief shall be in addition to, and not in lieu of, any appropriate monetary damages.

  1. OWNERSHIP. All programs, services, processes, designs, software, technologies, trademarks, trade names, service marks, trade secrets, copyrights, logos, unpatented inventions, domain names, patents, patent applications, documentation accompanying the Service, and all materials comprising of or affixed to the TermSync website and the Service are wholly owned by Esker, Esker’s Parent Company, and/or Esker’s licensors and service providers except where expressly stated otherwise. You shall not use Esker’s trade secrets, trademarks, trade names, service marks, logos, domain names, patents, copyrights, or other intellectual property rights without Esker’s prior written permission. You shall not remove, obscure, or alter any propriety rights notices (including copyright, trademark, trade secret, domain names, and patent notices) which may be affixed to or contained within the TermSync website and the Service. Furthermore, all contents of the TermSync website and the Service, including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement (“Content”) are protected by copyright, trademark, trade secret, patents or other proprietary rights and laws. Content may not be reproduced, modified, derivative works created from, displayed, performed, published, distributed, disseminated, broadcasted, or circulated to any third party (including without limitation, the display and distribution of the material via a third party website or other networked computer environment) without the express written consent of Esker, its parent company, and/or its applicable licensors or suppliers. Esker shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback Esker receives from You. You own all rights, title, and interest in and to all Your data and any documents you send to Esker that contain Your data in them. You grant Esker permission to access, copy, distribute, store, and/or transmit the content of Your account solely as required for the purpose of providing the Service to You. Esker shall have no responsibility or liability related to the data in any of the documents You send to Esker. You are responsible and liable for Your data and the contents of Your documents and You agree and acknowledge that You are the creator of all data in Your documents and that Esker is not the author or publisher of any of Your data.
  1. TERMINATION. Except as otherwise specified in the Order Form, either party may terminate these Terms of Service for convenience by providing the other party with a minimum of thirty-days advance written notice. In the event You terminate the Service for convenience; You shall pay any fees incurred up to the date of termination. Furthermore, if You terminate for convenience, Esker will not refund any prepaid fees for the Services. In the event Esker suspects fraud, Esker may automatically suspend Your transaction and/or Your account. Notwithstanding the foregoing, if a Party commits a default and fails to cure such default within five (5) calendar days from receipt of such written notice, the other Party will be entitled, at its election, to exercise any one or more of the following remedies, then or at any time thereafter: (i) to pursue any remedy available at law or in equity, (ii) to terminate these Terms of Service; and (iii) if Esker, suspend or limit access to the Service until such default is remedied. In the event of a default by You; You shall be responsible and liable for any and all reversals, chargebacks, claims, fees, fines, penalties and other liability incurred by Esker, another User, or a third party such as ACH processor or credit card processor, caused by or arising out of Your breach of these Terms of Service. Either Party may terminate these Terms of Service in the event that the other Party; (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under the laws of any jurisdiction; (iii) is unable to pay its debts as they become due, becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority, or (iv) goes into liquidation, voluntarily or otherwise. Upon written request, within thirty days from the termination of these Terms of Service; Your data will be transferred to DVD’s and returned to You for a fee of $300.00 U.S. Dollars per DVD.
  1. MAIL ON DEMAND AND OUTBOUND FAX ON DEMAND SERVICES.
    11.1. Mail on Demand. When the Mail on Demand Service is purchased, the following additional terms and conditions apply: Esker’s goal is to send Your Documents that are received and accepted by Esker to a mail collection location within one (1) business day from the date of receipt of the Documents by Esker provided the Documents are received by Esker in their entirety and properly formatted as specified in the Mail on Demand Document Standards located at: https://doc.esker.com/flydoc/cv_ly/en/printdriver/https://doc.esker.com/flydoc/cv_ly/en/printdriver/. Esker’s goal is to send Your Document submissions consisting of twenty thousand (20,000) pages or more to a mail collection location within two (2) business days from the date of receipt by Esker unless otherwise advised by Esker. You agree that the electronic recordings by Esker of the receipt and distribution shall be proof that the Documents have been received and distributed. Esker does not guarantee delivery of Documents to the designated Recipients. Esker shall not be liable, for any reason, for the Documents once they are delivered to a mail collection location. Furthermore; You understand and agree that the mailing of Your Documents is subject to local postal holidays and that Esker has no direct control over postal delivery schedules. In the event You do not pay Your Usage Fees and/or postage when due, Esker may use Your postage deposit to remit payment on Your behalf. Should Esker pursue such course of action and immediately upon receipt of notice of such from Esker; You will be required to replenish the postage deposit in an amount based on Your then current Document volume trends. Esker reserves the right to stop or suspend processing of Your Documents in the event there are insufficient funds in Your postage deposit. In the event the Agreement expires or is terminated by either party, Esker will refund the postage deposit to You (less any fees You owe to Esker) within thirty (30) days of the Effective Date on the Order Form’s termination or expiration. You acknowledge that You are aware that Esker has no direct control over post delivery schedules and that Esker cannot guarantee when mail deposited by Esker will be delivered by the local post. Handling for Pre-sorting Mail fee: in case of application of reduced postage rate, Esker shall invoice a pre-sorting fee to abide with the post office pre-sorting requirements for the grant of such preferred rates. A retrieval fee is applicable per Document upon Your request for retrieval of undelivered mail and acknowledgement receipt of registered mail. When applicable, a return envelope will be inserted with the printed mail piece. The return envelope size varies according to the production center which produces the document and the envelope size used to send the mail piece. In the United States, an 8 5/8″ x 3 5/8″ window return envelope is used for #10, 6×9, and Flat envelopes.

    11.2 Outbound Fax on Demand. When the Outbound Fax on Demand Service is purchased, the following additional terms and conditions apply: Esker endeavors to make three (3) attempts to fax Your Documents. The first attempt is made within ten (10) minutes of receipt of the Document. The second attempt is made ten (10) minutes following the first attempt. The third attempt is made thirty (30) minutes following the second attempt. In the event the third attempt fails, the Document will be considered as an Undeliverable Document and it will appear in the list of failed Documents.  On a monthly basis, Esker’s goal is to process ninety-five percent (95%) of Your Documents in accordance with this service level, provided each Document is received in its entirety and is properly formatted; does not exceed three hundred (300) Kb in size, including attached files; and the volume does not exceed six thousand (6,000) Documents per hour. Esker does not guarantee any execution time in the event of wrong/busy fax numbers, or lack of paper in the destination fax machine. You release Esker from any claims resulting from faxes sent by mistake to an incorrect telephone number, thus causing inconveniences to the recipients. You endeavor to remove the numbers in question from its fax number lists. Esker does not guarantee delivery of Documents to the designated Recipients.

  1. GENERAL PROVISIONS.
    12.1 Headings & Notices. Headings and titles of sections and clauses herein are for reference purposes only and are not part hereof and are not intended to be used in the interpretation hereof. Except for communications delivered via the Service, all notices, requests, reports, and other communications permitted or required to be given under these Terms of Service shall be deemed to have been duly given if such notice or communication shall be in writing and delivered to the Parties at their addresses set forth in the Order Form by one of the following methods: in person, United States certified mail (return receipt requested), or by overnight express carrier. All notices, consents, and communications are deemed delivered and received by the receiving party if personally delivered or delivered by messenger, on the date of delivery or on the date delivery was refused or if delivered by overnight courier or certified mail, on the date of delivery as established by the return receipt, courier service confirmation, or similar documentation (or the date on which the courier or postal service, as applicable, confirms that acceptance of delivery was refused or undeliverable).

    12.2 No Waiver. The failure of either Party to exercise any right or the waiver by either Party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of these Terms of Service.

    12.3 Assignment. Neither Party may assign or otherwise transfer its rights or delegate its duties under these Terms of Service without the other Party’s express written consent. Notwithstanding the foregoing, in the event of an emergency, Esker may assign its rights and delegate its duties to its parent company to perform the Services specified herein until such emergency has passed. Additionally, either Party may assign these Terms of Service pursuant to the sale, transfer, or merger of such party’s business, or that portion of such Party’s business that is using the Service provided that the assignee agrees to be bound by all of the terms and conditions of these Terms of Service. The Party seeking to assign these Terms of Service shall provide the other Party written notice at least thirty calendar days prior to any proposed assignment or encumbrance.

    12.4 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and neither Party has any authority of any kind to bind the other in any respect whatsoever or to take any action which shall be binding on the other, except as provided herein or authorized in writing by the Party to be bound.

    12.5 Severability. If any provision of these Terms of Service shall be held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, then such provision shall be enforced to the fullest extent permitted by applicable law, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

    12.6 Force Majeure. Neither Party shall be deemed in default of these Terms of Service to the extent that performance of their obligation or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such party (“Force Majeure”) provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen business days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of one month.

    12.7 Governing Law & Dispute Resolution. These Terms of Service shall be deemed to have been entered into and shall be construed, governed, and interpreted in accordance with the laws of the State of Wisconsin, without giving effect to principles of conflict of law.  The Parties hereby understand and knowingly and irrevocably submit to the jurisdiction of the federal and state courts located in Dane County, Wisconsin for the purpose of any suit, action, or other proceeding arising out of or based upon these Terms of Service, which courts are the exclusive forums for any such suit, action, or other proceeding. The application of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are expressly excluded. In an effort to resolve informally and amicably any unresolved claim, controversy, disagreement, or breach of these Terms of Service (a “Dispute”), the Parties agree that prior to filing any cause of action, each Party shall notify the other in writing of any Dispute hereunder that requires resolution. Such notice shall set forth the nature of the dispute, the amount involved, if any, and the remedy sought. Each Party shall designate a member of Senior Management to investigate, discuss, and seek to settle the matter within thirty business days after such notice. If the Parties are unable to resolve the Dispute, then the Dispute may be submitted to a Court of appropriate jurisdiction as specified in this section.

    12.8 Compliance with Applicable Laws & Export Compliance and Use Restrictions. The Parties shall comply with all applicable local, state, and federal laws and regulations in providing or using the Service. Esker shall not be liable or responsible for any financial institution that it utilizes in providing the Service to You that fails to comply with any applicable local, state, and federal law or regulation. The Service provided to You may be subject to United States export control and economic sanctions laws. You shall comply with all such laws and regulations as they relate to access to and use of the Service. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Service is prohibited under United States or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Service to any government, entity, or individual located in any Prohibited Jurisdiction.

    12.9 No Third Party Beneficiaries. The Parties do not intend that these Terms of Service benefit or create any right or cause of action in any third person.

    12.10 Counterparts. When applicable, these Terms of Service may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which when taken together shall be deemed to be one and the same instrument.

    12.11 Survival. The following Sections, along with any other Sections that by their nature survive expiration or termination of these Terms of Service, will survive expiration or termination: 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12.

    12.12 Publicity. Esker may include Your name(s) and logo(s) on Esker’s Customer Lists. Esker may refer to Your use of the Service in its marketing and promotional materials and on its websites as well as in discussions with Esker customers, prospective customers, and industry analysts.

    12.13 Terms of Service Modifications. Esker may modify these Terms of Service from time-to-time, in which case the new version of these Terms of Service shall supersede all prior versions. In the event of any modifications, Esker will post a notice of such modifications on the website homepage of the Service and You will be required to read and accept the modifications prior to continuing to use the Service. Esker shall not be liable to You nor to any third party for any modifications to the Terms of Service.

    12.14 Entire Agreement. These Terms of Service, including the Order Form and any applicable Exhibits or Addendums thereto, states the entire agreement between the Parties on this subject and supersedes all prior negotiations, understandings and agreement between the Parties concerning the subject matter. No provision or ambiguity shall be strictly construed against any party by virtue of having drafted or prepared the same. The Service is provided pursuant to the terms and conditions in these Terms of Service, which will supersede and override any and all preprinted terms and conditions on any documents provided by You in connection with its obligations hereunder, including but not limited to, purchase orders, sales order acknowledgement forms, Statements of Work, packing slips, bills of lading, and invoices.

 

Last Updated: January 27, 2017