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TERMS OF SERVICE FOR THE SYSTUM® SOLUTION

AS OF APRIL 17, 2018, THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF SERVICE”) ARE INCORPORATED INTO THE SUBSCRIPTION SERVICES QUOTE, ORDER FORM OR SIMILAR AGREEMENT, OR ONLINE ACCOUNT SIGN-UP AND AGREEMENT FOR SUBSCRIPTION SERVICES ENTERED INTO BETWEEN YOU (“YOU, OR “CUSTOMER”) AND SYSTUM INC. (“SYSTUM”).

  1. Definitions.

1.1      “Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party, for so long as such control exists.

1.2      “Agreement” means any Subscription Services Agreement entered into between Customer and Systum, each Quote/Order Form duly executed by Customer and Systum incorporating these Terms of Service, the Systum Privacy Policy (www.Systum.com/privacy), and any applicable Third Party Terms (defined in Section 2.12 below).

1.3      “Applicable Privacy Laws” means any applicable laws, statutes or regulations as may be amended, extended or re-enacted from time to time which relate to Personal Data including (a) prior to 25 May 2018, the EU Data Protection Directive 95/46/EC as transposed into EU Member State law; (b) from 25 May 2018, the EU General Data Protection Regulation 2016/679 (“GDPR”) and any EU Member State laws implementing the GDPR and; (c) the e-Privacy Directive 2002/58/EC, as amended and as transposed into EU Member State law and any legislation replacing the e-Privacy Directive.

1.4      “Confidential Information” means, except as set forth in the following paragraph: (a) Customer Data; (b) the financial terms of this Agreement and (c) any commercial, financial, marketing, business, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with this Agreement, that: (i) in the case of information in tangible form, is marked “confidential” or “proprietary;” (ii) in the case of information disclosed orally, visually or any other intangible form, is designated confidential or proprietary at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the receiving party within thirty (30) days following disclosure; (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; and (iv) will include any reproduction of such information in any form or medium, or any part of such information.

Notwithstanding the foregoing, the following shall not be Confidential Information: (1) information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party; (2) information that was rightfully in the receiving party’s possession without restriction prior to disclosure; (3) information that was rightfully disclosed to the receiving party by a third party without restriction (4) information that was independently developed by employees or contractors of the receiving party who did not have access to and/or without use of or reference to the disclosing party’s Confidential Information.

1.5      “Customer Data” means all electronic data or information submitted to and stored in the Service by Users.

1.6      “Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received or transmitted through the Service.

1.7      “Quote/Order Form” means a Systum Quote, renewal notification or order form in the name of and executed by Customer or its Affiliate and accepted by Systum which specifies the Service, and any Support Services or Professional Services to be provided by Systum subject to the terms of this Agreement.

1.8      “Help Documentation” means any online documentation describing the features or use of the Service published by Systum at www.systum.com.

1.9      “Premium Deployment” means any use of the Service in excess of the Standard Deployment Limits, which shall require Customer to purchase a custom Premium Deployment package for their use of the Service in excess of the Standard Deployment Limits, upon terms and pricing agreed with Systum in advance.

1.10    “Professional Services” means the SystumGo™ guided implementation program referenced in Exhibit B, or consulting, implementation or training services to be provided to Customer by Systum and as detailed on the Quote/Order Form.

1.11    “Service” means the Systum online business application (and any optionally procured modules) (the “Systum Service”) that is provided by Systum to Customer as described in the Quote/Order Form and any subsequent Quote/Order Form from time to time.

1.12    “Standard Deployment Limits” means use of the Service during any annual license term: (a) by no more than one hundred and fifty (150) Users,; (b) up to an aggregate account maximum of two hundred and fifty thousand (250,000) transactions; (c) using no more than 5GB of storage; and (d) having no more than one hundred thousand (100,000) SKUs;. Unless otherwise agreed in writing, Standard Deployment limits allow a Customer to upload up to two years of historical transactions during the initial Service deployment.

1.12    “Users” means individuals who are authorized by Customer to use the Service pursuant to this Agreement in the ordinary course of business and solely for Customer’s internal business purposes. Users include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors and agents.

  1. Terms of Service.

This Agreement will govern Customer’s access and use of the Service. Capitalized terms not otherwise defined in these Terms of Service shall have the meaning given to them in the Agreement.

2.1.     Customer Information. Customer acknowledges and agrees that Systum has relied on the information and data Customer supplied in the pre-Agreement process, the Quote and any other on-boarding materials regarding, the ownership, affiliates, nature of products, territories, size, transaction types and volumes, revenue rates of its business, banking information etc. together with other information reasonably requested (the “Customer Scope Information”) in formulating the pricing and other commercial terms set forth in the Agreement.  Systum also relies of the Customer Scope Information for implementation of the Service and to facilitate Third Party Services. Therefore, Customer represents and warrants to Systum that the Customer Scope Information is true, accurate, current and complete and Customer shall update Systum immediately in the event of any material change in the Customer Scope Information. Customer shall also provide information on Customer’s legal business name, address, email address, and phone number, maintain and promptly notify Systum of any change via the dashboard of the Service.

2.2.     Users. Customer shall authorize access to and assign unique passwords and user names to the individual Users of the Service procured by Customer on the Quote/Order Form. User logins cannot be shared or used by more than one User, but any User login may be permanently reassigned to another User as needed. Customer will be responsible for the confidentiality and use of User’s passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. Customer shall prevent unauthorized access to or use of the Service and shall promptly notify Systum of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name or Service account numbers. Customer is responsible for the security of its account credentials, and all activity and transactions that occur on its account using such credentials (except to the extent conclusively demonstrated to be as a direct result of Systum’s negligence).

2.3.     Use Restrictions. Customer is responsible for all activities conducted under User logins and for Users’ compliance with this Agreement. Customer must not use, and must ensure that its Users do not use, the Service to provide a service bureau or outsourced service and may not rent or resell access to the Service. Customer shall not and shall not permit any User to: (a) access or use the Service to circumvent or exceed Service account limitations or requirements, including, without limitation exceeding the Standard Deployment Limits (except pursuant to a Premium Deployment and then only pursuant to the prescribed usage limits of such Premium Deployment); (b) use the Service for the purpose of aiding a competitor or building a similar or competitive product or service, (c) obtain unauthorized access to the Service (including without limitation permitting access to or use of the Service via another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized Users); (d) use the Service in a manner that is in violation of any third party rights of privacy or intellectual property rights; (e) publish, post, upload or otherwise transmit Customer Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (f) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Service. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with this Agreement, including without limitation those related to privacy, electronic communications and anti-spam legislation; (g) send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening; (h) access the Service by any means other than through the interfaces that are provided by Systum; (i) engage in any “mirroring” or “framing” of any part of the Service; (j) create Internet links to the Service that include login information, user names, passwords, or secure cookies; (k) introduce viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”) into the Service; (l) as determined by Systum in its reasonable discretion, use any feature or function of the Service in an abusive manner qualitatively or quantitatively inconsistent with, actual bona fide need or the Service’s ordinarily intended functionality (e.g. use the Service as means of excess data storage outside of ordinary course commercial transactions processed by the Service); (m) use the Service in violation of any Acceptable Use Policy set forth below and/or published by Systum, from time to time on www.systum.com, provided such polices are generally applicable to similarly situated Customers, (n) use the Service in violation of any Thirty Party terms or applicable third party Acceptable Use (or similar) Policies; or (o) disable, manipulate or circumvent the Service or otherwise fail to report transactions to evade Systum Platform™ transaction fees or other fees otherwise due Systum under the Agreement.

2.4      Export. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located.

2.5      PCI. Customer is responsible for ensuring that its use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and shall not store credit card and social security data in the Service (except in the case the Systum Service contains designated encrypted fields specifically for such data).

2.6.     Service Level. During the Term, the Service will meet the service level specified in the “Service Level Commitment” as may be posted on the Systum website from time to time, or such other URL as specified by Systum, which, when and if posted is hereby incorporated by reference. If the Service Level Commitment is not otherwise defined on the Systum website, it shall be defined as Systum’s use of commercially reasonable efforts to have the Service available 99.5% of the time measured during any rolling 30-day period. If the Service fails to achieve the Service Level Commitment, then Customer will be entitled, upon written request within 30 days of any failure to meet the Service Level Commitment, as its sole and exclusive remedy, to a pro-rated credit for the annual Service license fees listed for SystumHDM™ on the Quote, applicable to the downtime in excess of the Service Level Commitment. For the avoidance of doubt, Service Level Commitments, if any, for portions of the Service provided by Third Party Providers (defined in 2.12 below) are subject to the applicable Third Party Terms, and Systum shall have no responsibility for the performance of such third party functions.

2.8.     Security. Systum shall endeavor to maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Customer Data within its possession or control.

2.9.     Confidentiality. Each party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (at all times exercising at least a commercially reasonable degree of care in the protection of such confidential information) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer. Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section. Either party may disclose Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.

2.10.   Customer Data. As between Systum and Customer, all title and intellectual property rights in and to the Customer Data will be retained by Customer. Customer acknowledges that in connection with the provision of the Service, Systum may store and maintain Customer Data for a period of time consistent with the Systum standard business processes. Following expiration or termination of the Customer Quote/Order or a Customer account Systum may deactivate the applicable Customer account(s) and delete any data therein. Notwithstanding the foregoing and the terms of Section 2.9 (Confidentiality), Systum may create, use, disclose or otherwise exploit aggregated data collected or generated by the Service, including without limitation any such aggregated data created using Customer Data, so long as such aggregated data do not contain any personally identifiable or Customer-specific information.  Customer represents and warrants that it has obtained all necessary consents from the individuals and entities whose information is furnished to Systum or processed by Systum, and otherwise all has the rights and permissions necessary use the Systum Service with respect to Customer Data.  Customer agrees that Customer Data is also subject to the Systum Privacy Policy found at www.systum.com/privacy.

2.11.   Systum Intellectual Property Rights. All rights, title and interest in and to the Service (including without limitation all intellectual property rights therein) are hereby reserved by Systum or its licensors or suppliers. Customer grants Systum a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or functionality of the Service including any aggregated data collected or generated by Systum or on behalf of Systum through the Customers use of the Service.

2.12.   Third Party Terms. Some non-Systum functionality available as part of or in conjunction with the Service (such as credit card processing, shipping fulfilment, sales tax calculation) (“Third Party Service(s)”) is provided by third parties (“Third Party Providers”), subject to separate costs and fees, and is subject to the terms of service, privacy policy or other contractual terms promulgated by such Third Party Providers (“Third Party Terms”). Customer acknowledges that certain functionality subject to Third Party Terms is optional, and some is necessary to use the Service. Use of the Service by Customer is subject to such Third Party Terms, and Customer agrees to be bound to such Third Party Terms (provided that Third Party Terms for optional functionality will only be included if Customer elects to use the applicable functionality). Systum shall provide Customer notice of such Third Party Terms, and any updates thereto, either via the Service or on the Systum web site. Systum does not provide any warranties with respect to Third Party Services. You acknowledge that Systum has no control over Third Party Services and shall not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services on Systum’s websites, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Systum. Systum strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates you should charge your customers. If you install or enable a Third Party Service for use with the Service, you grant us permission to allow the applicable Third Party Provider to access your data, including Customer Data, allow the Third Party Provider to share your Third Party Provider data with Systum, and to take any other actions as required for the interoperation of the Third Party Service with the Service. Except for the forgoing any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. Systum is not responsible for any disclosure, modification or deletion of your Customer Data, or other data or materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or materials. Under no circumstances shall Systum be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider (i.e. Third Party Terms or otherwise). These limitations shall apply even if Systum has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law. You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Systum partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.

2.12    Data Processing Addendum.  To the extent that Systum processes “personal data” (as such term is defined under Applicable Privacy Laws) controlled by Customer or one of its affiliates in connection with its provision of the Services to Customer, Systum and Customer will agree to establish applicable data processing provisions.  Customer will be deemed the controller with respect to such personal data and Systum will be deemed the processor.

  1. Limited Warranty of Functionality.

Systum warrants that: (i) the Service will substantially perform the material functionality described in the then current Help Documentation applicable to the Systum Service licensed by Customer, and (ii) such functionality of the Service will not be materially decreased during the then-current subscription term. Customer’s sole and exclusive remedy for Systum’s breach of this warranty will be that Systum shall use commercially reasonable efforts to modify the Service to adhere to the foregoing warranty. Systum shall have no obligation with respect to a warranty claim unless notified by Customer in writing of such claim within thirty (30) days after the first instance of any material functionality problem. The warranties set forth in this Section are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Service has been utilized in accordance with the then current Help Documentation, this Agreement and applicable law. Again, for the avoidance of doubt, warranties, if any, for portions of the Service provided by third parties are subject to the applicable Third Party Terms.

  1. Disclaimer of Warranties.

SUBJECT TO THE EXPRESS LIMITED WARRANTY OF FUNCTIONALITY, THE SYSTUM SERVICE IS PROVIDED ON AN “AS-IS,” “AS-AVAILABLE” AND “WITH ALL FAULTS” BASIS. SYSTUM DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICE IS SUITABLE FOR CUSTOMER’S BUSINESS NEEDS, WILL MEET CUSTOMER’S REQUIREMENTS OR ACHIEVE ANY DESIRED RESULTS, THAT ALL ERRORS IN THE SERVICE OR HELP DOCUMENTATION WILL BE CORRECTED, OR THAT THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS STATED IN SECTION 3, SYSTUM HEREBY DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE (AND ANY THIRD PARTY SERVICE) IS APPROPRIATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

  1. Limitations of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.

THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL SUBSCRIPTION FEES (AND NOT TRANSACTION BASED FEES) PAID OR PAYABLE FOR THE SERVICE GIVING RISE TO LIABILITY. BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY.

THE LIMITATIONS OF LIABILITY SET FORTH IN THE SECOND PARAGRAPH OF THIS SECTION SHALL NOT APPLY TO: (A) A BREACH OF SECTION 2.9 (CONFIDENTIALITY) OF THESE TERMS OF SERVICE; (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6 BELOW; OR (C) A BREACH OF SECTION 2.3 (USE RESTRICTIONS).

  1. Indemnification.

6.1.     Infringement. Subject to the terms and conditions set forth in this Section 6, Systum shall, at its own expense, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, when used by Customer in accordance with this Agreement, infringes such third party’s copyrights or trademarks, or misappropriates such third party’s trade secrets and shall pay all resulting third party damages, and costs finally awarded or agreed to by Systum in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. Systum will have no liability for Claims or Losses to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after Systum notifies Customer to discontinue use because of an infringement claim, (c) use of the Service in combination with any non-Systum software, application or service, including any Third Party Service, (d) a Third Party Service, or (e) products/services offered by Customer or revenue earned by Customer for such products/services. If a Claim of infringement as set forth above is brought or threatened, Systum shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the subscription fees for the SystumHDM™ paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Customer under this Section 6.1 state Systum’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.

6.2.     Customer’s Indemnity. Subject to the terms and conditions set forth in this Section 6, Customer shall, at its own expense, defend indemnify and hold Systum harmless from and against any and all Losses to the extent arising in connection with Claims (i) alleging that the Customer Data, Customer Scope Information, or any materials or information provided by Customer, infringes the copyright or trademark or misappropriates the trade secrets of a third party, or violates any third party right or agreement, or applicable law, including without limitation, Applicable Privacy Laws; (ii) arising from disputes between Customer and its customers and/or vendors; (iii) arising from Customer’s breach of the Use Restrictions set forth or incorporated by Section 2.3 or any agreed data processing provisions;  (iv) any dispute between Customer and its customers or, a Third Party Provider; otherwise (v) the conduct or operation of Customer’s business independent of the Service.

6.3.     Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 6, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 6 are conditioned upon the indemnified party’s compliance with this Section 6.3 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 6 but such obligations shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement.

  1. Term/Autorenewal/Payments/Suspension/Termination.

7.1.     Term/Autorenewal.  The applicable term of the Service (or sub-elements of the Service) is typically set forth in the Quote.  Unless otherwise stated in the Quote the subscription will be a 12-month subscription that begins on the Effective Date of the Quote.  Some sub-elements of the Service may start following the Effective Date.  SystumPay™ for example will commence on the day the Custom receives written notice of Merchant ID Approval from the SystumPay™ payment processing provider.  The SystumPay™ and other features or sub-elements that go-live following the Effective Date will be co-terminus with the Service term. Subscriptions are automatically renewed for subsequent terms equal to the initial term (typically annual) unless Customer gives Systum 30 days’ written notice of non-renewal.  Systum will use commercially reasonable efforts to issue a courtesy notice to Customer of an upcoming auto-renewal date, but whether or not Systum delivers a courtesy reminder, it is the Customer’s sole responsibility to make timely notice of non-renewal or Customer will be legally obligated for an annual renewal term (or such other term of equal duration to the initial term).  Third Party Terms define the term of Third Party Services (which may be independent of the Systum Service subscription term).

Payments to Systum via ACH.  Payment terms are set for on the Customer Quote.  Unless alternative payment arrangements are agreed in writing between Customer and Systum, Customer agrees that all amounts due to Systum under this Agreement may be debited from Customer’s bank account(s) via ACH using any bank information supplied by Customer, without prior notice as and when they become due.  If Customer has not already provided ACH information, Customer agrees to execute and deliver any necessary information, and provide any authorization documentation to enable such ACH debits.  In order to pay/settle amounts due in connection with its agreement with Systum, Customer hereby authorize(s) Systum, to initiate debit entries to the account and at the depository financial institution indicated in the Customer Scope Information and, if necessary, initiate adjustments for any transactions credited/debited in error. Customer agrees to confirm identification of the account at the time of the initial entry to such account and to notify Systum immediately if an incorrect entry is posted to the account. Customer acknowledges and agrees that it is bound by, and that the origination of ACH transactions to its account must comply with, applicable provisions of U.S. law, and the National Automated Clearing House Association Operating Rules and Operating Guidelines.  This authorization supersedes and replaces all prior authorizations for direct deposits and correcting entries and shall remain in full force and effect until Systum has received written notification from Customer of its request to cancel in such time and such manner as to afford Systum and the depository financial institution a reasonable opportunity to act on it.

Transaction Fees/Obligation to Report Transactions.  Customer understands and agrees that certain aspects of the Service are subject to transaction-based fees.  SystumPay™ is the merchant card processing solution embedded in the Service and transactions processed using SystumPay™ are subject to the fee rate set forth in the Quote.  Systum will deduct (or have deducted) its applicable transaction fees from the Customer’s SystumPay™ account.  Customer’s transactions not processed through SystumPay™ (e.g. invoice/check, cash, bitcoin etc.) are also subject to a transaction-based fee at a rate set forth in the Quote under “Systum Platform™ Fee.”  Customer covenants and agrees that while Customer is using the Service all transactions shall be processed using SystumPay™ or the Systum Platform™ and will thus be subject to the applicable transaction-based fees.  Breach of this obligation will be a material breach, and Customer will remain liable for the transaction fees applicable to transactions that Customer fails to process using the Service or otherwise fails to report to Systum.        

Suspension for Delinquent Account. Systum reserves the right to suspend Customer’s and any Customer Affiliates’ access to or use of the Service or Support Services if any payment is due but unpaid but only after Systum has provided Customer a delinquency notice, and at least fourteen (14) days have passed since the transmission of the notice. Customer agrees that Systum shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension pursuant to this Section.

7.2.     Suspension for Ongoing Harm. Systum may with notice to Customer suspend access to the Service if Systum reasonably concludes that Customer’s Service is being used to engage in denial of service attacks, spamming, or illegal activity or use of Customer’s Service is in breach of the Use Restrictions in Section 2.3 or is otherwise causing ongoing harm to Systum or others. Any suspension under this section will not excuse Customer from Customer’s obligation to make payments otherwise due.

7.3.     Termination for Cause, Expiration. Either party may immediately terminate this Agreement and all Quotes/Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be as set forth in Section 7.4. Upon termination or expiration of this Agreement, Customer will have no right to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, then Systum shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of Systum’s breach of this Agreement, then Customer shall be entitled to a refund of the pro rata portion of any unused SystumHDM™ subscription fees stated in the most recent Quote/Order Form paid by Customer to Systum under this Agreement for the terminated portion of the Term.

7.4.     Notice. Any legal notice required under this Agreement shall be provided to the other party in writing. If Customer has a legal dispute with Systum or if Customer wishes to provide a notice under the Indemnification Section of this Agreement, or if Customer becomes subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to: Systum Inc., 71 Stevenson Street, San Francisco, CA 94105 Attention: General Counsel, Legal Department, with a copy to legal@systum.com. Systum may send any notice to Customer via the administrator account for the dashboard of the Service.

  1. Modifications; Discontinuation of Service.

8.1      To the Service. Systum may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications.

8.2      To Applicable Terms. If Systum makes a material change to these Terms of Service then Systum will notify Customer by either sending an email to the notification email address or posting a notice to the administrator on the dashboard for the Service. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Systum via legal@systum.com within thirty (30) days after receiving notice of the change. If Customer notifies Systum as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then current subscription term for the affected service(s). If the affected service(s) is renewed, it will be renewed under the then-current Terms of Service.  Changes to Third Party Terms will be governed by the change and notice provisions of such Third Party Terms.

  1. Choice of Law; Waiver; Severability; Publicity and Other Terms.

9.1      Waiver. The failure of a party to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision.

9.2      Complete Agreement. The Terms of Service and the documents it incorporates by reference constitute the entire agreement between Customer and Systum and govern your use of the Service, superseding any all prior negotiations, discussions, undertakings, and agreements between you and Systum (including, but not limited to, any prior versions of the Terms of Service). If any of the provisions of the Terms of Service are declared to be invalid, such provisions will be severed and the other provisions hereof will remain in full force and effect. Customer affirms and agrees that it is not relying on any facts, assumptions, statements, promises, materials or representations not expressly set forth in the Agreement, has had an opportunity to make due inquiry of Systum and has made an independent investigation of the suitability of using Systum for its business needs on the terms and conditions set forth herein.

9.3      Relationship of the Parties. The parties to the Agreement are independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) create a principal-agent or employer-employee relationship, or (iii) give either party the authority to bind the other party to any contract with a third party.

9.4      Financial Responsibility. Customer will bear all of its own expenses in connection with the performance of the Agreement (including, for the avoidance of doubt any Third Party Terms) and will not be entitled to reimbursement of any such expenses by Systum.

9.5      Assignment and Delegation. Customer may not assign this Agreement without the prior written consent of Systum. Systum may assign the Agreement in whole or in part upon prior written notice to Customer.

9.6      Governing Law. These Terms of Service are governed by the substantive and procedural laws of the State of California and each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco or Santa Clara counties in California in any dispute arising out of or relating to this Agreement. The Uniform Computer Information Transactions Act does not apply to these Terms of Service.

9.7      Injunctive Relief. Notwithstanding anything to the contrary set forth in this Agreement, Systum may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief).

9.8      Attorney’s Fees. If it is necessary for Systum to retain the services of an attorney or attorneys to enforce the Terms of Service or to file an action to enforce any of the terms, conditions, or rights contained herein, or to defend any action, if Systum prevails in any such action, Systum will be entitled to recover from Customer its reasonable fees for attorneys and expert witnesses, plus such court costs and expenses as may be fixed by any arbitration panel or court of competent jurisdiction.

9.10    Publicity. Systum may list Customer’s name and logo/trademark on its website or in marketing communication listing its customers. Subject to Customer’s consent, not to be unreasonably withheld, Systum may use Customer’s name, logo, basic identifying information and non-confidential business, account and Service performance data in case studies and white papers for marketing purposes.

9.11    Credit/Debit Card Processing. The agreed base rates and fees applicable to all Credit/Debit Card processing functionality of the Service are stated in Customer’s Quote / Order Form. Certain additional fees may become payable by the Customer from time to time based on the Customers use of those additional services. A description and the applicable rates and fees for such additional services are found in Exhibit A hereto, or in the Systum Pay™ materials furnished to Customer, all of which are incorporated by reference.

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This Systum® Acceptable Use Policy (“AUP”) describes activities that are prohibited in connection with your use of the Service.

For the purposes of this AUP, “Materials” means any Customer Data, photos, images, videos, graphics, written content, audio files, code, information, data or other content uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account.

The following activities are prohibited:

  1. Child Exploitation: You may not offer goods or services, or post or upload Materials that exploit or abuse children, including but not limited to images or depictions of child abuse or sexual abuse, or that present children in a sexual manner.
    2. Harassment, Bullying, Defamation and Threats: You may not offer goods or services, or post or upload Materials that harass, bully, defame or threaten a specific individual.
    3. Hateful Content: You may not offer goods or services, or post or upload Materials, that condone or promote violence against people based on race, ethnicity, color, national origin, religion, age, gender, sexual orientation, disability, medical condition or veteran status.
    4. Illegal Activities: You may not offer goods or services, or post or upload Materials, that contravene or that facilitate or promote activities that contravene, the laws of the jurisdictions in which you operate or do business.
    5. Intellectual Property: You may not offer goods or services, or post or upload Materials that infringe on the copyright or trademarks of others.
    6. Malicious and Deceptive Practices: You may not use the Service to transmit malware or host phishing pages. You may not perform activities or upload or distribute Materials that harm or disrupt the operation of the Service or other infrastructure of Systum or others, including Systum’s third party providers. You may not use the Service for deceptive commercial practices or any other illegal or deceptive activities.
    7. Personal and Confidential Information: You may not post or upload any Materials that contain personally identifiable information, sensitive personal information, or confidential information, such as credit card numbers, confidential national ID numbers, or account passwords unless you have consent from the person to whom the information belongs or who is otherwise authorized to provide such consent.
    8. Self-Harm: You may not offer goods or services, or post or upload Materials that promote self-harm.
    9. Spam: You may not use the Service to transmit unsolicited commercial electronic messages.
    10. Terrorist Organizations: You may not offer goods or services, or post or upload Materials that imply or promote support or funding of, or membership in, a terrorist organization.
    11. Using the Service in excess of Standard Deployment Limits if You are not licensed for Premium Deployment.

We may, at any time and without notice, remove any Materials, and suspend or terminate your Account or your access to the Service if you engage in activities that violate the letter or spirit of this AUP, including activities outside of your use of the Service.

This list of prohibitions provides examples of prohibited conduct and is not intended to be a complete or exclusive list of all prohibitions. Engaging in any activity that, in Systum’s sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Service, Systum’s business, operations, reputation, goodwill, customers and/or customer relations, or the ability of Systum’s customers to effectively use the Service is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate the Terms of Service or the AUP. In addition, the failure of Customer to cooperate with Systum in correcting or preventing violations by anyone associated with Customer constitutes a violation of this AUP. Without limiting the rights and remedies available to it, Systum reserves the right in its sole discretion, to suspend or terminate Customer’s access to its account and the Service, with or without notice, and to take any other action that Systum determines in its sole discretion is necessary as a result of any behavior by Customer that is illegal, inappropriate, disruptive to this website, the Service, or to any other user of this website or the Services, or which otherwise breaches these Terms. Systum may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required, or otherwise in Systum’s sole discretion, Systum will cooperate with law enforcement agencies in any investigation of alleged illegal activity conducted using the Service.

Systum may modify this AUP at any time by posting a revised version at https://www.systum.com/terms. By continuing to use the Services or access your Account after a revised version of the AUP has been posted, you agree to comply with the latest version of the AUP. In the event of a conflict between the AUP and the Terms, this AUP will take precedence, but only to the extent required to resolve such conflict. Capitalized terms used but not defined in this AUP shall have the meanings set forth in the Terms of Service.

 

EXHIBIT A

 

ADDITIONAL CREDIT CARD PROCESSING RATE / FEES

1. SystumPay Additional Fees

 

 

 

 

 

Credit Card Fees

CC Charge Backs

 

$25.00

 

Per Item

 

Non-Receipt of PCI Data Validation

 

$25.00

 

Per Month

 

AVS- Electronic

 

$0.05

 

Per Item

 

Address Verification – Voice

 

$2.50

 

Per Item

 

Voice Authorization

 

$2.50

 

Per Item

 

ARU Authorization

 

$0.75

 

Per Item

2. PaySafe Additional Fees

 

 

 

 

 

Additional Charges

CC Charge Backs

 

$25.00

 

Per Item

 

Retrieval fee

 

$10.00

 

Per Item

 

 

EXHIBIT B

 

SystumGo™ Guided Implementation Program

From time to time, Systum may make available various implementation guides and tools to its Customers to aid in the initial installation, configuration, and launch of the Service (the “SystumGo™ Playbook”).

The SystumGo™ Playbook generally outlines the steps, tasks and responsibilities for an effective Service implementation, including modules for Activation, Data Importation and Configuration, Website Set-Up and Testing, which modules will be furnished to Customer as the implementation process progresses.

In addition to the SystumGo Playbook, at Customer’s request to participate in the Guided Implementation Program, and payment of any fees due in connection therewith, Systum will make available various personnel it deems appropriate to aid Customer in the Service implementation process, as outlined in the SystumGo Playbook or otherwise in a manner as may be mutually agreed. Unless Systum and Customer enter into a separate Professional Services Agreement, the SystumGo™ guided implementation program is provided strictly on an “as-is” and “as-available” basis, “with all faults.” In any event, Customer remains responsible for their own Service implementation and the use of the SystumGo guided implementation and/or the SystumGo Playbook does not assure any result, benefit or outcome.

To the extent Customer chooses to furnish any information, data, passwords, customer and business information it may choose to disclose to Systum in connection with using, and otherwise permitting Systum to perform its role in the SystumGo guided implementation, Customer represents and warrants that it has the right to do so. Such information will be treated subject to the Systum Privacy Policy.  Customer shall indemnify and hold Systum harmless from any claims, liabilities, losses etc. of Customer or any person or entity that arise in connection with the Customer’s use of the SystumGo Playbook, Customer furnishing or disclosing any data, information or materials to Systum personnel, and Systum’s acts and omissions related to the Guided Implementation Program