Docyt Accounts Payable – Terms of Service

Last Updated: May 26, 2021

1. Docyt Accounts Payable Terms of Service

1.1 Definitions:

1. The terms “we,” “us,” and “our” mean Docyt Inc, its successors and assigns.
2. The terms “you,” “your,” “customer,” and “organization” mean any person, organization, and/or legal entity who accepts Docyt Services Agreement.
3. “Accounts Payable Service” means the services provided by Docyt Inc which include bill indexing and document management, bill payment workflow, synchronization of data with accounting software, and Data Entry Service.
4. “Payee” means the person or entity to which you wish a bill payment to be directed.
5. “Payment Account” means the bank account(s) from which bill payments will be debited or credits delivered, as applicable.
6. “Payment Instruction” means the information provided by you to Docyt Inc for a bill payment to be made to the Payee.
7. “Service” means the bill payment services provided to you by Docyt Inc.
8. “Vendor” means your supplier, contractor, or third-party entity, who has sent you a bill or invoice for their services, which you intend to pay using Docyt Accounts Payable Service, or whose bills, invoices, statements

1.2 General Description of Service:

Docyt Inc provides individuals and businesses with automated and paperless bill management services. A user may purchase one or more of Docyt Inc’s services through a Docyt account. These services include, but are not limited to, Accounts Payable Service, Paper Check Print and Mail Service, Business Document Management, Family Document Management. To use the Service, you must provide us the bank routing number and bank account number for your checking account(s) (“Payment Account”). When you provide Payment Account information, you agree to the following:

1. You have authority to disclose the Payment Account information and, if applicable, to bind your organization;
2. You authorize the printing and mailing of paper checks for the purpose of bill payment to your Vendors, as applicable, from the Payment Account in accordance with instructions entered in the Docyt app or website, and, if necessary, the initiation of adjustments for any transactions debited or credited in error;
3. You acknowledge that transactions initiated to the Payment Account must comply with the provisions of U.S. law; and

Your authorization will remain in effect until not later than thirty (30) days after Docyt Inc receives written notice from you of your desire to cancel.

If you designate yourself or any other person as a “Payer” in a Docyt account, you thereby represent and warrant that each such Payer is authorized to initiate debit or credit entries, as applicable, to the Payment Account under the rules of the bank holding the Payment Account (subject to any approvals set up in the Docyt account).

1.3 Information Verification:

You may not be permitted to participate in the Service if we cannot verify your or your Vendor’s identity, financial, or other necessary information. By entering into the Agreement, you authorize us, directly or through third parties, to make inquiries necessary to validate your Vendor’s identity or financial account & condition, including, but not limited to:

1. Requiring you or others to confirm ownership of an e-mail address and Payment Account;
2. Verifying your Vendor’s information against third party databases or through other sources; and
3. Undertaking any other action necessary to verify your Vendor’s information, including but not limited to obtaining details on IRS W-9 form.
4. We may also obtain financial information regarding your Payment Account from a financial institution solely to ensure that there are sufficient funds to pay your Vendors as per your Payment Instruction and to avoid overdraft fees.
5. Notwithstanding any steps taken to verify such information, you hereby represent and warrant on behalf of yourself and any person or organization for which you act that you have the right, power and authority to conduct and authorize transactions you make pertaining to the Payment Account and that all information you provide to us is complete, accurate, and up to date. If you use the Check Writing Service with Docyt, you further agree to the terms below.
6. We use third-party services (“Partner”) to write paper checks on your behalf. By using the Service, you grant us and our Partners the right, power, and authority to generate, print, and write paper checks on your behalf and to access and transmit your personal and financial information from the relevant financial institution. You agree to your personal and financial information being transferred, stored, and processed by us and our Partner. All liabilities arising out of use of these services will be governed by limitations of liability as specified in the limited warranty, section 1.15.

1.4 You agree to create a Dwolla Account:

In order to use the ACH payment functionality of our application, you must open a “Dwolla Platform” account provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in the Dwolla account are held by Dwolla’s financial institution partners as set out in the Dwolla Terms of Service. You authorize us to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla account through our application, and Dwolla account notifications will be sent by us, not Dwolla. We will provide customer support for your Dwolla account activity, and can be reached at support@docyt.com

1.5 Vendor Setup:

To help you in using the service, Docyt will manage a list of your third-party vendors (“Vendors”), extracted from your bills, invoices, receipts, and statements.

You authorize us to save, review, process, and analyze the bills, receipts, invoices, statements, and any other related documents from your Vendors, for the purpose of extracting data, for the purpose of training our software algorithms to recognize data in such documents, for the purpose of generating a payment in paper check or electronic form, and for any other purpose as needed to fulfill your Payment Instructions.

Docyt will use extracted data to save the Vendor name, remittance address, and financial information. It is your responsibility to ensure the accuracy of such remittance address and current payment information for each Vendor.

You are responsible for verifying the accuracy of the foregoing Vendor information prior to scheduling bill payments, and Docyt will have no liability for losses or damages due to your or your Vendor’s actions or inactions. If you input a Vendor’s bank routing number and bank account number on behalf of a Vendor, you represent and warrant that you have obtained from the Vendor the authorizations set forth in Section 1.2 above.

If you are a Vendor in Docyt receiving money from another Business in Docyt, you expressly authorize our service provider, Dwolla, Inc. to originate credit transfers to your financial institution account. You authorize us to collect and share with Dwolla your personal information including full name, email address and financial information, and you are responsible for the accuracy and completeness of that data. Dwolla’s Privacy Policy is available here.

1.6 Scheduling Bill Payment:

Payments made through the Service require sufficient time for your Payee to receive your payment and credit your account accordingly. To make a check payment, use the Docyt app to select the date (“Process Date”) on which Docyt will direct the processing and delivery of a paper check to pay a bill or an invoice. The Docyt app will indicate the status and Process Date for each payment. We will use commercially reasonable efforts to issue paper check within one to two business days following the Process Date, depending on the size of the payment and subject to “payment review,” as described in Section 1.12 below.

You will be solely responsible for scheduling payments and selecting a Process Date for each payment that allows sufficient time for the payment to be delivered on or prior to the bill’s due date. Typically, it takes two to three full business days after the Process Date to post an electronic payment and five full business days to deliver a check payment within the territorial United States by first class mail. Except as provided in Section 1.15 below, you shall be solely responsible for all penalties, interest charges, and other late payment fees associated with payments that are delivered after the due date.

1.7 Payment Method:

Docyt Accounts Payable Service currently only allows payments by paper checks. We reserve the right to make use of third parties to provide the Service. We may, in our sole discretion, impose limits on the amount of money sent through the Service, on a per transaction or a cumulative basis, and change those limits at any time.

1.8 Processing Bill Payments:

You hereby authorize Docyt Inc to debit your Payment Account and remit funds in accordance with your Payment Instructions through paper checks. You also give Docyt the right to resubmit any checks that are returned for insufficient or uncollected funds, or any other reason.

Without limiting any other available remedies, if any check from your Payment Account is returned because of insufficient funds or any other reason, you must reimburse Docyt for any corresponding payment amount immediately upon demand, plus processing fees, plus any bank fees, charges or penalties for return items, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, and other costs of collection as allowed by law. You accept any liability you or Docyt may incur which is caused by your payment instructions, and you shall be solely responsible for any penalties, charges, and other fees you or Docyt incur as a result of a failure to maintain sufficient funds in the Payment Account.

Docyt reserves the right to suspend or cancel any payments if your Docyt account is not in good standing.

If a bill payment contains an image attachment, statement stub, or any full-page attachments, Docyt will make commercially reasonable efforts with our partners to print and include such attachments and stub. You agree that Docyt shall not have any liability for the legibility or printing quality of such attachments, as it depends upon the resolution and image compression of the original submitted attachments.

1.9 Payment Authorization:

By providing us with the names and account information of Payees to whom you wish to direct payments, you authorize us to follow the Payment Instructions that we receive from you. In order to process check payments more efficiently and effectively, we may submit payments to the best-known Payee address. When we receive a check payment instruction, you authorize us to write a paper check from your Payment Account and remit funds on your behalf.

1.10 Returned Transactions:

Payees or the United States Postal Service may return payments for various reasons such as, but not limited to, Vendor’s forwarding address expired, invalid bank routing number, invalid bank account number, Vendor remittance address is not correct, Payee is unable to identify an account, or a Payee account is paid in full. In addition, a Payee may refuse to accept a payment, and Docyt will have no liability for any resulting loss or damage. All such returned checks will be sent back to your organization address on file with Docyt, which is also printed on checks as sender address. Docyt will use commercially reasonable efforts to provide you with notice of returned payments and will offer you through the Docyt app the choice to void and reissue the payments. You agree that Docyt shall not have any liability for any such returned payments.

1.11 Prohibited Payments:

Docyt may refuse to issue a payment to any Payee in its reasonable discretion. The Service is not intended for payment of alimony, child support, or other court-directed or government payments, fines or penalties or payments to settle securities transactions. Docyt will use commercially reasonable efforts to provide notice promptly if it decides to refuse to issue a payment. This notification is not required if an attempt is made to make a payment that is prohibited by law or the Agreement.

1.12 Payment Review:

Docyt reviews all payments for risk and for compliance with law, including without limitation anti-money laundering laws and regulations issued by the Office of Foreign Asset Control. In its discretion, Docyt may place a hold on a payment for as long as reasonably required to conduct an appropriate inquiry regarding you, the Vendor, the Customer, a bill, payment history, and other relevant circumstances and factors. Depending on the results of this review, Docyt may clear the payment, reverse the payment, or hold the payment pending instructions from a government agency. At any time, a payment processed through your Payment Account may be reversed.

1.13 Payment Cancellation Requests:

Scheduled payments may be cancelled, rescheduled or modified by following the directions on the Docyt app. There is no charge for canceling, rescheduling or modifying a payment before it is processed. However, once Docyt has begun processing a check payment, it cannot be cancelled, rescheduled or modified, and you must submit a stop payment request.

1.14 Stop Payment Requests:

Docyt’s ability to process a stop payment request depends on whether or not a check has been printed and mailed. Docyt must have a reasonable opportunity to act on any stop payment request after a payment has been processed. You must contact Docyt’s customer support to stop any payment that has already been processed. Although Docyt will use commercially reasonable efforts to accommodate stop payment requests, Docyt will not have any liability for failing to do so. Stop payment requests will incur the charges set forth on the Docyt website.

1.15 Limited Warranty:

We will use commercially reasonable efforts to make all payments in accordance with your Payment Instructions. If we cause an incorrect amount of funds to be removed from your Payment Account or cause funds from your Payment Account to be directed to a Payee that does not comply with the Payment Instructions, or if we fail to issue a payment (each an “Error”), Docyt Inc shall use commercially reasonable efforts to return the improperly transferred funds to the Payment Account, and direct any previously misdirected payments to the proper Payee, provided that the payment was scheduled correctly and in accordance with the Agreement.

Notwithstanding the foregoing, we shall not incur any liability for any Error resulting from any of the following circumstances: (i) there are insufficient funds in the Payment Account; (ii) the ACH Network, our check printing partner or other payment processing center is not working properly; (iii) the Payment Account information or the Payment Instructions are inaccurate, incomplete or out of date; or (iv) as a result of payment review as set forth in Section 1.12.

If you believe you are entitled to payment under this Section 1.15, you must notify Docyt customer support as soon as you learn of the Error (and in no event later than thirty (30) days after the earlier of when the payment is due or made). You must cooperate fully with Docyt’s remediation efforts by contacting the Payee, contacting your bank, contacting the Payee’s bank, making information or funds available, executing all documents and taking all other actions reasonably requested to correct or mitigate the Error.

THE FOREGOING SETS FORTH THE SOLE AND EXCLUSIVE REMEDY AND OUR FULL AND EXCLUSIVE OBLIGATION WITH RESPECT TO ANY BREACH OF THIS LIMITED WARRANTY.

1.16 Service Level Terms:

Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will set up a Docyt account to administer the provided Services.

1.17 Support Terms:

Subject to the terms hereof, Company will provide Customer with reasonable technical support services.

1.18 International Payments: Docyt’s Role

Docyt acts as a facilitator of fund transfer for international payments, and is not an “agent of payee” or a “money transmitter” or a “payment processor”. Except for our limited role in processing or receiving information related to payments that you authorize or initiate and transmit, we are not involved in any underlying transaction between you, any other user, or any service providers and you are solely responsible for resolving any disputes concerning any underlying transaction. We are not a bank and do not offer banking services. We may use the services of one or more third parties to provide the Services. We do not guarantee payment on behalf of any user. We are not a selling agent in connection with any sale or purchase by you of goods or services to any person.

1.19 International Payments: CurrencyCloud

Payment services for Docyt are provided by The Currency Cloud Inc. which operates in partnership with Community Federal Savings Bank (CFSB) to facilitate payments in all 50 states in the US. CFSB is registered with the Federal Deposit Insurance Corporation (FDIC Certificate# 57129). The Currency Cloud Inc is registered with FinCEN and authorized in 39 states to transmit money (MSB Registration Number: 31000160311064). Registered Office: 104 5th Avenue, 20th Floor, New York , NY 10011.

International Payment services for Docyt Inc are provided by The Currency Cloud Limited. Registered in England No. 06323311. Registered Office: Stewardship Building 1st Floor, 12 Steward Street London E1 6FQ. The Currency Cloud Limited is authorized by the Financial Conduct Authority under the Electronic Money Regulations 2011 for the issuing of electronic money (FRN: 900199). In order to use the international payment functionality of our application, you must accept the Currency Cloud Terms of Service and Privacy Policy.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.] Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

2.5 Customer shall not give or make available passwords or other means of accessing the Service to any unauthorized individuals. If you give someone your Docyt account information and password, you are authorizing that person to use the Docyt app and Web Site, and any person or organization for which you act are responsible for all transactions that person performs, even if you did not want them performed, and even if they are fraudulent. For your protection, sign off after every Docyt session and close your app or web browser. You must notify Docyt Customer Support immediately upon any suspicion that a password has been lost or stolen or that someone has attempted or may attempt to make payments or otherwise use the Web Site without authorization. Docyt Inc will not have any liability to you for any unauthorized payment or transfer made using your password that occurs before you have notified Docyt Support of possible unauthorized use and we have had a reasonable opportunity to act on that notice. Accordingly, you should log into your Docyt account regularly and review your transaction history for unauthorized transactions or access. By using the Docyt app or Web Site, you acknowledge and agree that this Agreement sets forth security procedures that are commercially reasonable. You agree to be bound by transactions initiated in compliance with these procedures, whether or not authorized, unless you have given us prior notice of possible unauthorized use as described above and we have had a reasonable opportunity to act on such notice.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2 Customer shall own all right, title and interest in and to the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze analytics, metadata and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4. PAYMENT OF FEES

4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”) including, but not limited to: (i) Docyt Platform fees; (ii) Check writing fees; and (iii) Setup and other special services.

Any applicable fees will be charged regardless of whether the Service was used during the billing cycle. We reserve the right to change the amount of any fees from time to time, at our sole discretion. We will post the revised fees on the Docyt website and notify you by email in advance of the effective date of such changes. If the change in fees is not acceptable, your sole and exclusive remedy shall be to stop using the Service. By continuing to use the Service after the fee increase, you accept all changes in service fees. Service fees are not refundable.

4.2 If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

4.3 Company may choose to bill the Customer through the credit card provided in Exhibit D – Docyt Services Order Form, or through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

5. TERM AND TERMINATION

5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as selected by the customer during setup of services, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. [Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data.] All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6. WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, AND SECTION 1.15 ABOVE, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. INDEMNITY

Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

8. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, AND EXCEPT FOR LIMITED WARRANTY (AS SPECIFIED IN SECTION 1.15 ABOVE), COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.