This Merchant Agreement (this “Agreement”) is entered into by and between Upflow Inc., a Delaware corporation (“Upflow”), and Merchant. “Merchant” means the company or other legal entity that entered into an Order Form (as defined below) or through the Upflow website referencing this Agreement. You represent that you have the authority to bind Merchant to the terms of this Agreement. If you do not agree
to the terms of this Agreement, or if you are not authorized to accept this Agreement on behalf of your organization or entity, do not access or use any of the Upflow Products.
Upflow has developed and makes available a SaaS-based product that uses analytics and process automation to manage a Merchant’s invoices, provides additional payment methods and other services to improve cash flow management (the “Upflow Product”). Merchant desires to use the Upflow Product to augment its cash flow management.
1.1 The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation (including Upflow’s Application Protocol Interface (API) documentation), and user manuals made available by Upflow for the Upflow Product.
“Order Form” means an order form, quote or other similar document that sets forth the specific Upflow Product and pricing therefore, and that references this Agreement and is executed by a Merchant.
2. Upflow Product
2.1 Provision of Upflow Product. Subject to the terms and conditions of this Agreement, Upflow will make the Upflow Product available to Merchant pursuant to this Agreement and the applicable Order Form, and hereby grants Merchant a non-exclusive right to access and use the Upflow Product to augment its cash flow management.
2.2. Data Security.
(a) Upflow will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Merchant data uploaded by or on behalf of Merchant to the Upflow Product (“Merchant Data”); (ii) protect against threats or hazards to the security or integrity of Merchant Data; and (iii) prevent unauthorized access to Merchant Data. In furtherance of the
foregoing, Upflow will maintain the administrative, physical and technical safeguards to protect the security of Merchant Data that are described here: https://upflow.io/en/security/. Upflow’s security safeguards include measures for preventing access, use, modification or disclosure of Merchant Data by Upflow
personnel except (a) to provide the Upflow Product and prevent or address service or technical problems, (b) as required by applicable law, or (c) as Merchant expressly permits in writing or under this Agreement. Upflow will not materially diminish the protections provided in this Section during the term of this Agreement.
(b) To the extent that Upflow processes any Personal Data (as defined in the DPA referenced below) contained in Merchant Data that is subject to the GDPR (as defined in the DPA), on Merchant’s behalf, in the provision of the Upflow Product, the parties will execute a Data Processing Addendum ("DPA"), and attach such DPA to this Agreement.
2.3 Merchant Limitations. The rights granted herein are subject to the following restrictions (the “License Restrictions”). Merchant will not directly or indirectly:
(a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Upflow Product;
(b) attempt to probe, scan or test the vulnerability of the Upflow Product, breach the security or authentication measures of the Upflow Product without proper authorization or wilfully render any part of the Upflow Product unusable;
(c) use or access the Upflow Product to develop a product or service that is competitive with Upflow’s products or Product or engage in competitive analysis or benchmarking;
(d) transfer, distribute, resell, lease, license, or assign Upflow Product or otherwise offer the Upflow Product on a standalone basis; or
(e) otherwise use the Upflow Product outside the scope expressly permitted hereunder and in the applicable Order Form.
2.4 Merchant Responsibilities.
(a) Merchant acknowledges that Upflow’s provision of the Upflow Product is dependent on Merchant providing all reasonably required cooperation (including the prompt provision of access to Merchant’s applications, software systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Merchant will provide all such
cooperation in a diligent and timely manner.
(b) Merchant will (i) be responsible for all use of the Upflow Product under its account (whether or not authorized), (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Upflow Product and notify Upflow promptly of any such unauthorized access or use and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Upflow Product, including as set forth in the Documentation. Merchant will be solely responsible for its failure to maintain such equipment, software and services, and Upflow will have no liability for such failure (including under any service level agreement, if applicable). In addition, Merchant will be responsible for ensuring that its systems (e.g., APIs) have sufficient bandwidth to use the Upflow Product.
(c) Merchant will not use the Upflow Product to transmit or provide to Upflow any financial or medical information of any nature, or any sensitive personal data (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers and credit card numbers).
2.5 Affiliates. Any Affiliate of Merchant will have the right to enter into an Order Form executed by such Affiliate and Upflow and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Merchant in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Merchant entity that executes such Order Form, and no other Merchant entity has any liability or obligation under such Order Form.
3.1 Fees. Merchant will pay Upflow the fees set forth in the Pricing Schedules (set forth here: https://upflow.io/en/pricing/), or an Order Form. To the extent that parties agree to payment terms different from the Pricing Schedules, the parties will use an Order Form, and attach such Order Form to this Agreement. Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro ratable for partial months, and fees paid are non-refundable.
3.2 Late Payment. Upflow may suspend access to the Upflow Product immediately upon notice if Merchant fails to pay any amounts hereunder at least five (5) days past the applicable due date.
3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Merchant will be solely responsible for payment of all Taxes, except for those taxes based on the income of Upflow. Merchant will not withhold any taxes from any amounts due to Upflow.
4. Proprietary Rights and Confidentiality
4.1 Proprietary Rights. As between the parties, Upflow exclusively owns all right, title and interest in and to the Upflow Product and Upflow’s Confidential Information, and Merchant exclusively owns all right, title and interest in and to the Merchant Data and Merchant’s Confidential Information.
4.2 Feedback. Merchant may from time to time provide Upflow suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Upflow Product. Upflow will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Upflow will have the full,
unencumbered right, without any obligation to compensate or reimburse Merchant, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.3 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
4.4 Machine Learning. Merchant acknowledges that a fundamental component of the Upflow Product is the use of machine learning for the purpose of improving and providing Upflow’s products and services. Notwithstanding anything to the contrary, Merchant agrees that Upflow is hereby granted the right to use (during and after the term hereof) invoice and accounts receivable information submitted hereunder to train its algorithms internally through machine learning techniques for such purpose.
4.5 Performance Metrics. Merchant further agrees that Upflow has the right to aggregate, collect and analyze data and other information relating to the performance of the Upflow Product and shall be free (during and after the term hereof) to (i) use such data and other information to improve Upflow’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Merchant or any individual.
5. Warranties and Disclaimers
5.1 Upflow. Upflow warrants that it will, consistent with prevailing industry standards, perform the Upflow Product in a professional and workmanlike manner and the Upflow Product will conform in all material respects with the Documentation. For material breach of the foregoing express warranty, Merchant’s exclusive remedy shall be the re-performance of the deficient Upflow Product or, if Upflow cannot re perform such deficient Upflow Product as warranted, Merchant shall be entitled to terminate the applicable Order Form in accordance with Section 8.2(a) and recover a pro-rata portion of the fees paid to Upflow for such deficient Upflow Product.
5.2 Third Party Services and Integrations. Upflow uses third party service providers, for the implementation of the Services, including integration partners and payment partners (“Third Party Providers”). In the event of unavailability of the Service due to these Third Party Providers, Upflow will make its best commercial effort to maintain the Services pursuant to this agreement. However, under no circumstances Upflow may be considered liable for any failure to perform the Services due to failings due to Third Party Providers. If Merchant uses any Third Party Providers or third-party service or applications, such as a service that uses a Upflow API, with the Upflow Product: (a) Upflow will not be responsible for any act or omission of the third-party, including the third-party’s access to or use of Merchant Data; and (b) Upflow does not warrant or support any service provided by the third-party
5.3 Merchant. Merchant warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Upflow to use the same as contemplated hereunder.
5.4 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. MERCHANT ACKNOWLEDGES THAT THE UPFLOW PRODUCT IS BASED ON AUTOMATION WORKFLOWS, AND ARE INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, MERCHANT’S FINANCING NEEDS. THE UPFLOW PRODUCT MAY CONTAIN BUGS, MAKE ERRORS OR MISINTERPRET IT ISSUES, AND IN SUCH CASES UPFLOW CAN DISENGAGE ANY FUNCTIONALITY OF THE UPFLOW PRODUCT AT CUSTOMER’S REQUEST. UPFLOW DOES NOT REPRESENT OR WARRANT THAT ANY OR ALL FINANCING AND/OR INVOICE REQUIREMENTS WILL BE RESOLVED OR THAT HUMAN INTERVENTION WILL NOT BE REQUIRED TO RESOLVE A FINANCING AND/OR INVOICE REQUIREMENT.
5.5 BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH UPFLOW WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY UPFLOW. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. UPFLOW DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR UPFLOW MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.
6.1 Indemnity by Upflow. Upflow will defend Merchant against any claim, demand, suit, or proceeding (“Claim”) made or brought against Merchant by a third party alleging that the use of the Upflow Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Merchant for any damages finally awarded against (or any settlement approved by Upflow) Merchant in connection with any such Claim; provided that (a) Merchant will promptly notify Upflow of such Claim, (b) Upflow will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Upflow may not settle any Claim without Merchant’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Merchant of all related liability) and (c) Merchant reasonably cooperates with Upflow in connection therewith. If the use of the Upflow Product by Merchant has become, or in Upflow’s opinion is likely to become, the subject of any claim of infringement, Upflow may at its option and expense (i) procure for Merchant the right to continue using and receiving the Upflow
Product as set forth hereunder; (ii) replace or modify the Upflow Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. Upflow will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Merchant; (B) use of the Upflow Product by Merchant not in accordance with this Agreement; (C) modification of the Upflow Product by any party other than Upflow without Upflow’s express consent; (D) Merchant Confidential Information or (E) the combination, operation or use of the Upflow Product with other applications, portions of applications, product(s) or services where the Upflow Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Upflow’s sole and exclusive liability and obligation, and Merchant’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
6.2 Indemnification by Merchant. Merchant will defend Upflow against any Claim made or brought against Upflow by a third party arising out of the Excluded Claims, and Merchant will indemnify Upflow for any damages finally awarded against (or any settlement approved by Merchant) Upflow in connection with any such Claim; provided that (a) Upflow will promptly notify Merchant of such Claim, (b) Merchant will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Merchant may not settle any Claim without Upflow’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Upflow of all liability) and (c) Upflow reasonably cooperates with Merchant in connection therewith.
7. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OR THE LICENSE RESTRICTIONS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE
(12) MONTHS PRECEDING THE INCIDENT OR CLAIM. IN ADDITION, IN NO EVENT WILL UPFLOW BE LIABLE FOR ANY ACTS OR OMISSIONS OR ANY LIABILITY ARISING FROM THIRD PARTY PROVIDERS.
8.1 Term. The term of this Agreement will commence on the Effective Date of the initial Order Form, or as set forth in the Pricing Schedule, and continue until terminated as set forth below. To the extent the parties have signed an Order Form, the initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
8.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
8.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
9.1 Insurance. Upflow shall, during the term of this Agreement, maintain the required insurance policies covering its professional civil liability. It agrees to ensure that this insurance policy remains applicable for the lifetime of the Services.
9.2 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Upflow Product.
9.3 Publicity. Merchant agrees that Upflow may refer to Merchant’s name and trademarks in Upflow’s marketing materials and website; however, Upflow will not use Merchant’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Merchant’s prior written consent (which may be by email).
9.4 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement, provided that the other party provides written notice of any such assignment. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
9.5 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.6 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.7 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.8 Governing Law. This Agreement will be governed by the laws of the State of New York, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.9 Notices. Any notice required or permitted to be given hereunder will be provided to or from [email protected].
9.10 Entire Agreement. This Agreement comprises the entire agreement between Merchant and Upflow with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Upflow, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
9.11 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.12 Government Terms. Upflow provides the Upflow Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Merchant (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Upflow Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Upflow Product was developed fully at private expense.
9.13 Interpretation. For purposes hereof, “including” means “including without limitation”.