What We Do
Since 1989, Bottomline has been modernizing global business payments with connected solutions for more than 800,000 financial institutions and businesses in 92 countries.
Automate every step of your invoice-to-payment process
For Businesses
Digitize and automate AP processes with the most trusted solution for real estate
Centralize and automate all your payment creation, controls, and submissions
For Banks & Financial Institutions For Businesses
Make and receive secure digital payments conveniently through Paymode, the market leading B2B payments network trusted by over 550,000 member businesses.
Pay vendors through the largest B2B payments network to enhance working capital, prevent fraud, and reduce costs and processing time
Protect your business against fraud, get paid faster, and save time with enhanced remittance details
Boost revenue for your business and your customers with access to Paymode, our secure business payment network
Comprehensive connectivity to Swift and other domestic and global financial messaging networks
For Banks & Financial Institutions
Convert legacy financial message formats to modern message standards
Easily view analytics of financial messages with central repository
Stop payment fraud before it happens. Detect, investigate, and protect against internal and external threats
View, optimize, and forecast your cash position with all accounts connected in one solution
Own the primary customer relationship and grow business value across all business segments
Who We Serve
Join the many financial institutions and businesses that use Bottomline to pay and get paid. With solutions designed to modernize the payments landscape, we make complex business payments simple, smart, and secure.
Our Company
The information contained herein is proprietary and confidential to Nexus Systems.
The information contained in this document is proprietary and confidential to Nexus Systems.
updated 5.9.19
1. DEFINITIONS
All capitalized terms not defined in the Order Form or elsewhere in the Agreement shall have the meanings below.
1.1. “Affiliate” means, with respect to any person, any other person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, that person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
1.2. “Agreement” has the meaning given in the Order Form.
1.3. “Application” means Nexus’s proprietary NexusPayables application that is offered on a software-as-a-service basis, and all updates, upgrades and improvements thereto. Any other tool, feature, of function of the Application that is ordered by Company pursuant to an Order Form will be considered part of the Application. Any reference to the Application will exclude Third-party Content.
1.4. “Company or Client” has the meaning given in the Order Form.
1.5. "Company Data" means all electronic data or information submitted by Company or a User to or through the Application, and any other Company content, including any trademarks, trade names and logos.
1.6. “Confidential Information” means all written or oral information disclosed or made available by either Party to the other Party about its or a third party’s business affairs, products, intellectual property, trade secrets, and other sensitive or proprietary information, that has been identified as confidential or that, by the nature of the information or circumstances surrounding disclosure, ought reasonably to be treated as confidential.
1.7. “Functional Application” means the NexusPayables database is setup, standard settings, user group templates and workflow rule templates are provided, and access has been granted to the Company.
1.8. “Documentation” means Nexus’s standard user documentation for the Application provided to Company.
1.9. “Effective Date” has the meaning given in the Order Form.
1.10. “Feedback” has the meaning given in Section 5.3.
1.11. “HIPAA” has the meaning given in Section 7.3.
1.12. “Nexus” has the meaning given in the Order Form.
1.13. "Nexus Technology" means: (a) the Application, Documentation, and all other proprietary and Nexus technology (including audio and visual data and information), documents, software, hardware, products, processes, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information used or provided by Nexus in connection with the Application or Services; and (b) any modifications, improvements to, or derivative works of, any of the foregoing.
1.14. “Order Form” means Nexus’ standard order form, executed by both Parties, that includes, at a minimum, the applicable term, any Services ordered, and the fees and payment schedule. An Order Form may include a Statement of Work for Services (“SOW”).
1.15. “Party” and “Parties” each have the meaning given in the Order Form.
1.16. “Requirements of Law” means any law, ordinance, statute, treaty, rule, judgment, decree, regulation, official directive, consent, approval, authorization, order, or other determination or finding of any governmental authority applicable to or binding upon any person or to which such person is subject, whether federal, state, county, local, foreign, or otherwise, including the Bank Secrecy Act, as amended by the USA PATRIOT Act, the Trading With the Enemy Act, the International Emergency Economic Powers Act and related Executive Orders, the Foreign Corrupt Practices Act, the Federal Trade Commission Act, the Sarbanes-Oxley Act, the regulations administered by the Office of Foreign Assets Control of the U.S. Department of Treasury, and this Agreement.
1.17. "Services" means professional services (e.g., implementation, assessments, training), support and maintenance, and other client services provided by Nexus to Company pursuant to an Order Form and SOW.
1.18. “Term” has the meaning given in Section 10.1.
1.19. “Third-party Content” means text, graphs, tables, audio, images, video, and other forms of content from third parties that is licensed or otherwise made available or displayed by Nexus through certain features of the Application.
1.20. "User" means any employee, agent, consultant, contractor or other representative of Company (including a third-party vendor authorized by Company to submit invoices to Company through the Application) who is authorized by Company through the Application to access and use the Application on Company’s behalf.
2.1. Orders. These Terms and Conditions will be implemented pursuant to one or more Order Forms under which Nexus may agree to provide Company with access to the Application (including any add-on functionality ordered in such Order Form) and Services. Nexus is obligated to provide only the Application functionality and Services described in Order Forms and SOWs executed by both parties.
2.2. Timely Performance. Company acknowledges and agrees that the provision of the Application and timely performance by Nexus of the Services is dependent upon Company performing its obligations under this Agreement (including those specified as “Company Obligations” (or other similar heading) in any Order Form or SOW or in the Documentation or otherwise communicated to Company by Nexus), and that any delay or failure to perform by Company will extend the time for Nexus to perform.
2.3. Additional Services. Nexus will provide support in accordance with Nexus’ then-current support policies. Company may request for Nexus to provide training, additional support, or other Services related to Company’s use of the Application. Nexus agrees to provide such Services as are set forth in a mutually executed Order Form or SOW. If Company orders any training Services. Company will make best efforts to provide suitable training facilities and resources.
2.4. Changes to the Application. Nexus reserves sole control over its operation, maintenance, and management of the Application. Nexus reserves the right, in its sole discretion, to make any changes to the Application, including any updates, upgrades, and improvements thereto, that it deems useful to (a) maintain or enhance the quality of the Application, (b) improve cost efficiency or performance of the Application, (c) improve competitive strength, or (d) comply with applicable law.
3.1. Access Grant. Subject to Company’s compliance with the terms and conditions contained in this Agreement, Nexus hereby grants to Company a limited, non-exclusive, non-transferable right during the Term to permit only its Users to access the features and functions of the Application in accordance with this Agreement and the Documentation. Company may make a reasonable number of copies of the Documentation solely for Company’s internal use in connection with access and use of the Application. Nexus will use commercially-reasonable efforts to: make the Application available in accordance with the Service Level Agreement attached.
3.2. Users. Nexus shall provide each User a unique username and password to enable such User to access the Application. Nexus reserves the right to change or update these usernames and passwords in Nexus’s sole discretion from time to time. Each username and password may only be used to access the Application during one concurrent login session. Company acknowledges and agrees that only the User to which a username and password is assigned is entitled to access the Application with such username and password. Company must appoint an administrative user to provision and manage Company’s User Company is responsible for maintaining the confidentiality of all Users’ usernames and passwords and is solely responsible for all activities that occur under these usernames. Company will notify Nexus promptly of any actual or suspected unauthorized use of Company’s account, usernames or passwords, or any other breach or suspected breach of the Agreement. Nexus reserves the right to terminate any username and password which Nexus reasonably determines may have been used by an unauthorized third party or for an unlawful purpose. Any act or omission by a User which, if undertaken by Company, would constitute a breach of the Agreement, will be deemed a breach of this Agreement by Company.
3.3. Use Guidelines. Company will use the Application solely for its business purposes as contemplated by this Agreement and will not: (a) copy, modify, or duplicate the Application, or create any derivative work thereof; (b) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any component of the Application is compiled or interpreted for any purpose including, without limitation, (i) building a competitive product to the Application, (ii) building a product using similar ideas, features, functions, or graphics of the Application, or (iii) copying any ideas, features, functions, or graphics of the Application, and Company acknowledges that nothing in this Agreement will be construed to grant Company any right to obtain or use such source code; (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially-exploit or make the Application available to any third party, other than as expressly permitted by this Agreement; (d) interfere with or disrupt the integrity or performance of the Application or the data contained therein, or create an undue burden on the Application or the networks or services connected to the Application, including without limitation any external websites that contain Third-party Content and are linked to the Application; (e) attempt to gain unauthorized access to the Application or its related systems or networks; (f) remove, alter, or obscure any proprietary notices associated with the Application or Documentation or otherwise cover or obscure any page or part of the Application via HTML/CSS, scripting, or any other means; (g) without Nexus’s prior written consent, introduce software or automated agents or scripts to the Application to produce multiple accounts, generate automated searches, requests, and queries, or strip or mine data from the Application; (h) perform or publish any performance or benchmark tests or analyses relating to the Application or the use thereof; or (i) utilize the Application in order to (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, (ii) upload, send, or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive, or tortious material; or (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs. Company acknowledges that this Agreement grants certain rights to access the Application, as hosted by Nexus, but nothing herein may be construed to require delivery of a copy of the Application or to grant Company any right to obtain such a copy.
3.4. Company Data. Company will procure all rights and privileges to obtain and transfer the Company Data to Nexus under the terms of this Agreement. The provision of such Company Data to Nexus shall be in compliance with all applicable laws and regulations. Additionally, to the extent Company authorizes any third party to have access to Company Data through the Application, Company is solely responsible for such third party’s access to and use of the Company Data.
3.5. Company Obligations: Company and its Users must meet the minimum system standards set forth in the Documentation. Company is responsible for maintenance and management of its computer network(s), servers, software, and any equipment or services related to maintenance and management of the foregoing. Company is responsible for correctly configuring its systems in accordance with any instructions provided by Nexus, as may be necessary for provision of access to the features and functions of the Application. Company will ensure that each User has a user ID and an assigned password, each of which must be used to gain access to the Application. Company is responsible for adding and deleting Users, and for ID and password security and maintenance on the
3.6. Third-party Content. Certain tools and features of the Application, to the extent ordered by Company, will make Third-party Content available to Company through the Application. Because Nexus does not control such Third-party Content, Company agrees that: (a) Nexus is not responsible for any such Third-party Content; (b) Nexus does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and does not assume responsibility for unintended, objectionable, inaccurate, misleading, or unlawful Third-party Content. Nexus makes no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of Third-party Content or any products or services referenced thereby. Except where Company accesses any Third-party Content subject to a separate license agreement between Company and the provider of such Third-party Content, Nexus hereby grants Company a license to view, download, and print Third-party Content, subject to the following conditions: (a) Company may not modify or alter Third-party Content; (b) Company may not distribute, sell, rent, lease, license, or otherwise make Third-party Content available to others; (c) Company may not remove any copyright or other proprietary notices contained in any Third-party Content; and (d) Company may not copy or distribute any images, graphics, audio, or video in Third-party Content apart from their accompanying text. Nexus reserve the right to revoke the authorization to view, download, and print such Third-party Content at any time, and any such use shall be discontinued immediately upon notice from Nexus.
3.7. Modifications by Company. Company has an obligation to notify Nexus four (4) weeks in advance and in writing of all scheduled modifications made to its GL packages syncing with the Application prior to implementation of those modifications as they may have an impact on the success of the Application. Nexus is not responsible for negative impacts on Nexus support, Services, or ability to access the Application due to Company’s lack of notification to Nexus of applicable modifications. Company accepts that there may be an hourly fee to handle such emergency cases at Nexus’s then-current applicable rates. Even with advance notice, Nexus reserves the right to charge Company a reasonable fee to support modifications to the hosting environment and will provide a SOW for pre-approval if a fee is deemed necessary.
3.8. Non-Performance by Company: The obligations of Nexus set forth herein will be excused to the extent any failures to meet such obligations result in whole or in part from Company’s or its Users’ failure(s) to meet the foregoing obligations.
3.9. Security. Nexus shall comply with its obligations described in the Systems and Data Security Obligations attachment.
4.1. Fees. Company will pay all fees specified in the applicable Order Form and/or SOW in the manner set forth therein. All fees are non-refundable. Unless a written notice of a dispute is received by Nexus within thirty (30) days of the Company’s receipt of the invoice, Company waives its rights to dispute the invoice. 4.2. Payment. Unless otherwise stated in the applicable Order Form or SOW: (a) all fees and charges are due within fifteen (15) days of the invoice date including the undisputed portion of any invoice; and (b) Nexus will invoice Company regularly according to its then current standard practices or as otherwise agreed to between the Parties. Any amounts not paid when due shall bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate, if less. Company shall also reimburse Nexus for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. Nexus’s fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and Company shall be responsible for payment of all such taxes, levies, or duties, excluding only United States taxes based solely on Nexus’s income. Unless otherwise set forth on the Order Form, all payments will be in United States dollars
5.1. Nexus. The Nexus Technology is the exclusive property of Nexus or its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Company regarding the Nexus Technology, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Nexus Technology. All rights not expressly granted to Company are reserved to Nexus. Ownership of all work product, developments, inventions, technology or materials provided by Nexus under this Agreement will be solely owned by Nexus. Title to and intellectual property rights in all Nexus Technology shall at all times remain and vest solely with Nexus. Company agrees that it will not claim or assert title to any Nexus Technology or attempt to transfer any title to third parties. The use of Nexus’s intellectual property rights is authorized only for the purposes set forth herein
5.2. Company. As between Nexus and Company, Company owns all right, title and interest in and to all Company Data.
5.3. Feedback. Company may, from time to time, provide suggestions, techniques, know-how, comments, feedback or other input to Nexus with respect to the Application (collectively, "Feedback"). Feedback, even if designated as confidential by Company will not, absent a signed, written agreement with Nexus, create an obligation of confidentiality for Nexus. Nexus will be free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit in perpetuity, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
5.4. Suspension of Service. Nexus may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate, or otherwise deny Company’s, any User’s, or any other person’s access to or use of all or any part of the Application, without incurring any resulting obligation or liability, if: (a) Nexus receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Nexus to do so; or (b) Nexus believes, in its good faith discretion, that: (i) Company or any User has failed to comply with any term of this Agreement, or accessed or used the Application beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Company or any User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Application; or (iii) this Agreement expires or is terminated. This Section 5.4 does not limit any of Nexus’s other rights or remedies, whether at law, in equity, under this Agreement, or otherwise.
5.5. Application Management. Nexus reserves sole control over its operation, maintenance, and management of the Nexus Payables Application; in addition, Nexus reserves the right, in its sole discretion, to make any changes to the Nexus Payables Application, including any updates, upgrades, and improvements thereto, that it deems useful to (a) maintain or enhance the quality of the Nexus Payables Application; (b) improve cost efficiency or performance of the Nexus Payables Application; (c) improve competitive strength; (d) or to comply with applicable law.
5.6. Information Rights. Company agrees that (a) all anonymized or deidentified aggregated User data available from the Application or otherwise created by Nexus and (b) clickstream data generated by Users that provides information about the specific Application features or functions utilized and the sequence and frequency of use thereof but contains no Company Data is owned exclusively by Nexus and may be used by Nexus without restriction during and after the Term.
6.1. Confidentiality. Each Party agrees to: (a) use the Confidential Information of the other Party only as permitted herein; and (b) restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of the confidential nature of the Confidential Information. Each Party shall be liable for any actions or inactions of any of its personnel, agents, and consultants to which it disclosed the other Party’s Confidential Information that would be a breach of this Agreement if taken by such Party. The foregoing provision will not apply to Confidential Information that (u) is publicly available or in the public domain at the time disclosed; (v) is or becomes publicly available or enters the public domain through no fault of the recipient; (w) is rightfully communicated to the recipient by persons not know to the recipient to be bound by confidentiality obligations with respect thereto; (x) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (y) is independently developed by the recipient without reference to the other Party’s Confidential Information; or (z) is approved for release or disclosure by the disclosing Party without restriction.
6.2. Exceptions. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
7.1. Warranty. Nexus warrants that: (a) the Application will materially conform to Nexus’s then current Documentation for the Application under normal use and circumstances; and (b) Nexus will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. If Company notifies Nexus of verifiable and reproducible warranty claim, Nexus will make reasonable efforts to correct such nonconformance or re-perform the Service. The foregoing constitutes Company’s sole and exclusive remedy for any breach of warranty.
7.2. General Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR ANY ORDER FORM OR SOW, THE NEXUS TECHNOLOGY AND ANY SERVICES ARE “AS IS,” AND NEXUS EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, UNINTERRUPTED AVAILABILITY, FREEDOM FROM ERROR OR HARMFUL CODE, OR QUIET ENJOYMENT.
7.3. HIPAA Disclaimer. Without limiting the generality of Section 7.2, Nexus specifically disclaims any representation or warranty that it or the services it offers comply with the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing rules and regulations (45 C.F.R. Parts 160-64), the Health Information Technology for Economic and Clinical Health Act (HITECH), and the final HIPAA Omnibus Rule of 2013 (Final Omnibus Rule), (collectively, “HIPAA”). Company remains solely responsible for compliance with any applicable health care compliance laws, including but not limited to HIPAA. Company acknowledges that Nexus may not be appropriate for the storage or control of protected health information under HIPAA. Nexus will not enter into any business associate agreements and will not, in any circumstances, act as a business associate or business associate subcontractor.
8.1. By Nexus. Nexus will defend, indemnify and hold Company harmless against any third-party loss or damage (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Company by a third party alleging that the Application infringes such third party’s U.S. patents or copyrights or trade secret rights under applicable laws of any jurisdiction within the United States. Notwithstanding the foregoing, Nexus will have no liability for any Claim under this Section 1 to the extent that such Claim is based on: (a) Company’s or any User’s unauthorized use, modification, or combination of the Application other than as described in the Documentation; (b) any User’s use of the Application not in accordance with the Documentation; or (c) the Company Data. If the Application is or, in Nexus’s opinion, likely to become the subject of any infringement-related Claim, then Nexus will, at its expense and in its discretion: (i) procure the right to continue to use the Application, as applicable; or (ii) modify or replace any such infringing material to make it non-infringing. If Nexus determines that neither of these alternatives is commercially practicable, then Nexus may terminate the Agreement and all outstanding Order Forms and SOWs without further liability, except that Nexus will refund any prepaid but unused amounts.
8.2. By Company.
8.2.1. Company will defend, indemnify and hold Nexus, its Affiliates, employees, officers, directors, and shareholders harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with Claims made or brought by a third party based on Company’s or a User’s use of the Application, the acts or omissions of Company or any User, or the Company Data.
8.2.2. Company will defend, indemnify, and hold harmless Nexus and its Affiliates, employees, officers, directors, and shareholders from any and all loss or damage relating to (a) a breach or alleged breach of any representation or warranty of Company in this Agreement, or (b) any negligence or intentional misconduct by Company or any of its subcontractors or Company Personnel in performing the Company Services, or (c) any claim relating to the employment or other relationship by and between Company and its subcontractors, employees, or agents.
8.3. Procedures. Any indemnification obligations set forth in this Agreement will be subject to the following conditions: (a) the indemnified Party will notify the indemnifying Party in writing reasonably promptly upon learning of any claim or suit for which indemnification is sought; (b) the indemnifying Party will have sole control of the defense or settlement, provided that the indemnified Party will have the right to participate in such defense or settlement with counsel at its selection and at its sole expense; and (c) the indemnified Party will reasonably cooperate with the defense, at the indemnifying Party's expense.
9.1. Limitation of Liability. EXCEPT FOR AMOUNTS PAYABLE HEREUNDER OR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS OR BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY COMPANY UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE.
9.2. Exclusion of Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY.
9.3. Essential Basis. Company acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in Sections 7.2, 8, and 9 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
10.1. Term. This Agreement will commence on the Contract Effective Date and continues as long as any Order Form remains in effect, unless earlier terminated pursuant to this Section 10 (the “Term”).
10.2. Termination. This Agreement may be terminated by either Party immediately upon written notice if the other Party materially breaches this Agreement and fails to cure such breach (or provide an acceptable plan for curing such breach) within thirty (30) days after receipt by the breaching Party of written notice specifying the breach. Either Party may terminate this Agreement immediately upon written notice in the event the other Party is the subject of any bankruptcy, conservatorship, receivership, wind down, dissolution, liquidation, or reorganization proceedings and such proceedings are not dismissed within thirty (30) days.
10.3. Suspension. Nexus will have the right, in addition to any of its other rights or remedies, to immediately suspend the Services and Company’s or any User’s access to the Application, without liability to Company, if any undisputed amount due under this Agreement is not received by Nexus within fifteen (15) days after Nexus provided written notice that such amount was overdue. Nexus will notify Company of any such suspension.
10.4. Effect of Termination. Termination will not relieve either Party of the obligation to pay any fees accrued or payable to the other Party prior to the effective date of termination. Upon termination or expiration of this Agreement: (a) the access granted to Company to the Application will immediately terminate; (b) all fees will be immediately due and payable; and (c) each Order Form under this Agreement will also terminate. Sections 5, 6, 7.2, 8, 9, 10.4, and 11 will survive termination of this Agreement.
11.1. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties, and Nexus will be considered an independent contractor when performing any services hereunder. Nothing herein will create any right, power or authority for a Party to bind the other Party or otherwise create any duty or obligation for such other Party.
11.2. Changes to Terms and Conditions. From time to time, Nexus may update these Terms and Conditions to comply with applicable law or to reflect then current business practices or terms. Nexus reserves the right to modify its policies relating to the Application and Services and these Terms and Conditions at any time. Such changes may be communicated to Company by sending an email to Company, posting them on Nexus’s website or by any other reasonable means of communication. Company’s continued use of the Application and Services after any such changes constitutes Company’s acceptance thereof.
11.3. Notices. All notices and other communications required hereunder shall be in writing and shall be sent by personal delivery, registered or certified mail (postage prepaid and return receipt requested), by reputable express courier, or by email.). If to Company, such notices shall be delivered to Company’s address set forth on the Order Form. If to Nexus, such notices shall be delivered to 6400 Arlington Boulevard, Suite 1000, Falls Church, VA 22042, Attn: Chief Financial Officer (email: legalnotices@nexussystems.com). Notice shall be deemed effective when so personally delivered or emailed, or, if mailed, three business days following the date the notice is mailed (one business day in the case of express mail or overnight courier service). Each Party may change its address or email address for receipt of notice by giving notice of the change to the other Party. The Parties agree that transactions covered by this Agreement may be conducted by electronic means.
11.4. Waiver. Any waiver by a Party of a breach of any provision of this Agreement shall not be construed as a waiver of any other prior, concurrent, or subsequent breach of such provision or of any other provision of this Agreement. Any waiver must be in writing signed by the Party to be charged. A Party’s decision not to assert any of its rights under this Agreement shall not be construed as a waiver of such Party’s rights.
11.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law (or, if a court is unable to or refuses to revise any such provision, it shall be struck from this Agreement), and the remaining provisions of this Agreement will remain in effect.
11.6. Assignment. Neither Party shall assign this Agreement, without obtaining the prior written consent of the other Party, and any attempted assignment in violation of the foregoing will be null and void; provided, however, that Nexus may assign this Agreement in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets, or other operation of law, without Company’s consent. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns. Company acknowledges and agrees that Nexus shall have the right to subcontract or otherwise delegate its obligations under this Agreement, including the performance of any or all of the Services hereunder.
11.7. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its conflict of law provisions. Each Party consents to, and agrees that each Party is subject to, the exclusive jurisdiction of the state and federal courts of Fairfax County, Virginia. Any final judgement in any action, suit, or proceeding in the aforesaid courts shall be conclusive and may be enforced in any other jurisdiction by suit on the judgement, a certified copy of which shall be conclusive evidence of the fact and amount of the obligation arising from such judgement; provided, that nothing contained in this Section 11.7 shall be deemed to constitute a waiver by any Party of any right such Party may otherwise have to appeal any judgement.
11.8. Export Control Laws. Each Party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Company will ensure that neither Company nor any User access the Application while outside the United States unless Nexus and Company have entered into a separate Data Processing Agreement reasonably satisfactory to each Party.
11.9. Force Majeure. Except for the obligation to make payments, nonperformance of either Party will be excused to the extent that performance is rendered impossible by strikes or other labor problems, fire, flood, civil unrest, acts of terror, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.
11.10. Non-Solicitation of Employees. The Parties agree that, during the Term and for a period of one (1) year thereafter, neither Party will solicit for employment the employees or other personnel of the other Party. The foregoing provision will not prohibit a general solicitation of employment in the ordinary course of business or prevent either Party from employing any employee who contacts such Party as a result of such a general solicitation or at his or her own initiative without any direct or indirect solicitation by or encouragement from such Part
11.11. Entire Agreement. This Agreement, including all supplemental terms and the Service Level Agreement, along with all Order Forms and SOWs executed hereunder, constitute the entire agreement between the Parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the modification, amendment, or waiver is to be asserted. Company agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein nor dependent upon any oral or written, public or private comments made by Nexus with respect to future functionality or features for the Application.
11.12. Order of Precedence. In the event of any conflict between the provisions in these Terms and Conditions and any Order Form and/or SOW, the terms of the Order Form or SOW will prevail (with the most recent prevailing over a previously executed Order Form or SOW); provided that, with respect to Order Forms or SOW for the provision of Services, the terms of the Order Form or SOW shall prevail only with respect to the Services to be conducted pursuant to the applicable Order Form or SOW. In the event of any conflict between the provisions in these Terms and Conditions and any Additional Terms and Conditions, the terms of the Additional Terms and Conditions will prevail with respect to the applicable feature of the Application. No terms or conditions stated in a Company purchase order or in any other Company order documentation will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
11.13. Counterparts. This Agreement may be executed in counterparts (including counterparts delivered by facsimile or other electronic means), which taken together will form one legal instrument.
11.14. Construction. All headings are provided for convenience only. Unless otherwise specifically stated: (a) the word “including” shall mean “including without limitation” and (b) any reference to days shall mean calendar days.
11.15. Publicity. During the Term and at any point thereafter, Nexus may publicly refer to Company orally and in writing, including on Nexus’s website and sales presentations, as a customer of Nexus and may use Company’s logo for such purposes.
11.16. Third-Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the Parties, and nothing in this Agreement shall be construed to grant to any person, other than the Parties and their respective successors and permitted assigns, any right, remedy, or claim under this Agreement.
11.17.
Anti-Bribery Compliance Requirement. Company agrees that neither Company nor any of Company’s Users, employees, agents, or Affiliates will cause Nexus or its Affiliates to violate Requirements of Law, including the U.S. Foreign Corrupt Practices Act of 1977, any other applicable anticorruption regulation, or Nexus’s Anti-Bribery Policy.
1.1. “Availability” will mean, with respect to any calendar month, the ratio obtained dividing Uptime during such month by the total time during such month. All measurements of Availability will be calculated on a monthly basis for each calendar month during the Term.
1.2. “Scheduled Downtime” will mean the total amount of time during any calendar month, measured in minutes, during which Company is not able to access the Application due to planned system maintenance performed by Nexus. Nexus will exercise reasonable efforts to perform scheduled system maintenance in low-volume periods but may schedule downtime with twenty-four (24) hours’ notice during Company’s primary hours of operation only when Nexus believes such downtime is necessary in good faith to prevent a more disruptive unplanned outage.
Expected Scheduled Downtime:
Purpose of Scheduled Downtime:
Maximum Duration:
Nightly
Nightly back-ups of data files
1 hour
Weekly
System and Database Maintenance
2 hours
Monthly
System maintenance/upgrades
6 hours
1.3. “Unscheduled Downtime” will mean the total amount of time during any calendar month, measured in minutes, during which the Company is not able to access the features and functions of the Application, other than Scheduled Downtime.
1.4. “Uptime” means the total time during a month less Unscheduled Downtime.
Nexus will undertake commercially reasonable measures to ensure that Availability equals or exceeds 99.9% during each calendar month (the “Service Level”), provided that any Unscheduled Downtime occurring as a result of (i) Company’s breach of any provision of the Agreement or Section 3 of this Service Level Agreement; (ii) incompatibility of Company’s equipment or software with the Application; or (iii) force majeure, shall not be considered toward any reduction in Availability measurements. If Company disagrees with Nexus’ measurement of Availability, it must so inform Nexus in writing within ten (10) calendar days after receiving notice of such measurement. Nexus and Company agree to attempt to settle any such disputes regarding Availability and/or related measurements in a timely manner by mutual good faith discussions.
3.1. Reporting: Company must promptly notify Nexus in the event Unscheduled Downtime Unscheduled Downtime will be deemed to begin when Nexus receives accurate notification thereof from Company, or when Nexus first becomes aware of such Unscheduled Downtime, whichever first occurs.
In the event Unscheduled Downtime occurs, Company will be entitled to credits against its subsequent payment obligations of Base Access Fees as follows: a credit of one percent (1%) of the Base Access Fees for the applicable month for each full percentage point that Availability is below the Service Level. For example, Company would receive a two percent credit for Availability of 97.5%. In addition, in the event that the Availability is under 90% in any two consecutive months or the Application is down for more than five (5) consecutive days, Company will have the one-time (e.g., such notice must be provided in the period of time described herein) right to terminate this Agreement upon thirty (30) days prior written notice to Nexus, with the understanding that to exercise such right of termination such notice must be provided to Nexus within thirty (30) days of the end of the applicable month giving rise to the right of termination. Company’s rights under this Section 4 are Company’s sole and exclusive remedy with respect to any Unscheduled Downtime or any failure by Nexus to meet the Service Level required by Section 2 above.
1. Security. During the Term, Nexus shall maintain commercially reasonable administrative, physical, and technical safeguards for the protection, confidentiality, and integrity of Company Data. Nexus shall ensure performance of an SSAE 16 (SOC 1) / ISAE 3402 Type II Report or similar third-party audit to an established industry standard selected by Nexus. No more than once per year, Company may request a copy of such report. Nexus uses a nationally reputable hosting provider (which Nexus may change from time to time in its sole discretion) to host the Company Data and upon Company’s written request not more than once per year, will provide Company with a copy of such hosting provider’s most recent SOC-1 audit and or SOC-2 covering the systems on which any Company Data is hosted.
2. Personal Data. The term “Personal Data” shall mean, with respect to any information collected, used, disclosed, accessed, or otherwise processed in the course of performing under this Agreement: (a) all information personal or unique to a specific individual, (b) all sensitive information about or belonging to individuals, including, without limitation, social security number, driver license number, credit card number or account number in combination with any required access codes or password to access such account, or user name or email address in combination with a password or security question and answer that would permit access to an online account and (c) any information that can be used to identify or contact a specific individual, such as first and last name, email address, telephone number, social security number, tax payer identification number, financial account information, or otherwise. Personal Data shall be accessed, used, maintained, collected, modified, merged, shared or disclosed by Nexus only as is necessary for Nexus to perform its obligations under this Agreement. As between Nexus and Company, all Personal Data is and shall be deemed to be and shall remain the exclusive property of Company. Personal Data shall be considered Company Data.
3. Data Security. Nexus shall use commercially reasonable methods and safeguards designed to protect the Company Data, including from any unauthorized collection, access, use, storage, disposal, and disclosure of the Company Data by its employees, agents or subcontractors.
4. Security Breach. To the extent there is an actual disclosure by Nexus of Company Data to any unauthorized person or entity that compromises the security or privacy of such information and to which a state, federal or other security breach law to which Nexus is subject applies (a “Security Breach”), Nexus will comply with the applicable law. To the extent no such law applies to a Security Breach, Nexus will notify Company of the Security Breach following the discovery or notification of such Security Breach, without unreasonable delay, consistent with the legitimate needs of applicable law enforcement, and after taking any measures necessary to determine the scope of the breach and restore the reasonable integrity of the system (“Notification Period”). A Security Breach shall include, but not be limited to: (a) a physical trespass on a secure facility in which Company Data is maintained; (b) intrusion or hacking into a computing system on which Company Data is maintained; (c) loss or theft of a computer, mobile device, hard drive, or other information storage device which contain Company Data, and which were previously in the possession of Nexus; or (d) suspected or actual misuse, compromise, or unauthorized access to or release of Personal Data that compromises the safety or security of a natural person. The notice provided to Company during the Notification Period shall include a summary of the Security Breach, as well as the name and contact information for a primary security contact within Nexus.
5. Disclosure of Personal Data. Except as may be necessary for Nexus to fulfill its obligations under this Agreement (and as specifically provided for in this Section), in response to a valid court order or subpoena, or otherwise to the extent legally required in response to a request from a law enforcement agency, Nexus shall not disclose Personal Data to any third party. Notwithstanding the foregoing, Nexus may disclose Personal Data to third parties who are providing services to Nexus, provided that such disclosures are required to perform the Services. If Nexus is legally required to disclose any Personal Data pursuant to a valid governmental, law enforcement, or subpoena request, it shall, unless legally prohibited from doing so, promptly notify Company of such request or requirement, to permit Company if it so decides, to seek a protective order or to take other appropriate action to prevent or limit such disclosure. Nexus agrees to cooperate with Company’s efforts and at Company’s expense to assist Company in attempting to obtain a protective order or other reasonable assurance that confidential treatment shall be afforded the Personal Data in question. If Nexus believes in good faith that it is compelled as a matter of law to disclose the Personal Data in the absence of a protective order, and if applicable law allows Nexus to redact information, it shall disclose to the party compelling the disclosure only the part of the Personal Data that, upon the advice of Nexus’s counsel, Nexus determines is expressly required by law to be disclosed. Unless prohibited by law, regulation, court order, or other law enforcement requirement, Nexus shall also provide written notice to Company of what Nexus intends to disclose so that Company may use its commercially reasonable efforts to obtain confidential treatment for all disclosed information and, prior to any such disclosure, it shall advise and consult with Company and its counsel as to such disclosure and the nature and wording of its disclosure.
6. Return of Company Data or Personal Data. Nexus shall return, or at Company’s election in a secure manner destroy (and certify in writing to such secure destruction), within ninety (90) days all Company Data upon the termination or expiration of the Agreement for any reason once all owed fees are paid, or earlier if requested to do so in writing by Company except to the extent it is commercially reasonable to retain backup copies for general business, legal and tax purposes.
updated 05.09.2019
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