CASHFLOW.IO - TERMS OF SERVICE
Last Update: November 18, 2022
These Terms of Services constitute legal Terms of Services between the entity that agrees to these Terms of Services (the “Customer”; “you”) and 10601306 Canada Inc. dba Cashflow.io, with a registered address at:
10601306 Canada Inc. (dba, Cashflow.io)
950 Notre Dame West, Suite 205, Montréal
Quebec Canada H3C 0K3
Cashflow.io, Inc. USA
8 The Green, Suite B
Dover, Delaware 19901
Please read the following Terms of Services carefully before accessing or using our Services (as defined below), as they contain important information on your obligations while using the Services. The Terms of Services also inform you on our liability towards you and the warranties or disclaimers that apply to our Services.
If you wish to use our Services, you must accept and agree to be bound by and comply with these Terms of Services. Continued use of any of our Services indicates your continued acceptance of the Terms of Services. If you do not agree with these Terms of Services, you must not use our Services.
If you have any questions related thereto, you can reach us at firstname.lastname@example.org or call us directly at 1 855 940 9355.
Please note, however, that your use of the Services may be subject to additional terms and conditions from third parties for which we assume no responsibility or liability whatsoever. Please see Section 3.(e) for more information about such Third Party Material.
- “Account” means the account(s) that you acquire as part of your subscription.
- “Admin Console” means the online tool made available to you by us, designed for reporting and some other administrative functions within the Services.
- “Administrator(s)” means the personnel designated by you to administer the Services on your behalf.
- “Administrator Account” means Account(s) made available to you by us, designed for Administrator(s) of the Services as authorized by you.
- “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to these Terms of Services. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Anonymized Data” means any Usage Data, Customer Data and other data generated by the Services which have been processed through an industry-standard de-identification technology or method and which, as a result, does not relate anymore to an identified or identifiable natural or moral person. For the avoidance of doubts, Anonymized Data does not include Personal Data.
- “Documentation” means the documentation and other material made available to Customer (and End Users) in connection with our provision of the Services, including Services specifications and descriptions that are publicly available on our website. Cashflow.
- “Confidential Information” means any and all information of a party (the “Disclosing Party”) which has or will come into the possession of the other party (the “Receiving Party”) concerning the business, properties, affairs or finances of the Disclosing Party, including proprietary information and trade secrets. Confidential Information must be indicated as confidential information, or it must be clear at the time of the disclosure that the information ought to be handled as Confidential Information.
- “Customer Data” means the Customer’s Personal Data and Confidential Information, including End Users accounts activities. Notwithstanding anything to the contrary in these Terms of Services, Anonymized Data and Usage Data shall not be considered Customer Data.
- “End User(s)” means each user who is authorized by you to use and access the Services, including the Administrators.
- “End User Accounts” means Accounts made available to you by us, which is set up by you in order to grant to your End Users access to the Services.
- “Upgraded Customer” means any Customer that subscribed to the PREMIUM 50 or PRO UNLIMITED additional and Upgraded Services.
- “Upgraded Services” means certain additional functionalities to the Services, such as SmartPO, Simple Link, payment terms & plans, which functionalities are accessible under certain conditions, in particular the payment of Fees. Such functionalities related to the PREMIUM 50 or PRO UNLIMITED Services are further described in the Documentation.
- “Intellectual Property” means any and all intellectual property, including without limitation, works, inventions (whether patentable or not), discoveries, improvements, trade secrets, know-how, scientific formulae, data, information, images, reports, results, analysis, software, models, research and development information, technical information, prototypes, specifications, patterns, drawings, algorithms, products, compositions, processes and protocols, methods, tests, devices, computer programs, trade-marks and any and all proprietary rights provided under patent law, copyright law, trade mark law, design patent or industrial design law, semi-conductor chip or mask work law, or any other statutory provision or civil or common law principle applicable to the protection of intangible proprietary information or rights, including trade secret law, which may provide a right in any of the foregoing as well as any and all applications, registrations or other evidence of a right in any of the foregoing.
- “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, provincial, territorial, municipal or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
- “Notification Email Address” means the email address provided by you in the Order Form, which address is designated to receive notices from us.
- “Order Form” means an order form executed by you and us or accepted through a purchase order. The Order Form describes in further details the Services, the Fees and the Term.
- “Order Form Approval” shall have the meaning ascribed to it in Section 9.(a).
- “Personal Data” means any information that would meet the definition of “personal information” or “personal data” (or similar nomenclature) under applicable Law and that is (i) submitted through the Services by you or your End Users or (ii) collected or generated by the Services about End Users.
- “Representatives” means a party’s Affiliates, subsidiaries, resellers, agents and subcontractors, as well as the respective employees, directors, officers and developers of each of these third parties, and those of the concerned party, as the case may be;
- “Security Breach” means any act or omission that materially compromises the security, confidentiality or integrity of Personal Data.
- “Services” means the software-as-a-service platform made available by us through or in connection with the website https://terminal.cashflow.io/, and described in an Order Form and the Documentation.
- “Third-Party Claim” means any third-party claim, lawsuit, action, or proceeding.
- “Uptime” means the percentage of total possible minutes the Services are available, operational and accessible to you during a month. The Uptime is calculated as follow:
[(Total minutes of Uptime in a month – Total minutes for Exempted Downtime and Scheduled Maintenance) /
(Total minutes in a month – Total minutes Exempted Downtown and Scheduled Maintenance)] x 100.
- “Urgent Security Issue” means any (i) use of the Services in contravention of these Terms of Services by an End User; (ii) Security Breach; or (iii) situation reasonably requiring Cashflow to act immediately to prevent or mitigate security risks, including to install important security patches.
- “Usage Data” means data captured and/or generated by the Services about statistics, trends, performance and analytics, such as page views, performance statistics, errors occurrences, and electronic attributes of devices, such as browser name and version, operating system and country. Usage Data is generally used to improve our Services, monitor performance and understand popular features.
- OUR SERVICES
a) Eligibility; Services
The Services are to be used by professionals in the context of commercial activities and not for domestic use. We do not offer our Services to End Users who are not over the age of eighteen (18) years old. You represent and warrant that you are at least eighteen (18) years old.
Subject to and conditioned on your payment of applicable Fees, where applicable, and compliance with these Terms of Services, we will provide the Services and make the Services available to you during the Subscription Term, as applicable, the whole in accordance with these Terms of Services.
b) Modifications to Services
We reserve our rights to make changes to the Services. In case of a material changes, we will notify you using the Notification Email Address or through the Admin Console. Modifications to the Upgraded Services shall not materially and adversely affect the performance of the Services in accordance with these Terms of Services.
We may need to modify these Terms of Services to adapt to new technologies, functionalities, regulatory requirements or otherwise based on our legitimate business needs. If we need to amend these Terms of Services, we will advise you through the Notification Email Address. If you continue to use the Services after such notice, we will consider that you accept the amendments to these Terms of Services. You may object to such modifications to these Terms of Services within fourteen (14) days following the notice by reaching out to us at email@example.com. If Customer does not object to the amendments within such delay, it will be deemed to accept them. If you and us cannot agree to a mutually acceptable modification, you may exercise your right to termination with cause pursuant to Section 23.
c) Upgrades; New Features
We may, from time to time, develop new modules, versions, functionalities or features to the Services (each an “Upgrade”). Upgrades are generally included with your subscription to the Services, except if we indicate otherwise (the “Excluded Upgrade”). Excluded Upgrades can be added to an Order Form through a Change Order, and may be subject to additional fees and terms and conditions. Excluded Upgrades shall not include security patches and updates that are required for the Services to function substantially as described in these Terms of Services.
- YOUR OBLIGATIONS AND RESPONSIBILITIES
You shall remain entirely liable for all acts and omissions by your End Users, and any act or omission by such End User that would constitute a breach of these Terms of Services if taken by you will be deemed a breach of these Terms of Services by you.
a) Acceptable Use
We are proud to offer you Services in order to facilitate your business. However,
You agree that you will deploy commercially reasonable efforts to cause your End Users to use the Services in accordance with these rules, being understood that you shall remain liable for any act or omission of any of your End Users in breach of these Terms of Services.
You may only use the Services for legitimate transactions with your Customers.
You hereby represent and warrant that, unless expressly authorized in writing by us, you and your End Users will use of the Services in any manner:
i. that is prohibited by Law or regulation or our policies made available to you, including these Terms of Services;
ii. that will disrupt third parties’ use or enjoyment of the Services, including if this use results in automated, constant and repeated requests for data other than as permitted under these Terms of Services and has a negative effect on our systems or network, including abnormal usage that overloads servers or causes portions of our network to be blocked (e.g. denial-of-services and distributed-denial-of-services attacks);
iii. that uses the Services to create, transmit, distribute or store material that violates Intellectual Property, privacy, publicity or other personal rights of individuals, export control, or that can otherwise be threatening, abusive, hateful or constitutes or encourages conduct that would be considered a fraud, a criminal offense or likely to give rise to civil liability;
iv. that results in (A) the sharing of credentials, identifiers and passwords among End Users or among End Users and third parties and (B) the distribution, disclosure or use of any of the Services in any format to or by unauthorized third parties (i.e. other than End Users), including through any time-sharing service, service bureau, network or by any other means;
v. that involves using any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, programs, algorithms, or methodology to access, acquire, copy or monitor the Services or any portion of the Services;
vi. that involves decompiling, disassembling, or otherwise reverse engineering or attempting to reconstruct or discover any source code or ideas or algorithms of any of the Services underlying technology by any means whatsoever;
vii. that involves penetrating our security, including, without limitation:
A. by posting or transmitting any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features;
B. by interfering with the proper working of the Services;
C. by attempting to hack any security requirements or processes in the use of the Services;
D. by attempting to access any part of the Services (or any of their related systems, networks, servers or other equipment) which you are not authorized to access;
E. by attempting to disrupt in any manner the operation of the Services, its servers or network;
F. by disobeying any requirements, procedures, policies or regulations of your network connected to the Services;
G. by manipulating identifiers to disguise the origin of any content transmitted or uploaded on to the Services, or the source of any content;
H. by modifying or altering the Services in any unauthorized manner.
(collectively, the “Abuses”).
You hereby agree and acknowledge that an indirect or attempted violation of this Section 3.(a) shall be considered an Abuse. If we discover that you (or your End Users) are about to commit any Abuse (including by facilitating an Abuse), we may suspend part or all of the Services pre-emptively with or without prior notice. If no prior notice was given, we will send you a written notice as soon as practicable and will conduct an inquiry to reasonably determine if the suspension of Services should be maintained.
End Users must have an End-User Account to access and use the Services.
Our Services enable you to have one End User Account and one End User to use the Services through such an Account, except for the Upgraded Services which enable Upgraded Customers to create multiple End User Accounts used by as many different End Users. Upgraded Customers may add End User Accounts by following the procedure described in Section 9.(a) of these Terms of Services.
End Users are responsible for maintaining their credentials confidential, and Cashflow shall not be responsible if an Account is compromised. If credentials or API secret keys have been compromised, Administrators must block these credentials and trigger a reset of the credentials as soon as practicable for the concerned End User(s) and contact us to advise us that credentials have been compromised so that we can conduct reasonable inquiries. You agree to collaborate with us for such inquiries.
c) Administration of Services
Customer is responsible for: (a) maintaining the confidentiality of the password and Administrator Account(s); (b) designating those individuals who are authorized to access the Administrator Account(s); and (c) ensuring that all activities that occur in connection with the Administrator Account(s) comply with the Agreement. You are responsible for understanding the settings, privileges and controls for the Services and for controlling whom you permit to become an End User and what are the settings and privileges for such End User. Cashflow shall not be responsible for managing End Users, settings and controls available as part of the Admin Console.
Customer agrees that Cashflow's responsibilities do not extend to the internal management or administration of the Services for Customer.
You agree to notify us without undue delay if your Notification Email Address changes. If you fail to do so, we shall have no liability for notices or communications that are not received by you.
d) Administrator Access and End-User Authorization
Administrators, in accordance with the Order Form have the ability to access your End User Account(s), and are able to, for example, view, monitor, use, modify, store and disclose data accessible to End Users via their End User Accounts. You are responsible for obtaining and maintaining all necessary consents from your End Users to authorize: (i) the Administrators to have the access described in these Terms of Services and (ii) provision of the Services to End Users.
e) Third Party Services
You agree to comply with third party terms and conditions when using the Services, including those applicable to websites, sites and applications from third parties made available from time to time to you as part of our Services, including integration partners that may be available through third-party Application Programming Interface (“API”) .You agree and understand that we are not responsible for these third parties, and that you use such third parties at your sole risks. They are not service providers of Cashflow.
Cashflow may make available to you APIs that belong to third party services or APIs that are developed by Cashflow, and which, as between you and us, are Cashflow’s Intellectual Property, Your use of APIs must be in compliance with these Terms of Services and with the Documentation, which may be modified from time to time to account for technical and operational environmental changes.
You are solely responsible for securing your secret keys — do not publish or share them with any unauthorized persons. Failure to secure your secret keys will increase the likelihood of fraud on your Account and potential losses to you or your clients. We provide more details on proper use of publishable and secret API keys in the Documentation.
- PAYOR’S AUTHORIZATION FOR PRE-AUTHORIZED DEBITS
This Section is only applicable to the extent you use the Services while using pre-authorized debits functionality.
You warrant and guarantee that you are the person who can authorize withdrawals from the bank account or other payment service account (the “Bank Account”) attached to your Account and hereby authorize us to issue pre-authorized debits (“PADs”) drawn on the Account for your business use. We may issue PADs in the amounts and with the frequency that you authorize from time to time based on your agreement with us and/or certain merchants, up to a maximum of $1,000.000.00 CAD. YOU WAIVE ANY REQUIREMENT THAT CASHFLOW GIVE PRE-NOTIFICATION OF ANY PAYMENT AMOUNT OR CHANGE OF PAYMENT DATE.
You acknowledge that to add a Bank Account to your Account for PADs, please confirm your Account as described in this Section 4. You understand that you may cancel this Authorization at any time by removing the Bank Account from your Account through the Admin Console. You understand that removing the Bank Account does not cancel pending transfers that you may have already initiated and authorized. We agree to provide written confirmation by email of this Authorization before the first PAD is debited from the Bank Account.
We are required to obtain authorization from you for each sporadic PAD. You acknowledge that to subsequently authorize sporadic PADs, you must confirm your identity by logging into your Account or through another permissible method, which shall constitute valid authorization for your financial institution to debit your Account.
You have certain recourse rights if any PAD does not comply with this Authorization. For example, you have the right to receive reimbursement for any PAD that you have not authorized or that is not consistent with this Authorization. To obtain more information on your recourse rights, you may contact your financial institution. You acknowledge that your financial institution is not required to verify that a PAD has been issued in accordance with the terms of this Authorization.
Revocation of this Authorization does not terminate any contract for goods or services that exists between you and any Cashflow merchant or between you and us. This Authorization applies only to the method of payment and does not otherwise have any bearing on any related contract for goods or services.
You acknowledge that we may use a third party as our payment processing representative for the transactions contemplated by this authorization. You acknowledge that this Authorization is provided for the benefit of Cashflow and is provided in consideration of your financial institution agreeing to process debits against your Bank Account in accordance with the rules of the Canadian Payments Association.
You may dispute a PAD only if (a) the PAD was not drawn in accordance with this Authorization or (b) we withdrew amounts from your Account after you revoked this Authorization. To be reimbursed, you acknowledge that you may need to complete a declaration and present it to your financial institution within ninety (90) days for a personal PAD and ten (10) business days for a business PAD, from the date the PAD in dispute was posted to the Bank Account. You acknowledge that after such applicable period, any dispute must be resolved solely between you and us
- PURCHASE ORDER FINANCING
Subject to eligibility conditions, we may grant you an open-end (revolving) line of credit account offered by us or our lending partners (the “Lender”) which can only be used with qualified purchase orders by customers with credit ratings acceptable to us and the Lender. By applying for this account, you agree:
i. In addition to these Terms of Services, to the Credit Agreement between you and the Lender, which will govern your account.
ii. You’re providing information to the Lender, and you consent to the Lender providing information about you (even if this application is declined) to Cashflow.
iii. The Lender may obtain credit reports and other information, including employment and income, about you to evaluate your application and for other purposes.
iv. Your purchase will be charged to your existing Account (subject to available credit line) and a new account will not be opened.
- SERVICE LEVEL AGREEMENT
Subject to the other provisions of these Terms of Services, during the Term, we undertake to provide an Uptime of 99.5% (the “Service Level”). We may review the Uptime of our Services based on the data available from our hosting supplier.
If we fail to meet this Service Level in a repetitive and material manner while you are in compliance with your commitments, obligations and responsibilities hereunder and promptly notify us of such problem, then Section 24.(b) shall find application and the parties shall negotiate in good faith to find a mutually acceptable solution, such as through the provision of additional maintenance and support services. If the mediation proceedings fail, Customer shall be entitled to terminate these Terms of Services (or a specific Order Form) for cause pursuant to Section 23. This shall be the sole and exclusive remedy of Customer in the event of a Service Level breach.
The Service Level excludes downtime that is caused by: (A) Customer’s fault, acts or omissions, a breach of these Terms of Services (including an Abuse); (B) events that are not within the reasonable control of Cashflow, such as a case of Force Majeure; (C) Customer’s third party service providers (including Internet service providers’ downtime); (D) Customer’s IT infrastructure and internal configurations; (E) suspension of the Services in accordance with these Terms of Services (together, the “Exempted Downtime”).
The Service Level excludes downtime that is caused by maintenance, such as to perform routine maintenance on our Services (“Scheduled Downtime”). We reserve up to eight (8) hours per month for Scheduled Downtime. This notice may be sent to the Notification Email Address, or by other electronic means, such as via the Admin Console. Notwithstanding the foregoing, Cashflow may not be able to provide advance notices in the case of emergency maintenance, in which case, Cashflow shall advise Customer as soon as reasonably practicable. Such emergency maintenance shall be included in the definition of Scheduled Downtime.
- INTERRUPTION AND SUSPENSION OF SERVICES
a) Urgent Security Issues
Notwithstanding anything to the contrary, we reserve our rights to suspend, with or without notice, part or all of the Services for Urgent Security Issues, including any Accounts involved in such Urgent Security Issue, if applicable.
b) Suspension to comply with Law
We may, at our sole discretion and at any time, suspend the provision of the Services if necessary to comply with any applicable Law.
We provide technical support through a live chat available within the Services and through ticket support that you may submit in our Support Center available at https://support.cashflow.io/. You can also e-mail us at firstname.lastname@example.org. Support requests that require follow-ups and maintenance work are classified per priority. Some requests may be addressed in subsequent releases of our Services, such as minor bug fixes and technical issues with reasonable work arounds. We respond to support requests available during office hours (9AM to 5PM ET), excluding statutory holidays.
- UPGRADED SERVICES; ORDER FORM; FEES; TAXES;
a) Order Form; Change Order
The provision of the Upgraded Services is conditional, in addition to the terms and conditions of this Agreement, on the payment of the Fee and compliance with the terms and conditions of this Section 9, which only applies to the Upgraded Services.
The Order Form shall contain a description of the Upgraded Services delivered to be delivered to the Upgraded Customer, the Subscription Term of the Upgraded Services, the payment terms (including frequency, amounts and method(s) of payment).
The Order Form is approved upon acceptance of the Order Form, including by digital means, or if you issue a Purchase Order corresponding to the Order form that we issued; (“Order Form Approval”).
Order Form and Change Orders shall have precedence over these Terms of Services in case of a conflict between the Order Form and the Terms of Services.
Upgraded Customers may add End User Accounts through the Admin Console. Number of End Users Accounts may not exceed the number determined within the chosen service plan.
Change Order are issued by Cashflow and are approved by Customer (a) upon the issuance of a Purchase Order by Customer corresponding to the Change Order or (b) upon signature or acceptance of the Change Order in writing by Customer. Change Order can also be used to modify an Order Form on a case-by-case basis, as required by Customer and accepted by Cashflow.
Notwithstanding anything to the contrary in these Terms of Services, Cashflow may revise the Fees before each Renewal Subscription Term. If Cashflow decides, at its sole discretion, to modify the Fees, Cashflow shall notify Customer at least thirty (30) days before the end of the then-current Subscription Term either (i) by sending an email to the Notification Email Address or (ii) by posting a notice in the Admin Console.
b) Fees; Payments; Reimbursements
You agree to pay us the fees as described in the Order Form as consideration for our provision of the Upgraded Services in accordance with this Agreement and the payment terms set forth in the Order Form (the “Fees”). All Fees are in Canadian dollars, unless indicated otherwise.
Customer agrees to pay the Fees within thirty (30) days of the invoice date. After this period, Cashflow shall issue a notice of late payment. If the situation is not resolved within sixty (60) days from the initial invoice date, Cashflow may suspend the Upgraded Services at the end of this sixty (60) days period without further notice, and until all past invoices are paid. If the suspension lasts more than an additional sixty (60) days, Cashflow may terminate these Terms of Services (or a specific Order Form) for cause, and shall have no obligation to provide the Upgraded Services until all invoices are paid. Any unpaid portion of the Fees past the due date are subject to interests of 1,5% monthly (18% annually). Customer shall be liable for all reasonable costs (including attorney’s fees) that Cashflow may incur to recover unpaid Fees. The foregoing shall not apply if a portion of the Fees is disputed in good faith, including if the matter is submitted to mediation pursuant to Section 24.(b) or to arbitration pursuant to Section 24.(c).
If payment through direct debit in your bank account or through credit cards is selected or authorized as a method of payment for the Fees, you hereby authorize us to debit the Fees from your bank account or credit card, as the case may be, and represents and warrants that you have provided us with accurate and truth financial information as required for us to debit the Fees in your bank account or on your credit cards. You shall be responsible for any fees resulting from your failure to inform us of any changes, or for the fees engendered by Cashflow if your payment is refused for any reason. Notwithstanding the foregoing, Cashflow shall have no obligation to make such payment methods available to Customer, and different payment methods may be available to Customer depending on the terms and conditions on the Order Form. We may change our billing options at any time by advising you through the Admin Console or the Notification Email Address at least thirty (30) days in advance.
Subject to applicable laws, and except of the Upgraded Services are terminated by you for cause pursuant to Section 23, the Upgraded Services are non reimbursable, and we have no obligations to refund any Fees already paid by you to us for any reasons whatsoever.
If Cashflow is required by Law or by administration thereof to collect any applicable taxes from Customer, Customer shall pay such taxes to Cashflow concurrent with and in addition to the payment of the Fees (and any other financial considerations payable pursuant to these Terms of Services), unless Customer qualifies for an exemption from any such applicable taxes, in which case, Customer shall, in lieu of payment of such applicable taxes to Cashflow, deliver to Cashflow such certificates, elections or other documented required by Laws or the administration thereof to substantiate and effect the exemption claimed by Customer. Where Cashflow is not required by Law or the administration thereof to collect applicable taxes, Customer shall pay such taxes directly to the appropriate taxing authority and shall provide evidence of such payment to Cashflow upon request.
Customer shall make all payments under these Terms of Services without any deduction or withholding for or on account of any taxes (“Tax Deduction”) unless a Tax Deduction is required by Law. If a Tax Deduction is required by Law then (i) where such Tax Deduction relate to any tax other than an income tax imposed on Cashflow’s net income, the relevant amount payable by Customer hereunder shall be increased to the amount that would, following any required Tax Deduction, result in Cashflow receiving the amount that would have been received if no Tax Deduction were required; (ii) Customer shall, promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction), notify Cashflow accordingly and (iii) Customer shall timely remit the amount of such Tax Deduction to the appropriate taxing authorities. Customer will use commercially reasonable efforts to mitigate, reduce, or eliminate any Tax Deduction (including, but not limited to, by taking advantage of any reduced rate of tax provided for by any applicable international agreement for the avoidance of double taxation then in force).
This Section 10 only applies to the Upgraded Services.
The term of these Terms of Services begins upon the Order Form Approval and continues for as long as an Order Form is active (the “Term”).
The subscription term begins on the date stipulated in the Order Form and ends at the end of the time period stipulated in the Order Form (the “Subscription Term”). The Subscription Term shall renew automatically for one (1) year, unless indicated otherwise by either party at least thirty (30) days before the end of the then current Subscription Term (each a “Renewal Term”).
- INTELLECTUAL PROPERTY
We shall remain the sole and exclusive owner of all rights, titles, and interests, including all Intellectual Property, in and to the Services and the Cashflow and the Documentation.. Notwithstanding anything to the contrary, Cashflow shall also be the sole owner of any suggestions, enhancement requests, recommendations or other feedback provided by Customer (or its End Users) to Cashflow, so long as they relate to the Services (the “Feedback”), and Customer hereby assign to Cashflow, without limitation of any kind, all of its rights, titles and interests therein, Cashflow accepting such assignment. At our reasonable request and expense, you will complete and execute all necessary documents and take such other actions as we may reasonably require in order to assist us to acquire, develop and maintain our Intellectual Property in the Feedback.
Customer shall remain the sole and exclusive owner of all right, title, and interest into its Intellectual Property.
- CONFIDENTIAL INFORMATION
Confidential information shall not include information which the Receiving Party can demonstrate: (i) is readily available to the public in the same form through no fault of the Receiving Party; (ii) did not originate from the Disclosing Party and was lawfully obtained by the Receiving Party in the same form from an independent third party without any restrictions on disclosure, or (iii) did not originate from the Disclosing Party and was in the possession of the Receiving Party in the same form prior to disclosure to the Receiving Party by the Disclosing Party.
The Receiving Party acknowledges and agrees that the Confidential information is proprietary information of the Disclosing Party, and may constitute Intellectual Property of the Disclosing Party, whether or not any portion thereof is or may be validly copyrighted or patented. The Receiving Party shall only use the Confidential Information of the Disclosing Party for the purposes set forth in these Terms of Services and shall protect such Confidential Information with at lest the same degree of care and confidentiality, but not less than a reasonable standard of care and confidentiality, which the Receiving Party utilizes for its own confidential information.
The Receiving Party shall take all reasonable steps necessary to ensure that the Confidential Information of the Disclosing Party is not made available or disclosed by it or by any of its Representatives to any third person except (i) as required by applicable Law, including a valid court order; (ii) with the prior written consent of the Disclosing Party or (iii) as authorized or reasonable inferred from these Terms of Services, such as for making and accepting payments on your behalf in the context of the Services. The Receiving Party will use due diligence to ensure that its Representatives are subject to the same obligations of confidentiality as it does.
The Receiving Party shall not make copies or reproductions of the Confidential Information of the Disclosing Party (in any medium) except as required for the purpose of these Terms of Services (including for backups and business continuity purposes).
- PERSONAL DATA
a) Collection, Use and Disclosure of Personal Data
Each party shall be responsible for complying with applicable Law to the collection, use and disclosure of Personal Data. Customer hereby agrees that Cashflow acts as its service provider and is not responsible for Customer’s collection, upload, use or handling of their clients’ Personal Data on the Platform.
We will deploy commercially reasonable efforts to assist you to respond to individual privacy rights requests, such as the right to access or correct Personal Data. If we receive such requests about your End Users, we will advise you without further delay. The parties agree to collaborate in good faith as necessary to respond to such requests in accordance with the Law, and as otherwise required to comply with the Law.
Cashflow shall deploy commercially reasonable efforts to implement security safeguards adequate to the risks associated with the collection, use and disclosure of Personal Data, taking into consideration factors such as the nature, scope, context and purposes of such collection, use and disclosure.
b) Security Breach
In the event of a Security Breach, we will notify you without undue delay upon becoming aware of a Security Breach affecting Personal Data (either through the Notification Email Address or the Admin Console), providing you with sufficient information to allow you to meet your obligations to report or inform individuals or the authorities. If such information is not available at the time of such notice, we will follow up as the information becomes available. We may notify third parties directly without first obtaining your prior written consent, if we are required to do so pursuant to applicable Law or if this method of notification is more appropriate in the circumstances.
We are committed to store and secure your Confidential Information, Customer Data and other information assets with strong controls. We are fully compliant as a Level 2 Payment Card Industry (“PCI”) Service Provider. In June 2020, Cashflow underwent a security scan by a recognized PCI compliance reviewer, which we completely passed. We continue to run security scans on a quarterly basis. Furthermore, Cashflow has and maintains internal procedures, guidelines and controls to ensure that we store all Confidential Information and Customer Data securely.
We may provide or suggest security procedures and controls intended to reduce the risk to you of fraud (“Security Controls”). You agree to review the Security Controls and the Documentation that we provide to you, and to select the Security Controls that meet your business requirements. If you believe that the Security Controls we provide are insufficient, then you agree to separately implement additional controls that meet your requirements.
a) Licences to Customer Data
You hold all rights, title and interest in and to all Customer Data, provided that you hereby grant us a revocable (but only pursuant to these Terms of Services), fully-paid, non-exclusive, royalty-free, limited and worldwide licence to aggregate, reproduce, and otherwise use and display the Customer Data as may be necessary for us to provide the Services to you or to exercise our rights and obligations under these Terms of Services.
Notwithstanding anything to the contrary in this Agreement, you agree and acknowledge that Cashflow shall hold all rights, title and interest in Anonymized Data and Usage Data, which may be used for business intelligence purposes.
b) Licences to Reports
The Services may include the provision of reports, tables, graphs or similar outputs (each a “Report”). Unless otherwise set forth in an Order Form, Cashflow hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, limited license to reproduce, print, download and use all such Reports solely in accordance with this Terms of Services and for your and your Representatives’ business purposes. This licence shall survive the Term.
You hereby agree that we may (i) publicly use your name and logo alongside the names and/or logos of other customers on our website, client lists, proposals, investor presentations and sales presentations; and (ii) that each party will get the prior written consent of the other party before issuing any press release
You can reach us at email@example.com to withdraw your consent provided pursuant to this Section 16.
- REPRESENTATIONS AND WARRANTIES
We hereby represent and warrant that the Services will be substantially conform to the Documentation and will be performed in a professional manner.
In addition to the other representations and warranties provided for in these Terms of Services, you hereby represent and warrant that, at all times during the Term: [I would mention that it complies with the acceptable use section and that it does not use the services for fraudulent purposes)
i. as Upgraded Customer, if applicable, you will inform us without undue delays of any changes to your financial information in order for us to get paid in accordance with Section 9.(b);
ii. neither you nor any of your Representative will export, re-export, distribute or otherwise transfer the Services or any technical information related thereto, directly or indirectly, to any country for which the competent authorities (including the Canadian and United States governments entities) require an export license, other governmental approval or letter of assurance, without first obtaining such license, approval or letter, including, without limitation, any countries on Canada’s Area Control List or subject to the Canadian Economic Sanctions;
iii. neither your nor any of your Representatives will export, re-export, distribute or otherwise transfer the Services or any technical information related thereto for an end-use that is directly or indirectly related to the research, development or production of chemical, biological, or nuclear weapons or any missile programs for such weapons, or that otherwise disrupt international peace or is contrary to any restriction on end users set for in applicable Law.
Each party represents and warrants that (x) it has the power and authority to enter into these Terms of Services and (z) it will comply with all applicable Laws in connection with the provision or use of the Services, as the case may be.
You hereby agree to indemnify us, defend us and hold us harmless (including our Representatives) from and against any and all claims, penalties, fine, cost, expenses (including reasonable attorney’s fees), actions, damages, losses or liabilities directly or indirectly arising out of, related to, in connection with or resulting from: (i) your access to, use of, or alleged use of, the Services in a manner not authorized by the Terms of Services, including without limitation any breach of Sections 3.(a), 11 and 17; and (ii) your gross negligence, fraud and willful misconduct.
You know your clients better than we do, and you are responsible for your relationship with them. Cashflow is not responsible for the products or services you publicize or sell, or that your clients purchase using the Services; or if you accept donations, for your communication to your clients of the intended use of such donations. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to your clients.
Cashflow provides Services to you but we have no way of knowing if any particular purchase, sale, donation, order, or other transaction (each a “Transaction”) is accurate or correct, or typical for your business. You are responsible for knowing whether a Transaction initiated by your client is erroneous (such as a client purchasing one item when they meant to order another) or suspicious (such as unusual or large purchases, or a request for delivery to a foreign country where this typically does not occur). If you are unsure if a Transaction is erroneous or suspicious, you agree to research the Transaction and, if necessary, contact your client before fulfilling or completing the Transaction. You are solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of the Services.
Unless specifically included with the Services, Cashflow is not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
Except as provided in these Terms of Services, (i) we do not warrant that the Services will be uninterrupted or error free; (ii) we do not make any warranty as to the results that may be obtained from the use of the Services; (iii) Cashflow is the sole authorized person to make any representations or warranties on its behalf (iv) we do not warrant that the Services will be conform to representations by any other persons that are not compliant with the Documentation (v) the Services are provided on an “as is”, “where is” and “as available” basis; (vi) to the maximum extent permitted by Law, we make no other representations, conditions, warranties or guarantees, express or implied, regarding the accuracy, quality, reliability or completeness of any outputs or information (including a Report) provided as a by or as a result of using the Services; and (vii) we expressly disclaim any and all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Unless stated otherwise in these Terms of Services, you hereby waive your rights in any of the foregoing warranties, representations or conditions, whether express or implied.
Customer is solely responsible for the accuracy, truthfulness and quality of Customer Data and any content or information directly or indirectly delivered through or passed through the Services by Customer (or its End Users). We exercise no control over and accept no responsibility for the accuracy, truthfulness and quality of Customer Data, including, without limitation, violations of Intellectual Property, applicable Law and privacy rights.
You acknowledge and agree that any outputs (including Reports) produced by or obtained from the Services (or the use thereof) are for informational purposes only. We do not have any liability whatsoever for business decisions resulting from such outputs. You must ensure the outputs are accurate and consistent.
We do not operate the networks of, or have any control over the operations of, the wireless or other communications service providers through which you may access the Services. Accordingly, (a) we disclaim all responsibility and liability for or relating to your use of any such providers to access the Services and (b) we cannot guarantee the privacy or security of wireless data transmissions.
No other oral advice, written or electronically delivered information given by us or our Representatives shall create any warranty.
- LIMITATION OF LIABILITY
To the maximum extent permitted by Law, neither party shall be liable to the other party or its Representatives for any loss of profits, or special, indirect, incidental, consequential or exemplary damages, in connection with the performance of the Services, or the performance of any other obligations under these Terms of Services, even if a party is aware of the possibility of occurrence of such damages.
Notwithstanding anything to the contrary, to the maximum extent permitted by Law, our total liability to you for any damages arising out or in connection with these Terms of Services, whether arising by statute, contract tort or otherwise, will not exceed the amounts paid by you pursuant to an Order Form during the twelve (12)-month period preceding the event which gave rise to such damages.
- FORCE MAJEURE
Except as it relates to the payment of the Fees, neither party shall be liable for delays in or failure of performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God or public enemy, acts of government in either its sovereign or contractual capacity, flood, earthquake or other natural disaster, strike or other labor disputes, acts of war, acts of civil disobedience, denial-of-services and distributed-denial-of-services, ransomware and other cyber-attacks that are not caused or facilitated by negligence (a “Force Majeure”). Any delay resulting from a Force Majeure will result in an extension of the corresponding obligation for a period equal to the time lost by reason by such cause. For instance, if the Services are unavailable for a period of two (2) weeks as a result of a Force Majeure, then the Subscription Term shall automatically be extended by two (2) weeks. The parties shall advise each other as soon as possible in the event of a Force Majeure.
- EXPORT CONTROL; ANTI-CORRUPTION
Each party shall comply with all applicable anti-bribery and anti-corruption Laws, including, without limitation, the Canadian Corruption of Foreign Public Officials Act and the U.S. Foreign Corrupt Practices Act of 1977, as amended (“Anti-Corruption Laws”). Neither party or its Representatives is or has been the subject of any investigation or inquiry by any authorities with respect to potential or actual violations of anti-bribery Law. If a party has been subject to such investigation or inquiry, it represents and warrants that it has not been found in breach of applicable Law and that no charge has been retained against this party. Notwithstanding anything to the contrary, if either party takes any action that could constitute a violation of Anti-Corruption Laws, the other party may immediately terminate this Agreement.
Customer acknowledges that the Services may be subject to Canadian and United States export laws, statutes and regulations and to export laws, statutes and regulations of other countries, including, but not limited to, the U.S. Department of Commerce Export Administration Regulations and all administrative acts of the U.S. Government thereunder.
Either party may suspend or terminate the Terms of Services (or an Order Form, if there are more than one active) for cause (i) upon a thirty (30) day prior written notice of a material breach of the Terms of Services to the other party, if such breach remains uncured at the expiration of such period; (ii) immediately upon a written notice if:
i. Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors;
ii. Customer refuses a modification to these Terms of Services as further described under Section 2.(b);
iii. Customer or an End Users commits an Abuse as described under Section 3.(a), if Cashflow has conducted a reasonable inquiry confirming that the Abuse was committed;
iv. In case of a Service Level breach as described under Section 6, if mediation has failed;
v. In case of a violation of Anti-Corruption Laws, as described under Section 22.
vi. If Customer fails to pay overdue Fees as described under Section 9.(b).
vii. If there is no reasonable change that the material breach of these Terms of Services by the other party can be resolved within the thirty (30) days notice referred to in Section 23.(a)(i).
For greater precision, if an Order Form is terminated and no other Order Form is active, these Terms of Services shall also be terminated.
Customer hereby irremediably and expressly renounce to articles 2125 and 2126 of the Civil Code of Quebec.
We may terminate these Terms of Services without cause subject to a ninety (90) days prior written notice to you.
If the Services are terminated for any reason, Customer agree to pay to Cashflow, in proportion to the agreed Fees in the Order Form, for the actual work performed up to the termination date of the Terms of Services (or the relevant Order Form).
b) Effects of Termination
If these Terms of Services are terminated for any reason or expire, then: (i) except as otherwise set forth in these Terms of Services, the rights granted by one party to the other shall terminate immediately; (ii) you shall have a limited access to the Services for a limited period of thirty (30) days during which you may extract your Customer Data.
The provisions of Sections 1, 9, 11, 12, 13, 14, 16, 18, 19 and 23 hereof will survive the Term or the termination of these Terms of Services for any reason.
- GOVERNING LAW; DISPUTE RESOLUTION
a) Governing Law
The validity, construction and performance of these Terms of Services and the legal relation between you and us shall be governed by and constructed in accordance with the Law of Quebec, Canada, and the federal Law applicable therein, without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction. Specifically excluded from application to the Terms of Services is that law known as the United Nations Convention on the International Sale of Goods.
Subject to Sections 24.(b) and 24.(c) hereunder, any legal suit, action or proceeding, arising out of the Terms of Services or any transactions hereunder shall be instituted exclusively in Montreal, Quebec, Canada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Any dispute between the parties arising from the application or interpretation of the Terms of Services that is not resolved within thirty (30) days from a written notice of dispute being given by one party to the other party shall be referred to mandatory mediation. The parties must participate in good faith in at least one (1) mediation session by delegating a person in authority to participate. The mediator shall be selected jointly by the parties acting reasonably. The mediation shall be conducted in French or English in the City of Montreal, Province of Quebec, or through electronic means as agreed upon between the parties.. The parties shall be responsible for their own costs relating to the mediation and shall share equally the other costs associated with the mediation, such as professional fees.
If the Parties settle the dispute through mediation, they shall jointly draft a document setting out the terms of such settlement. This document, once signed, will be irrevocably binding on the parties, and may be subject to homologation by a competent court in Montreal, Quebec, Canada.
Subject to the mediation provisions set out above, if any dispute, controversy or claim arising out of or relating to these Terms of Services including any question regarding its existence, interpretation, validity, breach or termination or the business relationship created by it shall be referred to and finally resolved by arbitration under the Canadian Arbitration Association Arbitration Rules. The place of arbitration shall be Montreal, Québec, Canada (unless agreed otherwise in writing between the parties). The language of the arbitration shall be French or English, at the parties’ choice. There shall be a sole arbitrator selected jointly between the parties, or if the parties cannot agree, by a judge of the Superior Court of Québec, in Montreal, Quebec, Canada. The arbitrator shall have at least five (5) years of experience in commercial law and in the field of technology such as software-as-a-service.
The arbitrator must select its award from one of the final offers made by each of the Parties, in its entirety and without modification. The arbitrator must provide detailed reasons for its award. An oral hearing need not be held, and the parties may submit their observations in writing. There will be no appeal from the decision of the arbitrator on questions of fact, law or mixed fact and law. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. The costs of the arbitration shall be divided equally between the parties, and each party shall bear its own costs of representation. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
The arbitration proceedings and awards shall be considered Confidential Information.
- GENERAL PROVISIONS
The waiver of a breach of any provision of these Terms of Services will not operate or be interpreted as a waiver of any other or subsequent breach.
If any provision of these Terms of Services is in violation of any Law, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions.
These Terms of Services describe the entire understanding of the parties and supersedes all oral and written agreements or understandings between them related to its subject matter.
Nothing in these Terms and Conditions creates any special relationship between the parties, such as a partnership or joint venture relationship between the parties.
We may assign these Terms of Services, in whole or in part, at any time in the context of a bona fide corporate reorganization, a sale of our assets, a merger and acquisition or bankruptcy filings. You may not assign these Terms of Services, or part of it, to any other person without our prior written approval.. Any attempt by you to assign these Terms of Services without our consent shall be void and null. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Services or any part of the Services. These Terms of Services shall be binding upon any assignee to which they are assigned in compliance with this paragraph.