Factor Systems, LLC d/b/a Credit2B (a division of Billtrust)
MASTER SERVICES AGREEMENT
Subscription Services and Professional Services
Updated January 13, 2020
Please note that you may NOT access the Subscription Services (1) if you are not our Subscriber, or are a Third-Party not having our written permission, (2) if you are a competitor or for any competitive purpose, or for purposes of monitoring performance or functionality.
This Agreement is effective as of the earlier of your accepting this Agreement or using our Services.
"Affiliate" means an entity which is controlled by or is under common control by a Party where the Party has ability to enforce compliance by the affiliate with the terms and conditions of this Agreement.
"Agreement" means this Master Services Agreement combined with our Order Forms and any exhibits, if applicable.
"Applicable Data Protection Laws" include without limitation the General Data Protection Regulation ("GDPR"), the California Consumer Privacy Act ("CCPA") and Sections 1798.29 and 1798.82 of the California Civil Code ("Applicable Data Protection Laws").
"Credit2B", "we", "us" or "our" refers to Factor Systems, LLC d/b/a Credit2B.
"Fees" includes "Subscription Fees", "Professional Services Fees", and other fees as further described on Order Forms and Statement of Work if applicable.
"Information" includes business and credit information, receivables trade payment data, opinions, scores, results, calculations, Subscriber Data and all other content displayed in or provided through the Services.
"Information Sources" refer to the sources that provide Information to us including, but not limited to Credit2B Affiliates, our subscribers and their users, and Third-Party sources of information including other credit bureaus.
"Order Form" means the Credit2B order form(s) entered into between you and Credit2b, including the exhibits thereto, by which the you agree to the purchase of and subscription to certain Services.
"Parties" means the Subscriber and Credit2B collectively and "Party" means either the Subscriber or Credit2B individually.
"Personal Information" means any personal information, personal data, or personally identifiable information as those terms are defined under Applicable Data Protection Laws.
"Professional Services" have the meaning explained in Section 3.
"Services" means any services we provide to you, including Subscription Services and Professional Services.
"Statement of Work" is an exhibit which is sometimes used to further describe custom software configuration, timetable, and fees.
"Subscriber", "you" or "your" means company and its affiliates for which you are accepting, and which are bound by, this Agreement.
"Subscriber Data" means any data that any Subscriber submits or enters into the Services. Subscriber Data may include Personal Information pertaining to the Subscriber or the Subscribers' Users, employees, or affiliates as well as Personal Information of any other person which the Subscriber submits or enters into the Services.
"Subscriber User" means a person authorized pursuant to an Order Form who is either an (a) employee of Subscriber or its Affiliate; or (b) individual performing the functions of an employee on a temporary basis, independent contractor or consultant performing work solely for the Subscriber or its Affiliates.
"Subscription Services" have the meaning explained in Section 3.
"Term" means the term initially specified on an Order Form and any renewals, and if there is no applicable Order Form, it means the period for which you have access to the Services. The phrase "Initial Term" may also be used for the first term and "Renewal Term" for renewals.
"Third-Party Sites" refers to Third-Party websites that are linked from within the Services or our websites.
"Usage Limits" mean the scope of work, Subscriber Users, or number of reports or credit accounts covered by the Service, as provided on the Order Form.
2. ORDER FORMS AND PRECEDENCE
Credit2B Order Forms shall be deemed incorporated herein by reference and to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and an applicable Order Form, the terms of the Order Form shall prevail, but only as to the services set forth in the Order Form. We are under no obligation to furnish a particular Service until we accept the applicable Order Form in writing and receive payment in connection with such Order Form.
3. THE SERVICES
a. "Subscription Services" include, but are not limited to: credit application processing and workflow, credit and trade payments reporting, monitoring, scoring and data, user industry networking, and analyst consultations. These services are accessible at https://www.Credit2B.com, and other designated URLs, or by personal, telephone, or written communication.
b. "Professional Services" include, but are not limited to: business analysis, custom configuration, consulting, data cleansing, data management, training, and outsourcing. If Professional Services are ongoing (vs. one-time projects) , they will have the same Term(s) as the Subscription Services.
c. Usage Limits. The applicable number of Subscriber Users and Usage Limits will be specified on the Order Form. Additional Services, Subscriber Users, or Usage will require an additional Order Form and fees.
d. Modifications. We modify the Services from time to time, including adding or deleting features and functions, in an effort to improve your experience. We will not make changes to the Services that materially reduce the functionality provided to you during the Term.
e. Information Storage. Information, regardless of where sourced, is stored on computer servers located in the United States of America, utilizing multiple levels of physical, technical, software, and other security measures including Third-Party systems monitoring.
4. SUBSCRIBER SUPPORT
a. Support. Email, chat and phone support is available Monday through Friday, excluding US national holidays, with specific hours posted on our website. We make every attempt to respond to support questions within one business day; in practice, our responses are generally faster.
b. Services. We endeavor to make the Services available 24 hours a day, 7 days a week, except for planned downtime for maintenance.
5. PERMITTED AND PROHIBITED USE
a. Permitted Use.
You understand and agree that the Services are licensed for your exclusive use and only in compliance with this Agreement, solely in connection with commercial credit or financial transactions or for other legitimate commercial purposes. The information generated from the Services is to be maintained in confidence and disclosed only to your employees whose duties relate to the business purposes for which the Services are requested, and must only be used in compliance with all applicable laws, regulations and ordinances, and any special use restrictions set forth in this Agreement.
b. Prohibited Use. You agree you will NOT:
i. Access the Services (a) if you are not a Subscriber User, or do not have authorization from us, (b) if you are a competitor or for any competitive purpose, or (c) for purposes of monitoring performance or functionality.
ii. Use the Services as a factor in establishing an individual's eligibility for credit or insurance to be used for personal, family or household purposes, or for employment; or to engage in unfair or deceptive practices; or for direct marketing purposes.
iii. Provide a copy of a credit report or other Information obtained from the Services to a credit applicant / debtor, and you will refer any related inquiries to Credit2B in case of any dispute about the Information.
iv. Reproduce, distribute, sell, publish, or circulate the Information to any third party, nor create derivative works based on the Services or the Information; or (a) frame or mirror any content forming part of the Services; or (b) modify, reverse engineer or disassemble any part of the Services or any software contained therein; or (c) access or permit access to any party to build a competitive product or Services, or copy any ideas, features, functions or graphics of the Services, or (d) use or launch any automated system including "scrapers", "robots," "spiders," or "offline readers" to access the Services; or (e) use the Services in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Services; or (f) attempt to gain unauthorized access to the Services; or (g) access the Services other than through our interface; or (h) use the Services for any purpose or in any manner that is unlawful or prohibited by this Agreement, or (i) allow a Third-Party to access, use or store the Services or the information obtained therefrom without our written approval.
v. Any violation of this Section 5 B may cause immediate, irreparable harm, injury, and loss to Credit2B and its Information Sources and damages may not be a sufficient remedy, in which case we may immediately (i) terminate your use of the Services, (ii) be entitled to seek a court order to restrain further violations, and (iii) pursue all other lawful remedies, including the recovery of damages from Subscriber.
c. The Subscriber shall.
i. Assume full responsibility and liability for the acts and omissions of its Subscriber Users, as if such acts or omissions were committed by the Subscriber.
ii. Provide Credit2B with prompt assistance to comply under Applicable Data Protection Laws as related to Subscriber.
iii. Maintain the confidentiality of Subscriber User names, passwords, and account details, and advise Credit2B immediately if a password has been disclosed to or used by an unauthorized person or entity. We will not be responsible for any liability, loss, or damage arising out of the unauthorized use of your Subscriber User names, passwords and/or account information.
6. PROPRIETARY AND CONFIDENTIAL WORKS
a. This is an Agreement to access the Services by subscription, and you are not granted a license to any Services or software by this Agreement. We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
b. You acknowledge and agree that the Services are proprietary to Credit2B and comprise: (a) works of original authorship, including compiled information containing selection, arrangement and coordination and expression of such information or pre-existing material they have created, gathered or assembled; (b) confidential and trade secret information; and (c) information that has been created, developed and maintained at great expense of time and money, such that misappropriation or unauthorized use by others for commercial gain would unfairly or irreparably harm us..
c. We encourage all Subscribers to comment on the Services and to provide suggestions for new features and improvement. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Services, without payment or attribution to you.
d. Subscriber shall implement and maintain security measures with respect to the Services to which Subscriber has purchased that restricts access only to Subscriber Users with a need to know, and protect Information and Software from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those Subscriber employs to safeguard its own most confidential information. In the event of an actual or suspected breach of such security measures, Subscriber shall provide Credit2B prompt, but in no event later than two days after becoming aware, written notice of any security incident that involves, or which the Subscriber reasonably believes involves, the unauthorized access, use or disclosure of Information.
e. All trademarks, company names, product names or logos are the property of their respective owners. Our trademarks include, but aren't limited to Credit2B, Snap, RATIONALi, RationalScore, R-Score, and PQI and you may not use any of these without our prior written permission.
7. SUBSCRIBER CONTENT
a. By submitting Information to the Services including, but not limited to, credit references, comments, trade accounts, receivables payment and detailed transaction data you submit, or any information that you input, post, upload, or transmit (collectively "Content"), you are granting us a royalty-free perpetual, worldwide license to anonymously display, sell, distribute (inclusive to other globally recognized credit reporting bureaus), reproduce, reformat, combine with other data and use such Content in the products, services or data that we license, sell and/or provide to others, including but not limited to services and products of Reseller's parent company, subsidiaries and affiliates such as billing, invoicing, cash application, payments, and collections services and products. In the event that a business which is a subject of the Content, requests clarifications about the Content as expressed in a credit report, we and such credit reporting bureaus may be required to disclose to that business that you are the source of the record. If you participate in industry credit networks within Credit2B, you agree your identity can be revealed within your chosen networks. Documents, financials, etc., that you upload to your private Virtual Credit File are confidential to you.
b. You are responsible for any Content you submit to the Services. You agree and acknowledge that Content you submit may contain Personal Information and you certify that such Content is entered accurately to the best of your knowledge and in accordance with all Applicable Data Protection Laws. We retain the right, in our sole discretion, to review, edit, or delete any material that we deem to be illegal, offensive or otherwise inappropriate. Any blog, discussion board, and alert postings are not private.
8. PERSONAL INFORMATION
b. Subscriber agrees that at any time when it has not accepted the Billtrust Data Processing Addendum, provided at https://www.billtrust.com/privacy-terms/ (or when it is not in full force and effect for any other reason), Subscriber shall be prohibited from transferring to us for Processing Client Personal Data regulated by Applicable Data Protection Laws (all capitalized references shall have the meaning defined in the said Addendum), and shall be obligated to immediately cease and desist from any such activities, for as long as the said Addendum is not in full force and effect. Subscriber agrees to indemnify, defend, and hold harmless Credit2B and its officers, directors, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind which Credit2B may sustain as a consequence of the breach by Subscriber of its obligation pursuant to this paragraph.
c. We may sell Subscriber Data, including the Personal Information of any Subscriber (and Personal Information of any other person which the Subscriber submits to the Services, respectively) to, inter alia, credit bureaus, credit analysts, factor organizations, and to other Credit2B customers.
9. FEES, TAXES AND CHARGES
a. The Order Form specifies the Services and Fees, which are payable for the term in advance. If Usage Limits are exceeded during the Initial Term or Renewal Term, your fees will be increased pro-rata for the balance of the Initial Term or Renewal Term, and the increased Usage Limits will then become the basis for the next Renewal Term. Order Forms are non-cancellable and fees non-refundable; Services are priced to be used within each twelve-month period of a Term and any unused Services expire without value and may not be credited or carried forward to future periods.
b. Payment terms are "net" and in US dollars. In the event that payment is not received within 30 days, in addition to any amounts due, Subscriber may be charged a service charge of 1.5% per month from the due date, plus costs of collection including reasonable attorney fees.
c. Our fees do not include any taxes, levies, duties or governmental assessments, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction. This provision shall survive termination of this Agreement.
10. TERM AND TERMINATION
a. This Agreement will remain in effect for the Initial Term and any Renewal Terms and cannot be canceled before their expiration. Renewal Terms can be implemented by execution of another Order Form which shall include any additional Services purchased, or renewed automatically as provided for in Section 10b.
b. AUTOMATIC RENEWAL. UNLESS OTHERWISE SET FORTH IN THE ORDER FORM, IF NEITHER PARTY GIVES THE OTHER WRITTEN NOTICE THAT IT DOES NOT INTEND TO RENEW THE AGREEMENT NO LESS THAN SIXTY (60) DAYS PRIOR TO THE END OF A TERM, THE AGREEMENT WILL AUTOMATICALLY RENEW FOR THE SAME PERIOD AS THE PRIOR TERM, AND INCORPORATE AN INCREASE ON ALL FEES OF THREE AND ONE-HALF PERCENT.
c. Termination, Suspension and Expiration
i. Termination for Cause. Either Party may terminate this Agreement for cause upon thirty (30) days' notice to the other Party of a material breach if such breach remains uncured at the expiration of such notice period; or immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors.
ii. Suspension for Non-Payment. We may suspend access to all or any part of the Services at any time for non-payment of any amount past due. We will not suspend the Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
iii. Suspension for Prohibited Acts. We may suspend any Subscriber's access to the Services for: (a) use of the Services in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, or (b) posting or uploading material (i) that infringes on the intellectual property rights of another, or (ii) is deemed by us to be inappropriate, misleading or objectionable, or (iii) excessive posting that negatively impacts other Subscribers' use and enjoyment of the Services.
iv. Suspension for Present Harm. If the Services are: (a) being subjected to denial of service attacks or other disruptive activity, (b) being used to engage in denial of service attacks or other disruptive activity, (c) creating a security vulnerability for the Services or others, or (d) causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Services. We will try to limit the suspension to the affected portion of the Services and work to resolve the issues causing the suspension of the Services.
d. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Services.
Upon our written request, Subscriber shall certify in a signed writing that your use of the Services is in full compliance with the terms of this Agreement (including any restrictions in the applicable Order Form). We, or our authorized representative, may, upon prior reasonable notice of at least ten (10) days, inspect and audit your records and use of the Services to confirm your compliance with this Agreement. All such inspections and audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with your business activities. You are responsible for such audit costs only in the event the audit reveals that your use is not in accordance with the licensed scope of use or for unpaid Fees.
12. DISCLAIMERS; LIMITATIONS OF LIABILITY
a. BECAUSE THE SERVICES INVOLVE CONVEYING INFORMATION PROVIDED TO US BY OTHER SOURCES, CREDIT2B CANNOT AND WILL NOT, FOR THE FEE CHARGED FOR THE SERVICES, BE AN INSURER OR GUARANTOR OF THE ACCURACY OR RELIABILITY OF THE SERVICES, DATA CONTAINED IN ITS DATABASE, OR INFORMATION CONTAINED IN THE SERVICES. SUBSCRIBER RECOGNIZES THAT EVERY BUSINESS DECISION REPRESENTS AN ASSUMPTION OF RISK AND THAT NEITHER CREDIT2B NOR ITS INFORMATION SOURCES, IN FURNISHING SERVICES, UNDERWRITE OR ASSUME SUBSCRIBER'S RISK IN ANY MANNER WHATSOEVER.
b. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES AND THE DATA MADE AVAILABLE FROM THE SERVICES, FOR ANY PURPOSE. THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CREDIT2B DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE, OR CREDIT2B'S CONDUCT IN COLLECTING, COMPILING, OR INTERPRETING INFORMATION. NEITHER WE NOR OUR INFORMATION SOURCES WILL BE LIABLE TO SUBSCRIBER FOR ANY LOSS OR DAMAGE BASED ON ANY ERRORS OR OMISSIONS THEREFROM, WHETHER NEGLIGENT OR OTHERWISE, IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING OR DELIVERING THE DATA OR SERVICES.
c. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, LOST REVENUES OR LOST BUSINESS OPPORTUNITIES, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
d. THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF CREDIT2B AND ITS AFFILIATES, INFORMATION SOURCES, AGENTS, LICENSORS, DISTRIBUTORS, AND ANY OF THEIR AFFILIATED PERSONS AND ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "CREDIT2B PARTIES"), FOR ANY REASON WHATSOEVER RELATED TO THE PURCHASE OR USE OF ANY SERVICES SHALL NOT EXCEED THE AGGREGATE OF US$1,000.00, AND SUBSCRIBER AGREES NOT TO SUE FOR A GREATER AMOUNT. SUBSCRIBER RELEASES AND DISCHARGES THE CREDIT2B PARTIES FROM ALL LIABILITY IN EXCESS OF US$1,000.00, INCLUDING LIABILITY FOR NEGLIGENCE.
e. NOTHING IN THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED TO OR SHALL CONFER UPON ANY THIRD-PARTY PERSON OR ENTITY ANY RIGHT, BENEFIT OR REMEDY OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
f. THESE LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW BUT DO NOT APPLY TO VIOLATIONS OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY, OR A PARTY'S INDEMNIFICATION OBLIGATIONS. THIRD PARTIES THAT PROVIDE INFORMATION, SOFTWARE OR SERVICES TO CREDIT2B FOR USE IN PROVIDING THE SERVICES ARE ENTITLED TO ASSERT DEFENSES UNDER THIS SECTION 12 TO THE SAME EXTENT AS CREDIT2B.
SUBSCRIBER WILL INDEMNIFY AND HOLD HARMLESS THE CREDIT2B PARTIES FROM AND AGAINST ANY AND ALL LOSSES, EXPENSES (INCLUDING ATTORNEY'S FEES, PREJUDGMENT AND POSTJUDGMENT INTEREST, AND APPEAL BONDS), LIABILITIES, FINES, COSTS, AND DAMAGES INCURRED BY ANY OF THE INDEMNIFIED PARTIES THAT RESULT FROM SUBSCRIBER'S CONTENT, BREACH OF THIS AGREEMENT, OR ITS USE OF THE SERVICES.
14. GOVERNING LAW; JURISDICTION FOR DISPUTES; ARBITRATION
The Services are based in New Jersey, USA and all questions with respect to the construction of this Agreement and the rights and liabilities of the parties shall be construed in accordance with the substantive law of the State of New Jersey, without regard to conflict of laws principles.
Venue as to any action arising out of the subject matter hereof shall be in any state court located in Mercer County, New Jersey or the United States District Court for the District of New Jersey in Trenton, New Jersey. In the event of legal action, both parties waive trial by jury. Notwithstanding the foregoing, Credit2B may seek preliminary injunctive relief from any court of law if in its judgment such action is necessary to avoid irreparable harm.
15. THIRD-PARTY SITES AND PRODUCTS
Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warranty the Third-Party Site or Product.
b. Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by: an act of war, hostility, terrorism, or sabotage; act of God; electrical, internet, or telecommunication outage; government restrictions; or other events outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted. Except for actions for nonpayment or breach of a Party's proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued. Otherwise, such cause of action is permanently barred.
d. Electronic Signature. Electronic signatures that comply with applicable law are deemed original signatures.
e. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
f. Assignment, This Agreement may be assigned by either Party without the prior written consent of the other Party to its Affiliate or to a third party as part of a merger, consolidation, sale, or transfer of all or substantially all its assets associated with that portion of its business related to the subject matter of this Agreement, but only if the assignee has or simultaneously acquires all of the necessary rights and other assets to perform such Party's obligations under this Agreement.
g. Publicity. Neither Party will use the trade names, trademarks or service marks of the other party in any news release, publicity, advertising, or endorsement without the prior written approval of the other party, provided that Subscriber grants Credit2B the right to use such names and marks on Credit2B's Subscriber list and on its website for advertising purposes, which right shall survive termination or expiration of this Agreement.
h. Confidentiality of Terms. Subscriber shall not disclose the negotiated pricing or terms of this Agreement, or any Order Form, to any third party.
i. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
17. ENTIRE AGREEMENT
This, with any applicable Order Forms, exhibits, and the Data Processing Addendum (see Section 8(b)), if applicable, is the entire agreement between you and us for the Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Services or dependent on any oral or written public comments made by us regarding future functionality or features of the Services. There are no representations or warranties other than those set forth in writing in this Agreement.
18. SURVIVING TERMS
The obligations under Sections 1, 2, 5, 6, 7, 9c, 11, 12, 13, 14, 16, 17, and 18 survive termination or expiration of this Agreement.