MineralTree Customer Agreement
This Customer Agreement (this “Agreement”), which contains the terms and conditions that govern your access to and use of the Solution (as defined below), is an agreement between MineralTree, Inc. (“MineralTree”) and you or the entity you represent (“Customer”, “you” or “your”). By Accepting this Agreement by (i) clicking “I Accept” button or check box presented with these terms or (ii) executing an Order Form (as defined below) that references this Agreement, Customer agrees to the terms of this Agreement. If you are entering into this Agreement for an entity, such as the company you work for, you represent that you have legal authority to bind that entity.
- “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Customer Data” means all data and/or content created or provided by or for Customer, and all data derived therefrom.
- “Customer Systems” means all necessary systems, facilities and resources of any kind required to be provided by Customer to effectively access and use the Solution, including, as applicable, Customer or third-party communication lines, databases, software, hardware, firewalls, internet connections, routing and network addresses and configurations and key contacts for problem escalation.
- “Intellectual Property Rights” means all intellectual property rights, including all copyright, patent, trade secret, trademark, moral, termination, authorship, rights of publicity and other proprietary rights.
- “Maintenance Services” means maintenance and support services that relate to the Subscription Service and Software, a description of which can be found at mineraltree.com/maintenanceandsupport.
- “Order Form” means the documents for placing orders for the Solution entered into between Customer and MineralTree from time to time. Order Forms may be documents in written or electronic form. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto, and you agree that you shall also remain responsible for the compliance by such Affiliates with this Agreement. Order Forms form part of the Agreement and shall be deemed incorporated herein by reference.
- “Software” means, if applicable, the software provided by download that enables Customer to access the Subscription Service and accompanying documentation. If the Subscription Service is terminated, your right to use the Software also terminates.
- “Solution” means, collectively, the Subscription Service, the Maintenance Services and, if applicable, the Software. The Solution services that you choose to subscribe to and to which the terms and conditions of this Agreement are applicable are those services selected by you in the Order Form.
- “Subscription Service” means MineralTree’s online accounts payable and payment automation platform, including all accompanying documentation.
- “Subscription Start Date” means the date on which your subscription to the Solution starts, as set forth in an Order Form.
- “Subscription Term” means the period of time for which you have subscribed to the Solution, as set forth in an Order Form.
- “Third-Party Services” shall have the meaning assigned to such term in Section 16.
- “Users” means individuals who are authorized by you to use the Subscription Service. Users may include, for example, your employees, consultants, contractors and agents, and third parties to which you provide business services.
- Provision of Subscription Service. During the Subscription Term and subject to compliance with this Agreement, MineralTree grants you and your Users a limited right to access and use the Subscription Service for business purposes as permitted in the Order Form. MineralTree continuously modifies the Subscription Service to provide additional or improved functionality. You agree to accept all modifications that MineralTree in its sole discretion may make to the Subscription Service and provide to you at no additional charge.
- Subscription Use Restrictions. You shall not (i) permit any third party to access the Subscription Service except as permitted herein or in an Order Form, (ii) create derivative works based on the Subscription Service except as expressly authorized herein, (iii) copy, distribute, display, frame or mirror any part or content of the Subscription Service, other than copying or framing on you own intranets or otherwise for you own internal business purposes, (iv) reverse engineer or attempt to derive the source code for the Subscription Service, (v) sell, resell, rent or lease the Subscription Service; or (vi) access the Subscription Service in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Subscription Service.
- Software License and Restrictions. If applicable, MineralTree grants to you a non-exclusive, non-transferable, non-sublicensable, right and license during the Subscription Term to install and use the Software for your internal business purposes. Under this license, you are granted a right to download and install the Software on your computer or other devices, and use it solely in connection with, but only as long as you continue to subscribe to, the Subscription Service and abide by the terms of this agreement.
- Hosting. Customer acknowledges that MineralTree’s Subscription Service operates on one or more third party cloud computing platforms and that MineralTree shall have the right to change or add to the cloud computing platforms on which its Subscription Service operates. MineralTree shall ensure that any such third-party cloud platform provider(s) are covered by MineralTree’s annual SSAE18 audit. Upon request, MineralTree shall provide a copy of its SSAE18 audit report to Customer.
- MineralTree Intellectual Property Rights. Subject to the limited rights expressly granted hereunder, MineralTree reserves all rights, title and interest in and to the Solution, including all related Intellectual Property Rights. No rights are granted to you hereunder other than as expressly set forth herein. MineralTree shall have a royalty-free, non-exclusive, worldwide, irrevocable, perpetual license to use and incorporate into the Solution or other MineralTree services any suggestions, enhancement requests, recommendations or other feedback provided by you and your Users, relating to the operation of the Solution, provided that the foregoing shall not apply to your Confidential Information or Customer Data.
3. Customer Security.
You are responsible for any and all activities that occur through your User account(s) and you shall abide by all applicable laws, rules and regulations in connection with use of the Solution. You shall (i) keep all passwords and user ID’s confidential and promptly notify MineralTree after discovery of any unauthorized use of any password or User account or any other known or suspected breach of security, (ii) use the verification tools provided to you (iii) not knowingly impersonate another user of the Solution or provide false information to gain access to or use the Solution and (iv) shall ensure that Users abide by the terms and conditions herein. MineralTree may suspend or deactivate access to the Solution as we deem necessary to investigate or stop illegal, fraudulent or suspicious activities, provided that MineralTree will give you notice of any such suspension or deactivation as soon as practicable if such notice is permitted by law enforcement or regulatory agencies, and reinstate suspended services promptly when the reasons for the suspension are cured.
4. MineralTree Privacy and Data Security.
5. Laws and Regulations.
Each of MineralTree and Customer shall comply with all applicable laws and regulations in connection with such party’s delivery or use of the Solution, including but not limited to applicable data protection laws and regulations.
6. Customer Data.
Customer owns all right, title and interest in all Customer Data. Nothing in this Agreement shall be construed to grant MineralTree any rights in Customer Data beyond those expressly provided herein. As between MineralTree and Customer, Customer is solely responsible for the content, quality and accuracy of Customer Data, and for ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations. To the extent that Customer and Users include personal or consumer information within Customer Data, Customer, and not MineralTree, shall comply with all applicable laws relating thereto, including any notices or consents that may be required in order to include such personal or consumer information in the Customer Data, and Customer shall indemnify and hold MineralTree harmless against any liability that may arise in connection with such information. Notwithstanding the foregoing, MineralTree remains responsible for compliance with the confidentiality obligations in Section 9 below.
7. Aggregate Data.
You acknowledge and agree that MineralTree may collect certain data and information as a result of your and your Users’ access and use of the Subscription Service. This anonymized data is referred to as “Aggregate Data”. MineralTree shall have the right to use Aggregate Data for research, marketing, benchmarking, analytics, industry analytics and other purposes reasonably required to develop, deliver and provide ongoing innovation to MineralTree services.
8. Customer Authorizations.
- Customer authorizes MineralTree (i) to use and disclose Customer Data to the extent necessary to provide the Solution; (ii) to collect information for compliance with Know Your Customer (KYC), Anti-Money Laundering (AML), Office of Foreign Assets Control (OFAC), and other applicable regulatory requirements, as necessary; (iii) to collect information necessary to complete credit applications, as applicable; (iv) for each Customer payment request, to facilitate payments to authorized payees by transmitting such payment requests to MineralTree’s payment partners; and (v) to provide remittance information, payment information and payment status to Customer’s payees.
- Customer represents and warrants that (i) Customer has full authority to authorize all payments requested through the Solution; (ii) Customer has authorized applicable financial institution(s) to withdraw, debit or charge the necessary funds from the bank account(s) from which payments will be made via the Solution; (iii) Customer will request a payment only when a sufficient balance will be available in the respective bank account at the anticipated time of withdrawal; (iv) Customer’s payment and remittance instructions are complete and accurate in all respects and in compliance with all applicable laws and regulations; and (v) Customer’s instructions, requests or other communications given to MineralTree through the Solution shall be regarded as legal endorsements and shall be deemed to have the same legal authority as a written authorization signed by an authorized representative. MineralTree shall have no liability resulting from the refusal of any payee to accept payment through the Solution, the failure of Customer to provide timely or accurate information to MineralTree, or a breach by Customer of its representations and warranties.
- MineralTree reserves the right to correct payment transactions that were incorrectly executed, regardless of the nature and cause of the error.
Each party may have access to information that is confidential or proprietary to the other party and/or its Affiliates. For purposes of this Agreement, “Confidential Information” means the confidential information of a party and/or its Affiliates which is made available in connection with this Agreement, whether disclosed in written, oral, electronic, visual or other form, which is identified as confidential at the time of disclosure or should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including without limitation information regarding a party’s business, operations, finances, technologies, current and future products and services, pricing, personnel, customers and suppliers and (i) with regard to Customer, the Customer Data, and (ii) with regard to MineralTree, the Solution and MineralTree Intellectual Property. The receiving party will use the disclosing party’s Confidential Information solely as necessary in connection with the performance of this Agreement. The receiving party shall maintain the confidentiality of the disclosing party’s Confidential Information using at least the same degree of care that such party uses to protect its own Confidential Information of a similar nature, but in no event less than reasonable care, and shall restrict disclosure of the disclosing party’s Confidential Information to its employees, consultants, contractors, agents and representatives who have a need to know such information and are bound by obligations of confidentiality and non-use no less restrictive than those set forth herein; provided, that a party may disclose the disclosing party’s Confidential Information if required by law and provided the receiving party provides prompt notice of such requirement and disclosure to the other party to the extent allowed by law. Confidential Information excludes information to the extent such information (i) is or becomes part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure and was not obtained directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the receiving party by a third- party without restriction on disclosure; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
- Payment. Customer shall pay all fees specified in all Order Forms hereunder in US dollars and without any deduction for withholding or similar taxes. Except as otherwise specified herein or in an Order Form, payment obligations are non-cancelable and fees paid are non-refundable.
- Overdue Charges. Subject to Section 10.d. (Payment Disputes), if any undisputed charges are not received from Customer by the due date, then at MineralTree’s discretion, such charges may accrue late interest at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of Service. Subject to Section 10.d. (Payment Disputes), if any undisputed amount owing by Customer under this or any other agreement for the Solution is thirty (30) or more days overdue, MineralTree may, without limiting its other rights and remedies, suspend access to the Solution until such amounts are paid in full. MineralTree will give Customer at least seven (7) days’ prior written notice that Customer’s account is overdue, before suspending the access to the Solution.
- Payment Disputes. MineralTree shall not exercise its rights under Section 10.b. (Overdue Charges) or Section 10.c. (Suspension of Service) if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
- Taxes. Unless otherwise stated, MineralTree’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If MineralTree has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides MineralTree with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, MineralTree is solely responsible for taxes assessable against MineralTree based on its income, property and employees.
This Agreement shall have a term commencing on the effective date of the Order Form and ending upon expiration of the Subscription Term or termination of the Solution. Unless terminated in accordance with this Agreement or otherwise provided for in an Order Form, each Order Form shall have a Subscription Term of one year commencing on the Subscription Start Date. The Subscription Term will automatically renew for subsequent 12-month period(s) on the anniversary of the Subscription Start Date, unless either party sends the other written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current Subscription period.
- Termination for Cause. A party may terminate this Agreement or any Order Form for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; and MineralTree may terminate this Agreement (ii) if 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.
- Effect of Termination and Return of Customer Data. Upon the effective date of expiration or termination of this Agreement or any applicable Subscription Term, Customer shall immediately cease any further use of the Solution and shall retrieve the Customer Data therein. Unless otherwise agreed, after such expiration or termination, MineralTree shall have no obligation to maintain or provide any Customer Data.
13. Warranties and Exclusions.
- Warranties. MineralTree warrants that the Subscription Service and Software will conform in all material respects the accompanying documentation and any specifications or descriptions set forth in the applicable Order Form. EXCEPT FOR THIS LIMITED WARRANTY, MINERALTREE DISCLAIMS ALL OTHER IMPLIED WARRANTIES AND TERMS (INCLUDING ANY THAT MAY ARISE BY LAW), INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT MINERALTREE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). MINERALTREE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE SOLUTION WILL BE FREE OF ERRORS OR DEFECTS OR WILL OPERATE WITHOUT INTERRUPTION. MINERALTREE’S ENTIRE LIABILITY UNDER THIS WARRANTY SHALL BE TO CORRECT OR MODIFY THE NON-CONFORMITY AT ITS OPTION, AND, IF IT IS UNABLE TO OR UNWILLING TO DO SO WITHIN A REASONABLE PERIOD OF TIME, YOU MAY, AS YOUR EXCLUSIVE REMEDY, TERMINATE YOUR SUBSCRIPTION TO THE SOLUTION AFTER DELIVERING WRITTEN NOTICE TO MINERALTREE.
- Exclusion from Warranties. The warranties in Sections 13 are void to the extent any failure to perform in accordance with the accompanying documentation or Order Form specifications is the result of (i) the Solution not being used in accordance with this Agreement or the applicable documentation, (ii) the Solution being modified or altered without MineralTree’s knowledge and written permission, (iii) deployment of the Solution, including implementation and configuration, not performed by, or approved in writing by, MineralTree, or (iv) Internet or network connections, streaming services, computers, equipment or devices not supplied by MineralTree.
- Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOST DATA, OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MINERALTREE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOLUTION (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE SOLUTION IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH LIABILITY AROSE.
- Customer Indemnification. Customer shall defend MineralTree against any claim, demand, suit or proceeding (a “Claim”) made or brought against MineralTree by a third party (i) arising from Customer’s use of the Solution in violation of this Agreement or any applicable law or (ii) alleging that Customer Data infringes or misappropriates the Intellectual Property Rights of a third party or that the use by MineralTree of the Customer Data as permitted under this Agreement violates applicable law, and shall indemnify MineralTree for any damages, fines, attorney fees and costs finally awarded against MineralTree as a result of, or for any amounts paid by MineralTree under a court-approved settlement of, such Claim.
- MineralTree Indemnification.MineralTree shall defend Customer against any Claim made or brought by a third party alleging that the Solution infringes or misappropriates any third party Intellectual Property Right and shall indemnify Customer for any damages, fines, attorney fees and costs finally awarded against Customer as a result of, or for any amounts paid by MineralTree under a court-approved settlement of, such Claim. MineralTree will not be liable under this section for any claim of infringement resulting from (i) your use of a superseded or altered release of Software if the infringement would have been avoided by the use of a current unaltered release of the Software that had been provided to you free of additional charge, (ii) your breach of any of the terms of this Agreement or use of the Solution in an operating environment not provided for in the description of the Solution. Should the Solution become, or in MineralTree’s opinion be likely to become, the subject of an infringement or misappropriation claim, MineralTree will, at MineralTree’s option and MineralTree’s sole expense either (a) modify the Solution to be non-infringing (but containing substantially equivalent functionality); (b) obtain a right for you to continue using the Solution; or (c) terminate this Agreement and reimburse you for any pre-paid subscription fees for the current Subscription Term. This section states your exclusive remedy and MineralTree’s entire liability to you for third party infringement claims.
- Indemnification Process. Each party’s indemnification obligations in this Section 15 are subject to (i) prompt notification of any such Claim (provided that the indemnified party’s failure to provide reasonable written notice shall only relieve the indemnifying party of its indemnification obligations hereunder to the extent such failure materially limits or prejudices the indemnifying party’s ability to defend or settle such claim); (ii) the transfer of sole control of the defense and any related settlement negotiations to the indemnifying party (provided that the indemnifying party may not settle any Claim unless the settlement unconditionally releases the indemnified party of all liability); and (iii) the indemnified party’s reasonable cooperation in the defense of such claim.
16. Third Party Services.
- Access. Through the Subscription Service, you may have access to third-party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, “Third-Party Services”).
- No Control Over Third-Party Services. MineralTree does not have or maintain any control over Third-Party Services, and is not and cannot be responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third-Party Services, MineralTree does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third-Party Services.
- Disclaimer of Liability for Third-Party Services. As between you and MineralTree, you are solely responsible for your use of Third-Party Services. MineralTree disclaims any and all responsibility or liability for any harm resulting from your use of Third-Party Services, and you irrevocably waive any claim against MineralTree with respect to the content or operation of any Third-Party Services.
- Force Majeure. MineralTree will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
- Governing law. This Agreement is governed by, and subject to, the laws of the Commonwealth of Massachusetts, without regard to the conflict of law provisions. For purposes of litigating any dispute that arises under this Agreement, the parties hereby submit to and consent to the jurisdiction of the Commonwealth of Massachusetts, agree that such litigation shall be conducted in the courts of Middlesex County, or the federal courts for the United States for the District of Massachusetts.
- Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
- Surviving Provisions. All provisions of the Agreement which by their nature may require performance after expiration or termination of the Agreement shall survive such expiration or termination, including appropriate provisions of Sections 2.e. (MineralTree Intellectual Property Rights), 9 (Confidentiality), 10 (Fees), 12 (Termination), 13 (Warranties and Exclusions), 14 (Limitations), 15 (Indemnification), 17 (General), and any fees due to under this Agreement or any applicable Order Form.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall 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, and the remaining provisions of this Agreement shall remain in effect.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, MineralTree may assign this Agreement in its entirety (including all Order Forms), and its rights or obligations hereunder, without Customer’s consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of MineralTree’s assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related and service notices to Customer shall be addressed to the relevant contact designated by Customer.
- Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of this Agreement shall expressly prevail, unless such exhibit, addendum or Order Form expressly references such conflict or inconsistency, in which case the exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.