Effective Date - October 11, 2023
These Terms of Use (“Terms”) describe the terms under which Spendflo, Inc. (“We”, “Our” “Us”) provides the Customer (“You”, “Your”, “Yourself”), who purchases Our Platform and Our Services and/or creates an Account with Us, and Your Users access to and use of Our Platform and Services. By accessing and using Our Platform and Services, a) You agree to be bound by these Terms and acknowledge having read the privacy policy located at (https://www.spendflo.com/privacy-policy) (“Privacy Policy”). b) You warrant to Us that you have legal capacity and are competent to enter into this agreement c) That, in the event You are entering into these Terms on behalf of any entity/company or its group, You possess the requisite authority to bind such entities, company or its groups to these Terms. If You do not agree to these Terms, You should immediately cease accessing and using Our Platform and Services.
You and Us will be individually referred to as “Party” and collectively as “Parties”.
1. YOUR RIGHTS
1.1. Subject to Your compliance with these Terms and solely during the Subscription Term, You shall have the limited, non-exclusive, revocable, royalty-free, non-transferable, right to (i) access and use the Platform and Services for your internal business purposes in accordance with the pricing plan as specifically stated in the relevant Order Form; (ii) download, install and use mobile/desktop applications and plug- ins to access and use the Platform and Services.
2. YOUR RESPONSIBILITIES
2.1. Your Account: As part of the registration process, You will identify an administrative user name and password for Your Account.
2.2. Acceptable Use: You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare disassemble, reverse engineer, decompile or make the Platform available to any third party, other than Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) modify, adapt, or hack the Platform or otherwise attempt to gain or gain unauthorized access to the Platform or related systems or networks; (c) duplicate, mirror, republish, download, the whole or any part of the Platform (d) access the Platform for purposes of benchmarking, creating derivative works based on, or developing or operating products or services in competition with the Platform (e) use the Platform to store or transmit Sensitive Personal Information; (f) use the Platform to store or transmit Customer Data in violation of applicable laws and regulations, including but not limited to violation of any person’s privacy rights, export control laws/regulations; (g) access it for purposes of creating derivative works based on, or developing or operating products or services for third-parties in competition with the Platform and/or Services; (f) use the Platform to store or transmit any content that infringes upon any person’s intellectual property rights or is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (h) use the Platform to knowingly post, transmit, upload, link to, send or store any viruses, malware, trojan horses, time bombs, or any other similar harmful software; (i) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Platform(through use of manual or automated means) (j) use the Platform for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, or sending electronic communications (including e-mail) in violation of applicable law; (k) use the Platform to transmit junk, spam, phishing, spoofing, pyramid schemes or other forms of duplicative or unsolicited messages;
2.3. If We inform You that a specified activity or purpose is prohibited with respect to the Platform and/or Services, You will ensure that You immediately cease access to and use of the Platform and Services for such prohibited activity or purpose.
2.4. You shall be responsible for obtaining any approvals, establishing notices or policies for and ensuring compliance with all applicable laws and regulations relating to the collection and transmission of Personal Data of individuals who are Users and/or End Users.
2.5. In order for Spendflo to provide agreed Services via its Platform, on as needed basis, Customer shall work closely with Spendflo to provide reasonable assistance as necessary and more specifically, the Customer shall be willing to share necessary permissions for needed integrations, give access to applicable data collection sources on need basis and share data in the form of CSV upload should any other form of data collection and access is deemed unviable.
2.6. Third Party/Supplier Interactions:
(a) No Supplier Fees: Except as otherwise agreed on an Order Form, We shall not charge Your suppliers for the right to interact with You through the Platform.
(b) Supplier Interactions: When using the Platform, You may enter into correspondence with and purchase goods and/or services from suppliers. Any such activities and associated terms are solely between You and the applicable third-party supplier and We shall have no obligation or responsibility for such correspondence or purchase between You and such third-party supplier.
3. SERVICE(S)
3.1. Any enhancements, new features or updates (“Updates”) to the Platform are also subject to these Terms and We reserve the right to deploy Updates at any time.
3.2. The Platform may temporarily be unavailable due to scheduled downtime for upgrades and maintenance in which case We shall use commercially reasonable endeavours to notify You in advance.
3.3. We will use commercially reasonable efforts to provide technical support services in accordance with the following terms:
(i) We will provide technical support as specified in the relevant Order Form, with the exclusion of Customer’s holidays (“Support Hours”).
(ii) We shall inform You of Your Point of Contact at the time of onboarding. However, We reserve the right to change such personnel and deploy Our resources in a manner We deem appropriate, to ensure effective and timely services to the Customer.
(iii) You shall provide Us with an email address containing Your domain such as 'saas@companyname.com to streamline communications with suppliers.
(iv) We will use commercially reasonable efforts to respond to all helpdesk tickets within one (1) business day.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Except for the rights granted to You under clause 1(‘Your Rights’), all rights, title and interest in and to all intellectual property and/or proprietary rights, title and interest in or related to the Platform and Services, including patents, inventions, copyrights, trademarks, domain names, trade secrets or know-how (collectively, “Intellectual Property Rights”) shall belong to and remain exclusively with Us.
4.2. You own the rights to the Customer Data that You provide to Us. We do not claim ownership over such Customer Data. You grant to Us a royalty-free license and right to use Customer Data, solely to provide, support, maintain and improve the Platform and Services.
4.3. Notwithstanding anything specified herein, We may make several development(s) and modification(s) to Our Services and Platform (together referred to as “Changes”) during the Subscription Term. We may use the data available on the Platform solely in aggregate and anonymized form for any such Changes, and all rights, title, and interest in any such Changes shall be owned by Us. You shall own all rights, title, and interest to Your entity-related data/ reports/ documents/ analysis generated through the course of Our Services.
4.4. Both Parties acknowledge and agree that they shall have all rights, title and interest in the Intellectual Property owned by it prior to the execution of this Agreement or acquired/created outside the scope of and independently of the relationships pursuant to this Agreement. This Agreement is not intended to effectuate the transfer of any Intellectual Property of either Party to the other Party.
4.5. Both Parties agree that they shall have no right to use the Intellectual Property of the other Party in any mode or manner without obtaining the prior written consent of the other Party except as specifically provided or permitted in this Agreement.
4.6. Both Parties shall not do anything to contest the ownership of Intellectual Property Rights of the other Party or take any action otherwise inconsistent with such ownership and Intellectual Property of the other Party.
4.7. Nothing contained herein shall be deemed to constitute or be construed as the acquisition of any legal/special/moral right by either Party or grant to a Party either directly or by implication, estoppels, or otherwise, of any license or any Trademark of the other Party.
4.8. All rights not expressly provided to You herein are reserved.
5. THIRD PARTY SERVICES
5.1. You acknowledge and agree that Your use of Third-party Services will be subject to the terms and conditions and privacy policies of such third-party and that We shall not be liable for Your enablement, access or use of such Third-party Services, including Your data processed by such third party. You should contact that Third- party service provider for any issues arising in connection with use of such Third-party Service.
6. CHARGES AND PAYMENT
6.1. Services Fee: All charges associated with Your Account shall be as specified in the relevant Order Form (“Services Fee”) and any other details regarding such Services Fee shall be as mentioned in the Order Form. The Services Fee specified in the relevant Order Form shall be applicable to the agreed Spend Range, also specified in the relevant Order Form. In case Your actual Spend under Management during the Subscription Term, exceeds the upper limit of the Spend Range specified in the relevant Order Form, then the Services Fee shall be re-negotiated between You and Us through a new Order Form or by way of an amendment to the existing Order Form. The Services Fee are due in full and payable in arrears in accordance with clause 6.2(Payment), when You subscribe to the Platform and Services.
6.2. Payment: You hereby authorize Us or Our authorized agents, as applicable, to bill You upon Your subscription to the Platform and Services (and any renewal thereof). Unless otherwise stated in the relevant Order Form, Your payment is due within thirty (30) days of our invoice date.
6.3. Refunds/ Money back in lieu of shortfall in Guaranteed Savings, where any such Guarantee is mentioned in the relevant Order Form: At the end of the Subscription Term, in the event the actual Savings accrued to You on account of the Services rendered by Us falls short of the Guaranteed Savings obligations, then You are entitled to receive a refund or money back of Services Fee in same proportion to the percentage shortfall of Guaranteed Savings amount as compared to the actual Savings accrued to You during the Subscription Term. For example, if the Services Fee is $50,000 and the Guaranteed Savings is $100,000, and at the end of the Subscription Term, the actual Savings accrued to You is only $75,000 (25% shortfall in Guaranteed Savings), then You shall be entitled to receive a refund of $12,500 (25% of Services Fee). The undisputed amount, if any, of refund or money back in lieu of shortfall in Guaranteed Savings shall become payable at the end of the Subscription Term. However, the total amount of refund or the money back in lieu of shortfall in Guaranteed Savings shall be limited or capped to the actual amount received from You by Us during the Subscription Term towards the Services Fee. Apart from this clause 6.3(Refund) and unless otherwise specified in these Terms, all Services Fee are non-refundable. No refunds shall be issued for partial use or non-use of the Platform or Services.
6.4. Your obligation and Our rights - For Us to demonstrate Guaranteed cost savings, if any, mentioned in the relevant Order Form, then You shall route all the software contracts which are part of the actual Spend under Management specified in the relevant Order Form through Our Platform, by involving Our Services. At any point in time during the Subscription Term, if You decide not to route some proportion of the renewals or upgrades of the software contracts through our Platform for negotiations or You decide to downgrade and/ or cancel certain proportion of the software contracts, all of which were a part of the actual Spend under Management specified in the relevant Order Form, then We reserve the right to proportionately reduce, that percentage of the amount of software contracts which are either not routed through Our Platform for negotiations or downgraded or cancelled during the Subscription Term, from Our Guaranteed cost savings obligations, if any, mentioned in the relevant Order Form. Notwithstanding any terms and conditions stated in the Terms of Use or any Order Form or otherwise, if the Customer does not route at least 75% of the actual Spend under Management specified in the relevant Order Form through Us and by involving our Services during the Subscription Term, then Our Guaranteed cost savings obligations would fall away without any recourse to the Customer and as a consequence, We would not be liable for Refund/ Money back obligation in lieu of shortfall in Guaranteed cost savings as stated under Clause 6.3 above.
6.5. Savings - Savings for the purposes of Terms or any Agreement with You shall be calculated in the manner described under Exhibit A appended herewith
6.6. Late Payments/Non-payment of Services Fee: We will notify You in the event We do not receive payment towards Services Fee within the due date as per the Order Form. In such cases, We must receive payments within a maximum of ten (10) business days from the date of Our notice. If We do not receive payment within the foregoing time period, in addition to our right to other remedies available under law, We may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Your access to Our Platform and use of the Services until We receive Your payment towards the Services Fee as specified herein and/or; (iii) terminate Your Account.
6.7. Applicable Taxes: The Services Fee specified in the relevant Order Form is exclusive of any applicable federal or state or local taxes as per U.S. laws as well as any withholding tax or sales tax or goods & services tax applicable as per the laws of the country in which You are receiving Services and/ or paying the Services Fee under these Terms. Any such applicable taxes, including any tax obligations under the tax treaty between the U.S. and Your country, shall be over and above the Services Fee payable to Us by You.
7. TERM, TERMINATION AND SUSPENSION
7.1. The Subscription Term shall be as set forth in the Order Form.
7.2. Termination by You: You may terminate one or more of your Account(s) during the Subscription Term in the event We materially breach these Terms, provided that You shall provide an advance notice of such breach and afford Us not less than thirty (30) days to cure such breach. In case of such termination, We shall, pro-rata, refund the Services Fee, received in advance for the remainder of the unutilized Subscription Term and there shall be no refund on account of shortfall in Guaranteed Savings.
7.3. Suspension and Termination by Us: In addition to suspension for late payment or non-payment of Services Fee, We may suspend Your access to and use of Your Account, Our Platform or the Service(s) if You are in violation of these Terms. We will notify You if your activities violate These Terms and, at Our sole discretion, provide You with a period of fifteen (15) days (“Cure Period”) to cure or cease such activities. If You fail to cure or cease such activities within said Cure Period or if We believe that such breaches cannot be cured, Your Account shall be terminated.
7.4. Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate these Terms with notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies) which are dismissed within sixty (60) days, or has a receiver or trustee appointed for substantially all of its property.
7.5. Effect of Terminating Your Account: Following the termination of Your Account either by Yourself or by Us, Your access and use of the Platform and Services shall cease. To ensure that Customer’s data containing audit trials, approval workflows, documents, SaaS spend/ management/ procurement information, etc. are accessible to the Customer for back-up and secure retrieval, We retain all Customer Data in our possession for thirty (30) days from the date of effective termination (“Data Retention Period”). We shall under no circumstances be obligated to keep Customer Data beyond the Data Retention Period. However, within and beyond the Data Retention Period, Customer may request in writing to us to delete all the Customer Data in our Possession, which request shall be complied forthwith by Spendflo.
8. CONFIDENTIALITY; DATA PRIVACY AND SECURITY
8.1. If You choose, or are provided with, a user identification code, login, password or any other piece of information as part of Our security procedures, You must treat such information as confidential. You must not disclose it to any third party. We shall have the right to disable any user identification code or password, whether chosen by You or allocated by Us, at any time, if in Our reasonable opinion, You have failed to comply with any of the provisions of these Terms. We will not be responsible for any activities, including any attempted or actual access or loss of data occurring in Your Account as a result of your non-compliance of obligations under this clause.
8.2. Each of the Parties will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each of the Parties protects its own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this clause shall supersede any non-disclosure agreement by and between the Parties entered prior to these Terms that would purport to address the confidentiality of Customer Data and such agreement shall have no further force or effect with respect to Customer Data.
8.3. We shall Process such Personal Data forming part of Customer Data only for the purposes of (i) providing, maintaining, operating, supporting, and improving the Platform and Services and in accordance with these Terms, Privacy Policy, Data Processing Agreement (https://www.spendflo.com/data-processing-agreement), and any other applicable data privacy laws and as part of the direct relationship between Us and You. We shall not Process Customer Data for any purposes other than what is mentioned in these Terms, Privacy Policy and Data Processing Agreement. We certify that We understand the restrictions in this clause and will comply with such restrictions.
8.4. You acknowledge and agree that We and Our group companies may access or disclose information about You, Your Account, Members, including Customer Data, in order to (a) comply with the law or respond to lawful requests or legal process; or (b) prevent any infringement of group companies’ or Our customers’ proprietary rights. Further, at Our sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.
9. DISCLAIMER OF WARRANTIES
9.1. We will perform the Services in a professional and workmanlike manner, using reasonable skill and care in accordance with industry practice. However, you acknowledge and agree that Our ability to successfully perform the Services hereunder is dependent upon Your provision of timely information, access to resources, and cooperation, and that the Services provided will be the result of the parties’ joint inputs and efforts.
9.2. THE PLATFORM, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT FOR THE EXPRESS WARRANTIES FOR SERVICES SPECIFIED IN THIS CLAUSE, ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.
9.3. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE ACCESS TO THE PLATFORM, WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
10. LIMITATION OF LIABILITY
10.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY,NEGLIGENCE OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EITHER PARTY’S AGGREGATE LIABILITY AND THAT OF THEIR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THESE TERMS WILL BE LIMITED TO AN AMOUNT EQUAL TO TWELVE MONTHS OF THE SERVICES FEES PAID BY YOU FOR THE PLATFORM AND SERVICES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
10.2. IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
11. INDEMNIFICATION
11.1. Spendflo will, at its own expense, defend Customer in respect of any action brought against the Customer by a third party, and indemnify and hold harmless the Customer against, and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys in any and all claims, actions or suits alleging that the Service(s) provided under this Agreement constitutes an infringement of any valid intellectual property rights of such third party. Spendflo shall have no indemnity obligation for claims of infringement to the extent resulting or alleged to result from (i) Customer's use of the Spendflo’s Software along with programs not provided by Spendflo; (ii) modification to the Software made by a party other than Spendflo; (iii) Customer's failure to install the Updates provided by Spendflo; (iv) continued use of allegedly infringing Service(s) after being notified thereof or after being informed of modifications that would have avoided the alleged infringement. Spendflo's sole obligation to Customer and Customer's sole and exclusive remedy shall be as set forth in this Clause 11.1.(Indemnification) of this Agreement for intellectual property infringement claims.
11.2. Customer will indemnify and hold Spendflo harmless against any claim brought by a third party against Spendflo, and its respective employees, officers, directors, and agents arising from Customer’s acts or omissions in connection with Clause 2(Your Responsibilities) of this Agreement. The Customer will have no obligation or liability with respect to any such claim arising out of the gross negligence or willful misconduct of Spendflo.
11.3. The indemnity obligations under Clause 11.1 and 11.2 is subject to the indemnitee: (i) providing prompt written notice to the indemnifying Party of the indemnity claim; (ii) allowing the indemnitor sole control over the defense or settlement of the claim, and (iii) providing the indemnitor reasonable support and cooperation with regard to the defense.
12. MISCELLANEOUS
12.1. Entire Agreement and Revisions: These Terms, together with any Order Form(s), constitute the entire agreement, and supersede any and all prior agreements between us with regard to the subject matter hereof. These Terms and any Order Form(s) shall prevail over the terms or conditions in any purchase order or other order documentation You or any entity that You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. These Terms shall be updated from time to time. Each customer shall be bound by the version of Terms that was effective at the time the Customer signed the Order Form. In the event of a conflict between any Order Form or Agreement signed by the Customer with Spendflo and these Terms, the Order Form or Agreement signed by the Customer with Spendflo shall prevail. Earlier versions of Terms can be accessed by the customers at this link.
12.2. Relationship of the Parties: The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship among the Parties.
12.3. Assignment: The Customer shall not, without the prior written consent of Spendflo, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement except in connection with a solvent merger, acquisition, asset transfer or corporate reorganization. Spendflo may at any time, without modifying the interests, rights and obligations of the Customer under the Agreement, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. These Terms bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
12.4. Severability: The provisions of these Terms are severable and the unenforceability of any provision of these Terms shall not affect the enforceability of any other provision hereof. In addition, in the event that any provision of these Terms (or portion thereof) is determined by a court of competent jurisdiction to be unenforceable, it is the mutual understanding of the parties that such provision (or portion thereof) shall to the extent equitable, be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under applicable law.
12.5. Force Majeure: Notwithstanding anything to the contrary contained elsewhere, We shall not be liable for unavailability of the Platform and/or Services caused by circumstances beyond Our reasonable control, such as but not limited to, acts of God, acts of government, acts of terror or civil unrest, pandemic/epidemic technical failures beyond Our reasonable control (including, without limitation, inability to access the internet, unauthorized loss, distribution or dissemination of Customer Data), or acts undertaken by third parties, including without limitation, distributed denial of service attacks.
12.6. Governing Law and Dispute Resolution: These Terms shall be governed by the laws of the State of California, USA. You hereby expressly agree to submit to the exclusive personal jurisdiction of the courts in the City and County of San Francisco, USA. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be first settled by arbitration administered settled by the American Arbitration Association in accordance with its commercial arbitration rules (“AAA Rules”) and judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The language of the arbitration shall be English and the seat shall be the City and County of San Francisco. The dispute shall be resolved by a sole arbitrator appointed in accordance with the AAA Rules. The decision of the sole arbitrator shall be final and binding on the Parties.
12.7. Publicity Rights: During the Subscription Term and till the time You are Our customer receiving Services under an Agreement with Us, You hereby grant Us a royalty-free, worldwide, transferable license to use Your trademark or logo, solely for the limited purposes of identifying You as Our customer on Our websites, to publish testimonials or case studies about Your customer experience journey with Us and/or for Our marketing collateral(s). It is hereby affirmed that any such use shall not constitute the transfer of any right, title and interest of the Customer. Notwithstanding any clause or agreement, in case the Customer feels at any point in time, for any reasons whatsoever, that the use of their logo or trademark by Spendflo may negatively harm their public reputation or standing, then Spendflo shall be obliged to immediately remove them from their Website and other sites or materials upon such intimation by the Customer.
12.8. Notices and Consent to Electronic Communications: All notices to be provided by Us to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery services (“Courier”) or to the contact mailing address provided by You in the relevant Order Form; or (ii) electronic mail to the e-mail address provided by You. Our email address for a notice to Us: legal@spendflo.com All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
12.9. Survival: All clauses which, by their nature are intended to survive, including without limitation Clauses 4 (Intellectual Property Rights), 6 (Charges and Payment), 7 (Term and Termination), 8 (Confidentiality; Security and Data Privacy;), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Indemnification), 12 (Miscellaneous) and 13 (Definitions) shall survive any termination of Our agreement with respect to access to and use of the Platform and Services by You. Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
12.10. Waiver: Failure of either Party to require performance of any provision of this Agreement shall not affect such Party's right to full performance thereof at any time thereafter, and any waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach. No waiver shall be effective unless in writing and duly executed by an authorized representative of the concerned Party.
12.11. Counterparts: This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
13. DEFINITIONS
When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means any accounts or instances created by You or on Your behalf for access and use of the Platform and Services during the Subscription Term and to the extent applicable.
API: means the application programming interfaces developed, enabled by or licensed to Us that permits access to certain functionality provided by the Platform.
Confidential Information: means all information disclosed by one Party to the other Party which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of These Terms, Customer Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
Customer Data: means all electronic data, text, messages, personal data or other materials, including without limitation Personal Data of Users and End Users, submitted to the Platform by You through Your Account in connection with Your use of the Platform.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Platform provided or made available by Us to You or Your Users through the Platform or otherwise.
End User: means any person or entity other than You or Your Users with whom You interact using the Platform.
Order Form: means any service order form or statement of work order form agreed to and executed between Us and You, specifying, among other things, the Platform and the Services subscribed to, particular features and functionalities in the Platform that You wish to avail, the Services Fee and the Subscription Term.
Personal Data: means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller.
Platform: means Our cloud-based procurement management platform and any other platforms proprietary to Us, including the Spendflo mobile/desktop applications, any plug-ins or browser extension, to which You may subscribe to or download that helps You to track SaaS spend, purchase products from suppliers, negotiate, manage approval processes and manage Your SaaS subscription services; and any updates, modifications or improvements thereto, including individually and collectively, Software, the API and any Documentation.
Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Savings: means the amount of savings calculated in the manner described under Exhibit A appended to the Terms.
Sensitive Personal Information: means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation. It also includes information about an individual's criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws.
Services: means any professional services offered by Us to You as may be specified in an Order Form which may comprise of one or more of the following aspects: (i) Handling of all new software procurement from the point of request to contract signature, (ii) Renegotiating & renewing existing software contracts to achieve savings (Time & cost) and (iii) Tracking all information pertinent to the contract via the Platform.
Services Fee: means the price or fees, exclusive of any applicable taxes, agreed to be payable by You to Us for the Services rendered or to be rendered by Us to You during the Subscription Term as specified in the relevant Order Form.
Software: means software provided by Us (either by download or access through the internet) that allows You to use any functionality in connection with the Platform.
Spend under Management: means Your total spend on software license(s) and/ or software tools during each Subscription Term as specified in a relevant Order Form.
Subscription Term: means the period during which You have agreed to subscribe to the Platform and Services specified in a relevant Order Form.
Third-party Service(s) shall mean third party application(s) or service(s) integrating with the Platform through APIs or otherwise and that are not licensed by Us under these Terms.
User: means those who are designated users within the Platform, including an Account administrator, agents and other designated users.
Website(s) shall mean the websites owned and operated by Us including https://www.spendflo.com/
Exhibit A
SAVINGS CALCULATION
1. Savings - Savings for the purposes of Terms or any Agreement with You shall be calculated in one or more of the following ways, in a cumulative manner:
1.1. In case of upgrading of Software license(s), the Savings shall be the difference between the initial quote(s) communicated to Us prior to negotiation by Spendflo or in the absence of initial quote being communicated to us prior to negotiation by Spendflo, the existing prorated unit rates being paid by the Customer and the final price negotiated with the vendor for such upgrade through Spendflo’s involvement and efforts.
1.2. In case of downgrading of Software license(s):
1.2.1. where the downgrade has been initiated by Spendflo through its SaaS market expertise and/ or technical/ usage analysis and communicated to the Customer, specifically suggesting the Customer for downgrade, the Savings shall be the reduction, if any, in the existing prorated unit rates being paid by the Customer on account of such downgrade.
1.2.2. where the downgrade has not been initiated by Spendflo’s involvement and efforts, the Savings shall be the difference between the initial quote communicated to Us prior to negotiation by Spendflo or in the absence of initial quote being communicated to Us prior to negotiation by Spendflo, the existing prorated unit rates being paid by the Customer and the final price negotiated with the vendor for such downgrade through Spendflo’s involvement and efforts.
1.3. In case of new procurements or ‘as is’ renewals, the Savings shall be the difference between initial quote(s) or current price, as the case may be, communicated to Us prior to negotiation by Spendflo and the final price negotiated with the vendor through Spendflo’s involvement and efforts
1.4. In case of duplicate software(s) or under-utilized or unused tools of the Customer identified by Spendflo through its SaaS market expertise and/ or technical/ usage analysis and communicated to the Customer, specifically suggesting the Customer for cancellation of such software(s) and the Customer, triggered by Spendflo’s identification of such software(s) and recommendation, thereupon cancels such software(s), Savings shall be the actual money saved by the Customer as a result of such cancellation.
1.5. Waived off charges by the vendor (like pending invoice waive offs, overage adjustments, savings on renegotiation of existing contracts or contracts auto-renewed, etc.) and other benefits of new procurements/ renewals (like partner credits, investor credits, additional licenses/ additional range of licenses at no additional cost, additional usage credits at no additional cost, savings on consolidation of tools or features, etc), that are quantifiable (either fully or proportionately) and are directly enabled by Spendflo through its involvement and efforts. In such cases, Savings shall be the difference between existing prorated unit rates being paid or payable by the Customer to the vendor(s) prior to Spendflo’s involvement and the final contractual price agreed to be paid or payable by the Customer to the vendor, on account of Spendflo’s involvement and efforts.
2. Clarifications for Savings calculation:
2.1. Price hike(s) or Price revision(s) from Vendors: It is hereby clarified that if there are any unilateral price hike(s) or price revision(s) from vendors of Software license(s) either during negotiations or renewals for any reasons whatsoever, then such price hike(s) or price revision(s) by vendors shall be deemed either as the initial quote communicated to Us by the Customer or as the existing prorated unit rates being paid by the Customer, as the case may be, for the purposes of Savings calculation.
2.2. Change in billing frequency or subscription term: It is hereby clarified that changes in billing frequency and/ or the subscription term of the Software license(s) without any consequential change in number of users/ licenses/ usage quantum, shall not be considered as upgrading or downgrading of Software license(s) for the purposes of Savings calculation.
2.3. Change in requirements from the Customer during negotiations: If there are any changes in requirements communicated to Spendflo by the Customer during the negotiations with the vendor(s), which has an effect on the price of the Software tool/ license(s) being negotiated by Spendflo, then the initial quote or first quote received from vendor for such changed requirement from the Customer (or in the absence of it, the existing prorated unit rates being paid by the Customer for such changed requirement) shall be considered for comparison with the final negotiated price with the vendor, to calculate the Savings.
3. Savings amount to be captured on Spendflo Platform: The Savings amount calculated in the manner provided under this Exhibit A, shall be captured on the Spendflo Platform. Such Savings captured on the Spendflo Platform shall be counted towards Guaranteed Savings mentioned in the Order Form.
4. Dispute in Savings calculation: If there are any disputes in relation to Savings calculation or Savings amount communicated by Spendflo to the Customer after the execution of the contract with vendor(s), with respect to any particular Software license(s), then the Customer is obligated to raise such dispute(s) with Spendflo, within 5 business days from the actual date of execution of the contract for respective Software license(s). Such disputes, if any, shall be resolved amongst the Parties mutually within 10 business days from the date of receipt of such dispute by Spendflo. If the Savings dispute on any particular Software license(s) is resolved in the aforementioned manner or if the Customer does not dispute the Savings calculation or Savings amount as communicated by Spendflo within the aforementioned timelines, then neither Spendflo nor the Customer has the right to subsequently challenge the Savings calculation or Savings amount initially communicated by Spendflo and captured on the Spendflo Platform.
5. Annualization of Savings and Spend under Management from multi-year contract negotiations: In case of multi-year negotiated contracts by Spendflo:
5.1. Annualization of Savings - Aggregate Savings of the multi-year contract shall be annualized for the current Subscription Term and counted towards Guaranteed Savings specified in the Order Form
5.2. Annualization of Spend under Management - Similarly, aggregate spends for the multi-year contract shall be annualized for the current Subscription Term and adjusted towards actual Spend under Management specified in the Order Form and would form an integral part of Clause 6.4 (Your obligation and Our rights)
5.3. Guaranteed Savings adjustment under Clause 6.3(Refunds) - At the end of the annual Subscription Term with Spendflo, if the Customer decides not to renew the Services of Spendflo for additional subscription term(s) and there arises a scenario wherein Spendflo is obligated to refund or give money back to the Customer on account of shortfall in Guaranteed Savings obligations under Clause 6.3 (Refunds), then Spendflo reserves the right to adjust the non-annualized portion of the aggregate Savings achieved in multi-year contract negotiations towards the Guaranteed Savings obligations, before determining the actual refund or money back under Clause 6.3 (Refunds).
5.4. At the end of the annual Subscription Term with Spendflo, if the Customer decides to renew the Services of Spendflo for additional subscription term(s), then the non-annualized portion of the aggregate Savings achieved in multi-year contract negotiations, shall be counted towards Guaranteed Savings of such additional subscription term(s) in an annualized manner.
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