Effective Date: 15-July-2022
Last Updated on: 15-July-2022
You and Us will be individually referred to as “Party” and collectively as “Parties”.
- YOUR RIGHTS
- Subject to Your compliance with these Terms and solely during the Subscription Term, You shall have the limited, non-exclusive, revocable 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.
- YOUR RESPONSIBILITIES
- Your Account: As part of the registration process, You will identify an administrative user name and password for Your Account.
- 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) use the Platform to store or transmit Sensitive Personal Information; (d) 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; (e) 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; (g) 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; (h) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Platform(through use of manual or automated means);
- 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.
- 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.
- 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.
- 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.
- 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.
- We will use commercially reasonable efforts to provide technical support services in accordance with the following terms:
1. We will provide technical support to You via the Platform, Slack Connect Channel, telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm IST, with the exclusion of holidays (“Support Hours”).
2. 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.
3. You shall provide Us with an email address containing Your domain such as 'email@example.com to streamline communications with suppliers.
4. We will use commercially reasonable efforts to respond to all helpdesk tickets within one (1) business day.
- INTELLECTUAL PROPERTY RIGHTS
- Except for the rights granted to You under clause 1, 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.
- 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. We shall have a right and license to incorporate into the Platform and Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from You.
- All rights not expressly provided to You herein are reserved.
- THIRD PARTY SERVICES
- 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.
- CHARGES AND PAYMENT
- 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 Spend under Management, also specified in the relevant Order Form. In case Your actual Spend under Management exceeds that specified in the relevant Order Form during the Subscription Term, 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, when You subscribe to the Platform and Services.
- 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.
- Refunds/ Money back in lieu of shortfall in Guaranteed cost savings: At the end of the Subscription Term, in the event the Savings accrued to You on account of the Services rendered by Us falls short of the Guaranteed cost savings obligations, if any, mentioned in the relevant Order Form, then You are entitled to receive a refund or money back to the extent of the difference between Guaranteed cost savings amount, if any, mentioned in the relevant Order Form and the actual Savings accrued to You on account of the Services rendered by us during the Subscription Term. The undisputed amount, if any, of refund or money back in lieu of shortfall in Guaranteed cost 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 cost 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 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.
- 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 Spend under Management specified in the relevant Order Form through Our Platform, by involving Our Services. In case You decide not to route some proportion of the renewals or upgrades of the software contracts, which are part of the Spend under Management specified in the relevant Order Form, during the Subscription Term through Our Platform, then We reserve the right to proportionately reduce that percentage of the amount of software contracts not routed through Our Platform from Our Guaranteed cost savings obligations, if any, mentioned in the relevant Order Form.
- 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:
- In case of upgrading or downgrading of Software license(s), the Savings shall be the decrease in existing prorated contract value or unit rates being paid by the Customer enabled through Spendflo’s involvement and efforts
- In case of new procurements or ‘as is’ renewals, the Savings shall be the difference between first quote obtained from the vendor and the final price negotiated through Spendflo’s involvement and efforts
- 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 or downgrading such software(s) and the Customer, triggered by Spendflo’s identification of such software(s), thereupon either cancels or downgrades such software(s), Savings shall be the actual money saved by the Customer as a result of such cancellation or downgrades
- Waived off charges by the vendor and other benefits of Renewals (like user or usage reductions) directly enabled by Spendflo through its involvement and efforts
- 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.
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.
- TERM, TERMINATION AND SUSPENSION
- The Subscription Term shall be set forth in a relevant Order Form.
- Termination by You: You may terminate one or more of your Account(s) 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 Service Fees for the remainder of the Subscription Term.
- Suspension and Termination by Us: In addition to suspension for late payment or non-payment of Service Fees, 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.
- 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.
- 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. We retain all Customer Data in our possession for thirty (30) days from the date of effective termination (“Data Retention Period”). Beyond the Data Retention Period, We reserve the right to delete all the Customer Data in our possession.
- CONFIDENTIALITY; DATA PRIVACY AND SECURITY
- 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.
- 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.
- 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.
- DISCLAIMER OF WARRANTIES
- 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.
- 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.
- 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.
- LIMITATION OF LIABILITY
- 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, OUR AGGREGATE LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THESE TERMS WILL BE LIMITED TO AN AMOUNT EQUAL TO TWELVE MONTHS OF THE SERVICE FEES PAID BY YOU FOR THE PLATFORM AND SERVICES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
- 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.
- Indemnification by You: You will indemnify and hold Us harmless against any claim brought by a third party against Us, Our respective employees, officers, directors and agents arising from Your acts or omissions in connection with clause 2 of these Terms provided that (a) We promptly notify You of the threat or notice of such a claim, (b) You will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim; and (c) We shall fully cooperate with You in connection therewith.
- 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. In the event of a conflict between any Order Form and these Terms, these Terms shall prevail.
- 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.
- Assignment: Except to Your Affiliates/within Your group companies, You may not, directly or indirectly, assign all or any part of these Terms or Your respective rights under these Terms or delegate performance of its respective duties under these Terms without the prior consent, which consent shall not be unreasonably withheld, of Us. In the event of assignment to an Affiliate, the party assigning its performance shall promptly intimate the other party of such assignment and shall not default in any of its payment obligations under these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
- 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, 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.
- 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.
- Publicity Rights: You hereby grant Us a royalty-free, worldwide, transferable license to use Your trademark or logo to identify You as Our customer on Our websites and/or marketing collateral.
- 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: firstname.lastname@example.org . 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.
- 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.
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.
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 provided under Clause 6.5 of 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 the following professional services offered by Us to You: (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 existing spend on software license(s) and/ or software tools up to the date of commencement of each Subscription Term as specified in a relevant Order Form and if not specified in a relevant Order Form, then Your total existing spend on software license(s) and/ or software tools uploaded and captured on Our Platform at the time of Your onboarding during the beginning of each Subscription Term.
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/