These terms and conditions (“Terms”) govern Supplier’s (hereinafter “You” or “Supplier”) provisions of goods or services to Bottomline Technologies (“BT” or “Buyer”), as set forth in an applicable Purchase Order (“PO”).
By accepting the PO and/or shipping any goods or furnishing any services in connection with a PO, Supplier acknowledges that Supplier has read, understands, and agrees to be bound by these Terms.
1. Confidentiality. Supplier shall not, without the prior written consent of Buyer, (a) originate any publicity (including any news release or public announcement) nor use any logos, trademarks, service marks or names of Buyer or any of its affiliates or (b) disclose to any third party Confidential Information (as defined below) or use any such Confidential Information for any purpose other than in connection with providing to Buyer the goods and/or services set forth in the PO. "Confidential Information" shall mean any information that is not already in the public domain or independently developed or obtained by Supplier relating to the following: the existence of the relationship with Buyer; Buyer’s purchasing systems or practices (including, without limitation, descriptions of purchased items, quantities purchased and prices paid); the nature of the services performed or deliverables or goods delivered under the PO; or any data, designs or any other information relating to Buyer or its affiliates or their businesses, including the Buyer Provided Materials (as defined below). Notwithstanding the foregoing, Supplier may disclose Confidential Information (i) to Supplier’s employees having a need to know such information in connection with Supplier's performance of the PO or (ii) to comply with applicable laws, court orders or government regulations, provided, in such case Supplier promptly provides notice thereof to Buyer prior to any disclosure to allow Buyer to comment thereon and to seek a protective order or similar relief. Supplier agrees that it will take appropriate action by instruction, agreement or otherwise with its employees who are permitted access to Confidential Information to notify them of the obligations hereunder. No right, title, interest or license to Supplier is either granted or implied under any trademark, patent, copyright or any other intellectual property right by the disclosure of the Confidential Information hereunder. Upon Buyer’s request at any time, all documents and other material containing Confidential Information, and any other data, designs, or other information furnished to Supplier (and copies thereof), shall be returned to Buyer or destroyed, as directed by Buyer.
2. License Grant. Supplier grants to Buyer a non-exclusive, non-revocable, perpetual, worldwide, sublicensable license to make, use, and import the goods and services set forth in the PO. Supplier warrants that it has obtained all such licenses from any third parties necessary to provide the goods and services. Should additional licenses be found necessary, Supplier will obtain such licenses without cost to Buyer. Furthermore, Supplier warrants that any such license from others do not contain any terms more restrictive than those in this Agreement. Unless explicitly outlined in the PO, this Agreement does not transfer the ownership in any patents, copyrights, trademarks, trade secrets, moral rights, nor other US and foreign intellectual property between the parties.
3. Payments. Unless Buyer otherwise informs Supplier, payment terms shall be net 60 days after the receipt by Buyer of an undisputed invoice. Except for amounts expressly set forth in the PO, Buyer shall not be responsible for any (a) other charges, including charges for delivery, parts or services and (b) expenses of Supplier or any mark-ups on any expenses of Supplier. Any invoices sent to Buyer more than twelve (12) months after Supplier delivered the goods or services may be rejected by Buyer, and Buyer shall not be obligated to pay any amounts not properly invoiced, including any pass-through expenses or taxes that otherwise would have been reimbursable in accordance with the PO. All payments to Supplier by Buyer under this PO shall be made via Buyer’s Paymode-X business-to-business settlement network. Supplier agrees to receive payments due to Buyer hereunder through the Paymode-X business-to-business settlement network, which is described at www.paymode-x.com. Supplier’s use of Paymode-X shall be governed by the terms and conditions provided at https://secure.paymode.com/policies/.
4. Acceptance and Timely Delivery. All goods and deliverables are subject to final review, inspection and acceptance by Buyer notwithstanding any payment. Notwithstanding the foregoing, Buyer may cancel the PO and seek any other remedies available in accordance with applicable law.
5. Warranty. Notwithstanding any other representation, warranty or agreement to the contrary, Supplier unconditionally represents and warrants the following: (i) the goods and services supplied pursuant to the PO shall be of merchantable quality, conform to applicable industry standards and practices and be free from defects in design, material and workmanship; (ii) all services provided by Supplier shall be provided by qualified personnel reasonably skilled and trained in the performance of the services and in a workmanlike and professional manner; (iii) the goods and services provided to Buyer and the use thereof by Buyer shall not infringe on any party's intellectual property rights, including any party's confidential information, trade secrets, copyrights or patents; (iv) Supplier is currently under no obligation to any party, nor will Supplier enter into any obligation with any party, that could interfere with Supplier delivering the goods or services in the PO; and (v) Supplier shall comply with, and the goods and services provided by Supplier shall be in compliance with, all federal, state and municipal statutes, laws, ordinances and regulations. All representations and warranties shall run to Buyer, its customers and the users of the goods or services or products into which such goods or services may be incorporated. All third-party warranties and representations obtained by or applicable to Supplier in connection with any good and services in the PO are hereby deemed provided, in addition, for the benefit of Buyer, its affiliates and their users and customers.
6. Indemnification. Supplier agrees to indemnify and hold harmless Buyer, its affiliates (and its and their respective directors, personnel and agents) against any and all losses, claims, liabilities, damages and expenses, including without limitation reasonable attorney’s fees, (collectively, “Claims”) in connection with or arising out of the following: (a) any negligent or willful misconduct of Supplier, its personnel, agents, consultants or subcontractors; (b) Supplier’s (including its personnel, agents, consultants or subcontractors) breach of any provision of the PO or these terms and conditions or (c) a claim of intellectual property infringement. If Supplier, the goods and services provided to Buyer or the use thereof by Buyer infringes on any party's intellectual property rights, Supplier shall, at its expense and option, either procure for Buyer the right to continue to use such goods or services, refund or replace such goods or services with equivalent non-infringing goods or services or modify such goods or services so they become equivalent non-infringing goods or services. The foregoing, however, shall not be construed to limit or exclude any other claims or remedies that Buyer may assert.
7. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL BUYER OR ITS AFFILIATES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, MULTIPLIED OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF SUPPLIER OR ANY OTHER PARTY ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT WILL BUYER OR ITS AFFILIATES BE LIABLE FOR DAMAGES OR LOSSES THAT EXCEED, IN THE AGGREGATE, THE LESSER OF (A) THE AMOUNT DUE FROM BUYER AS SET FORTH IN THE PO BUT NOT ALREADY PAID TO SUPPLIER FOR THE GOODS OR SERVICES PROVIDED BY SUPPLIER IN ACCORDANCE WITH THE PO AND THESE TERMS AND CONDITIONS OR (B) $1000. THIS SECTION WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY DESPITE THE FOREGOING DISCLAIMER, EXCLUSION AND LIMITATION.
8. Force Majeure. Supplier and Buyer, as the case may be, shall be excused for delays in performance or failure of performance to the extent arising from causes beyond such party’s reasonable control, including without limitation strikes, wars, fires, acts of terror or acts of God, such as floods, earthquakes and pandemics. In the event of any such event or condition, the party whose performance is excused hereunder shall notify the other party promptly thereof and shall make diligent efforts to perform at its earliest opportunity. If Supplier’s performance is excused hereunder, Buyer may cancel the PO and Supplier agrees to provide to Buyer a refund of any fees paid for products and services not yet rendered, and the assistance and information necessary for Buyer to make, have made, or otherwise procure replacement goods and services.
9. Insurance. For the period beginning when Supplier accepts the PO and/or starts performance, ships any goods or furnishes any services (or provides any deliverable arising therefrom), Supplier shall, at its own expense, maintain with a reputable insurer (and provide written certificate(s) of insurance to Buyer if and when requested) reasonable and customary insurance coverage.
10. Waiver; Severability. The delay or failure of either party to enforce at any time any of the provisions of these Terms shall in no way be construed to be a waiver of such provision or affect the right of such party to enforce these Terms. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be construed by modifying it to the minimum extent necessary to make it valid or enforceable (if permitted by law) or, if not, then it shall be construed as though these Terms did not contain the particular provision held to be invalid or unenforceable.
11. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware applicable to agreements made and to be fully performed therein, excluding the conflicts of laws rules.
12. Miscellaneous. The relationship of Buyer and Supplier is that of independent contractors, and nothing contained herein shall be construed to (i) give either party any right or authority to create or assume any obligation of any kind on behalf of the other or (ii) constitute Buyer and Supplier as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking. The PO and the rights and duties under the PO and these terms and condition shall not be assignable by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided however, Buyer may assign its rights and obligations to any one or more of its affiliates or successors. The PO and these terms and conditions shall inure to the benefit of and be binding upon Buyer and Supplier and their respective successors and permitted assigns. Nothing contained in the PO or herein shall give to any other person any benefit or any legal or equitable right, remedy or claim.
13. Entire Agreement; Amendment. This represents the entire understanding and agreement between the Supplier and BT and supersedes all prior and contemporaneous agreements, proposal, representations or warranties, written and oral. These Terms may not be modified without an amendment signed by both parties.
14. Notices. All notices shall be given in writing by the party sending the notice to the party receiving the notice. If to Supplier at the email address listed below. If to BT, at contracts@bottomline.com.
