Enterprise Terms
PLEASE READ THESE ENTERPRISE TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY TABS PLATFORM, INC. (“TABS”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH TABS WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
1. The Services. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Tabs grants Customer a nonexclusive, limited, nonsublicensable (except for Authorized Users defined below), nontransferable right and license to provide access and use of the Tabs product(s) and/or service(s) specified in such Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) by and for the benefit of Authorized Users, and only as provided herein and only in accordance with Tabs’s applicable official user documentation for such Service (the “Documentation”). An “Authorized User” is any employee, contractor or other authorized end user of Customer whose access to the Services is subject to Tabs’s Terms & Conditions (tabs.inc/pages/terms-and-conditions) and Privacy Policy (tabs.inc/pages/privacy-policy) as well as the terms and conditions found in this Agreement. Managed services clients are entitled only to the standard scope of services and will not receive additional custom development work, including but not limited to CRM integrations, custom workflow builds, usage data piping (CSV format only), or direct Slack channels with merchants. Support will be provided exclusively through Rooled. Any additional services may be separately priced and added at the merchant’s request.
2. Split Pay. If selected by Customer, this optional feature allows Customer to instruct Tabs to calculate and send remittance amounts (in lieu of invoices) to one or more third parties selected by Customer (“Split Pay”). Where Customer elects to use Split Pay, Customer authorizes Tabs and its third party providers to debit Customer’s bank account via ACH transfer. Customer further authorizes, where necessary, any adjustments to debit entries made in error to Customer’s account. Customer represents and warrants that it will: (i) comply with Nacha Operating Rules for ACH transactions; (ii) that the bank account and other details provided to Tabs belong to Customer; and (iii) that Customer has the authorization to instruct Tabs to send remittance amounts via ACH transfer. Tabs nor its third parties are responsible for any return, reversal or other failure (and related costs) due to Customer’s acts or omissions. Tabs may suspend or terminate this feature where Customer fails to comply with these terms. Customer may terminate this feature at any time by providing Tabs advance written notice.
Updates. From time to time, Tabs may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such
3. Updates will become part of the Services and subject to this Agreement; provided that Tabs shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Tabs may make improvements and modifications to the Services at any time in its sole discretion.
4. Implementation. Upon payment of any applicable fees set forth in each Order Form, Tabs agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If Tabs provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Tabs otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Tabs at its then-current hourly rates for consultation.
5. Support Services. Subject to Customer’s payment of all applicable fees, Tabs will provide Customer with Tabs’s then current standard support and maintenance services that Tabs makes generally available to its enterprise customers.
6. Fees; Payment. Customer shall pay Tabs fees as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Service (excluding taxes based on Tabs’s net income). All Fees paid are non-refundable and are not subject to set-off.
7. Ownership; Feedback. As between the parties, Tabs retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Tabs for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Tabs with respect to the Service (“Feedback”). Tabs acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Notwithstanding anything else, Customer shall, and hereby does, grant to Tabs a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Tabs’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
8. Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Tabs product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Tabs may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service. Customer (a) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.
9. Customer Data. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Tabs, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Tabs as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Tabs shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data, including but not limited to maintaining SOC2 compliance throughout the Term. Tabs is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Tabs’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. To the extent that the Customer Data includes any personal information, (i) Tabs will process, retain, use, and disclose such personal information only as necessary to provide the Services hereunder and as otherwise permitted under this Agreement, which constitutes a business purpose, (ii) Tabs agrees not to sell such personal data, to retain, use, or disclose such personal data for any commercial purpose other than the foregoing purposes, or to retain, use, or disclose such personal data outside of the scope of this Agreement. Tabs understands its obligations under applicable data protection laws and will comply with them. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Tabs may (a) internally use and modify (but not disclose) Customer Data for the purposes of (1) providing the Service to Customer and (2) generating Aggregated De-Identified Data (as defined below), and (b) freely use, retain and make available Aggregated De-Identified Data for Tabs’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Tabs’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Tabs in connection with Customer’s use of the Service, but only in aggregate, de-identified form which can in no way be linked specifically to Customer.
10. Confidentiality. For purposes of this Agreement, “Confidential Information” shall mean to the extent previously, presently or subsequently disclosed by or for either party (the “Disclosing Party”) to the other party (the “Receiving Party”) all financial, business, legal and technical information of the Disclosing Party or any of its affiliates, suppliers, customers and employees (including information about research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, software, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all copies, abstracts, summaries, analyses and other derivatives thereof), that is marked or otherwise identified as proprietary or confidential at the time of disclosure, or that by its nature would be understood by a reasonable person to be proprietary or confidential. Confidential Information shall not include any information that (i) was rightfully known to the Receiving Party without restriction before receipt from the Disclosing Party, (ii) is rightfully disclosed to the Receiving Party without restriction by a third party, (iii) is or becomes generally known to the public without violation of this Agreement by the Receiving Party, or (iv) is independently developed by the Receiving Party or its employees without access to or reliance on such information. The pricing information set forth in an applicable Order Form, Documentation and Feedback are Company’s Confidential Information, and the Customer Data is Customer’s Confidential Information. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth in this Agreement, and shall not disclose such Confidential Information to any third party except as expressly permitted herein without the Disclosing Party’s written consent. The Receiving Party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the Disclosing Party’s Confidential Information, but in no event less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of this Agreement, the Receiving Party will either return or, at the Disclosing Party’s request, destroy the Confidential Information of the Disclosing Party; provided however, that the Receiving Party may retain copies of the Disclosing Party’s Confidential Information for routine backup and archival purposes subject to the confidentiality obligations set forth herein. The Receiving Party may make disclosures required by law or court order provided that, if permissible pursuant to applicable law, the Receiving Party shall promptly notify the Disclosing Party of any disclosure requirement and provide reasonable assistance to the Disclosing Party in the Disclosing Party’s efforts to prevent and/or limit the disclosure.
Third Party Services. Customer acknowledges and agrees that the Service may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by Company. Company is not responsible for the operation of any Third Party Services nor the availability or operation of the Service to the extent such availability and operation is dependent upon
11. Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Company does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
12. Term; Termination. This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”). Following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. On each renewal, Tabs may increase the Subscription Fees by up to ten percent (10%). In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Tabs may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Tabs’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) Tabs shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Tabs shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Tabs shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, confidentiality, indemnity and limitations of liability. For clarity, any services provided by Tabs to Customer, including any assistance in exporting the Customer Data, shall be billable at Tabs’s standard rates then in effect.
13. Indemnification.
13a. If Tabs receives any notice or claim that Customer Data may violate any law, rule, or regulation or infringe or violate the rights of a third party (a “Claim”), Tabs may (but is not required to) suspend the Services hereunder with respect to that Customer Data, and Customer will indemnify, defend, and hold Tabs, its officers, directors, consultants and employees harmless from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim.
13b. Tabs will indemnify, defend and hold Customer, its officers, directors, consultants and employees harmless from any and all amounts actually paid to third parties in connection with claims, liabilities, damages and/or costs (including but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) relating to any claim that the Services, as provided by Tabs to Customer under this Agreement and used within the scope of this Agreement, infringes or misappropriates any U.S. patent or copyright of such third parties (each, an “Infringement Claim”), provided that Customer: (i) promptly notifies Tabs in writing of the Infringement Claim (provided that any failure to provide prompt notification shall not relieve Tabs of its indemnification obligations unless such failure results in material prejudice to Tabs); (ii) grants Tabs the option to assume sole control of the defense and settlement of the Infringement Claim; and (iii) provides Tabs, at Tabs’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the Infringement Claim. In the event of any such Infringement Claim, Tabs may, at its option: (x) obtain a license to permit Customer the ability to continue using the Services; (y) modify or replace the relevant portion(s) of the Services with a non-infringing alternative having substantially equivalent performance within a reasonable period of time; or (z) terminate this Agreement by providing notice to Customer, and provide Customer with a refund of any prepaid, unearned Fees (prorated on a daily basis for the then-current billing period). Notwithstanding the foregoing, Tabs will have no liability for any Infringement Claim to the extent that it results from: (1) modifications to the Services made by a party other than Tabs or its agents, or otherwise not approved by Tabs or its agents or allowed under this Agreement; (2) the combination, operation or use of the Services with equipment, devices, data (including Customer Data) or software not provided or approved by Tabs; (3) Customer’s failure to use updated or modified versions of the Services provided by Tabs to avoid a claim; or (4) Customer’s use of the Services other than in accordance with this Agreement. Customer shall indemnify and hold harmless Tabs from any and all Losses resulting from claims of intellectual property infringement or misappropriation caused by the foregoing exclusions. The indemnification obligations set forth in this Section 12(b) are Tabs’s sole and exclusive obligations (and Customer’s sole and exclusive remedies) with respect to infringement or misappropriation of intellectual property rights of any kind.
14. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
15. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS (SECTION 12) AND FOR BREACH OF SECTIONS 7 (RESTRICTIONS) OR 9 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO TABS HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
16. Publicity. Customer hereby consents to inclusion of its name and logo in Tabs’s public-facing client lists and marketing materials that may be published as part of its marketing and promotional efforts, including on Tabs’s website. Customer also agrees that Tabs may (but is under no obligation to) issue press releases and publish testimonials and case studies with statements attributed to a named employee of Customer.
17. Miscellaneous. This Agreement (including all Order Forms) represents the entire agreement between Customer and Tabs with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Tabs with respect thereto. In the event of any conflict between these Terms and an Order Form, the Order Form shall control. The Agreement shall be governed by and construed in accordance with the laws of the state of New York, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York, New York. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Tabs may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.