SOFTWARE SUBSCRIPTION AND PROFESSIONAL SERVICES AGREEMENT
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS SOFTWARE SUBSCRIPTION AND PROFESSIONAL SERVICES AGREEMENT (TOGETHER WITH THE DPA (AS DEFINED BELOW), THIS “AGREEMENT”) CAREFULLY BEFORE ACCESSING AND USING THE APPLICATIONS AND SERVICES. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU (“CUSTOMER”, “YOU”, or “YOUR”) AND SQUAREWORKS CONSULTING, INC. (“SQUAREWORKS”), A DELAWARE CORPORATION WITH OFFICES AT 101 ARCH STREET, 8TH FLOOR, BOSTON, MA, 02110, AND SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN CUSTOMER’S ACCESS AND USE OF THE APPLICATIONS AND SERVICES. BY ACCESSING AND USING THE APPLICATIONS AND SERVICES, CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO ABIDE BY ALL OF THE TERMS AND CONDITIONS STATED OR REFERENCED HEREIN. CUSTOMER AGREES THAT THIS AGREEMENT IS THE FULL AND EXCLUSIVE EXPRESSION OF THE AGREEMENT BETWEEN CUSTOMER AND SQUAREWORKS AND THAT IT TAKES PRECEDENCE OVER ALL PREVIOUS PROPOSALS OR VERBAL OR WRITTEN AGREEMENTS AND OTHER COMMUNICATIONS REGARDING THE SUBJECT OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ABIDE BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, DO NOT ACCESS AND USE THE APPLICATIONS AND SERVICES. CUSTOMER MUST ACCEPT AND ABIDE BY THIS AGREEMENT AS PRESENTED – ANY CHANGES, ADDITIONS OR DELETIONS BY CUSTOMER TO THIS AGREEMENT WILL NOT BE ACCEPTED BY SQUAREWORKS AND WILL NOT BE PART OF THIS AGREEMENT. SQUAREWORKS reserves the right, at its sole discretion, to change, modify, add or remove portions of THIS AGREEMENT, at any time. It is CUSTOMER’S responsibility to check THIS AGREEMENT periodically for changes. CUSTOMER’S continued use of the SERVICES will mean that IT acceptS and agreeS to the changes.
A capitalized term used herein and not otherwise defined when first used shall have the meaning ascribed to such term as specified in Exhibit A hereto. The parties hereby enter into the Data Processing Addendum, available at https://squareworks.com/data-processing-agreement/ (as amended from time to time, the “DPA”), which is incorporated into this Agreement by reference. In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Professional Services.
1.1 SquareWorks Obligations. SquareWorks shall provide any professional services (the “Professional Services”) to Customer described in the applicable SOW during the term of such SOW.
1.2 Customer Obligations.
(a) Customer shall use the Services and the results thereof solely for its internal business purposes in accordance with the Statement of Work and not for the benefit of any third parties. Customer will cause all it and all Authorized Parties to whom Customer provides any access to the Services or SquareWorks Confidential Information to comply with the provisions of this Agreement.
(b) For any Services provided by SquareWorks involving file storage, Customer is responsible for maintaining appropriate backups of any data/files stored by SquareWorks.
(c) Customer represents and warrants that (a) in connection with its use of the Services, Customer Data shall not disclose or transmit to SquareWorks any Protected Health Information; (b) Customer is not engaging SquareWorks to provide any activities or services that involve the use or disclosure of Protected Health Information; and (c) Customer will not use the Services for any purpose or in any manner that involves the use or disclosure of Protected Health Information.
(d) Customer assumes full responsibility for its Authorized Parties with respect to the transmission of Customer Data it sends or provides to SquareWorks. Customer assumes full responsibility to safeguard against unauthorized access and provide appropriate protection of its Customer Data prior to and during the transmission or transfer of its Customer Data to SquareWorks. Customer acknowledges that the accuracy of delivering the results from the Services depends upon the accuracy and completeness of the Customer Data. Customer accepts sole responsibility for errors in the Application to the extent resulting from inaccurate or incomplete Customer Data supplied to SquareWorks by Customer or Authorized Parties.
2. Software Subscriptions and Services.
2.1 License Grant. If Customer has purchased a subscription to any SquareWorks software application specified in the applicable Sales Order (an “Application”), SquareWorks hereby grants to Customer a limited, non-exclusive, non-transferable, non-assignable, revocable, license during the subscription term specified in such Sales Order to remotely access and use the software on the Customer’s NetSuite platform solely for Customer’s internal business purposes. Customer shall be solely responsible for all use of the Services under Customer’s account, including by Customer’s Employees and/or Authorized Parties. For the avoidance of doubt, a Sales Order hereunder may specify access to an Application, the provision of Managed Services, or both. Additionally, Customer may purchase, and SquareWorks may provide, managed services as specified in the applicable Sales Order (“Managed Services”, and, collectively with any applicable Application and/or Professional Services, the “Services”). For the avoidance of doubt, no Services shall be provided except pursuant to a valid Order Document signed in writing by both SquareWorks and Customer.
2.2 Internal Use Only. Customer shall use the Application solely for its internal business purposes as permitted under this Agreement and in accordance with the Sales Order, and not for the benefit of any third parties.
2.3 Support. During the subscription term for the applicable Application, as defined in the applicable Sales Order, SquareWorks shall provide reasonable support for the Application via email for maintenance and support relevant to the Application’s standard functionality as described at: http://software.squareworks.com. Assistance with configuration design, updates to the Application’s configuration or assistance with hardware issues are not included as part of such support.
2.4 Implementation. SquareWorks shall implement the Application if and as further described in the applicable Sales Order, which implementation shall be deemed to be Services hereunder. All implementation Services will be performed remotely.
2.5 Initial Subscription Term.
(a) Unless specified otherwise in the applicable Sales Order, Customer’s initial subscription term to use the Application (the “Initial Subscription Term”) is one (1) year commencing on the date specified in the applicable Sales Order.
(b) Upon the expiration of the Initial Subscription Term or any renewal term thereof, unless either party provides the other with written notice of its election not to renew such Sales Order at least thirty (30) days prior to such renewal date, the subscription term will automatically renew, for a term equal in duration to the Initial Subscription Term at the rates specified therein. SquareWorks reserves the right to change the rates, applicable charges, and usage policies and to introduce new charges for any renewal term, upon at least 60 days’ prior notice to Customer, which notice may be provided by e-mail.
2.6 Automate Payments Feature. If Customer uses the Automate Payments feature of the Application, then the terms on Exhibit B hereto shall apply to the use of such feature.
2.7 Check Fraud. Customer will not use the Services or Application to create or send fake, forged, deceptive or otherwise fraudulent checks.
2.8 Third-Party Implementation Services. Subject to Section 5.1(ii), if Customer purchases access to the Application and/or Managed Services through one of SquareWorks’ referral partners (each, a “Partner”), implementation of such Application and/or Managed Services may be provided by such Partner (“Third-Party Implementation Services”). The provision of Third-Party Implementation Services shall be subject to a separately executed agreement between the Customer and the applicable Partner. SquareWorks hereby disclaims all responsibility for such Third-Party Implementation Services and such Third-Party Implementation Services shall not constitute Services under this Agreement.
3. Intellectual Property.
3.1 Reservation of Rights. Except as expressly set forth in Section 3.3, nothing in this Agreement shall constitute a transfer of any proprietary right by SquareWorks to Customer. The Services may be protected by patent, copyright, trade secret, and other intellectual property laws. As between the parties, SquareWorks owns and retains all right, title and interest in and to the Intellectual Property Rights in and to the Services (including any Application and/or any data and/or analytics made available through the Services) and any enhancements, modifications or derivative works thereof.
3.2 Feedback. Notwithstanding any provision in this Agreement to the contrary, SquareWorks may use, develop and implement any information, suggestions, comments or other feedback (collectively, “Feedback”) provided to SquareWorks by Customer or any of its Employees, Authorized Parties, or other representatives in connection with the development, operation, marketing and sale of the Services, in SquareWorks’ discretion and with no compensation to any person providing Feedback, irrespective of any Intellectual Property Rights claimed by Customer in such Feedback. Customer represents that it has not, and will not, knowingly provide Feedback that is subject to any third-party Intellectual Property Rights.
3.3 Deliverables. Effective upon: (i) Customer’s payment in full of all amounts due and payable to SquareWorks under each SOW that are attributable to a particular Deliverable (as defined below); and (ii) the technical go-live event associated with such Deliverable; SquareWorks hereby assigns and agrees to assign to Customer all right, title and interest in and to such Deliverable. “Deliverables” means custom work product created by SquareWorks specifically for Customer in the course of rendering the Professional Services under each SOW (excluding any pre-existing SquareWorks materials and/or any SquareWorks Know-How (as defined below)).
3.4 Pre-Existing Materials; SquareWorks Know-How. SquareWorks will retain all right, title, and interest in and to any pre-existing SquareWorks materials (including without limitation pre-existing SquareWorks training materials) provided by SquareWorks to Customer in connection with the Services. Customer acknowledges that prior to the commencement of the Services SquareWorks had acquired, conceived, developed, or licensed, and in the course of, or in parallel to, rendering the Services SquareWorks will continue to acquire, conceive, develop, or license, certain know-how relating to the type of Services to be performed for Customer (collectively, “SquareWorks Know-How”). Customer desires SquareWorks to apply the SquareWorks Know-How in connection with the Services hereunder and acknowledges that performance of the Services will enhance and expand the SquareWorks Know-How. Subject to Section 5 of this Agreement, nothing in this Agreement or any SOW will impair SquareWorks’ right to use the SquareWorks Know-How for SquareWorks’ own behalf or on behalf of others. Customer acknowledges and agrees that, as between the parties, SquareWorks retains and owns all right, title, and interest in and to SquareWorks Know-How.
4. Fees & Payment.
4.1 Fees, Invoicing, and Payment. Customer shall pay SquareWorks the fees specified in the applicable Order Document. All fees are quoted and payable in United States dollars. Fees for the Services will be invoiced in accordance with the applicable Order Document. Unless different payment terms are set forth in the applicable Order Document, all fees shall be due and payable within thirty (30) days of invoice date. Customer shall provide SquareWorks with complete and accurate billing and contact information. Customer will make payments via ACH or wire transfer.
4.2 Overages. If the Order Document specifies a usage tier with respect to any Services, in the event Customer’s usage of the Services exceed such usage tier, Customer shall pay Secure Works overage fees with respect thereto, which overage fees will be charged at (i) the overage rate specified in the Order Document for the initial term of the Order Document and (ii) SquareWorks’ then-current overage rates for any renewal term of the Order Document. SquareWorks shall invoice Customer in the following month for any such monthly overage fees incurred by Customer and such fees shall be due and payable within 30 days of the date of such invoice.
4.3 Expenses. All pre-approved travel related expenses (airfare, train fare, car rental, mileage, tolls, lodging, meals and the like) incurred by SquareWorks in providing the Services will be reimbursed by Customer. SquareWorks will provide reasonable documentation for all pre-approved incurred expenses exceeding twenty-five US dollars ($25.00) for which it seeks reimbursement.
4.4 Overdue Payments. Any payment not received from Customer by the due date shall accrue (except with respect to fee then under reasonable and good faith dispute), late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date of such payment was due until the date such payment is paid.
4.5 Non-Payment and Suspension of Services. If Customer’s account is more than thirty (30) days past due (except with respect to charges then under reasonable and good faith dispute under Section 4.7), in addition to any other rights or remedies it may have under this Agreement or by law, SquareWorks reserves the right to suspend the Services or Application subscription, as applicable, without liability to SquareWorks, until such amounts are paid in full. In addition, in the event SquareWorks becomes aware of, suspects, or is otherwise notified of actual or potential fraudulent check or billing activity, SquareWorks reserves the right to suspend the Services or Application subscription, as applicable, without liability to SquareWorks.
4.6 Taxes. Fees do not include applicable taxes. Should any sales, use, and/or other tax be imposed on any part of this transaction, said tax shall be included on the invoice to Customer, except for taxes based on SquareWorks’ net revenue. If Customer is tax exempt, Customer must provide SquareWorks with a valid tax exemption certificate authorized by the appropriate taxing authority immediately upon the execution of this Agreement.
4.7 Refunds & Disputes. Except as otherwise provided, all fees are non-refundable. If Customer believes that any charges are in error, Customer is to open an accounting ticket to give notice to SquareWorks within 30 days of the receipt of the disputed invoice. Any invoice not disputed by Customer in accordance with this Section 4.7 within 30 days of receipt of the invoice shall be deemed conclusively accepted by Customer as correct. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by SquareWorks in enforcing collection of overdue fees.
4.8 Missed Meetings.
(a) Remote Meetings. To cancel any scheduled remote meeting hereunder, Customer must provide SquareWorks with written notice of cancellation at least 4 hours prior to such meeting. A meeting not cancelled with such required prior notice shall be deemed a missed meeting for purposes of this paragraph. For each missed meeting after the first missed meeting, the Customer shall be billed in full for any such missed meetings based on SquareWorks’ professional service rates as specified in the applicable Order Document. If no rate is specified, the applicable rate will be $235 per hour.
(b) Onsite Meetings. To cancel any scheduled onsite meeting hereunder, Customer must provide SquareWorks with written notice of cancellation at least 24 business hours prior to such meeting (unless such onsite meeting requires air travel, in which case such written notice must be received prior to any SquareWorks personnel boarding any aircraft to travel to the applicable Customer site). A meeting not cancelled with such required prior notice shall be deemed a missed meeting for purposes of this paragraph. The Customer shall be billed in full for any subsequent missed meetings based on SquareWorks’ professional service rates as specified in the applicable Order Document. If no rate is specified, the applicable rate will be $235/ hour. For the avoidance of doubt, in the event of any missed on-site, or in the event of any cancelled onsite meeting hereunder, Customer shall remain responsible for any and all non-cancellable or non-refundable expenses under Section 4.3.
4.9 Project Delay. If any Services are delayed by more than 10 business days by any act or omission of Customer, including but not limited to Customer’s failure to provide input, Customer Data, or approvals, such Services will be considered “on hold.” SquareWorks will be entitled to pause progress on any “on hold” Services without liability of any kind therefor and may reallocate resources as SquareWorks deems appropriate. Once the Customer rectifies such delay, the project will be re-activated and rescheduled based on SquareWorks’ current workload, availability, and timeframe for reallocation of resources. Any “on hold” Services are still subject to the terms of this Agreement and the applicable Statement of Work including financial terms, payment schedule and obligations, and termination date. Reengagement of such Services may result in additional Services fees to be determined at time of reengagement.
5. Confidentiality.
5.1 Confidentiality. Receiving Party shall: (i) use and reproduce the Confidential Information only to perform Receiving Party’s obligations and exercise Receiving Party’s rights under this Agreement and for no other purpose, and (ii) restrict disclosure of Confidential Information to Receiving Party’s personnel with a need to know the Confidential Information to enable Receiving Party to perform its obligations and exercise its rights under this Agreement, provided that such personnel are bound by confidentiality obligations at least as strict as those contained in this Agreement that are broad enough to encompass the Confidential Information.
5.2 Protection. Receiving Party agrees to protect the Confidential Information of the Disclosing Party in the same manner that it protects its own Confidential Information of like kind (but in no event using less than a reasonable standard of care).
5.3 Compelled Disclosure. If a party is compelled by Law to disclose Confidential Information of the other party, it shall promptly provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
5.4 Remedies. The parties expressly acknowledge and agree that any breach or threatened breach of this Section 5 by Receiving Party may cause immediate and irreparable harm to Disclosing Party that may not be adequately compensated by damages. Each Party therefore agrees that in the event of such breach or threatened breach of this Section 5 by the Receiving Party, and in addition to any remedies available at law, Disclosing Party shall have the right to seek equitable and injunctive relief, without the need to post bond, in any court of competent jurisdiction, with respect to such a breach or threatened breach.
5.5 Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; or (iv) is received from a third party without breach of any obligation owed to the other party. Notwithstanding any other provision in this Agreement to the contrary, SquareWorks may collect, analyze and anonymize data, statistics or other information obtained through the provision, use and performance of various aspects of the Services (collectively, “Analytics”) and aggregate such data, statistics or other information with data, statistics or other information obtained from other sources, and may use such Analytics for lawful business purposes, including improvement of the Application and the Services, as long as in doing so SquareWorks does not re-identify, or attempt to re-identify, any of the Analytics or otherwise link or associate Analytics with any information relating to an identified or identifiable natural person. Notwithstanding any other provision to the contrary, Receiving Party may disclose to potential acquirers, potential and existing lenders, and/or potential and existing investors the existence, terms and subject matter of this Agreement (including any Order Document hereunder), provided that such third parties are advised by Receiving Party of the confidentiality requirements of this Agreement and are bound by an obligation of confidentiality to Receiving Party that serves to protect such information on terms no less restrictive than those contained in this Agreement.
5.6 Customer Data. Customer hereby grants to SquareWorks the right and license to process and otherwise use Customer Data to the extent necessary to perform the Services or as otherwise permitted under this Agreement. Customer represents, warrants, and covenants that: (i) it has (and will have) processed, collected, and disclosed all Customer Data in compliance with applicable Law and provided any notice and obtained all consents and rights required by applicable Law to enable SquareWorks to lawfully process Customer Data as permitted by this Agreement; (ii) it has (and will continue to have) full right and authority to make the Customer Data available to SquareWorks under this Agreement; and (iii) SquareWorks’ processing of the Customer Data in accordance with this Agreement or Customer’s instructions does and will not infringe upon or violate any applicable Law or any rights of any third party.
6. Non-Solicitation.
Each party hereby agrees that during the term of this Agreement and for a period of one (1) year thereafter, neither party nor any of its employees, agents or contractors will, without the other party’s prior written approval, directly or indirectly hire any employee or consultant of such other party or recruit, solicit or knowingly induce, or attempt to induce, any employee or consultant of such other party to terminate his or her employment or consulting relationship with, or otherwise cease his relationship with, such other party; provided that nothing in this Section 6 shall prevent either party from hiring a respondent to a general solicitation not personally directed to him or her.
7. Warranties & Disclaimers.
7.1 Warranties.
(i) Each party represents and warrants that it has the right to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it, including those related to data privacy, international communications and the transmission of technical or personal data.
(ii) SquareWorks warrants that it shall perform the obligations described in each Order Document in a professional and workmanlike manner; and that all Services shall conform in all material respects to the terms and conditions of this Agreement and the description of Services in the applicable Order Document.
7.2 Warranty Remedies. As Customer’s exclusive remedy and SquareWorks’ sole liability for breach of the warranty set forth in Section 7.1(ii), SquareWorks shall (a) correct the non-conforming Services at no additional charge to Customer, or (b) in the event SquareWorks is unable to correct such deficiencies after good-faith efforts, refund Customer prorated amounts paid to the extent attributable to the non-conforming Services from the date SquareWorks received such notice. To receive warranty remedies, Customer must promptly report deficiencies in writing to SquareWorks, but no later than thirty (30) days after the first date the deficiency is identified by Customer.
7.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SQUAREWORKS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. SQUAREWORKS DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE, COMPLETELY SECURE, WITHOUT DELAY, OR UNINTERRUPTED. ALL SERVICES PROVIDED BY SQUAREWORKS ARE PERFORMED AND PROVIDED ON AN “AS-IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. SQUAREWORKS DOES NOT WARRANT THAT THE SERVICES, ITS FUNCTIONALITY, OR ITS WORK PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICES.
8. Mutual Indemnification.
8.1 Indemnification by SquareWorks. SquareWorks shall defend, indemnify and hold Customer harmless against any loss, damage, or costs (including reasonable attorneys’ fees) in each case arising out of claims, demands, suits, or proceedings (“Claims”) brought against Customer by a third party alleging that the use of the Services as contemplated hereunder infringes a copyright, a patent, or a trade secret or trademark of a third party; provided, however, that Customer: (i) promptly gives written notice of the Claim to SquareWorks; (ii) gives SquareWorks sole control of the defense and settlement of the Claim (provided that SquareWorks may not settle any Claim unless it unconditionally releases Customer of all liability); and (iii) provides to SquareWorks, at SquareWorks’ cost, all reasonable assistance. Notwithstanding the foregoing, SquareWorks shall not be required to indemnify Customer in the event the alleged infringement: (a) is based on information or requirements furnished by Customer, (b) is the result of a modification made by a party other than SquareWorks, or (c) arises from use of the Services in a manner inconsistent with the Statement of Work; or use of the Services in a manner not otherwise contemplated by this Agreement. If the Services are subject to a Claim of infringement, SquareWorks reasonably believes the Services will be subject to such a Claim, Customer is enjoined from using the Services or SquareWorks reasonably believes it will be enjoined, SquareWorks shall have the right, at its sole option, to obtain for Customer the right to continue use of the Services or to replace or modify the Services so that it is no longer infringing and continues to conform materially in accordance with the Statement of Work. If neither of the foregoing options is reasonably available to SquareWorks, then use of the Services may be terminated at the option of SquareWorks and SquareWorks’ sole liability shall be to refund a prorated portion of any prepaid fees paid by Customer attributable to Services that will not actually be received due to such termination.
8.2 Indemnification by Customer. Customer shall defend, indemnify and hold SquareWorks harmless from any Claims made or brought by a third party: (i) arising out of a breach of this Agreement by Customer, its Employees, or Authorized Parties; (ii) alleging that the Customer Data infringes the rights of, or has caused harm to a third party; or (iii) in connection with a claim arising from Customer’s, its Employees’ or Authorized Parties’ use of the Services in breach of this Agreement; provided, however, that SquareWorks: (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases SquareWorks of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
8.3 Funds. Customer agrees to have sufficient funds in the accounts it uses to make its payments through the Application. Further, Customer is solely responsible for its and its end users’ payment activity, including, without limitation, any fraudulent activity. Customer shall: (i) be fully responsible for any and all amounts payable in connection with any such payment, including amounts payable to SquareWorks, that have not been received by SquareWorks due to such insufficient funds or fraud; (ii) pay any and all amounts payable in connection with any such payment, including amounts payable to SquareWorks, immediately; and (iii) indemnify, defend, and hold harmless SquareWorks for any fees, penalties, damages, interest, or other liabilities incurred by SquareWorks (including without liability any fees or penalties imposed on SquareWorks by a third party) as a result thereof. In addition, Customer shall also pay SquareWorks a fee of ten percent (10%) of any such insufficient amounts to cover SquareWorks’ cost and efforts in connections therewith.
9. Limitation of Liability.
9.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, EITHER PARTY’S BREACH OF SECTION 5, CUSTOMER’S BREACH OF SECTION 11, CUSTOMER’S OBLIGATIONS UNDER EXHIBIT B, AND/OR CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S (OR SQUAREWORKS’ THIRD PARTY LICENSORS) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SERVICES FEES ACTUALLY PAID BY CUSTOMER IN CONSIDERATION FOR SQUAREWORKS’ SERVICES PROVIDED DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FROM WHICH THE CLAIM AROSE.
9.2 Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, EITHER PARTY’S BREACH OF SECTION 5, CUSTOMER’S BREACH OF SECTION 11, CUSTOMER’S OBLIGATIONS UNDER EXHIBIT B, AND/OR CUSTOMER’S PAYMENT OBLIGATIONS (NO MATTER HOW SUCH DAMAGES MIGHT BE CHARACTERIZED), IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9.3 Allocation of Liability. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH SQUAREWORKS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. SQUAREWORKS’ PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS.
9.4 Failure of Remedy. The parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10. Term & Termination.
10.1 Term. The term of the Agreement will commence on the Effective Date and will continue until the first anniversary of the Effective Date, unless earlier terminated in accordance with this Agreement. Upon expiration, this Agreement will renew for consecutive one (1) year periods unless either Party provides written notice of non-renewal at least 60 days prior to the expiration of the then-current term.
10.2 Termination. Any Order Document in effect at the time of a termination or expiration of this Agreement in accordance with the preceding sentence shall remain in effect and continue until completion of the term of such Order Document and this Agreement shall survive and continue solely with respect to such Order Document, which Order Document shall be continue governed by the terms and conditions of this Agreement, provided that no new Order Document may be entered into by the parties from and after the termination or expiration of this Agreement. Either party may terminate this Agreement or any Order Document (i) immediately in the event of a material breach of this Agreement or any such Order Document by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business, or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing.
10.3 Effect of Termination. Upon any termination of this Agreement: (i) Customer shall, as of the date of such termination, immediately cease accessing or otherwise utilizing the Services; (ii) Customer’s rights and licenses granted under this Agreement will immediately cease; and (iii) each party shall cease using and either return or destroy the other party’s Confidential Information in its possession. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to SquareWorks prior to the effective date of termination. Any and all payment obligations of Customer under this Agreement provided through the date of termination will immediately become due and payable.
10.4 Surviving Provisions. The parties’ rights and obligations under Sections 2.7, 2.8, 4, 5, 6, 7.3, 8, 9, 10.3, 10.4, and 12 will survive termination or expiration of this Agreement.
11. Use Restrictions.
11.1 Affirmative Covenants. Customer shall: (i) ensure Customer’s Employees, Authorized Parties, and other representatives comply with this Agreement; (ii) take all necessary steps to prevent unauthorized access to or use of the Services, (iii) notify SquareWorks immediately of any such unauthorized access or use; (iv) comply with all applicable Laws; (v) use the Services in compliance with all applicable industry standards; (vi) use the Services only for Customer’s own internal business purposes and solely in accordance with the terms of this Agreement; and (vii) use the Services solely in accordance with SquareWorks’ instructions.
11.2 Negative Covenants. Customer shall not, and Customer will cause Customer’s Employees, Authorized Parties, and other representatives to not: (i) alter, change, modify, adapt, translate, or make derivative works of the Services; (ii) use the Services in a manner that, or provide any direction to SquareWorks that, violates any applicable Law; (iii) transmit any virus or programming routine intended to damage, surreptitiously intercept, or expropriate any system, or data; (iv) transfer, resell, license, sublicense or otherwise make the Services (or any data or information accessible through the Services) available to any third party, except as expressly described in this Agreement; (v) use the Services for timesharing, rental, outsourcing, or a service bureau operation; (vi) attempt to gain, or assist others with attempting to gain unauthorized access to SquareWorks’ network, systems or the Services; (vii) decipher, decompile, disassemble, or reverse engineer the Services or assist or encourage any third party to do so; (viii) engage in any activity that violates the rights of others or that interferes with or disrupts the Services; or (ix) upload any file containing any back door, time bomb, Trojan horse, worm, virus or similar malicious code.
12. General Provisions.
12.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between parties. There are no third-party beneficiaries to this Agreement.
12.2 Waiver of Cumulative Remedies. No failure to delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.3 Use of Name. Customer hereby authorizes SquareWorks to use Customer’s name and/or logo on SquareWorks’ website disclosing that SquareWorks has provided the Services to Customer and to use Customer’s name in any standard customer listing (or partial customer listing) published by SquareWorks.
12.4 Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, pandemic, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving SquareWorks or Customer employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused for up to thirty (30) days. In the event that a force majeure event persists for more than 30 business days, the unaffected party may terminate this Agreement or any Statement of Work upon written notice to the affected party.
12.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Statements of Work) without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement and all past due fees are paid in full. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section 12.5 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.6 Governing Law; Waiver of Jury Trial. This Agreement shall be governed exclusively by the internal laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws rules. Any dispute arising between the parties will be settled in an action commenced and maintained in any court sitting in Suffolk County, Massachusetts. The parties irrevocably consent and submit to the exclusive personal jurisdiction of such courts if there is any dispute between them and agree not to challenge or assert any defense to the jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.7 Entire Agreement. This Agreement, including the DPA, all exhibits and addenda hereto, and all Statements of Work, constitutes the entire agreement between the Parties with respect to the subject matter hereof. In the event of a conflict, the provisions of any Statement of Work shall take precedence over provisions of the body of this Agreement and over any other Exhibit or Attachment. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
12.8 Construction. In this Agreement, unless a clear contrary intention appears: (i) where not inconsistent with the context, words used in the present tense include the future tense and vice versa and words in the plural number include the singular number and vice versa; (ii) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement; (iii) reference to any gender includes each other gender; (iv) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and includes all addenda, exhibits and schedules thereto; (v) the titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement; (vi) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or Subsection of this Agreement; (vii) “including” (and with correlative meaning, “include”) means including without limiting the generality of any description preceding such term; (viii) any reference to “dollars” means United States Dollars; (ix) all references to “days” refer to calendar days; and (x) the word “or” is not exclusive. This Agreement has been executed in English and the English language version shall control notwithstanding any translations of this Agreement. Unless otherwise expressly permitted under this Agreement, all deliverables will be in English.
Exhibit A
Definitions
“Agreement” means this Software Subscription and Professional Services Agreement, any exhibits or attachments hereto, and any fully executed Statement of Work.
“Application” shall have the meaning ascribed to such term in Section 2.1.
“Authorized Parties” means Customer’s Employees, affiliates, representatives, clients, end users, and agents, and third-party providers authorized to access or receive Customer Data by Customer in writing, in each case who are under the control of Customer.
“Confidential Information” means (a) the Application, Services, and/or any software utilized in the provision of the Services and its respective source code; (b) Customer Data; (c) non-public information about each party, including but not limited to the Statement of Work, training materials, any information relating to its business or operations, technical information, trade-secrets, software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how, in each case that is designated by the disclosing party as “confidential” or “proprietary” or the Receiving Party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement (but not its existence or parties).
“Customer Data” means all data made available by the Customer or its Authorized Parties to SquareWorks or otherwise provided to SquareWorks by Customer or its Authorized Parties in connection with the provision of the Services, in each case that is processed by SquareWorks solely on behalf of Customer; provided, however, that Customer Data will not include Protected Health Information.
“Employee” means Customer’s employees, consultants, contingent workers, independent contractors, and retirees whose active business record(s) are or may be managed by the Services. Information related to former employees, consultants, contingent workers, independent contractors and retirees in the form of static, historical records may be maintained in the system but shall be excluded from the calculation of Employees.
“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other intellectual property or proprietary rights issued, honored, recognized, or enforceable under any applicable Laws anywhere in the world, and all moral rights related thereto.
“Law” means any applicable local, state, national and/or foreign law, treaties, and/or regulations.
“Protected Health Information” shall have the meaning ascribed to such term in the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”).
“Order Document” means a Sales Order and/or SOW as applicable.
“Sales Order” means a written sales order signed by both SquareWorks and Customer referencing this Agreement for the provision of Managed Services and/or access to an Application.
“Statement of Work” or “SOW” means a written statement of work signed by both SquareWorks and Customer referencing this Agreement for the provision of Professional Services.
“Services” shall have the meaning ascribed to such term in Section 2.1.
Exhibit B
AUTOMATE PAYMENTS Feature Terms
1. Automate Payments Feature
If Customer uses the Automate Payments feature of the Application (the “Automate Payments Feature”), the Customer may use the Automate Payments Feature to make payments to its third-party vendors or employees as directed by Customer. Customer may use Automate Payments Feature solely for its internal use. Customer acknowledges and agrees that if it is in violation of the terms of this Exhibit B, SquareWorks may, in its sole discretion and without notice to Customer, immediately suspend or terminate Customer’s license and/or access to the Automate Payments Feature. Customer acknowledges and agrees that SquareWorks may process personal information in connection with Customer’s use of the Automate Payments Feature, and Customer’s use of the Automate Payments Feature, and such personal information is subject to the SquareWorks privacy policy available at http://www.squareworks.com/privacypolicy.
2. Domestic ACH Payments.
(a) Verified Customer Entity. In order to use the Automate Payments Feature to make domestic payments within the United States, the Customer must open a “Dwolla Platform” account provided by SquareWorks’ payment processor vendor, Dwolla, Inc. (“Dwolla”), and Customer must accept the Dwolla Terms of Service and Dwolla Privacy Policy. Any funds held in or transferred through the Dwolla Account are held or transferred by Dwolla’s financial institution partners as described in the Dwolla Terms of Service. Customer hereby authorizes SquareWorks to collect and share with Dwolla Customer’s personal information including full name, date of birth, social security number, physical address, email address and financial information, and Customer is responsible for the accuracy and completeness of that data. Customer understands that it will access and manage its Dwolla account through the Automate Payments Feature, and Dwolla account notifications will be sent by SquareWorks, not Dwolla. SquareWorks will provide customer support for Customer’s Dwolla account activity, and can be reached at netsuite-support@squareworks.com or through the SquareWorks website.
(b) Receive Only Entity. You expressly authorize SquareWorks’ service provider, Dwolla, Inc. to originate credit transfers to your financial institution account. You authorize SquareWorks to collect and share with Dwolla your personal information including full name, email address and financial information, and you are responsible for the accuracy and completeness of that data. Dwolla’s Privacy Policy is available here.
3. International ACH Payments.
Without limitation of any other provision in the Agreement or this Exhibit B, to the extent that Customer will be using the Automate Payments feature to send international payments from the following countries: Canada, the United States, the United Kingdom, Australia, New Zealand, Singapore, a member country of the European Economic Area, or any other jurisdiction as expressly permitted by Corpay and SquareWorks (collectively, the “Covered Jurisdictions”); the following additional terms apply: (a) Customer acknowledges that Cambridge Mercantile Corp. (U.S.A.) (“Corpay”) is the money transmitter for the transactions anticipated by this Section 3; (b) as between Customer and Corpay, Customer’s access to the international payments function of the Automate Payments feature is also governed by the applicable account terms set out at https://www.corpay.com/cross-border/terms (the “Corpay Terms”); (c) Customer acknowledges that Corpay, acting in good faith, has discretion to determine whether Corpay engages Customer as client of Corpay, and if so, what each Customer needs to sign and disclose to apply to become a client of Corpay and/or access the international payments function of the Automate Payments feature, and SquareWorks shall have no responsibility or liability for any such determination made by Corpay; (d) Customer fully authorizes SquareWorks to instruct Corpay on behalf of Customer and SquareWorks shall have no responsibility or liability for any such instruction; and (e) Customer acknowledges that SquareWorks may receive compensation from Corpay for SquareWorks’ referral of Customer to Corpay.
Further, Customer represents, warrants, and covenants that (including as a condition of Customer’s use of Automate Payments feature to send international payments to the countries set forth above): (1) each application for a Corpay account that Corpay receives from SquareWorks which purports to be signed by a Customer is a binding contract binding Customer, (2) the individual(s) signing on behalf of Customer (for opening a Corpay account and accepting such account’s terms and granting authority to SquareWorks) has/have the requisite authority to contractually bind Customer to all the points that those individual(s) sign for Customer; (3) for transactions entered into hereunder, Customer agrees to be bound by instructions received by Corpay from individuals identified to Corpay or SquareWorks as authorized representatives of Customer; (4) Customer (as well as its applicable subsidiaries, affiliate entities, and associated personnel) is not at the time of signing this Agreement (and has not been, within the five years preceding this Agreement) the subject of any material regulatory inquiry, enforcement action, or known allegations of significant breaches of criminal law or civil liability; (5) it is headquartered in a Covered Jurisdiction; (6) is shall use the Automate Payments feature solely for business purposes and not for personal, family, or household purposes; (7) Customer will provide to SquareWorks and/or Corpay any information and/or documentation reasonably requested in order to use the Automate Payments feature; and (8) all funds Corpay receives to fund each Customer transaction entered using the Automate Payments feature shall come from a Customer-owned bank account and Customer’s and SquareWorks’ name must be included in each such transaction. Customer shall indemnify, defend, and hold harmless SquareWorks from any Claims arising out of: (i) Customer’s breach of the Corpay Terms; (ii) any instruction of Customer under Section 3(d); or (iii) any use of the Corpay system under Customer’s account to send international payments.
4. Restrictions on Use.
Customer acknowledges and agrees that it will not use the Automate Payments Feature for payment of alimony; child support; marijuana related businesses; payments to settle securities transactions; or any claim or payment that requires the use, disclosure, transmission, maintenance, storage or other handling of Protected Health Information, unless otherwise specifically agreed to in writing in advance by SquareWorks. Customer represents and warrants that: (a) it is not located in a country or location that is subject to U.S. Government sanctions or embargoes, including Iran, Syria, Cuba, North Korea, and the Crimea region of Ukraine, or are a State Sponsor of Terrorism as defined by the US Department of State, or are a person, group or entity that has been designated by the U.S. Government as a Specially Designated National (SDN); (b) it is not listed on any U.S. Government list of prohibited or restricted parties; and (c) it will not use the Automate Payments Feature to send money, either directly or indirectly, to a sanctioned country, person, group or entity. Customer agrees that it will not send or transmit any electronic Protected Health Information (“ePHI”, as defined in HIPAA) to SquareWorks or otherwise in any manner through the Automate Payments Feature without SquareWorks’ prior written consent. Customer is solely responsible for ensuring that its use of the Automate Payments Feature complies with all applicable laws and regulations. If SquareWorks become aware that Customer has sent or transmitted ePHI in any manner through the Automate Payments Feature in violation of this Agreement, SquareWorks may delete the ePHI without notice to Customer and without SquareWorks incurring any liability to Customer. Customer agrees to pay any costs or fees associated with such ePHI deletion, and agrees to indemnify SquareWorks for any breach or other privacy or security incident or claim involving ePHI sent or transmitted by Customer.
5. SquareWorks Rights.
Customer grants to SquareWorks and SquareWorks reserves the right to limit, delay, investigate, or to refuse to make, process or issue any payment initiated or requested through the Automate Payments Feature, in SquareWorks’ reasonable discretion, without SquareWorks incurring any liability to Customer. SquareWorks will use commercially reasonable efforts to provide notice promptly if it decides to limit, delay, investigate or to refuse to make, process or issue a payment. This notification is not required if the payment or notice is prohibited by law or this Agreement. In Customer’s use of the Automate Payments Feature, Customer grants to SquareWorks and SquareWorks reserves, in SquareWorks’ sole discretion, the right to impose limits on the amount of money sent or received through the Automate Payments Feature, on a per transaction or a cumulative basis, and to change those limits at any time, without SquareWorks incurring any liability to Customer. If SquareWorks imposes or changes such limits, SquareWorks will use commercially reasonable efforts to provide notice to Customer, but will not be required to do so. SquareWorks reserves the right to suspend or terminate Customer’s account or Customer’s access to the Automate Payments Feature at any time, for any reason (including for a violation of the Agreement, the failure to pay applicable fees for the Automate Payments Feature, or inactivity), in SquareWorks’ reasonable discretion, without SquareWorks incurring any liability to Customer. If SquareWorks suspends or terminates Customer’s account or access to the Automate Payments Feature, SquareWorks will use commercially reasonable efforts to provide notice to Customer, but will not be required to do so and will not be liable for failure to do so.
6. Funds.
Customer agrees to have sufficient funds in the accounts it uses to make its payments through the Automate Payments Feature. If there are insufficient funds in such account, Customer shall: (i) be fully responsible for any and all amounts payable in connection with any such payment, including amounts payable to SquareWorks,; (ii) pay any and all amounts payable in connection with any such payment, including amounts payable to SquareWorks, immediately; and (iii) indemnify, defend, and hold harmless SquareWorks for any fees, penalties, damages, interest, or other liabilities incurred by SquareWorks (including without liability any fees or penalties imposed on SquareWorks by Dwolla, Corpay (as defined below), or another third party) as a result thereof. In addition, Customer shall also pay SquareWorks a fee of ten percent (10%) of any such insufficient amounts to cover SquareWorks’ cost and efforts in connections therewith.
7. Legal Age of Use.
We do not knowingly collect information from minors (individuals below 18 years). To use the Automate Payments Feature, you must be the age of legal majority in your place of residence. By using the Automate Payments Feature, you hereby represent that you are at least the age of legal majority in your place of residence. We do not use an application or other mechanism to determine the age of users of the Automate Payments Feature. All information provided to SquareWorks will be treated as if it was provided by an adult. If, however, we learn that a minor has submitted information about himself/herself to us, we will delete the information as soon as possible.
8. Transaction Reversal and Your Liability.
For the avoidance of doubt, you are solely responsible for your and your end users’ payment activity initiated using the Automate Payments Feature, including, without limitation, any fraudulent activity. SquareWorks has no obligation to ensure that the funds required to complete a payment will be available. Any payment sent or received by you or your end users may: (a) be reversed in accordance with SquareWorks’, Dwolla’s, Dwolla’s partners’, Corpay’s, or Corpay’s partners’ (as applicable) risk management policies, (b) be reversed in accordance with applicable Law, including without limitation, by ACH return as defined under the Nacha Rules, (c) fail due to your error or end user error, (d) fail due to the provision of inaccurate information by you or your end user; or (e) be cancelled or rejected by an end user or the end user’s financial institution (each, a “Reversal”). Except for any Reversal made in error by SquareWorks or Dwolla, you are liable to SquareWorks for any and all losses caused by Reversals and any other Customer account activity, whether or not authorized by you or the end user, including unauthorized or erroneous activity initiated by you or your end users through the Application, whether through misconduct, negligence, error, or otherwise. In addition to any other rights available to SquareWorks under the Agreement or this Exhibit B, you authorize SquareWorks to recover any such amounts due, including to SquareWorks by debiting the available balance in your Customer account and if the available balance in your Customer account is insufficient, you authorize SquareWorks to take any of the following actions to recover the remaining amounts from you: (x) debit your account; (y) request immediate payment from you, and, if payment is not received timely, engage in collection efforts; and (z) pursue any rights or remedies available under any of your agreements with SquareWorks, including the Agreement, for failure to pay amounts owed to SquareWorks, including, without limitation, termination for non-payment. SquareWorks may require that you provide a personal guaranty for any amounts owed under the Agreement. In the event that your Customer account has an unacceptable number or rate of Reversals, SquareWorks reserves the right to immediately restrict or suspend your use of the Services, including by terminating the Agreement.