Service Terms and Conditions

1. Definitions

The definitions, used in these BX Service Terms and Conditions have the following meaning:

“Account User” means a User, appointed and authorized by Customer to authorize Users, activate and deactivate User Accounts and manage rights of Users and manage BX Subscriptions.

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with Customer. "Control" for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of Customer.

“Agreement” means the agreement for the purchase of BX Subscriptions and subscriptions to BX Add-Ons, or the purchase of Professional Services.

“Backup” means a copy of the BX Data stored at a backup location.

“Bottomline” means Bottomline R&D B.V.

“BX” means the inventory routing optimization application, delivered through a logistics cloud platform and the BX API.

“BX Add-Ons” means services to which the Customer can subscribe in addition to the BX Subscription, such as the provision of a BX Integration.

“BX API” the standard application programming interface between BX and an Integration, enabling the exchange of data between BX and Third-Party Systems.

“BX Data” means the output data generated in BX as a result of the use of the BX Service.

“BX DPA” means the BX Data Processing Addendum, constituting an agreement within the meaning of Article 28 of the GDPR, available at www.bottomline.eu/bx-dpa.

“BX Documentation“ means the online documentation (as updated from time to time) for the BX Service, and BX Add-Ons, made available in BX.

“BX Integration” means an Integration created by Bottomline.

“BX Premium Support Agreement” means the agreement entitling the Customer to BX Premium Support.

“BX Service” means the service offering BX and the BX API.

“BX Subscription” means a subscription to the BX Service.

“BX Premium Support” means access to Help Center Support against predefined service levels for the resolution of Incidents, including live online support.

“BX Support” means the handling of issues and requests regarding the BX Service, reported or made by a Expert User, excluding First Line Support.

“BX Terms of Use” means the terms of use applicable to each and every use of the BX Service, to be accepted by Users on their first logon to the BX Service.

“Customer” means the legal entity entering into the Agreement, as stated on the Order Form.

“Customer Account” means the account created and used by Customer to order (subscriptions to) Services.

“Customer Data” means all electronic data or information entered in BX by Users., whether manually or in an automated way, using the BX API and an Integration.

“Data Recovery” means restoration in full or in part of the BX Data in the event of loss or corruption of the BX Data from or within BX.

“External Data” means the third party datasets processed within BX to generate the BX Data, such as price, weather and traffic data.

“First Line Support” means answering User questions or problems, setting data and parameters, tablet-related questions, and any other questions related to the use of and settings in BX and BX Add-Ons.

“Force Majeure Event” means any unavailability of Services caused by circumstances beyond Bottomline’s reasonable control including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, acts of (cyber) crime, strikes or other labor problems (other than those involving Bottomline’s employees), failures or delays of suppliers, or internet service provider failures or delays.

“GDPR” means Regulation (EU) 2016/679.

“Help Center Support” means Bottomline’s support team answering questions regarding and resolving issues in BX as asked or reported by a Expert User.

“Incident” means an interruption to the BX Service due to a malfunction in BX.

“Integration” means software, connected to the BX API, enabling the exchange of data between BX and Third-Party Systems.

“IP” means intellectual property rights, anywhere in the world, whether registrable or not, including but not limited to patent rights, domain names, tradenames, copyrights, trademark rights, sui generis data base rights and trade secrets.

“Knowledge Base” means Frequently Asked Questions (FAQ) and other information on the use of the BX Service made available by Bottomline in BX.

“Maintenance” means maintenance to (any components of) BX and its underlying infrastructure including the release of Updates and/or New Versions .

“Expert User” means a User, appointed and authorized by Customer, to provide First Line Support to other Users and to receive BX Support from Bottomline.

“New Version” means a successive version of BX, containing features and/or functionality that significantly changes or improves the features and/or functionality of the then-current version.

"Order Form" means the ordering document for purchases of Services.

“Parties” means Bottomline and the Customer.

“Professional Services” means certain professional services, e.g. consultancy, onboarding support, training, or software development.

“Professional Services Fee” means the fee for the delivery of Professional Services.

“Scheduled Maintenance” means Maintenance, scheduled in advance by Bottomline or its suppliers.

“Services” means the BX Service, BX Add-Ons and Professional Services as agreed between the Parties.

"Third-Party Systems" means Customer’s or a third party’s IT systems, managed by Customer or a third party , from which Customer Data are retrieved to be processed in BX or to which BX Data are transferred from BX.

“Total Use Fee” means the total fee for all BX Subscriptions, determined by the total number of BX Subscriptions in the preceding month x the Use Fee

“Truck” means the vehicle combination which trips are planned using the BX Service.

“Update” means a limited change to BX, the BX API or a BX Add-On to prevent or remedy malfunctions or vulnerabilities or to improve functionality.

“Use Fee” means the monthly fee to be paid by the Customer for a BX Subscription.

“User Account” means the account created for and used by User to get access to the BX Service.

"User" means Customer’s, Affiliate’s or their business relations’ employee, representative, consultant, contractor or agent who is authorized by Customer to use the BX Service.

“Working Days” means Mondays up to and including Fridays with the exception of official public holidays in the Netherlands.

“Working Hours” means the hours between 9 AM and 5 PM CET/CEST (as applicable) on Working Days.

“Writing, Written” means sent, made up or confirmed in writing or electronically.

2. Agreement

2.1 Content of the Agreement

The Agreement consists of one or more Order Form(s), these BX Service Terms and Conditions, the BX DPA and (where applicable, as stated in the Order Form) the BX Premium Support Agreement. The BX Premium Support Agreement applies only if the BX Subscription level includes BX Premium Support. No terms or conditions stated in Customer’s purchase order or other Customer documentation shall, nothwithstanding any language to the contrary in such terms and conditions or documentation, be incorporated into or form a part of the Agreement, and all such terms or conditions shall be deemed rejected and null and void.

2.2 Constitution of the Agreement

By creation of a Customer Account and acceptance of these BX Service Terms and Conditions the Agreement is constituted. If the acceptance is conditional, the condition does not apply until Bottomline has explicitly agreed to it in Writing.

2.3 Order of legal prevalence

To the extent of any conflict or inconsistency between the provisions of the documents constituting the Agreement and subject to the Parties’ explicit Written agreement to the contrary the order of legal prevalence shall be: (1) BX DPA, (2) these BX Service Terms and Conditions, (3) Order Form.. If the BX Premium Support Agreement applies the provisions of the BX Premium Support Agreement prevail over the provisions of these BX Service Terms and Conditions in case of any conflict or inconsistency between their provisions.

2.4 Amendments

Subject to any provision to the contrary in these BX Service Terms and Conditions, no modification, amendment, or waiver of any provision of the Agreement shall be effective unless made up and accepted in Writing by the Party against whom the modification, amendment or waiver is to be asserted.

2.5 Amendment to BX Service Terms and Conditions

Bottomline reserves the right to amend these BX Service Terms and Conditions unilaterally at any time, provided that Bottomline notifies the Customer in Writing of: (i) the date on which the amended terms will take effect and (ii) a summary of the amended terms, at least sixty (60) calendar days before the intended effective date. From the effective date notified the amended terms will apply to the Agreement. If the Customer does not accept the amended terms, Customer has the right to terminate the Agreement against the intended effective date of the amended terms, provided the Customer files its Written termination notice with Bottomline within thirty (30) calendar days prior to the intended effective date of the amended terms.

3. Services

3.1 BX Subscriptions

Customer may, under the terms of the Agreement, purchase BX Subscriptions for the use of and access to the BX Service for the subscription term stated in the relevant Order Form(s). Additionally, Customer may purchase (a) subscription(s) to BX Add-Ons. The effective date of the subscription to the BX Add-On shall be as stated in the Order Form and the subscription shall terminate simultaneously with the related BX Subscription(s). The BX Subscription or subscription to BX Add-Ons may be subject to limitations. Any such limitations are specified in the Order Form and/or BX Documentation.

3.2 Delivery of the BX Service

Bottomline will enable the Customer to create a Customer Account on: (i) Customer’s selection of (a) BX Subscription(s) and (ii) Written authorization (in accordance with section 6.4) for payment of the Use Fee and all other relevant fees. After the creation of the Customer Account and acceptance by the Account User of the BX Terms of Use the Account User can invite Users to create a User Account, on their acceptance of the BX Terms of Use. Bottomline may deactive the BX Service and BX Add-Ons if collection of any fees due fails, the Agreement is terminated or if a situation referenced in section 4.4 arises.

3.3 Number and level of BX Subscriptions

For each of the Trucks for which the Customer or Affiliate uses the BX Service, the Customer shall purchase a BX Subscription. The initial number of BX Subscriptions shall be stated in the initial Order Form. Subsequently, the monthly number of BX Subscriptions will be automatically determined by the highest number of Trucks planned in any twenty-four (24) hour term in that calendar month. The Customer explicitly authorizes Bottomline to monitor Customer’s and Affiliate’s use of the BX Service for this purpose. Each BX Subscription entitles the Customer or Affiliate to use such features and functionality of BX as specific for the level against which the BX Subscription is purchased, as specified in the Order Form. The Customer can upgrade, but not downgrade this level during the term of the BX Subscription.

3.4 Updates and New Versions

Updates and/or New Versions are released in accordance with Bottomline’s release policy only. Bottomline will inform Users of Updates and/or New Versions by issuing release notes in BX. Customer agrees to always use and cause any Users to use the latest version of the BX Service. Bottomline does not warrant that any specific functionality or feature will still be available after the execution of an Update or migration to a New Version.

3.5 Maintenance

Scheduled Maintenance will always be notified by Bottomline in advance in BX. When planning Scheduled Maintenance, Bottomline will use commercially reasonable efforts to take local business hours (business hours in the region where the BX Service that is eligible for Scheduled Maintenance is used) into account. Scheduled Maintenance will not exceed a maximum of two (2) hours per calendar week. Bottomline decides, in its sole opinion, whether a situation occurs requiring emergency maintenance to be undertaken (e.g. in case of a personal data breach). Emergency maintenance may take place at any time. If emergency maintenance is (in the sole opinion of Bottomline) necessary, Customer will be informed by a notification in BX as soon as possible.

3.6 Support

BX Support is delivered by Bottomline’s Help Center to a Expert User only. Bottomline will use commercially reasonable efforts to answer Customer’s questions and meet Customer’s requests but does not warrant that all questions and/or requests will always be answered or that al malfunctions will always be remedied, and reserves the right to deny a request. Customer is responsible for the provision of First Line Support to Users. Customer shall appoint a sufficient number of and at least one sufficiently qualified Expert User(s) for this purpose. Depending on the BX Subscription level to which the Customer has subscribed, Customer is eligible for BX Standard Support or BX Premium Support. BX Standard Support entitles the Customer to Help Center Support, during Working Hours and to access to the BX Knowledge Base. If the Customer has subscribed to BX Premium Support, the BX Premium Support Agreement applies.

3.7 Professional Services

The Parties may agree, from time-to-time, on the performance of Professional Services by Bottomline. The relevant Order Form will set forth: (i) the Professional Services to be rendered, and (ii) the project schedule (if applicable) and (iii) the Professional Service Fee and expenses (if applicable) to be paid by Customer. Bottomline is only obligated to perform the specific Professional Services that are expressly set forth in the relevant Order Form and provided that a successful collection of the prepayment for the (part of the) Professional Service Fee as described under 6.3 and 6.4 has been made. Bottomline will perform Professional Services in a professional manner in accordance with the specifications described in the Order Form. Bottomline is entitled always to have Professional Services performed by subcontractors, without prejudice to Bottomline’s obligations under the Agreement.

3.8 Delivery dates

Any delivery dates or timelines for the delivery of Professional Services communicated by Bottomline in an Order Form or otherwise, are estimates only and not guarantees, provided that Bottomline will use commercially reasonable efforts to achieve such dates or timelines. Customer must furnish a sufficient number of trained and experienced personnel and deliver all necessary information and materials in a timely manner. Bottomline will not be responsible for any delays, cost overruns or liability resulting from the foregoing factors.

3.9 Changes to BX

Bottomline may, but is not obliged to, at the Customer’s request and as part of Professional Services, develop or create specific features or additions or modifications to BX. If Bottomline agrees to perform such services, Bottomline is entitled to include such features in or additions or modifications to BX for all of its customers without Customer being entitled to any compensation whatsoever.

3.10 Third parties

Instead of performing Professional Services itself, Bottomline may refer Customer to third parties, selected by Bottomline, to perform Professional Services. In that case, such party will not be a subcontractor of Bottomline but Customer will, for the performance of the Professional Services enter into a separate services agreement with the third party directly. Bottomline excludes all liability for any actions or omissions of such third party.

3.11 External Data

Customer acknowledges that the External Data are obtained from external data sources. Bottomline provides the External Data “as is” and does not guarantee the correctness, availabilty or completeness of the External Data. Bottomline excludes all liability for damages arising from incorrect, incomplete or otherwise non-conforming External Data.

4. Use of the services

4.1 Bottomline’s obligations

Bottomline shall:

provide the Services in accordance with the Agreement; and
use commercially reasonable efforts to make the BX Service available twenty four (24) hours a day, seven (7) days a week; and
provide the Services only in accordance with laws and government regulations applicable to the Services.

4.2 Exceptions to availability

In the situations listed below, Bottomline’s obligation stated in section 4.1 under (ii) does not apply:

Scheduled Maintenance
downtime of services and/or infrastructure of Bottomline’s supplier(s)
slowness or other performance issues with individual features
issues that are related to (components of) IT systems, owned and/or appointed and/or contracted and/or used by a User;
any products or features identified as pilot, alpha, beta or similar
external network or equipment problems outside of Bottomline’s reasonable control, such as bad routing tables between an external internet service provider (ISP) and Bottomline’s server
a Force Majeure Event
other situations in which keeping the BX Service available cannot be reasonably expected from Bottomline.

4.3 Customer’s responsibilities

Customer shall:

be responsible for Users’ compliance with the BX Terms of Use and block the User Account of any User violating the BX Terms of Use immediately on becoming aware of such violation, and
be responsible for the appointment of (a) qualified Account User(s) and (a) Expert User(s), and
be solely responsible for the accuracy, security, quality, integrity and legality of Customer Data and of the means by which the Customer Data are acquired, including the possession of all licenses, permissions, and rights for use of Customer Data in relation to the Agreement, and
use adequate technical, physical and organizational security measures to prevent unauthorized access to or use of the BX Service and/or use in violation of the BX Terms of Use, including but not limited to keeping any login credentials strictly confidential, and notify Bottomline promptly of any (threat of) such unauthorized access or use, and
use the BX Service only in accordance with the BX Documentation and applicable laws and government regulations;
not (a) make BX available to anyone other than Users, and/or (b) sell, resell, rent or lease the BX Service, and/or (c) use BX to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, and/or (d) store or transmit malware (including but not limited to viruses, worms, time bombs, Trojan horses and other intentionally harmful or malicious code, files, scripts, agents or programs) in BX, and/or (e) interfere with or disrupt the integrity or performance of the BX Service or third-party data contained therein, or (f) attempt to gain unauthorized access to BX or its related systems or networks, or (g) access BX for any benchmarking or competitive purposes.

4.4 Consequences of non-compliance

Customer accepts liability for any damages arising from non-compliance of a User with the BX Terms of Use and acknowledges that, if a User does not comply with the BX Terms of Use, Bottomline is entitled, without prejudice to any other remedies available to Bottomline under the Agreement or at law, to suspend or limit that User’s access to the BX Services by closing the Customer Account or relevant User Account. Such non-compliance will be deemed to be a material breach by Customer of the Agreement within the meaning of section 13.3.

5. Integrations and Third-Party Systems

5.1 Integrations

Customer may enable the exchange of data between the BX Service and Third-Party Systems by using the BX API and (i) subscribing to a BX Integration or (ii) creating and using its own Integration. Customer will cause any Integrations it creates to meet the requirements for Integrations as set out in the BX Documentation.

5.2 Disclaimer

If Customer makes use of (a) BX Integration(s) Bottomline’s sole obligation is to make the relevant BX Integration(s) available in accordance with the BX Documentation. Bottomline does not accept any liability for the quality and/or security of any Integration(s) other than BX Integration(s). The (i) use of any Integrations other than BX Integrations and (ii) the (successful) transmission of the Customer Data respectively BX Data to or from the Third-Party Systems is at Customer’s own risk. Customer acknowledges that the security and validity of the transmission from the BX API to the Third-Party Systems and vice versa is Customer’s responsibility.

5.3 Third-Party Systems

Where Customer or Affiliate allows Third-Party Systems for use with the BX Service, Customer acknowledges that those Third-Party Systems may have access to BX Data and/or Customer Data. Bottomline shall not be responsible or liable for any disclosure, modification or deletion of BX Data and/or Customer Data resulting from any such access by Third-Party Systems providers.

5.4 Third-party implementors, integrators, and services providers

In connection with Customer’s or Affiliate’s use of the Services, Customer or Affiliate may engage third party implementors, integrators or consultants, or use the Services with certain other third-party services and products. Customer acknowledges and agrees with regard to such third party implementors, integrators or consultants that (i) those third parties are not Bottomline’s agents or employees; and that (ii) Bottomline is not responsible or liable in any way for their actions, omissions or services. Customer acknowledges and agrees with regard to such third party services and products that (i) Bottomline is not responsible or liable in any way for the consequences of the use of such services and products, and that (ii) Customer is exclusively responsible for the selection and quality of those third party services and products.

6. Prices, fees and payment

6.1 Prices

The BX Subscriptions and subscriptions to BX Add-Ons are charged at the Use Fee, specified in the Order Form(s). Depending on the BX Subscription purchased, the Use Feeis either (as stated in the Order Form) fixed for the relevant subscription term or increased yearly on January 1st, based on the change in the CBS-index “CAO lonen per uur exclusief bijzondere beloningen particuliere bedrijven” in the twelve (12) preceding months (2010 = 100), as published by Statistics Nederland

6.2 Subscription fees

Customer shall pay the Total Use Fee as invoiced monthly (in case of a subscription term of one month) or yearly (in case of a subscription term of one or more years) in advance. The Total Use Fee will be collected as set forth in section 6.4.

6.3 Professional Services Fees and expenses

Customer shall pay the Professional Services Fee stated in the relevant Order Form plus (if applicable) reasonable related expenses (such as costs of transportation and parking). 50% of the Professional Services Fee shall be paid in advance and 50% after completion of the Professional Services. The Professional Services Fee is collected as stated in section 6.4. Expenses will be invoiced and collected in arrears in the month following incurrence of the expenses.

6.4 Payment

Customer shall pay the Total Use Fee, the Professional Services Fee and any other fees due under the Agreement by credit card. As a precondition to the Agreement, Customer shall enter the details of a valid creditcard in BX and authorize Bottomline in Writing to charge the credit card for any fees due under any Order Forms. Customer is responsible for timely updating its credit card information to prevent the occurrence of any interruptions to collection of the fees due.

6.5 Overdue fees

If Bottomline is not able to collect any fees despite at least two attempts to charge Customer’s credit card with an interval of ten (10) calendar days such fees accrue late interest at the EURIBOR rate plus 2% and Customer shall be obliged to pay reasonable attorney fees and other costs incurred by Bottomline to collect any fees or charges due to Bottomline under the Agreement.

6.6 Consequences of payment failure

If payment of any amount owed by Customer under the Agreement or under any other agreement between Customer and Bottomline is thirty (30) or more days overdue, all amounts payable under the Agreement and any such other agreement become immediately due and payable and Bottomline is entitled to suspend the performance of the Services and any other services provided to Customer until such amounts are paid in full or terminate the Agreement or any BX Subscription(s) or subscriptions to BX Add-Ons without incurring any liability.

6.7 Payment disputes

Bottomline will not exercise its rights under section 6.6 if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to promptly resolve the dispute.

7. Proprietary rights

7.1 Reservation of rights

Bottomline and its licensors reserve all rights, title and interest, including all IP, in and to (all components of) BX, the BX API, the BX Add-Ons, the BX Documentation, the results of Professional Services and all enhancements, customizations and modifications to any of the foregoing (“Proprietary works”). No IP rights are granted to Customer or any other party. Customer will be granted a temporary, limited, non-exclusive right to use the BX Service in accordance with the Agreement only.

7.2 Restrictions

Customer shall use the BX Service for its and/or its Affiliates’ internal business purposes only and not (i) permit any third party to access the Proprietary Works except as permitted in the Agreement, (ii) create derivate works based on the Proprietary Works, (iii) copy, frame or mirror any part or content of the Proprietary Works, (iv) reverse engineer the Proprietary Works, or (v) access the Proprietary Works in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Proprietary Works. Further, Customer shall not use any information disclosed by Bottomline relating to the Proprietary Works to contest the validity of Bottomline’s IP. Any non-compliance with this section 7.2 will constitute a material, non-curable breach of the Agreement, entitling Bottomline to immediately terminate the Agreement and/or the performance of the Services.

7.3 Ownership of Cusstomer Data

For the purpose of the Agreement Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer grants Bottomline a non-exclusive, royalty-free license to use the Customer Data for and in the performance of the Agreement, including the hosting of Customer Data as part of the BX Service. Customer warrants that it disposes of all necessary rights and authorizations to grant such license to Bottomline.

7.4 Suggestions

Bottomline shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the BX Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer. All such feedback shall be deemed not to be Customer’s Confidential Information within the meaning of section 8.1.

8. Confidentiality

8.1 Confidential Information

As used in these BX Service Terms and Conditions "Confidential Information" means all confidential information disclosed by a Party or (in case of Customer) Affiliate ("Disclosing Party") to the other Party ("Receiving Party"), whether orally or in Writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include the Customer Data and BX Data. Bottomline’s Confidential Information shall include the Proprietary Works. Confidential Information of each Party shall include all contract documents as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, 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 Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

8.2 Protection of Confidential Information

Except as otherwise permitted in Writing by the Disclosing Party the Receiving Party shall (i) protect the Confidential Information of Disclosing Party against unauthorized access, using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), and (ii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who have signed Written confidentiality agreements with the Receiving Party containing obligations and prohibitions no less stringent than the ones in this section 8.

8.3 Permitted disclosure

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and shall provide, at the Disclosing Party's cost, reasonable assistance to the Disclosing Party if the Disclosing Party wishes to contest the disclosure. Bottomline may also (i) disclose Confidential Information disclosed by Customer or Affiliate if such disclosure is expressly permitted in Writing by Customer. Notwithstanding any provision to the contrary in this Agreement, Bottomline may access Customer Data to provide the BX Service or prevent or address service or technical problems.

8.4 Agreed disclosure

By entering into the Agreement Customer allows Bottomline to reference Customer as a customer of Bottomline using Bottomline’s technology, on Bottomline’s website and in print copy or marketing material. At Bottomline’s request, Customer will provide an approved company logo and testimonial that Bottomline may publish on its website and/or in marketing material to communicate such relationship.

9. Personal Data protection and security

9.1 Personal Data protection

Each Party qualifies as an independent Controller (as defined in section 4 of the GDPR) regarding the processing of the other Party’s personal data, where necessary for the execution of the Agreement (such as business contact details, login data, support requests) and shall process such data in accordance with the GDPR and/or any other data protection legislation that that Party is subject to. Where the Services includes Data Processing, the BX DPA applies.

9.2 Security

Without limiting the above, Bottomline has taken the organizational, physical, and technical security measures for protection of the availability, confidentiality and integrity of Customer Data and BX Data stored in BX as set forth in the BX Documentation or notified by Bottomline to Customer on its Written request. Bottomline does not warrant that these security measures will always be effective or meet any specific requirements. Customer confirms that it has assessed these security measures and acknowledges that these security measures meet its requirements.

9.3 Storage, Backup and Data Recovery

The BX Data and Customer Data stored by Bottomline in BX will date back three (3) years. A Backup is made by Bottomline automatically each 24 hours. Data Recovery will not take place in case of loss or corruption of BX Data or Customer Data from or in Third-Party Systems.

10. Warranties and disclaimers

10.1 Bottomline warranty

Bottomline warrants that the BX Service shall perform materially in accordance with the BX Documentation. In the event of a breach of the foregoing warranty, Bottomline will use reasonable efforts to correct the non-conforming or defective BX Service. In the event that Bottomline is unable to, using reasonable efforts, correct the defective BX Service within thirty (30) days from receipt of Customer’s notice of the breach, Customer may elect to terminate the BX Subscription(s) in question and receive a pro-rated refund of the pre-paid Use Fee related to such subscription(s. The obligations and rights stated in this section 10.1 are Bottomline’s sole and exclusive liability respectively Customer’s sole and exclusive remedy in the event of a malfunction in the BX Service.

10.2 Disclaimer

Except as expressly provided in this section 10, Bottomline makes no warranties of any kind, whether express, implied, statutory or otherwise, and Bottomline specifically disclaims all implied warranties, including any warranties of merchantability, fitness for a particular use or purpose or title/non-infringement, to the maximum extent permitted by applicable law.

11. Indemnification

11.1 Indemnification by Bottomline

Subject to the other subsections of this section 11 Bottomline shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer or an Affiliate by a third party alleging that the use of the BX Service as permitted hereunder infringes or misappropriates the IP of a third party (“Infringement Claim”), and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by Customer or Affiliate in connection with any such Infringement Claim.

11.2 Notification and assistance

If Customer is aware of an Infringement Claim it shall (a) promptly give Bottomline Written notice of the Infringement Claim; (b) give Bottomline sole control of the defense and settlement of the Infringement Claim (provided that Bottomline may not settle any Infringement Claim unless the settlement unconditionally releases Customer of all liability); and (c) provide to Bottomline all reasonable assistance, at Bottomline’s expense.

11.3 Mitigating measures

If an Infringement Claim occurs, or if Bottomline determines that such claim is likely to occur, Bottomline will have the right, in Bottomline’s sole discretion, to either (i) procure for Customer the right or license to continue to use the BX Service free of the infringement claim, or (ii) modify the BX Service to make it non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to Bottomline, Bottomline may, in Bottomline’s sole discretion, immediately terminate the Agreement, and repay the prorated portion of any pre-paid, unused fees for the relevant BX Subscription.

11.4 Excluded Claims

Notwithstanding the foregoing subsections of this section 11, Bottomline will have no obligation with respect to any Infringement Claim that is based upon or arises out of (i) the use or combination of the BX Service with any hardware, software, products, data, or other materials not provided by Bottomline, (ii) modification or alteration of the BX Service by anyone other than Bottomline, (iii) use of the BX Service in excess of the rights granted in the Agreement, or (iv) (the results of) Services performed by Bottomline on an instruction given or requirements set by Customer, or (v) Bottomline’s permitted use of Customer Data or other materials furnished by Customer or Affiliate (collectively, the “Excluded Claims”).

11.5 Indemnification by Customer

Customer shall defend Bottomline against any Excluded Claim(s) made or brought against Bottomline by a third party and shall indemnify Bottomline for any damages finally awarded against, and for reasonable attorney’s fees incurred by Bottomline in connection with any such Excluded Claim, provided that Bottomline (a) promptly gives Customer Written notice of the Excluded Claim; (b) gives Customer sole control of the defense and settlement of the Excluded Claim (provided that Customer may not settle any Excluded Claim unless the settlement unconditionally release Bottomline of all liability); and (c) provide to Customer all reasonable assistance, at Customer’s expense.

11.6 Exclusive Remedy

This section 11 (Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against the other Party for Infringement Claims respectively Excluded Claims.

12. Limitation of liability

12.1 Limitation of Liability

12.2 Exclusion of indirect and consequential damages

In no event shall either Party have any liability to the other Party for any indirect, incidental or consequential damages, including but not limited to loss of profits or revenue, loss of data, third party damages and governmental fines, regardless of whether such damages were foreseeable and of whether the Party has been advised of the possibility of such damages.

12.3 Exception

The limitations stated in sections 12.1 and 12.2 shall not apply to the extent prohibited by applicable law and shall not limit Customer’s liability for infringement of Bottomline’s IP or Customer’s liability under section 12.5.

12.4 Expiration

Customer’s right to claim damages from Bottomline lapses if the claim is not submitted within one (1) calendar year from the date on which the first of the events leading to the damages occurred.

12.5 Third-party claims

If Customer permits the use of the Services to a third party, including an Affiliate, Customer will indemnify Bottomline and hold Bottomline harmless for any damages, losses or expenses claimed from Bottomline by such third parties in excess of the limitations set forth in this section 12.

12.6 Default notice

Bottomline’s liability for damages arising from a remediable breach of the Agreement shall not arise before (i) receipt by Bottomline of a Written default notice of Customer, requiring the breach to be remedied and (ii) expiry of a reasonable term to remedy the breach of at least thirty (30) calendar days without the breach being remedied.

13. Term and termination

13.1 Term of the Agreement

The Agreement commences on the date of acceptance by Customer of these BX Service Terms and Conditions and continues to be in effect until all BX Subscriptions granted in accordance with the Agreement have expired or been terminated.

13.2 Term of BX Subscriptions

BX Subscriptions purchased by Customer commence on the effective date specified in the applicable Order Form and continue to be in effect for the subscription term specified therein. Except as otherwise stated in the applicable Order Form, all BX Subscriptions shall automatically renew for an additional term equal to the term of the existing BX Subscription, unless either Party gives the other Party notice of non-renewal at least thirty (30) calendar days before the end of the then-current BX Subscription term.

13.3 Termination for cause

A Party may immediately terminate the Agreement or a subscription thereunder for cause: (i) upon thirty (30) calendar days Written notice to the other Party of a material breach of the Agreement or relevant subscription, if such breach is not cured at the expiration of such 30-day period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

13.4 Consequences of termination for cause

Upon the legally valid termination for cause of the Agreement by Customer, all subscriptions shall automatically terminate and Bottomline shall refund Customer any prepaid fees covering the remainder of the term of the subscriptions from the effective date of termination. Upon termination for cause by Bottomline all subscriptions shall automatically terminate, any outstanding fees shall become immediately due and payable and Customer shall pay any unpaid fees covering the remainder of the term of all subscriptions from the effective date of termination.

13.5 Retrieval of BX Data and Customer Data

Customer can retrieve BX Data and Customer Data until expiry of a term of thirty (30) calendar days from the effective date of termination of a BX Subscription, either by transmitting the data using an Integration of by downloading a file of the BX Data and Customer Data in json-format or such other commonly used machine-readable format as notified by Bottomline to Customer. The file will contain BX Data and Customer Data that date back no longer than the period referred to in section 9.3. After such thirty (30) day period, Bottomline shall have no obligation to maintain or provide any of the BX Data or Customer Data and shall thereafter, unless legally prohibited, delete all of the BX Data and Customer Data processed under the terminated BX Subscription in Bottomline’s systems or otherwise in Bottomline’s possession or under Bottomline’s control.

13.6 Surviving Provisions

Any provision of the Agreement that is deemed, by its nature, to survive termination shall survive any termination or expiration of the Agreement, including but not limited to sections 6 (Prices, Fees and Payment), 7 (Proprietary Rights), 8 (Confidentiality), 10.2 (Disclaimer), 11 (Indemnification), 12 (Limitation of Liability), 13.4 (Consequences of termination for cause), 13.5 (Retrieval of BX Data and Customer Data), 14 (Governing Law and Jurisdiction), 15 (Notices) and 16 (General Provisions).

14. Governing law and jurisdiction

14.1 Governing law

The Agreement is construed in accordance with and governed by Dutch law, without regard to its conflict of law rules. The Vienna Convention on Contracts for the International Sale of Goods does not apply to the Agreement.

14.2 Dispute resolution

Any disputes, actions, claims or causes of action arising out of or in connection with the Agreement shall be subject to the exclusive jurisdiction of the competent court in ‘s-Hertogenbosch, the Netherlands.

16. General Provisions

16.1 Relationship of the Parties

The Parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

16.2 Mutual Non-Disparagement

In order to preserve the integrity of the Parties' business relationship, Customer will not, and will cause its officers, directors, and employees not to: disparage, misrepresent, or denigrate Bottomline’s products, or methods or techniques of doing business, including, but not limited to, through any means of social media or other public comment, rating, or review and Bottomline will not, and will cause its officers, directors, and employees not to: disparage, misrepresent, or denigrate Customer’s products, or methods or techniques of doing business, including, but not limited to, through any means of social media or other public comment, rating, or review.

16.3 No third-party beneficiaries

There are no third-party beneficiaries to the Agreement. In particular, Customer’s Affiliates are not third-party beneficiaries of the Agreement. Any action to enforce the Agreement must be made by a signatory hereto.

16.4 No waiver

No failure or delay by either Party in exercising any right under the Agreement shall constitute a waiver of that right.

16.5 Severability

If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified 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 the Agreement shall remain in effect.

16.6 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 (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign the Agreement in its entirety (including subscriptions), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

16.7 Entire Agreement

These BX Service Terms and Conditions, the Order Forms, the BX DPA and (if appliable) the BX Premium Support Agreement constitute the entire agreement between the Parties and supersede all prior and contemporaneous agreements, proposals or representations, Written or oral, concerning its subject matter.

16.8 Force Majeure

Bottomline will not be liable for any failure or delay in performance under the Agreement which is due to a Force Majeure Event. Upon becoming aware of a Force Majeure Event Bottomline will notify Customer of the Force Majeure Event in Writing; and use reasonable endeavors to mitigate the effects of the Force Majeure Event for the Customer and/or Affiliate. If Bottomline is prevented from performing its obligations under the Agreement due to a Force Majeure Event for more than one (1) calendar month either Party will be entitled to terminate the Agreement or, if the performance of the Agreement is partly affected by the Force Majeure Event the part of the Agreement that is affected.

16.9 Non-Solicit

During the term of the Agreement and continuing through the second anniversary of the termination of the Agreement, neither Party and (in case of Customer) Affiliate may solicit any employee of the other Party with whom the Party has had contact in the performance of the Agreement, without the other Party’s Written consent.

16.10 Headings

The headings of sections and paragraphs in these BX Service Terms and Conditions are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of the Agreement.

BX Service Terms and Conditions