TERMS OF SERVICE USA

THESE TERMS OF SERVICE, INCLUDING ANY APPLICABLE ORDER FORMS AND STATEMENTS OF WORK (AND APPLICABLE AMENDMENTS AND ADDENDUMS THERETO, IF ANY), WHICH ARE INCORPORATED HEREIN BY REFERENCE (COLLECTIVELY “AGREEMENT”), CONSTITUTE A CONTRACT BETWEEN THE CUSTOMER SPECIFIED IN THE APPLICABLE ORDER FORM (“CUSTOMER”) AND ESKER, INC. (“ESKER”), AND GOVERNS THE PERFORMANCE AND USE OF THE ESKER ON DEMAND SERVICE AND WEBSITE, WHICH IS LOCATED AT HTTPS://WWW.ESKER.COM/TERMS-USE/, (COLLECTIVELY “EOD”). IF AN EMPLOYEE OF THE CUSTOMERS IS REGISTERING ON CUSTOMER’S BEHALF, THAT EMPLOYEE REPRESENTS AND WARRANTS THAT THEY ARE OVER THE AGE OF EIGHTEEN (18) AND HAVE THE AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. IF THE EMPLOYEE DOES NOT HAVE SUCH AUTHORITY, CUSTOMER MAY NOT USE EOD. IF CUSTOMER IS A DIRECT COMPETITOR OF ESKER (AS DETERMINED IN ESKER’S REASONABLE, SOLE DISCRETION), CUSTOMER MAY NOT ACCESS EOD UNLESS CUSTOMER OBTAINS ESKER’S PRIOR WRITTEN CONSENT. ADDITIONALLY, CUSTOMER MAY NOT ACCESS EOD FOR THE PURPOSES OF MONITORING ITS AVAILABILITY, PERFORMANCE, OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES. Collectively, Esker and Customer are referred to as the “Parties” and individually as a “Party.” Customer acknowledges and agrees that when necessary Esker’s Parent Company, Esker, S.A., and its Affiliates, subsidiaries, and/or Subcontractors (as defined herein) may provide EOD to Customer on behalf of Esker. Any rights not expressly granted in this Agreement are reserved by Esker.

RECITAL.

Esker offers a web-based solution that enables the Customer to send, receive, and/or archive Documents (as defined herein) via Customer’s choice of available business processes or transport services as specified in Exhibit A, which is attached hereto and incorporated herein by reference. The implementation of Customer’s EOD solution may require customization by Esker’s Professional Services (defined herein), which shall be defined in a separate statement of work (“SOW”) signed by the Parties.

DEFINITIONS.

Throughout this Agreement the following words shall have the following meanings unless the context otherwise requires:

“Affiliate” is defined as any legal entity directly or indirectly controlling, controlled by or under common control with a Party, where control means the power to direct or cause the direction of the management and policies of an entity, whether through ownership of a majority share of the stock, equity or voting interests of such entity or by contract.

“Deliverable(s)” is defined as the item(s) described on a Statement of Work that is (are) to be developed or provided by Esker to Customer.

“Disclosing Party” is defined as the Party that is providing its Confidential Information to the Receiving Party under this Agreement.

“Document(s)" is defined as any incoming or outgoing document (e.g., a letter, fax, invoice, sales order, purchase requests, text, payment, instant message, or e-mail message) submitted by or for Customer to EOD via a secure internet connection for processing, delivery to a recipient and/or electronic archiving.

“Documentation” is defined as end user manuals, operating manuals, technical manuals and any other instructions, specifications, documents and materials, in any form or media, that describe the functionality, installation, testing, operation, use, maintenance, security, support and technical and other components, features and requirements for EOD, each as amended from time-to-time by Esker.

“EOD Technical Platform” is defined as a group of infrastructures, composed of software and hardware developed by Esker on which Customer’s solution is running and the User Interface is made available.

“Master Data” means all data records (e.g. vendors/customers repository, items, units, etc.), replicated from the ERP system into Esker and used by EOD to extract and validate key data from incoming Documents.

“Platform Footprint” is defined as Customer’s authorized impact on the EOD Technical Platform through its usage, as defined in this Agreement.

“Receiving Party” is defined as the Party receiving the Confidential Information of the Disclosing Party under this Agreement.

"Recipient" is defined as the Customer-designated addressee or intended entity to whom Esker sends a Document on behalf of Customer.

“User Interface” is defined as the Esker portal Customer uses to manage its account, contacts, and follow-up the processing status of its Documents. Moreover, it allows Customer to create admin or users accounts, handle profiles, and control accesses.

1.0 TERM

This Agreement shall begin as specified in the Order Form (“Effective Date”).

2.0 RIGHT TO ACCESS.

Esker grants to Customer a non-transferable, non-exclusive right to access and use EOD solely for the purpose of processing and storing Documents for its own internal needs unless otherwise mutually agreed in writing between the Parties, and subject to the terms of this Agreement. EOD does not include internet access. Customer acknowledges and agrees that it must: (a) provide for its own access to the internet and pay any service fees associated with such access, and (b) provide all equipment necessary for Customer to make such connection to the internet, including a computer and modem. Upon signature of this Agreement, Esker shall provide Customer with an e-mail containing a username and a link allowing Customer to create its password that grants access to EOD. Each EOD username and password is considered Confidential Information as defined in Section 4.0 of this Agreement. Customer and/or its representatives are entirely responsible for undertaking safeguards to prevent unauthorized disclosure of any EOD username or password issued to it or any of its users and recognize that this Confidential Information must remain under Customer’s control. Customer shall only use EOD to meet its internal needs and not for the benefit of any third-party. Customer shall not copy, modify, alter, translate, decompile, disassemble, reverse engineer EOD, facilitate any viruses, Trojan horses, worms, or other computer programming routines that may damage, bypass, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or information on or related to EOD; and Customer shall not rent, lease, sublicense, sell, offer as part of a fee-based service, assign (except as described herein), or otherwise transfer EOD in whole or in part to another party without the express written consent of Esker.

3.0 PAYMENT.

Esker will invoice Customer for the fees specified in, and in accordance with, the applicable Order Form. In the event Customer uses a service transport or business process not specified in the Order Form, Esker will contact the Customer and inform them of the situation. If it is determined that the service transport or business process is necessary, the Parties will execute an addendum to this Agreement for such services. Net payment terms are specified in the applicable Order Form. Except as specified elsewhere in this Agreement, all payment obligations under this Agreement are non-cancelable and all payments made are non-refundable. When applicable, unless a valid tax exemption certificate is provided, Customer shall pay, in addition to the other amounts payable under this Agreement, all local, state, and federal excise, sales, use or similar legal taxes, including prior periods, (but excluding any income taxes) levied or imposed upon Esker as a result of the transactions under this Agreement. Payment of all fees shall be in United States dollars. Customer may pay by wire transfer, credit card (MasterCard, American Express, Discover, or VISA), or ACH. When applicable, a one percent (1%) convenience fee will be charged on any credit card transactions. Customer shall pay all applicable wire transfer fees charged by its financial institution. When applicable, a service fee will apply to any Esker invoices uploaded to Customer or third-party portal. All third-party portal administrative fees shall be the responsibility of the Customer. Any dispute over an Esker invoice shall be delivered in writing by Customer to Esker within thirty (30) days from receipt of the invoice. The Parties agree to work in good faith to promptly resolve any disputed invoice amounts.

4.0 CONFIDENTIALITY.

4.1 “Confidential Information” is defined as any information relating to or disclosed by a Disclosing Party to a Receiving Party in the course of the Agreement, which is marked as “confidential” or “proprietary” or should be reasonably understood to be confidential or proprietary to the Disclosing Party given the nature of the information and circumstances of its disclosure, including, without limitation, all non-public or proprietary information and material of a technical, economic, financial or business nature, whether or not reduced to writing or other tangible form and whether or not marked as “confidential” or “proprietary”, including without limitation trade secrets and other information concerning the business affairs of the Disclosing Party or its Affiliates, subcontractors or vendors, compositions, data, designs, drawings, formulae, graphs, inventions, ideas, know-how, models, photographs, processes, user names and passwords, product prototypes and specifications; customer requirements; customer lists, price lists, and supplier lists; research and development; manufacturing, development, marketing or distribution strategies, methods and processes; market studies; business plans; computer software and programs (including object code and source code); and database technologies, systems, structures and architectures that may be disclosed or made available by the Disclosing Party to the Receiving Party in connection with this Agreement. Confidential Information shall not include information: (a) already lawfully known to the Receiving Party without an obligation of confidentiality; (b) disclosed in published materials without fault of the Receiving Party; (c) generally known to the public without fault of the Receiving Party; (d) lawfully obtained from a third-party not under any obligation to maintain the confidentiality of such information to the Disclosing Party; (e) required by applicable law or regulations to be released; or (f) independently developed by Receiving Party without reference to or use of the Confidential Information of the Disclosing Party.

4.2 The Receiving Party agrees that it shall not disclose to any third-party any Confidential Information of the Disclosing Party, which it learns during its performance of this Agreement, without the prior written consent of the Disclosing Party. The Parties agree that the terms and conditions of this Agreement are hereby designated as Confidential Information. Notwithstanding the foregoing, the Receiving Party may make disclosures required by court order, provided the Receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or protective order and has allowed the Disclosing Party to participate in the proceeding. All the Confidential Information provided by the Disclosing Party under this Agreement, including any copies or reproduction thereof, remains the exclusive property of the Disclosing Party. Immediately upon a written request by the Disclosing Party at any time, the Receiving Party will turn over to the Disclosing Party all Confidential Information of the Disclosing Party and all documents or media containing any such Confidential Information and any and all copies or extracts thereof. In lieu of the return of such items, the Disclosing Party, at its sole option, may request the Receiving Party destroy all tangible items containing the Confidential Information and provide written certification of such destruction to the Disclosing Party. Each Party acknowledges that unauthorized disclosure or use of the Confidential Information by the Receiving Party may cause irreparable harm and damage to the business of the Disclosing Party, which may be difficult to ascertain, and which may not be adequately compensated by damages at law. Therefore, each Party agrees that, in the event of a breach or threatened breach of the Disclosing Party’s Confidential Information, the Disclosing Party is entitled to seek an injunction prohibiting any unauthorized disclosure or use of its Confidential Information. Any such injunctive relief shall be in addition to, and not in lieu of, any appropriate monetary damages.

5.0 EOD SERVICE.

5.1 EOD Availability.EOD will be made available to Customer twenty-four hours per day, seven days per week, with an uptime of 99.5% (“Service Level”) as measured on a per calendar month basis by Esker’s internal monitoring systems, subject to the following exclusions: (1) scheduled maintenance or planned system upgrade periods not exceeding two (2) business hours per calendar month; (2) any third-party’s network, including but not limited to internet service and telecommunications providers to which Esker connects, or providing service connected to, EOD or Esker’s facilities; (3) any Force Majeure Events as defined in this Agreement, (4) any third-party or Customer equipment malfunctions or failures beyond Esker’s reasonable control; (5) when Customer has released EOD to Esker for maintenance purposes or for implementation of a Customer order for a change in EOD arrangements; or (6) Customer’s failure to fulfill its obligations as defined in the Documentation or applicable SOW.

5.2 Service Credits. For each month that EOD does not meet the Service Level, Customer may be eligible for a service credit, equal the applicable percentage of the applicable subscription fees paid by Customer for EOD for such month (each, a “Service Credit”). The following Monthly Uptime Percentages and corresponding service credits are applicable to Customer’s use of EOD:

5.3 Request for Service Credit Customer is responsible for monitoring the EOD Service Levels via www.trustesker.com. If Customer believes Esker has failed to achieve the Service Levels specified above, then Customer is entitled to seek a Service Credit from Esker in writing within thirty (30) business days of the end of the month where such Service Level failure occurred. The contents of the written request must contain the Customer’s name as shown on its Esker invoice, the specific date and time of the Service Level failure, a description of the perceived problem, and such other Customer identification and information as reasonably requested by Esker. Upon receipt of such written request, Esker will review maintenance and service records for the period in question to verify the Service Level failure and provide a Service Credit, if appropriate. Upon written request, Esker will provide Customer with a copy of such maintenance and service records to substantiate the EOD performance measure. In the event that multiple Service Level failures overlap in time, Service Credits will not be aggregated, and Customer will receive a Service Credit for the longest such period of Service Level failure, taking all such Service Level failures into account. Service Credits will usually be applied to Customer’s account within thirty (30) days of Customer’s Service Credit request. Service Credits shall only be applied to existing EOD obligations of Customer and not to any technical support or professional service fees. If Customer retains a Service Credit balance upon the termination of its EOD account, such Service Credit will be put towards the final invoice fees and a refund will be issued for any remaining amounts in excess of the final invoice fees.

Document Processing, Document Storage and Deletion Policy. Documents to be processed will be taken into account upon their reception on the EOD Technical Platform. A Document is deemed to be “received” by Esker upon reception: (a) in its entirety on the EOD Technical Platform and available on the EOD User Interface, (b) properly formatted as specified in the online help, and (c) without exceeding 10Mb in size, including attached files. Customer will be informed of the delivery or non-delivery status of its Documents in the EOD User Interface. Unless Customer has purchased the Archive service transport, Esker, by default, retains Customer’s data on the EOD Technical Platform for sixty (60) days. Thereafter, Customer’s data is erased. During this period, Customer may monitor the delivery status of its Documents on the User Interface and download them if needed. Provided Customer has purchased archiving, at any time during the term of this Agreement, Customer may: (1) download its archived Documents on its own servers from the User Interface, (2) request Esker save its archived Documents onto digital backup, or (3) have Esker develop a web service administration tool that will give access to the EOD Technical Platform. Options (2) and (3) require a separate agreement between the Parties and additional fees will apply. Esker processes four (4) main categories of data provided or generated by Customer: Category 1: Master Data to operate the automation for its business processes; Category 2: Back-office data: to access and customize its EOD environment (user, profiles, custom views, dashboard, SSO configuration, etc.); Category 3: Documents and workflow activities: generated during the processing (status, message, document life cycle, etc.); Category 4: Archives: which represent data of Category 3 that are stored for a period of time defined by Customer during the implementation Project. Deletion of Category 1 and 2 data is triggered by Esker at the end of the Agreement. Deletion of Category 3 data is automatic at the expiration of a sixty (60) day period. Deletion of Category 4 data is performed at the end of the Archive Commitment Period.

5.5 Platform Footprint. Because EOD is a multitenant environment, Esker strictly enforces limits so that EOD don’t monopolize shared resources and Customer may benefit from availability Service Levels as stated herein. Platform Footprint includes the following usage limitations: (a) 2,000,000 of Master Data records, (b) 2,000,000 of modifications (creation, deletion, edition) of Master Data allowed per month, and (c) A given number of ERP Instances and/or Company Codes. If these usage limits are exceeded, the Parties will meet to establish corrective actions, limit the impact on the performance of EOD and/or review the associated pricing. Failing this, Esker reserves the right to suspend EOD.

5.6 Maintenance & Technical Support. To the extent practicable, Esker shall schedule maintenance outside of working days (“Planned Maintenance”). Esker will notify Customer’s Technical Contacts by email for (i) any Planned Maintenance exceeding thirty (30) minutes with three (3) calendar days’ minimum notice and (ii) any incident having impact on the production. These events will also be announced on www.trustesker.com website. Customer shall keep up-to-date technical contacts in the User Interface. Notwithstanding the foregoing, Esker may momentarily interrupt EOD for maintenance purposes including feature release (“Platform Releases”), upgrades, bug corrections, performance and testing and Emergency Maintenance (“Maintenance”). Platform Releases are installed automatically at no cost for Customer. Esker’s Technical Support Services and Insurance provisions are located at https://www.esker.com/technical-support-services-and-insurance/ and are incorporated herein by reference. Customer may contact Esker technical support by logging in to the Esker Support Hub portal at https://support.esker.com. Customer grants Esker permission to access, copy, use, distribute, store, and/or transmit the content of Customer’s Esker account solely as required for the purpose of providing EOD to Customer. Such permission may include troubleshooting to prevent, find, and fix problems with the operation of EOD, and registering for or logging into other pre-approved third-party services on their respective websites for enablement of third-party services. Furthermore, during the first twelve (12) months of the Agreement, Esker’s technical support or professional services teams may have access to Customer’s EOD environment in-order-to customize it in accordance with the applicable SOW (“Impersonation”). After this twelve (12)-month period, Esker’s technical support or professional services teams will not have the ability to Impersonate without Customer’s prior written consent. During the performance of this Agreement, Esker’s technical support or professional services teams may ask Customer to Impersonate for a limited period-of-time in order to address issues that may have arisen with Customer’s EOD solution. Customer may disable this access at any time. Customer agrees that as part of providing EOD, Esker may collect, use and disclose quantitative data derived from the use of EOD for service improvements, industry analysis, benchmarking, analytics and supporting Customer's usage of EOD. All data disclosed will be in aggregate and anonymous form only and will not identify Customer or its specific users or its relationship to their suppliers.

5.7 Mandatory EOD Updates. Esker will release enhancements at any time to improve EOD with new versions and Updates (“Updates”). Such Updates are required to be installed to ensure state-of-the-art hosting at any time, and full compliance with Esker’s best practices. Esker shall notify the Customer within two (2) years from the Effective Date of its EOD solution that it must contact Esker to schedule an Update to its EOD solution. Parties understand and agree that such Updates are required to be installed at least once every three (3) years in order to ensure state-of-the-art hosting by Esker, and full compliance with Esker’s best practices. Customer understands and agrees that failing to implement and deploy such Updates shall result in technical support being unavailable to Customer. Esker shall not be responsible service interruptions/defects or security issues affecting EOD, or failure to meet its obligations under this Agreement; when Customer has failed to implement and deploy the latest version of EOD. Furthermore, Customer understands and agrees that failing to implement Update within this timeframe shall incur an additional maintenance and support fee. Additionally, Esker shall not be responsible for any delays or additional fees or costs associated with Customer’s failure to timely perform its obligations under this section. Implementation and deployment of Updates will be performed under a separate SOW for an additional fee; such services may be performed by Esker or one of its certified partners.

5.8 EOD Service Transports and Business Process Specifications are detailed in Exhibit A, which is attached hereto and incorporated herein by reference.

6.0 PROFESSIONAL SERVICES.

Installation of and training on EOD are the sole responsibility of Customer unless otherwise mutually agreed in writing between the Parties. When installing or using EOD, Customer shall follow the procedures found in the applicable online Documentation provided to Customer by Esker. When Professional Services are required for the installation/implementation/customization of EOD during the term of this Agreement, the following additional provisions in this Section shall apply:

6.1 Nature and Scope of Work. Customer desires to retain the services of Esker as an independent contractor to provide professional services in connection with Customer’s installation/implementation/customization of the EOD solution as described in the applicable SOW (“Professional Services”). The nature, extent, compensation to be paid to Esker, and the duration of the Professional Services to be performed shall be described in detail in the applicable SOW. Each SOW shall be made a part hereof; and incorporate by reference all of the terms and conditions of this Agreement. Customer may, at any time, request that Esker make changes within the scope of the applicable SOW or to perform additional work. If any request for a change or additional work causes an increase or decrease in the cost or the time required for performance of the Professional Services, Esker shall perform the change or additional work only after the Parties have executed a written amendment to the SOW setting forth the change or additional work, modified Professional Services and, if applicable, subscription fees performance dates, and any other material matters with respect thereto as mutually agreed between the Parties. If the cumulative level of effort for Professional Service change orders for any one business process totals forty (40) hours or more then Esker shall apply an increase, not to exceed two percent (2%) of the change order list price cost, to the existing applicable subscription fee(s) to cover the additional cost of supporting the customization. The Professional Services will be completed to the satisfaction of Customer; however, the actual details of the Professional Services shall be under Esker’s control and Esker shall determine jointly with Customer the manner and means by which the Professional Services will be performed. Customer shall provide access to its equipment as may be reasonably required. The Professional Services shall be performed in accordance with this Agreement and the applicable SOW. When Professional Services are involved, Customer shall pay to Esker the fees specified in each applicable SOW plus, when applicable, any reasonable travel expenses that have been pre-approved in writing by the Customer. Either Party shall have the right to terminate a SOW with or without cause with a minimum of thirty (30) calendar day’s advance written notice to the other Party. In the event of such termination by Customer, Customer shall pay all fees incurred for the Professional Services provided by Esker up to and including the date of termination at the rate set forth in the applicable SOW plus any incurred expenses. Furthermore, upon the termination of a SOW, Esker shall deliver to Customer all equipment, tools, identification cards, security passes, and other materials owned by Customer and furnished to Esker to facilitate the performance of Professional Services.

6.2 Employees & Subcontractors. Esker agrees that it will name the relevant positions that will be involved in the performance of Professional Services for Customer in the applicable SOW. Esker may use independent contractors in performing services for Customer (“Subcontractors”). Any such Esker employees or Subcontractors shall be obligated to comply with the restrictions on use of Customer’s Confidential Information. Neither Esker nor its employees or Subcontractors are agents, employees, or representatives of Customer. Esker is solely responsible for payment of all compensation owed to Esker’s staff. Customer may request at any time that Esker replace an employee or Subcontractor who has been assigned to Customer and Esker shall upon notice have seven (7) business days to respond to Customer’s request and thereupon replace such employee or Subcontractor.

6.3 Acceptance of Deliverables. After this Agreement and applicable SOW are signed, the Parties will create a timeline with respect to the acceptance of all the Deliverables that will be set forth in a master schedule (the “Master Schedule”). The Deliverables will be delivered to and tested by Customer and Esker during incremental time periods as set forth in the applicable Master Schedule (“Increments”), which the Parties will draft as specified in the applicable SOW. Each Increment shall consist of a period of development followed by a period as agreed upon in the Master Schedule for testing, quality assurance, and tracking of non-conformance issues by Customer and Esker (the “Incremental Testing Period”); however, the Parties may agree to extend any Incremental Testing Period at any time. During any Incremental Testing Period, Esker will be responsible for the remediation of any non-conformance issues as per the terms of the applicable SOW or other applicable mutually agreed upon requirements statement, i.e., Conditions of Satisfaction. At the conclusion of each Incremental Testing Period, Customer shall either (a) approve the applicable Increment, indicating that the Conditions of Satisfaction have been met, or (b) reject the applicable Increment and provide Esker with notice in writing (and containing reasonable detail of the non-conformance to the Conditions of Satisfaction) of the material defect in the Deliverable (“Notice of Acceptance Failure”). The Notice of Acceptance Failure shall be provided to Esker as soon as reasonably practical from the date the material defect is discovered by Customer. Esker shall, as soon as reasonably practical from the date of its receipt of such Notice of Acceptance Failure, cure such material defects described therein in accordance with any applicable terms of the applicable SOW and deliver to Customer the Deliverable with such material defect corrected. Following such delivery of the Deliverable, Customer shall, in its sole discretion, either: (i) accept the Deliverable; or (ii) reject the Deliverable and provide Esker with another Notice of Acceptance Failure. If there is any good-faith dispute between the Parties with respect to Customer’s rejection of a Deliverable pursuant to this Section, the Parties shall meet and discuss in good faith the situation. At the conclusion of the approval by Customer of all Increments, as set forth in the Master Schedule, Esker shall deliver all the Deliverables as set forth in the applicable SOW and with any adjustments as mutually agreed upon in writing between the Parties, to Customer. At the conclusion of the period of testing of all such Deliverables as agreed upon in the Master Schedule, Customer shall either (A) accept all of the Deliverables, indicating that the Deliverables conform to the specifications and performance criteria for the Deliverables as set forth in the SOW and/or any mutually agreed Documentation associated with the Deliverables and/or as otherwise agreed by the Parties including but not limited to the Conditions of Satisfaction or (B) provide Esker with a Notice of Acceptance Failure. Upon completion of the Professional Services, Customer is responsible for the administration of the delivered environment. Customer shall not perform any technical modifications to the original development without Esker’s prior written approval. Customer shall be solely responsible for any malfunction caused to its EOD solution in the event of any change made by Customer out of Esker’s control or without Esker’s permission. Customer shall incur additional fees to restore EOD back to its normal operations in the event of any substantial change made by Customer without Esker's knowledge causing EOD’s malfunction.

7.0 OWNERSHIP.

7.1 All programs, services, processes, designs, software, technologies, trademarks, trade names, service marks, trade secrets, copyrights, logos, unpatented inventions, domain names, patents, patent applications, Documentation accompanying EOD, and all materials comprising of or affixed to the website and EOD are wholly owned by Esker, Esker’s Parent Company, Esker’s Affiliate(s), Esker’s subsidiaries, and/or Esker’s licensors, suppliers, and service providers except where expressly stated otherwise. Customer may not use Esker’s trade secrets, trademarks, trade names, service marks, logos, domain names, patents, copyrights, or other intellectual property rights without the express written consent of Esker. Customer shall not remove, obscure, or alter any propriety rights notices (including copyright, trademark, trade secret, domain names, and patent notices) which may be affixed to or contained within the website and EOD. Furthermore, all contents of the website and EOD, including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement (“Content”) are protected by copyright, trademark, trade secret, patents or other proprietary rights and laws. Content may not be reproduced, modified, derivative works created from, displayed, performed, published, distributed, disseminated, broadcasted, or circulated to any third-party (including without limitation, the display and distribution of the material via a third-party website or other networked computer environment) without the express written consent of Esker, its parent company, and/or its applicable licensors or suppliers. Additionally, Esker shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into EOD use any suggestions, enhancement requests, recommendations or other feedback Esker receives from Customer. Unless otherwise specified in a SOW , any expression or result of Esker’s Professional Services or the work, findings, analyses, conclusions, opinions, recommendations, ideas, concepts, approaches, methodologies, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, skills, expressions, processes, software, and other technical information (collectively “Work Product”) created by Esker in the course of performing the Professional Services hereunder are wholly owned by Esker, which grants the Customer a personal, non-transferrable, non-exclusive right to their use, without further license fees, provided, however, to the extent such Work Product provided to Customer by Esker contains Customer’s Confidential Information, Customer shall retain title to such Confidential Information. Customer shall have no right to sublicense, transfer, assign, convey or permit any third-party to use or copy any Work Product

7.2 Customer owns all rights, title, and interest in and to all Documents and the information contained therein. Customer is responsible and liable for the content of all Documents and agrees and acknowledges that it is the creator of all content, and that Esker is not the author or publisher of any content. Esker shall have no responsibility or liability related to the contents of any of Customer’s Documents. Customer is responsible for its Documents while in transit to Esker. Esker may refuse to process, and may return to Customer for correction, any Documents that do not comply with the applicable online Documentation. Customer is responsible for correcting rejected Documents and resubmitting the same to Esker for transmission. Esker shall neither modify the content nor the format of any Document unless otherwise agreed to in writing by the Parties.

8.0 WARRANTY DISCLAIMER.

EXCEPT AS SPECIFIED ELSEWHERE IN THIS AGREEMENT OR IN THE DOCUMENTATION PROVIDED BY ESKER, EOD AND ALL ESKER PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND AT CUSTOMER’S OWN RISK, AND NEITHER ESKER NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS MAKE ANY WRITTEN OR ORAL, EXPRESS, IMPLIED, OR STATUTORY REPRESENTATIONS, WARRANTIES, OR COVENANTS TO CUSTOMER OR CUSTOMER’S USERS REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF. ESKER DOES NOT WARRANT THAT ACCESS TO OR USE OF EOD WILL BE UNINTERRUPTED OR ERROR-FREE, FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, OR THAT EOD WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. ESKER AND EACH OF ITS LICENSORS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, OR ACCURACY. FURTHERMORE, COMMUNICATION CONNECTIONS BETWEEN ESKER AND CUSTOMER ARE THE PROPERTY AND RESPONSIBILITY OF A THIRD-PARTY, EOD MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, AND BANKING AND FINANCIAL SYSTEMS. COMMUNICATION CONNECTIONS ARE SUBJECT TO SUSPENSION WITHOUT NOTICE FOR AN UNDETERMINABLE AMOUNT OF TIME DUE TO EVENTS BEYOND ESKER’S CONTROL AND NOT DUE TO ITS FAULT OR NEGLIGENCE. ESKER DOES NOT GUARANTEE OR WARRANT THE CONTINUITY OR QUALITY OF SUCH COMMUNICATION CONNECTIONS. ESKER DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES, SO, TO THE EXTENT NOT ALLOWED BY LAW, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO THE PARTIES.

9.0 INDEMNIFICATION.

Esker agrees to defend, indemnify, and hold harmless Customer from and against (i) any and all costs, damages (including without limitation liquidated damages), losses, liabilities, fines, penalties, expenses, professional fees (including without limitation reasonable attorneys’ fees), interest, awards, judgments, settlement payments, arising out of any third-party claims, suits, actions, proceedings, or demands caused by or resulting from Esker’s breach of this Agreement and (ii) Esker’s violation of any applicable law in connection with its performance of this Agreement. Customer agrees to defend, indemnify, and hold harmless Esker from and against (i) any and all costs, damages (including without limitation liquidated damages), losses, liabilities, fines, penalties, expenses, professional fees (including without limitation reasonable attorneys’ fees), interest, awards, judgments, settlement payments, arising out of any third-party claims, suits, actions, proceedings, or demands caused by or resulting from Customer’s breach of this Agreement and (ii) Customer’s access or use of the EOD in a manner that violates any applicable law.

10.0 LIMITATION OF LIABILITY.

EXCEPT AS SPECIFIED ELSEWHERE IN THIS AGREEMENT, THE PARTIES AGREE THAT UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, AND STRICT LIABILITY) OR OTHERWISE, SHALL EITHER PARTY HERETO BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFIT, ANTICIPATED PROFITS, ANTICIPATED SAVINGS, LOSS OF USE OF EQUIPMENT, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. FURTHERMORE, CUSTOMER’S ENABLEMENT, ACCESS TO, AND USE OF ANY THIRD-PARTY SERVICES IS GOVERNED SOLELY BY THE TERMS AND CONDITIONS OF SUCH ENTITIES. CUSTOMER KNOWINGLY, INTENTIONALLY, AND IRREVOCABLY WAIVES ANY AND ALL CLAIMS AGAINST ESKER WITH RESPECT TO SUCH THIRD-PARTY SERVICES. IN NO EVENT SHALL ESKER’S TOTAL CUMULATIVE LIABILITY FOR ANY CLAIMS, DIRECT LOSSES, OR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY STATEMENT OR WORK EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO ESKER UNDER THIS AGREEMENT OR APPLICABLE STATEMENTS OF WORK DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE LAST ACT OR OMISSION, EVEN IF THE PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIMS, LOSSES, OR DAMAGES AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, ESKER’S TOTAL CUMULATIVE LIABILITY FOR ANY CLAIMS, DIRECT LOSSES, OR DIRECT DAMAGES ARISING OUT OF OR RELATING TO INTELLECTUAL PROPERTY INFRINGEMENT, SECURITY BREACHES, OR DATA BREACHES SHALL NOT EXCEED TWICE THE TOTAL FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PROCEEDING THE LAST ACT OR OMISSION, EVEN IF IT HAD BEEN INFORMED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIMS, LOSSES, OR DAMAGES AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES HEREBY RELEASE EACH OTHER AND EACH OF ITS LICENSORS AND SERVICE PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE AFOREMENTIONED LIMITATION. SOME JURISDICTIONS DO NOT ALLOW FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO, TO THE EXTENT NOT ALLOWED BY LAW, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO THE PARTIES.

11.0 TERMINATION.

11.1 Termination for Convenience.

Except as otherwise provided herein, after the expiration of the Initial Term of this Agreement, either Party may terminate this Agreement for convenience by providing the other Party with a minimum of thirty (30) calendar-days advance written notice. If this Agreement is terminated prior to completion of the Initial Term for any reason other than due to Esker’s default, Customer shall, within ten (10) days of the effective date of termination, pay Esker a termination charge (which Customer hereby acknowledges as liquidated damages reflecting a reasonable measure of actual damages and not a penalty) equal to one hundred percent (100%) of the subscription fees specified in Exhibit A that would have been paid for EOD had the EOD Service been provided for the remaining duration of the Initial Term.

11.2 Termination for Cause.

If a Party commits a default and fails to cure such default within thirty (30) calendar days from receipt of such written notice, the other Party will be entitled, at its election, to exercise any one or more of the following remedies, then or at any time thereafter: (i) pursue any remedy available at law or in equity, (ii) suspend this Agreement or applicable SOW until such default is remedied; or (iii) terminate this Agreement or applicable SOW. Either Party may terminate this Agreement or applicable SOW in the event that the other Party; (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under the laws of any jurisdiction; (iii) is unable to pay its debts as they become due, becomes insolvent or becomes subject to direct control by a trustee, receiver, or similar authority, or (iv) goes into liquidation, voluntarily or otherwise.

11.3 Effects of Termination.

Upon the termination of this Agreement or applicable SOW for any reason, Customer shall pay Esker all amounts incurred up to the date of termination. Furthermore, Customer will cease use of, de-install, and return all of copies of the EOD components inclusive of any un-purchased clients under Customer’s control, if applicable, and all applicable Documentation or media thereof to Esker. In lieu of the return of such items, Esker, at its sole option, may request Customer destroy all such items and provide written certification of such destruction to Esker.

12.0 GENERAL PROVISIONS.

12.1 Headings. Headings and titles of sections and clauses herein are for reference purposes only and are not part hereof and are not intended to be used in the interpretation hereof.

12.2 Notices. Except as otherwise noted herein, all notices, requests, reports, and other communications permitted or required to be given under this Agreement shall be deemed to have been duly given if such notice or communication shall be in writing and delivered to the Parties at their addresses set forth in the Agreement by one of the following methods: in person, United States certified mail (return receipt requested), facsimile with a successful transmission report, or by overnight express carrier.

12.3 No Waiver. The failure of either Party to exercise any right or the waiver by either Party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.

12.4 Assignment. Except as otherwise specified in this Agreement, neither Party may assign or otherwise transfer its rights or delegate its duties under this Agreement without the other Party’s express written consent. Notwithstanding the foregoing, either Party may assign this Agreement pursuant to the sale, transfer, or merger of all or substantially all of such party’s business, or that portion of such Party’s business that is using EOD provided that the assignee agrees to be bound by all of the terms and conditions of this Agreement. The Party seeking to assign this Agreement shall provide the other Party written notice of any proposed assignment or encumbrance.

12.5 Relationship of the Parties. The Parties are independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect whatsoever or to take any action which shall be binding on the other, except as provided herein or authorized in writing by the Party to be bound.

12.6 Severability. If any provision of this Agreement is adjudged to be invalid, illegal, or unenforceable by any court of competent jurisdiction, then such provision shall be enforced to the fullest extent permitted by applicable law, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

12.7 Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reasons including, without limitation, any acts of God, fire, explosion, flood, natural disaster, accidents, orders or acts of any government authority, telecommunications network failures, shortages of materials or supplies, strikes or civil commotion, war or national emergencies, damage to equipment or facilities, or any other cause beyond the control of such Party (each a “Force Majeure Event”) provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) business days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure Event, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure Event but not in excess of one (1) month. After the one (1) month period, either Party may terminate this Agreement without further liability to the other except that Customer shall pay all fees incurred up to the date of termination.

12.8 Governing Law & Dispute Resolution. This Agreement shall be deemed to have been entered into and shall be construed, governed, and interpreted in accordance with the laws of the State of Wisconsin, without giving effect to principles of choice of law or conflicts of law. The application of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are expressly excluded. In an effort to resolve informally and amicably any unresolved claim, controversy, disagreement, or breach of this Agreement (a “Dispute”), the Parties agree that each party shall notify the other in writing of any Dispute hereunder that requires resolution. Such notice shall set forth the nature of the dispute, the amount involved, if any, and the remedy sought. Each Party shall designate a member of its C-level executive management to investigate, discuss, and seek to settle the matter within sixty (60) business days after such notice. All negotiations between the Parties pursuant to the preceding sentence shall be treated as settlement discussions and shall therefore be confidential. If the Parties are unable to resolve the Dispute within such sixty (60) business day period, the Dispute shall be submitted to mediation. A Party shall submit a Dispute to mediation by written notice to the other Party. The mediator shall be selected by mutual agreement between the Parties. The mediation shall be treated as a settlement discussion and shall therefore be confidential. Each Party shall bear its own costs in the mediation. The Parties shall share equally the fees and expenses of the mediator. If mediation is not successful, the Dispute may proceed to litigation. The foregoing requirement shall not apply to injunctive relief sought by either Party.

12.9 No Third-Party Beneficiaries. The Parties do not intend that this Agreement benefit or create any right or cause of action in any third person.

12.10 Electronic Signature, E-mail Transmission, Counterparts. The Agreement may be executed and delivered by electronic signature or e-mail and each full reproduction, including reproductions by photocopy or scan, shall be deemed an original. Receipt of any such reproduction by e-mail transmission shall be deemed delivery of an original.

12.11 Publicity. Esker may with Customer’s prior written approval, which shall not be unreasonably withheld, include Customer’s name(s) and logo(s) on Esker’s Customer Lists. Esker may with Customer’s prior written approval, which shall not be unreasonably withheld, refer to Customer’s use of EOD in its marketing and promotional materials and on its websites as well as in discussions with Esker customers, prospective customers, and industry analysts.

12.12 Compliance with Laws. Each Party shall comply with all applicable laws and government regulations, including without limitation all applicable data privacy, anti-corruption, international traffic in arms regulations, and export laws/regulations, in connection with providing and using EOD. Without limiting the foregoing, (i) each Party represents that it is not named on any government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not, and shall ensure that users do not, violate any export embargo, prohibition, restriction, or other similar law in connection with this Agreement. Actual breach of this provision can result in the suspension or termination of this Agreement pursuant to the terms and conditions of Section 11.2. When applicable, the Parties shall abide by the terms and conditions of the Business Associate Addendum, which are located at http://www.esker.com/usagreements and incorporated herein by reference. When applicable, the Parties shall abide by the terms and conditions of the Data Processing Addendum, and, when applicable, the Standard Contractual Clauses, which are located at https://www.esker.com/data-protection-addendum/ and incorporated herein by reference.

12.13 Survival. The following Sections, along with any other Sections that by their nature survive expiration or termination of this Agreement, will survive expiration or termination: 4.0, 7.0, 8.0, 9.0, 10.0, and 12.0.

12.14 Entire Agreement. This Agreement, including any applicable Order Forms and Statements of Work (and applicable addendums thereto, if any) states the entire agreement between the Parties on this subject and supersedes all prior and contemporaneous correspondence, negotiations, understandings, and agreements (whether written or oral) between the Parties concerning the subject matter. In the event of any conflict or inconsistency between the body of this Agreement and any applicable Order Forms, Statements of Work, or addendums thereto, the terms of such applicable Order Forms, Statements of Work, or addendums shall prevail solely as to the content contained therein. In all other instances, this Agreement shall prevail. No provision or ambiguity shall be strictly construed against any Party by virtue of having drafted or prepared the same. No amendment or modification of this Agreement shall be made except by a writing signed by both Parties. The Parties have expressly requested that this Agreement and all documents relating thereto be drawn up in English. The terms and conditions herein supersede and override any-and-all preprinted terms and conditions on any documents provided by Customer in connection with its obligations hereunder, including but not limited to, sales order acknowledgement forms, packing slips, bills of lading, purchase orders, and invoices. Both Parties have read, understand, and agree to the terms of this Agreement. Each Party represents that it has the power and authority to enter into this Agreement. THIS AGREEMENT IS NOT VALID UNLESS THE ORDER FORM IS SIGNED BY BOTH PARTIES.

EXHIBIT A: SERVICE TRANSPORT/BUSINESS PROCESSES SPECIFICATIONS

MAIL

Esker’s goal is to send Customer’s Documents that are received and accepted by Esker to a mail collection location within one (1) business day from the date of receipt of the Documents by Esker provided the Documents are received by Esker in their entirety and properly formatted as specified in the Mail on Demand Document Standards located at:https://doc.esker.com/flydoc/cv_ly/en/printdriver/. Esker’s goal is to send Customer’s Document submissions consisting of twenty thousand (20,000) pages or more to a mail collection location within two (2) business days from the date of receipt by Esker unless otherwise advised by Esker. Documents that Customer subsequently requests not be delivered but were transmitted anyway (because the non-delivery request was not received in a timely manner) are subject to usage fees. Customer agrees that the electronic recordings by Esker of the receipt and distribution shall be proof that the Documents have been received and distributed. Esker does not guarantee delivery of Documents to the designated Recipients. Esker shall not be liable, for any reason, for the Documents once they are delivered to a mail collection location. Furthermore, Customer understands and agrees that the mailing of its Documents is subject to local postal holidays and that Esker has no direct control over postal delivery schedules. Customer acknowledges that it is aware that Esker has no direct control over post delivery schedules and that Esker cannot guarantee when mail deposited by Esker will be delivered by the local post. When applicable, a return envelope will be inserted with the printed mail piece. The return envelope size varies according to the production center which produces the document and the envelope size used to send the mail piece. In the United States, an 8 5/8" x 3 5/8" window return envelope is used for #10, 6 x 9, and Flat envelopes.

OUTBOUND FAX

Esker endeavors to make three (3) attempts to fax Customer Documents. The first attempt is made within ten (10) minutes of receipt of the Document. The second attempt is made ten (10) minutes following the first attempt. The third attempt is made thirty (30) minutes following the second attempt. In the event the third attempt fails, the Document will be considered as an Undeliverable Document, and it will appear in the list of failed Documents. On a monthly basis, Esker’s goal is to process ninety-five percent (95%) of Customer's Documents in accordance with this service level, provided each Document is received in its entirety and is properly formatted; does not exceed three hundred (300) Kb in size, including attached files; and the volume does not exceed six thousand (6,000) Documents per hour. Esker does not guarantee any execution time in the event of wrong/busy fax numbers, or lack of paper in the destination fax machine. Customer releases Esker from any claims resulting from faxes sent by mistake to a incorrect telephone number, thus causing inconveniences to the recipients. Customer endeavors to remove the numbers in question from its fax number lists. In order to prevent any fraudulent use of Customer’s user account, the Customer shall activate the security control feature as defined in the online documentation. Esker shall not be liable for any damages resulting from non-activation of such security control. Esker does not guarantee delivery of Documents to the designated Recipients.

INBOUND FAX

Ownership of inbound fax telephone numbers pulled down by Customer from the EOD User Interface is solely vested in Esker, Esker’s Parent Company, its Licensors, and/or its' service providers. During the term of this Agreement, Esker shall be listed as the “customer of record” on any inbound fax telephone numbers Customer ports-in to the telecommunications service provider used by Esker. Customer shall retain ownership of any inbound fax telephone numbers it ports-in to Esker. During the term of this Agreement, if the Customer requests to port-out any inbound fax telephone number it previously ported-in to Esker or any inbound fax telephone number it has pulled down from the Esker interface that is eligible to port-out, then the Customer shall make such request to Esker in writing thirty (30) days prior to needing to port-out such inbound fax telephone number. Customer shall bear any-and-all costs associated with such porting requests. Such porting requests shall comply with applicable local portability laws. Within thirty (30) days from the termination or expiration of this Agreement, Customer shall request in writing that the inbound fax telephone numbers that Customer has ported-in be ported-out to Customer’s new telecommunications service provider. Customer shall bear any-and-all costs associated with such porting requests. Such porting requests shall comply with applicable local portability laws. In such instance, Esker agrees to execute such documents and take such actions as Customer may reasonably request (at Customer’s expense) needed in order to secure Customer’s rights or interest in the ported-in inbound fax telephone numbers. Customer acknowledges that in some situations Customer will not be able to port-out new inbound fax telephone numbers it has pulled down from the EOD interface. If Customer fails to notify Esker within thirty (30) days from the termination or expiration of this Agreement, the Parties agree that ownership of such inbound fax telephone numbers shall transfer to Esker, who may then use such inbound fax telephone numbers as it deems appropriate. Parties agree that Esker receives from third parties and telecommunication service providers (“Providers”) inbound fax telephone numbers that Esker may provide to Customer to use with the inbound fax service transport of EOD. The Providers do not represent, warrant, or guarantee to Esker or to Customer the availability of any inbound fax telephone numbers. Esker does not represent, warrant, or guarantee the availability of any inbound fax telephone number it receives from the Providers. Additionally, Customer acknowledges and agrees that inbound fax telephone number country locations may be modified by the Providers at any time for any reason without notice. In such event, Esker will notify the Customer in writing to discuss the change and will use reasonable commercial efforts to obtain a new inbound fax telephone number from a different Provider.

On a monthly basis, Esker’s goal is to process ninety-five percent (95%) of Customer’s Documents within ten (10) minutes of reception provided each Document is received in its entirety and is properly formatted; does not exceed three hundred (300) Kb in size, including attached files; and the volume does not exceed six thousand (6000) Documents per hour. Documents will be sent by Esker in the format received. Esker does not guarantee delivery of Documents to the designated Recipients. Upon activation of this Zone 5, U.S. Toll-Free Numbers can be accessed from Canada. In the event Customer no longer requires the inbound fax telephone number(s), Esker may delete or reassign the inbound fax telephone number(s) to another customer sixty (60) days after the deletion of the inbound fax telephone number(s) from the EOD user interface.

SMS

On a monthly basis, Esker’s goal is to send ninety-five percent (95%) of Customer’s Documents through its agents to mobile operators within sixty (60) minutes of receipt of the Documents provided each Document does not contain more than one hundred sixty (160) characters and the volumes do not exceed six hundred (600) messages per hour. Esker does not guarantee delivery of Documents to the designated Recipients. In the event the email attempt fails, the Document will be considered an Undeliverable Document and Customer will be notified of non-delivery. Esker does not guarantee delivery of Documents to the designated Recipients. In the event the email attempt fails, the Document will be considered an Undeliverable Document and Customer will be notified of non-delivery.

EMAIL

Esker’s goal is to send Customer’s emails within sixty (60) minutes of their reception on EOD Technical Platform, provided that the volume does not exceed nine hundred (900) emails per hour. Esker does not guarantee delivery of Documents to the designated Recipients. In the event the email attempt fails, the Document will be considered an Undeliverable Document as defined in the Agreement and Customer will be notified of non-delivery.

ACCOUNTS RECEIVABLE - INVOICE DELIVERY (archiving not included)

On a monthly basis, Esker's goal is to process ninety-five percent (95%) of Customer's Documents within sixty (60) minutes of their receipt on the EOD technical platform provided that the volume does not exceed three thousand (3000) Documents per hour (six hundred (600) Documents per hour if an electronic signature is affixed). Additional processing fees may apply. Esker does not guarantee delivery of Documents to the designated recipients. In the event an attempt fails through no fault of Esker, the Document will be considered an undeliverable Document and Customer will be notified of non-delivery. In the event Customer opts for providing a separate archive of its customer’s invoices, in addition to the archive of its own Documents, an additional fee shall be required and Esker shall invoice Customer for both archives. If Customer opts for archiving in addition to the account receivable business process, Customer authorizes Esker to archive Customer’s Documents with its electronic signature on behalf of the Customer in accordance with the terms of this Agreement. In the event Customer opts for electronic invoicing it shall execute a separate Outsourced E-Invoice Issuance and Archiving Mandate with Esker.

SMART DOCUMENT AUTOMATION

The Esker Accounts Receivable on Demand platform (“ARoD”) receives an invoice from the Customer for its customer. An identifier on the invoice tells ARoD that there are other documents that need to be attached to the invoice before sending it out. The ARoD queries Esker’s Smart Document Automation process and finds the documents that need to be attached to the invoice for that specific customer. The accompanying documents are then pulled into the ARoD, attached to the invoice, and delivered to their customers according to their preference (e.g. postal mail, fax, email, EDI).

CASH APPLICATION/ALLOCATION (archiving not included)

The Cash Application/Allocation solution allows organizations to automate the matching of incoming customers payments, regardless of the payment method, with their open invoices. Esker’s recognition engine captures and extracts payment information from bank files or remittances to auto-allocate payments or make smart suggestions to the user in case of exceptions or mismatch. As part of the Accounts Receivable Service, the Cash Application/Allocation solution provides a comprehensive and stand-alone solution to automate every step of the cash allocation process — from the remittance capture to the reconciliation of matched invoices into the ERP.

Payment files captured & data extraction: All payment files and documents are captured by the solution. Esker’s AI-powered data recognition engine extracts payment data using machine-learning technology to improve allocation rate. Capture all bank files and remittances and extract payment data
Matching: Payments are auto-allocated to the related invoices or “intelligent” suggestions are made to the user if auto-allocation is not possible. Auto-allocate payment to the related customer and invoices when possible or make suggestions if allocation is not possible.
Exceptions management: Allow the user to manage mismatches and exceptions
Monitoring: Issue report and retrieve cash allocation related KPIs from the user dashboard.
ERP integration: Provide Customer with an output payment file allowing Customer to reconcile payment and invoices in any ERP system.

CREDIT MANAGEMENT SERVICE (archiving not included)

The Credit Management Service is an automated solution which allows Customer to automate its credit management from the digitization of credit applications and approval processes to the continuous control of existing customers' portfolios. Monthly subscription fee is based on the average volume of active customers (i.e. both estimated new Customers who will generate credit applications or internal credit requests and existing customers generating periodic credit reviews and/or credit alerts and requiring permanent monitoring). Integration with credit bureau is included; however, credit bureaus may apply an additional fee to the Customer’s existing contract.

CLAIMS & DEDUCTIONS (archiving not included)

Esker’s Claims and Deductions automation solution helps businesses eliminate the manual pains of traditional claims processing thanks to AI-driven data capture and electronic workflow capabilities. The solution manages both Customer claims associated with the products (product shortage, damaged products, etc.) and Customer financial deductions (trade and promotional invoices, penalty charges, marketing contributions, etc.) that typically impact manufacturers and distributors. The solution provides a transparent and efficient way to manage deductions and better protect margins.

CUSTOMER INQUIRIES MANAGEMENT

Customer Inquiries Management means an application that automates the triage of inquiries and orders received by e-mail. CIM provides digital assistance by automating the processing of inquiries and orders received in the customer service email inbox. This application automates the classification and routing (“triage”) of inquiries such as: orders, product-related questions, quotation requests. The Customer may also (i) answer inquiries directly from the Esker interface, possibly by using predefined email templates, (ii) track the status of each inquiry and (iii) create specific reports and dashboards to analyze its customer inquiries.

COLLECTIONS MANAGEMENT (Includes Archiving and Customer Portal)

Esker provides access to a collections management platform for both those who sell a product or service (the “Customer”) and those who pay for such product or service (the “Customer’s Customer”). The Customer provides Esker with open and new invoice information for the Customer’s Customer. The information is then entered through the collections management platform or by providing Esker with information via email or FTP. Depending on the account settings chosen by the Customer, the Customer’s Customer is then presented with payment and communication options through email and can choose to enter the collections management platform to perform actions. Esker does not resolve or attempt to resolve payment disputes or disagreement between the Customer and its Customers. Additional functionality is available through Postal Mail on Demand, Accounts Receivable on Demand – Invoice Delivery , and Archiving. Customer may either have a Customer Account, a Customer’s Customer Account, or both. Customer shall notify Esker immediately in the event of any unauthorized access to or use of or of any suspected or known breach of security of its account. Customers are able to process payments from its customers via Automated Clearing House (“ACH”), in the United States, Single Euro Payments Area in Europe, DDA in Canada, or credit cards through collections management platform via third parties who specialize in such services. If Customer selects this feature, Esker will assist in setting-up such services with the third party payment processor. Customer shall enter into a separate contract with the third party for their services. Customer must notify Esker that a contract is in place prior to accessing this feature in the collections management platform. Except as otherwise specified herein, this Agreement does not apply to the services provided by third parties. When the option of receiving payment is selected, Esker shall transmit and process the applicable transactions initiated by the Customer through the collections management platform in accordance with the National Automated Clearing House Association as currently in effect and as amended from time to time (the “Rules”) which are found at www.fms.treas.gov/ach. Customer shall comply with the Rules. Customer agrees to assume the responsibilities of an “Originator” under the Rules.

ACCOUNTS PAYABLE (archiving not included)

On a monthly basis, Esker’s goal is to process ninety-five percent (95%) of Customer's Documents within ten (10) minutes of their receipt on the EOD technical platform, provided that the volume of Documents does not exceed one hundred (100) pages every ten (10) minutes.

DYNAMIC DISCOUNTING

The Dynamic Discounting feature is an additional feature to EOD Accounts Payable business solution. By enabling this feature, Customer’s Accounts Payable solution is optimized by providing payment to Customer’s suppliers based on specific payment terms.

SUPPLIER STATEMENT RECONCILIATION

Supplier Statement Reconciliation is an Esker statement matching module automatically reconciles supplier statements with invoices available in Esker’s Accounts Payable module allowing users to easily communicate with the supplier to resolve errors quickly. Further information can be found in the technical specifications.

SUPPLIER MANAGEMENT

The Supplier Management service provides the Customer with an email invitation so they can access their dedicated portal, a self on-boarding via that portal allowing to enter and update information and documents, the ability to manage validation workflow and track all operations made by Customer's purchasing department and suppliers, synchronization of information with Customer's ERP (based on customized implementation, as the case may be), and customized dashboards and reports. Real time checks to validate bank account ownership, Tax Identity Numbers, and OFAC / sanctions checks are not included in the Supplier Management service but are available for an additional subscription fee.

ORDER MANAGEMENT (archiving not included)

CONTRACT MANAGEMENT (archiving not included)

The Contract Management service provides Customer with a data entry and contract creation interface, an access to the supplier contracts database, and the archiving of signed contracts. In addition, it provides the ability to route, approve, and manage contracts and other supporting documents.

PROCUREMENT AUTOMATION SOLUTION (archiving not included)

The Procurement Automation Solution automates the purchasing process from the initial purchase request with its approval to the order. Pricing includes: (1) the creation of the purchase order, (2) all workflow approvals, (3) generation of the purchase order, and (4) sending the purchase order to a third party via email (If Customer requires archiving or third party notification be sent via the fax or mail service transports, separate charges will apply).

EXPENSE CLAIMS (archiving not included)

"Expense Claims" is an application that automates the expense claims process, from the capture of the payment receipt with the mobile application "Esker Anywhere" to the update of Customer's information systems. This application is detailed in the Functional Specifications, available on demand. Esker's goal is to process expense claims within ten (10) minutes of their receipt, provided that the volume of Documents does not exceed one hundred (100) pages every ten (10) minutes. Usage fee price includes the creation of the expense form, all workflow approvals and the generation of the expense claim.

Last Updated: August 30, 2024

TERMS OF SERVICE