Master Services Agreement
(Last Revised July 30, 2026)
This Master Services Agreement (“MSA” or “Agreement”) is entered into by Qubiqle, Inc. a Delaware Corporation (“Ottimate”) and Customer.
BY EXECUTING A PROPOSAL AS OF THE DATE OF EXECUTION OF AGREEMENT AND/OR BY ACCESSING OR USING ANY OF THE SERVICES, INFORMATION, SOFTWARE AND FUNCTIONALITY, INCLUDING UPDATES AND NEW PRODUCT RELEASES BY OTTIMATE AS OF THE DATE OF SUCH USE, CUSTOMER AGREES TO THE TERMS OF SERVICE OF THIS AGREEMENT AND OF OTTIMATE’S PRIVACY POLICY (WHICH IS AVAILABLE HERE.) IF CUSTOMER IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT AND THE PRIVACY POLICY ON BEHALF OF THE CUSTOMER’S LEGAL ENTITY, CUSTOMER REPRESENTS THAT SUCH INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND SUCH ENTITY. IF CUSTOMER DOES NOT AGREE WITH THIS AGREEMENT OR THE PRIVACY POLICY, CUSTOMER MUST NOT EXECUTE THE PROPOSAL.
In consideration of the mutual agreements below, and intending to be legally bound, the parties agree:
1. GENERAL TERMS
1.1. Customer hereby engages Ottimate to provide the Services as set forth in any executed proposal(s) under this Agreement (“Proposal”). Neither party shall be bound by any draft Proposal until such Proposal is executed by both parties. Except as otherwise provided herein, if any of the terms and/or conditions of this Agreement conflict with any of the terms and/or conditions of any Proposal, the terms and/or conditions of such Proposal will control solely with respect to the Services covered under such Proposal.
1.2. Through Customer’s use of Services, Customer may be asked by Ottimate to use certain third-party services (e.g. accounting software, inventory platforms, vendor pay services, etc.). Customer understands that Ottimate cannot control and is not responsible for Customer use of these third-party services. As such, between Customer and Ottimate, Customer’s use of such third-party services shall be at Customer’s sole and exclusive risk and may require Customer to accept such third parties’ terms of service.
2. CUSTOMER’S RIGHTS TO USE THE SERVICES
2.1. Subject to Customer’s acceptance and compliance with this Agreement, and unless otherwise expressly approved by Ottimate in writing and executed by an authorized agent of Ottimate, Ottimate grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, and revocable right and license to use and access the Services via the Internet and under the terms of this Agreement. Any new Services or product updates or improvements provided to Customer by Ottimate are subject to these same terms.
2.2. Customer shall not: (i) use nor allow any unauthorized third party to use the Services or content in any way that violates any law, regulation, or this Agreement, (ii) themselves nor allow any unauthorized third party to reproduce, distribute, share, sell, transfer, lend, or modify the Services in any manner, and (iii) attempt to reverse engineer, disassemble, or decompile any part of the Services and the software that makes up the Services.
2.3. Other than with respect to the limited rights granted herein, all right, title and interest in and to the Services and all underlying software, including all rights under the patent, copyright and trademark laws of the United States (“Intellectual Property Rights”) shall remain solely in Ottimate. Customer acknowledges that the software underlying the Services is confidential and proprietary to Ottimate and Customer shall not disclose such software to or permit access to the Services to any third party including, without limitation, any person, client, organization, governmental agency, non-profit organization, or other entity, or the employees or agents thereof, whether on a for-profit, loan, gratuitous, temporary, or other basis, whether through consulting, training, or other services provided by Customer, or in any other manner.
3. PAYMENT
The following terms apply to Customer’s use of the Services unless stated otherwise in the Proposal.
3.1. Payments will be billed to Customer in U.S. dollars.
3.2. Customer must pay electronically with a valid credit/debit card or ACH Payment via the Ottimate billing system. Such payment method will be auto-debited when due, unless otherwise stated in an applicable Proposal. In accordance with such requirement, Customer hereby authorizes Ottimate to automatically charge the Customer provided credit or debit card or ACH account for the fees (plus applicable sales tax) in advance or as set forth in the Proposal and without any further authorization from Customer. In addition to this, Ottimate reserves the right to charge an additional 3% on top of all credit card and debit card transactions.
3.3. Unless otherwise stated in the Proposal, the Recurring Billing Start Date will begin on the date of registration for the services.
3.4. If Customer’s payment and registration information isn’t correct or complete, or if Customer does not notify Ottimate promptly when such information changes, Ottimate may suspend or terminate Customer’s account and prohibit its use of any of the Services.
3.5. Unless otherwise stated in the applicable Proposal, Ottimate will automatically renew Customer’s Services each contracted period at the then current payment rates unless these Services are terminated pursuant to this Agreement.
3.6. Unless otherwise stated in the applicable Proposal, each Document (i.e. an uploaded item that consists of one document, reflects one or part of one transaction and comprises of between 1 and 4 pages) shall be treated as a single billable Document. Each additional 1 through 4 pages reflecting the same transaction shall be treated as additional billable Documents. Duplicate pages reflecting the same transaction shall also be treated as additional billable Documents. For certain of Customer’s vendors, Ottimate may reach out to such vendors on the Customer’s behalf to provide Documents in a pdf format to ensure that Customer receives accuracy in the Services. If Customer applies a threshold to its account, any Documents uploaded beyond such threshold shall become additional billable Documents. For example, if Customer uploads 243 Documents, but has a threshold of only 200, then Customer will be billed at the standard rate for 43 Documents in addition to Customer’s standard monthly fee.
3.7. If Customer has a bona fide dispute in relation to any portion of the fees invoiced, Customer must pay all invoiced fees and shall provide notice to Ottimate in writing within thirty (30) days from the date of the invoice. Such notice shall set forth the details surrounding the dispute. The parties shall discuss the disputed fees within five (5) calendar days of the date of the notice. In the event the dispute is not resolved within such time period, then either party may at any time thereafter submit such dispute to arbitration as described herein.
3.8. When the dispute is resolved, (a) if a payment is owed to Ottimate, such payment shall be made within ten (10) calendar days of the resolution of such dispute or (b) if an amount is owed to Customer, Ottimate, in its sole discretion, shall either (i) credit such amount to Customer’s account within twenty (20) calendar days of the resolution of such dispute (or within such other timeframe as mutually agreed upon by the parties in writing), or (ii) apply a prorated credit amount to Customer’s account for the remainder of the then-current term.
3.9. For avoidance of doubt, all negotiations pursuant to this Section 3.9 shall be treated as confidential compromise and settlement negotiations. Nothing said or disclosed, nor any document produced, in the course of such negotiations which is not otherwise independently discoverable shall be disclosed to any third party nor offered or received as evidence or used for impeachment or for any other purpose in any current or future arbitration or litigation.
3.10. If Customer fails to make any payment when due then, in addition to all other remedies that may be available to Ottimate, Ottimate may charge interest on the past due amount at the rate of 1.50% per month calculated monthly and compounded monthly or, if lower, the highest rate permitted under applicable Law.
3.11. Customer shall reimburse Ottimate for all reasonable costs incurred by Ottimate in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees.
3.12. Notwithstanding any of the foregoing, Customer waives the right to dispute any fees not disputed within sixty (60) calendar days after the date of the applicable invoice.
3.13. Ottimate reserves the right to increase the contracted recurring fees outlined in the Proposal by 5% annually on the contract renewal date.
4. CONTENT
4.1. Customer is responsible for all documents, data, and personal information
(“Content”) uploaded or entered as part of Customer’s use of the Services. Ottimate is not responsible for the Content Customer uploads or enters. Customer agrees not to use nor permit any third party to use the Services to upload, distribute, or reproduce any of the following: Illegal, obscene, fraudulent, or pornographic Content; commercial solicitations of any kind: viruses, malware, or other harmful software or Content; and Content for which the copyright or intellectual property owner does not grant Customer permission.
4.2. Ottimate may use any feedback and Content that Customer provides Ottimate in any way, such as improving its Services to Customer and other Ottimate customers (but in an anonymized manner), offering new services and products, and for advertising purposes. As such, Customer hereby grants to Ottimate worldwide, non-exclusive, fully paid-up, perpetual license to use the Content in any manner reasonably necessary for the proper functionality and improvement of Ottimate’s services.
5. HOSTING: AVAILABILITY OF SOFTWARE; UPDATES
5.1. Ottimate shall host the software and data underlying its Services on its computer servers or on servers hosted by third parties, and shall make the Services available to Customer via the Internet.
5.2. Customer acknowledge that access to the Services may be affected by certain mandatory actions by Ottimate, or by events beyond the control of Ottimate, including but not limited to: (i) malfunction or failure of computer hardware or software; (ii) periodic maintenance procedures or repairs which Ottimate may undertake from time-to-time; or (iii) causes beyond the control of Ottimate or which are not reasonably foreseeable by Ottimate, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures.
5.3. Ottimate shall provide, at no additional charge, updates, enhancements, bug fixes and other upgrades to the Services as they become commercially available.
6. NONDISCLOSURE AND CONFIDENTIALITY
6.1. Except for as otherwise provided in this Agreement, during the Term and for a period of one (1) year thereafter, both parties, including their employees, agents, and all other contractors, shall use commercially reasonable efforts, consistent with good business policy and no less than the same degree of care it uses with respect to its own confidential and proprietary information of like importance, to protect the confidentiality of: (a) all terms and conditions of this Agreement and Order Form; (b) Content, but only to the extent that such Content was treated as being confidential and proprietary by Customer, (c) rates that have yet to be released to the general public; (d) information that is reduced to writing and labeled as confidential or proprietary; and I information which, by the nature of the circumstances surrounding the disclosure or the content of the information, in good faith ought to be treated as proprietary and/or confidential (collectively “Confidential Information”).
6.2. Furthermore, both parties agree to use Confidential Information of the disclosing party only for the specific purposes related to performance of this Agreement, and to inform all of their employees and agents that have Access to the Confidential Information of the strictly confidential nature of the information and terms of this Agreement. All Confidential Information remains the exclusive property of the disclosing party and no license or other agreements to such Confidential Information is granted or implied hereby except as expressly provided herein. Upon the expiration or termination of this Agreement, any Confidential Information shall be returned to the disclosing party, or destroyed pursuant to the disclosing party’s reasonable instructions, and the non-disclosing party shall cease use of any Confidential Information.
7. TERM & TERMINATION
7.1. Agreement Term. The term of this Agreement shall commence on the Recurring Billing Start Date as set forth in the Proposal and shall continue thereafter until terminated in accordance with the terms and conditions set forth in the Proposal and herein.
7.2. Termination for Breach. If a party materially breaches this Agreement and/or any Proposal (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) calendar days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement and/or the Proposal upon written notice to the Defaulting Party. Termination of Proposal and/or this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement or at law or in equity.
7.3. Termination for Insolvency or Dissolution. Either party may terminate this Agreement and/or Proposal immediately in the event the other party becomes Insolvent, ceases to do business, or otherwise terminates its business operations without a successor. “Insolvent” or “Insolvency” shall mean a party that makes an assignment for the benefit of creditors, has a receiver, trustee, custodian (or similar party) appointed or designated to administer its affairs or otherwise take control of its assets or business operations, becomes a debtor in a voluntary proceeding under any chapter of the United States Bankruptcy Code or any law or statutory scheme relating to insolvency, reorganization or liquidation, or an involuntary petition in bankruptcy, or other insolvency proceeding is filed against a party and is not dismissed within ninety (90) calendar days thereafter.
7.4. Termination for Convenience. This Agreement may be terminated by either party upon the expiration of a Term, provided the party has provided at least thirty (30) days’ written notice of termination prior to such expiration. Upon termination, Customer will pay all outstanding fees, charges and expenses owed through the entire term of this Agreement and/or the applicable Proposal as if such Agreement and/or Proposal had not been terminated. For the avoidance of doubt, any pre-paid fees are non-refundable.
7.5. Renewal. Except as set forth in an applicable Proposal, this agreement shall automatically renew for additional periods equivalent to the initial period (each, a “Renewal Term”) (the Initial Term and each Renewal Term collectively, the “Term”) until terminated in accordance with this Agreement or an applicable Proposal. In the event that Ottimate modifies its prices for a renewal period, it shall provide at least a thirty (30) day prior notice of such modification to Customer and Customer shall have the option to terminate the applicable Proposal before the Renewal Period commences by contacting Ottimate customer support. If Customer fails to terminate the applicable Proposal before the Renewal Term commences, such Renewal Term shall be effective by and between the parties.
7.6. In lieu of termination of this Agreement, Ottimate may elect to suspend access to the Services while any uncured default remains outstanding, without waiving its right to thereafter terminate this Agreement.
8. DISCLAIMER OF WARRANTIES
8.1. CUSTOMER’S USE OF THE SERVICES AND ANY DELIVERABLES IS AT ITS SOLE RISK. THE SERVICES, MATERIALS AND DELIVERABLES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. OTTIMATE AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. OTTIMATE DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICES OR DELIVERABLES. ANY MATERIAL THAT CUSTOMER AND/OR ITS USERS ACCESS AND/OR OBTAINS THROUGH THE SERVICES IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTERS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH THE SERVICES. OTTIMATE DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICES AND DELIVERABLES WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
8.2. OTTIMATE AND ITS THIRD-PARTY AFFILIATES DISCLAIM ANY WARRANTIES THAT CUSTOMER’S USE OF THE SERVICES WILL ENSURE COMPLIANCE WITH ANY LEGAL REQUIREMENTS, LAWS, OR REGULATIONS.
9. LIMITATION OF LIABILITY
9.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND/OR ANY PROPOSAL, OTTIMATE AND ITS SUPPLIERS AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE AND/OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF OTTIMATE HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM USE OF THE SERVICES AND/OR DELIVERABLES. UNDER NO CIRCUMSTANCES WILL OTTIMATE OR ITS SUPPLIERS AND LICENSORS TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNTS, IF ANY, THAT CUSTOMER HAS PAID TO OTTIMATE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THIS SECTION IS FUNDAMENTAL AND THE SPECIFIC REQUIREMENTS HEREIN SHALL BE CONSIDERED THE BASIS OF THE BARGAIN BETWEEN CUSTOMER AND OTTIMATE, AND OTTIMATE WOULD NOT BE ABLE TO PROVIDE THE SERVICES OR PERFORM ITS OBLIGATIONS SET FORTH HEREIN WITHOUT CUSTOMER’S AGREEMENT TO SUCH TERMS.
10. INDEMNIFICATION OF OTTIMATE
10.1. Customer will indemnify, defend and hold Ottimate, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, contractors, subcontractors and assigns harmless from and against any costs, damages, expenses, losses, damages, demands and expenses, including reasonable attorney fees, and liabilities arising out of, and/or relating to, any claim (“Claim”) arising out of or related to (i) Customer’s acts and/or omissions, (ii) Customer’s use of the Services, and/or (iii) Ottimate’s use of the User Content constitutes infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property and/or proprietary right of any third party, and/or constitutes the unauthorized use and/or misappropriation of any trade secret of any third party. Ottimate may reasonably participate in such defense, at its sole expense.
10.2. Ottimate will indemnify, defend and hold Customer, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, contractors, subcontractors and assigns harmless from and against any costs, damages, expenses, losses, damages, demands and expenses, including reasonable attorney fees, and liabilities arising out of, and/or relating to, any third party claim (“Claim”) alleging that the services provided by Ottimate based on the Proposal results in the infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property and/or proprietary right of any third party, and/or constitutes the unauthorized use and/or misappropriation of any trade secret of any third party. Customer may reasonably participate in such defense, at its sole expense.
11. VENDOR PAY & SPEND MANAGEMENT SERVICES
11.1. Ottimate’s VendorPay Service (“VendorPay”) is made available to Customer as part of the Services pursuant to this Agreement and an applicable Proposal and in accordance therewith, provides Customer the ability to generate and authorize payments to Customer’s vendors via check, virtual card, ACH, FastACH, and international payment methods, including International ACH (iACH), International Wires, and international checks, as determined by Customer. Customer is solely responsible for enabling VendorPay and for all payments generated, authorized, printed, sent, and/or mailed through VendorPay. Customer acknowledges and agrees that VendorPay will serve as Customer’s exclusive means for generating and authorizing invoice payments to its vendors.
11.2. Ottimate’s Spend Management Service (“Spend Management”) is made available to Customer as part of the Services pursuant to this Agreement and an applicable Proposal and in accordance therewith, provides Customer the ability to manage Customer’s vendor expenses via virtual cards or linked external cards, as determined by Customer. Customer is solely responsible for enabling Spend Management and for all payments generated, authorized, and/or distributed through Spend Management. For purposes of this Agreement, “Payment Services” shall refer to VendorPay and Spend Management, to the extent either service is used by Customer.
11.3. Customer expressly acknowledges and agrees that Ottimate is not responsible or liable for (i) the accuracy or validity of Customer’s banking information, including account information, routing numbers, and other access information, or (ii) verifying vendor information, including mailing or delivery addresses for checks or other payments mailed or otherwise delivered through Payment Services. Ottimate will not be liable to Customer or any third party for (i) any unauthorized or incorrect payments generated, authorized, printed, and/or mailed through Payment Services, or (ii) any fees or expenses assessed or incurred due to unauthorized, incorrect, or returned payments. Customer bears sole responsibility for verifying the accuracy of each vendor’s applicable information, including vendor’s name or identity, physical address, and payment processing instructions, prior to initiating payment to each vendor.
11.4. If Customer has enabled Payment Services, Customer must maintain the Positive Pay fraud prevention service with Customer’s applicable bank(s) for all check payments. In connection with providing Payment Services to Customer, Ottimate will provide the Positive Pay file to Customer in the format specified by Customer’s preferred bank at no additional charge to Customer.
11.5. To use ACH, FastACH, iACH, or International Wire payments, Customer is required to open a dedicated payment processing account (the “ACH Partner Processing Account”) with Ottimate’s designated ACH partner (“ACH Partner”) and accept ACH Partner’s Terms of Service and Privacy Policy. Customer expressly acknowledges and agrees that any funds held in the ACH Partner Processing Account will be held by the financial institution selected solely by ACH Partner, as specified by ACH Partner.
11.5A. Role of Ottimate; No Banking or Money Transmission Services. Customer acknowledges and agrees that Ottimate is a technology service provider only and is not a bank, money transmitter, money services business, or payment institution. Except as expressly described in Section 11.5 and in the applicable ACH Partner and Payment Provider terms, Ottimate does not take possession, custody, or control of Customer funds. All money transmission, funds settlement, and custody of funds are performed solely by the ACH Partner and/or the applicable Payment Provider, each acting as a duly licensed or authorized financial institution or payment processor. Nothing in this Agreement shall be construed to render Ottimate a party to the transfer of funds between Customer and its vendors. Ottimate’s obligations under this Agreement are limited to providing the software platform and related payment facilitation services. Customer’s use of any money transmission, funds settlement, custody, or other regulated payment services is governed solely by the separate agreements and terms of the applicable ACH Partner and/or Payment Provider.Ottimate’s obligations are limited to providing the software and facilitation services described in this Section 11.
11.6. In connection with Customer’s use of Payment Services, Customer authorizes Ottimate to share Customer’s identity and account information with Ottimate’s third party payment providers (the “Payment Providers”) solely for the purposes of opening and supporting Customer’s account with such Payment Provider (the “Payment Provider Account”). Customer is responsible for the accuracy and completeness of such information. Customer’s Payment Provider Account will be accessed and managed through the Services, with account related notifications provided by Ottimate via the Services. Customer authorizes Payment Provider to share Customer’s bank account and routing numbers with Ottimate for the provision of Payment Services, subject to Ottimate’s Privacy Policy.
11.7. Ottimate will provide customer support for Customer’s Payment Provider Account related inquiries and activities at support@ottimate.com.
11.8. In connection with Customer’s use of Payment Services, Customer authorizes Payment Provider to originate credit transfers to Customer’s financial institution account and to re-debit Customer’s financial institution account in the event of a return, subject to all applicable account requirements.
11.9. To access Spend Management, Customer must apply and qualify for credit-based access, which is subject to a creditworthiness review at Payment Provider’s sole discretion. This review may include an evaluation of financial statements, credit history, and any other documentation reasonably requested by Payment Provider.
11.10. Ottimate or Payment Provider may request updated financial documentation annually. Failure to provide requested documentation within thirty (30) days may result in limited access to, or suspension of, Customer’s Services account.
11.11. In connection with Customer’s use of Payment Services, Customer expressly authorizes Ottimate to contact Customer’s vendors as necessary, including by phone, email, or written communication, which may reference Customer’s name and payment details, for the purpose of facilitating Payment Services. Customer acknowledges that vendor engagement is an essential component of Payment Services and that such contact is conducted on Customer’s behalf. Unless otherwise specified in the Proposal, applicable fees and terms are governed by the Ottimate VendorPay Pricing Schedule and Terms and the Ottimate VendorPay International Pricing Schedule.
11.12. Ottimate shall not be liable for any delay or deficiency in Payment Services resulting from Customer’s failure to provide timely, complete, and accurate assistance, cooperation, or information.
11.13. Customer is eligible to receive cash back on Payment Services payments facilitated via Ottimate virtual cards after a recipient bank account of Customer is successfully set up by Customer and verified by Ottimate within the Services. Cash back eligibility is restricted to the primary business entity identified in a Proposal and directly utilizing the Services; third-party service providers, including accounting firms, bookkeeping services, or independent consultants operating the platform on behalf of clients, are ineligible to receive cash back. Where applicable, cash back will be paid to Customer if and only if Customer’s Services subscription account with Ottimate is in good standing on the cash back payout date. Cash back payout rates are as specified in the applicable Proposal.
Customer expressly acknowledges and agrees that Ottimate makes no guarantee(s) regarding the timing or accuracy of each cash back payout made pursuant to this Section 11.13. Any claims by Customer regarding missed, underpaid, or inaccurate cash back payments must be submitted to Ottimate in writing within thirty (30) days following the scheduled or actual payout date; failure to do so constitutes a waiver of any claim relating to such cash back payment. Ottimate reserves the right to audit cash back calculations at any time. In the event that Ottimate has made an overpayment to Customer, Ottimate may recover the excess amount by either offsetting future cash back payments by such amount or invoicing Customer directly for such amount. In the event of an underpayment, the amount by which the payment has been underpaid will be paid to Customer in a subsequent processing cycle.
11.14. In connection with providing Payment Services, Ottimate reserves the right to pass through any taxes, fees, and losses incurred outside normal payment processing activities, including, but not limited to, fees relating to, or resulting from, business verification, check cancellation, delayed checks, ACH returns, international transaction fees, and chargebacks. Customer is solely responsible for any fees or losses resulting from fraudulent behavior by Customer or its affiliates. Please refer to the Ottimate VendorPay Pricing Schedule and Terms and the Ottimate VendorPay International Pricing Schedule for applicable fees and charges for these additional services.
11.15. Cross-border Spend Management virtual card transactions are subject to an industry standard surcharge (currently 3.00%) in addition to the transaction amount. Cross-border refers to any transaction settling in non-USD denominations or involving financial institutions domiciled outside the United States.
11.16. Customer acknowledges that certain vendor data collected, enriched, or aggregated by Ottimate through the Payment Services, including but not limited to vendor payment preferences, banking information, and contact data, is proprietary to Ottimate.
11.17. Customer represents and warrants that Customer will comply with all applicable laws and regulations in connection with its use of Payment Services, including:
(i) Anti-Money Laundering (AML) and Know Your Customer (KYC) Requirements. Customer represents that all payments initiated through the platform are for legitimate business purposes and agrees to cooperate with Ottimate’s or Payment Provider’s AML and KYC requirements, including identity verification and anti-money laundering screening processes. Ottimate reserves the right to suspend or terminate Payment Services if Customer fails to satisfy such requirements.
(ii) Office of Foreign Assets Control (OFAC) Requirements. Customer represents that neither Customer nor any of its vendors are on any U.S. government sanctions list, including the OFAC Specially Designated Nationals List. Customer is solely responsible for ensuring that all international payments comply with applicable laws. In any event, Ottimate reserves the right to suspend, block or reverse any payment that may violate applicable laws.
(iii) Vendor Information Accuracy. Customer is solely responsible for maintaining accurate and current vendor information within the Ottimate platform, including vendor addresses, banking details, and payment preferences. Ottimate shall not be liable for any failed, misdirected, or delayed payments resulting from inaccurate vendor information.
12. HIPAA PRIVACY
12.1. To the extent Customer is a covered entity or a business associate as defined under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”), Customer agrees to only upload or transmit to Ottimate the minimum necessary amount of Protected Health Information (“PHI”) reasonably required for Ottimate’s provision of the Services. Customer shall use reasonable efforts to avoid including PHI in documents or submissions where such information is not necessary for Ottimate to perform its Services, provided, however, that in the event Customer must disclose PHI to Ottimate in connection with the Services, the parties agree to enter into the terms of a mutually acceptable business associate agreement (“BAA”) or, if appropriate, other such agreement that addresses the parties’ confidentiality obligations with respect to such PHI if required under HIPAA.
12.2. Ottimate may, but is not required to, offer tools intended to assist with the redaction of PHI from documents (“Redaction Feature”). Customer acknowledges and agrees that the Redaction Feature is an aid to Customer’s compliance obligations under Section 12.1, and while it is designed to reduce exposure of PHI, Ottimate does not warrant that all PHI will be recognized or fully redacted by the Redaction Feature. Accordingly, Customer remains solely responsible for reviewing all documents and outputs to ensure that PHI has been appropriately transmitted to Ottimate, and for ensuring its own compliance with HIPAA and all other applicable privacy laws and regulations.
12.3. Ottimate shall not be liable for any damages, claims, losses, costs, expenses, or liabilities of any kind arising from Customer’s failure to limit the submission of PHI to Ottimate as required under Section 12.1, including failure by Customer to validate the effectiveness of the Redaction Feature with respect to any particular disclosure.
13. GENERAL
13.1. California state law governs this Agreement without regards to its conflicts of laws provisions. Customer and Ottimate agree to resolve disputes or claims relating to the Services or the Agreement by binding arbitration on an individual basis, and that both parties are each waiving the right to file a lawsuit and the right to a jury trial. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such rules. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees.
13.2. To begin arbitration, Customer shall send a letter requesting arbitration and describing its claim to Qubiqle Inc, in care of Ottimate’s registered agent, Incorporating Services, Ltd., 3500 S. Dupont Way, Wilmington, DE 19901. Payment of all administrative and arbitrator fees will be governed by JAMS rules.
13.3. All disputes and claims within the scope of this Agreement must be arbitrated on an individual basis and not as a plaintiff or class member on a class basis, nor can the claims or disputes of one user be arbitrated in conjunction with those of another user. Customer agrees to waive the right to participate in a class action.
13.4. Customer may not assign their rights under this Agreement to any other party without Ottimate’s express written consent; Ottimate may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties’ successors and permitted assigns.
13.5. Each Proposal and any amendments thereto may be executed in counterparts and will not be effective or enforceable unless and until it is executed with the signature of an authorized representative of each party. This Agreement and each Proposal constitutes the entire agreement between Ottimate and Customer concerning the subject matter hereof. All attached exhibits and Proposals are incorporated into and made a part of this Agreement. Any prior agreements or representations, either written or oral, relating to the subject matter of this Agreement are of no force or effect. Notwithstanding anything herein to the contrary, Ottimate may, at any time, for any reason, in its sole and absolute discretion make changes to this Agreement and any changes to this Agreement will become effective upon Customer’s execution of a new or additional Proposal in which the new terms of this Agreement will be incorporated.
13.6. If any portion or portions of this Agreement is invalid, those portions(s) will be removed, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
13.7. The parties agree that a material breach of this Agreement adversely affecting Ottimate’s intellectual property rights in the Website Services or its Confidential Information may cause irreparable injury to Ottimate for which monetary damages would not be an adequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
13.8. It is understood and agreed that the relationship of Ottimate to Customer is and shall continue to be that of an independent contractor and neither Ottimate nor any of Ottimate’s employees shall be entitled to receive Customer employee benefits. Nothing in this Agreement will be construed to create an agency or employment relationship between Customer and Ottimate for any purpose or create obligations of such party to third parties. As an independent contractor, Ottimate agrees to be responsible for the payment of all taxes and withholdings specified by law, which may be due in regard to compensation paid by Customer.
13.9. All notices required under this Agreement shall be in writing and sent to the addresses and persons set forth in the Proposal, or to such other addresses as may be designated by a party in writing. All notices shall be deemed received when (i) delivered electronically (e.g. via electronic mail); (ii) delivered personally; (iii) sent by confirmed telex or facsimile (followed by the actual document); or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery, with written verification of receipt.
13.10. Any provision of this Agreement and Proposal which, by its nature, would survive termination of this Agreement and Proposal will survive any such termination of this Agreement and/or Proposal.
13.11. Notwithstanding any other provision of this Agreement and/or any Proposal to the contrary, neither party is liable for any failure to perform, or delay in performing, any particular obligations under this Agreement where the failure or delay arises from any cause or causes beyond its reasonable control, including without limitation fire, flood, earthquake, elements of nature, acts of God, acts of war, terrorism, riots, civil disorders or rebellions (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. Either party may terminate this Agreement and the applicable Proposals by giving the other party written notice if the other party fails to perform those obligations for three (3) continuous months due to such Force Majeure Event. This Section does not apply to Article 10, or any obligation to pay money, or any obligation that is unaffected by the Force Majeure Event.
13.12. Customer acknowledges and agrees that the Services provided by Ottimate are not exclusive to Customer and that Ottimate may provide such Services to other entities.
13.13. The headings and titles of the Sections of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.