Terms of Service
Last Modified
These Terms of Service (“Agreement”) govern Customer's access to and use of the Platform and Services provided by Tesser Payments Inc ("Tesser"). "Customer" means the entity identified on an Order Form that incorporates this Agreement by reference. This Agreement is effective as of the date Customer first executes an Order Form that references this Agreement (the "Effective Date"). By executing an Order Form, Customer acknowledges that it has read, understood, and agrees to be bound by the terms and conditions of this Agreement as in effect at the time of such execution. In consideration of the mutual promises contained in this Agreement, the parties agree as follows:
1. Definitions
1.1 “Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or an End User.
1.2 "Customer Data" means all data and information provided by Customer or an End User to Tesser in connection with the Services, including transaction data and End User information.
1.3 “End User” means a third party end user that accesses or uses the Services through Customer's platform or application in accordance with this Agreement.
1.4 "Third Party Provider" means any third party service provider whose services are accessible through or facilitated by the Platform that is a licensed financial institution or other regulated service provider subject to supervision or oversight by a governmental or regulatory authority.
1.5 "Order Form" means an ordering document executed by Customer and Tesser that references this Agreement and sets forth the specific
services, fees, and other terms applicable to Customer's use of the Platform.
1.6 “Services” means, collectively, the provision of access to the Platform, the Support Services, and the services provided by Third Party Providers through the Platform.
1.7 “Support Services” means the hosting, support and maintenance services related to the Tesser Platform as described in the Service Level Agreement published and maintained by Tesser (the "SLA"), which is incorporated into and forms part of this Agreement by reference. Tesser may update the SLA from time to time; provided that any material reduction in service levels will not take effect until thirty (30) days after Tesser provides written notice to Customer.
1.8 “Tesser Platform” or “Platform” means collectively Tesser’s proprietary financial infrastructure platform which enables Customer to integrate and offer certain financial technology capabilities to End Users, together with certain services provided by Third Party Providers, along with all related APIs and SDKs.
1.9 “Usage Data” means information generated from the use of the Services or Platform, which does not identify End Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer's or an End User’s use of the Services, but excluding any identifiable Customer Data.
2. License Grants and Restrictions
2.1 Integration License. Subject to the terms and conditions of this Agreement, Tesser grants to Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Platform, including its APIs and SDKs, solely in connection with Customer's integration of the Services into Customer's own platform or application and the provision of the Services to End Users.
2.2 Updates and Modifications to Tesser Platform. Tesser will make available to Customer all modifications, updates and subsequent versions to the Tesser Platform that Tesser makes generally available (“Updates”). Tesser reserves the right to make Updates at any time during the Term in its sole discretion. Tesser will provide Customer with reasonable advance notice of any Updates that may require changes to Customer's integration.
2.3 End User Terms. Customer agrees that End Users will be subject to (a) terms established by Customer governing the use of Customer's platform and the Services, and (b) the applicable terms of service and privacy policy of each Third Party Provider whose services the End User accesses through the Platform, which the End User must accept prior to accessing such Third Party Provider's services. Customer's end user terms shall incorporate such provisions as Tesser may reasonably require to protect Tesser's intellectual property rights, limit Tesser's liability to End Users, and restrict End User use of the underlying technology infrastructure (collectively, "Tesser Required Provisions"). Tesser will deliver the initial Tesser Required Provisions to Customer in writing no later than thirty (30) days after the Effective Date; Customer's obligation to incorporate the Tesser Required Provisions into its End User terms is conditioned upon Tesser's delivery thereof and will take effect with respect to each End User onboarded after such delivery. Customer will not materially modify or remove any Tesser Required Provision without Tesser's prior written consent. Tesser may update the Tesser Required Provisions from time to time by providing Customer with reasonable advance notice of any material changes; provided that Customer will have no less than thirty (30) days following receipt of such notice to implement any such changes in its End User terms. For the avoidance of doubt, Tesser will not be separately identified to End Users in connection with the Services, and no separate terms of service between Tesser and End Users will be required.
2.4 General Restrictions. Except as explicitly provided in this Agreement or expressly permitted by applicable law, Customer will not, nor will it allow its End Users, or other third parties to decompile, disassemble, reverse engineer, or otherwise attempt to discern the source code of the Tesser Platform, in whole or in part; copy, modify, enhance or otherwise create derivative works of the Tesser Platform, in whole or in part; rent, lease, loan, or use the Tesser Platform, in whole or in part, on a service bureau basis, including to provide services to third parties or on a rental or sharing basis, (d) use the Tesser Platform or Services in violation of any federal, state, local or foreign law, regulation or rule, in violation of the rights of any third party, or in violation of any contract or agreement by which Customer may be bound, (e) directly or indirectly exceed any limitations on usage of the Tesser Platform, or otherwise use the Platform in any manner that could damage, disable, overburden, place an unreasonable load on, interfere with the proper working order of, or otherwise impair, the Platform, its computer systems or networks; or (f) use the Platform in order to build a competitive product or service, build a product using similar ideas, features, functions or graphics of the Platform, or copy any ideas, features, functions or graphics of the Platform. Customer agrees that its use of the Services will comply with all applicable anti-money laundering, export controls, and sanctions laws and regulations (“AML and International Trade Laws”). Customer will not engage in any activities that would cause Tesser to violate AML and International Trade Laws. Notwithstanding any other provision of this Agreement, Tesser shall not be required to take any action that would cause it to violate AML and International Trade Laws. If Tesser reasonably determines that Customer or any End User is using the Platform in violation of this Section, Tesser may immediately suspend or terminate Customer's access to the affected Services upon written notice to Customer.
2.5 Authorized Use; End User Restrictions. Customer shall ensure that each End User's use of the Services complies with this Agreement and all applicable laws. Without limiting the generality of Section 2.5, Customer shall not permit any End User to use the Services: (a) in violation of any applicable AML and International Trade Laws; (b) to engage in, facilitate, or support money laundering, terrorist financing, fraud, or other financial crime; (c) to process transactions involving the proceeds of unlawful activity; (d) for the benefit of, or on behalf of, any person or entity that is the subject of sanctions administered by OFAC or any other applicable governmental authority, or that is located in, organized under the laws of, or resident in any country or territory that is the subject of comprehensive sanctions; (e) in any manner that violates applicable consumer protection, data privacy, or securities laws; (f) to circumvent or attempt to circumvent any access controls, usage limitations, or security measures implemented by Tesser or any Third Party Provider; or (g) in any manner that Tesser reasonably determines poses a risk to the integrity, security, or reputation of the Platform or the Services (collectively, "Prohibited Uses"). Customer shall implement and maintain reasonable procedures to monitor for and prevent Prohibited Uses by its End Users. Upon becoming aware of any actual or suspected Prohibited Use by an End User, Customer shall promptly notify Tesser and shall take all reasonable steps to cause such End User to cease the Prohibited Use, including suspending or terminating such End User's access to the Services. Notwithstanding the foregoing, Tesser may, in its sole discretion, immediately suspend or terminate Customer's access to the affected Services upon actual or suspected Prohibited Use by an End User, and such suspension shall remain in effect until the Prohibited Use has been remediated to Tesser's reasonable satisfaction.
2.6 Restrict Acquisition of Rights by Government. Customer will comply with all applicable laws, rules, and regulations to preclude the acquisition of unlimited rights to technical data, software, and documentation provided with the Tesser Platform to a governmental agency, and ensure the inclusion of the appropriate “Restricted Rights” or “Limited Rights” notices required by the U.S. Government agencies or other relevant governmental entities.
2.7 Export Restrictions. Customer will not make the Services available in any territory where any of the terms of this Agreement would be unenforceable. Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of any country or territory that is the subject of comprehensive sanctions administered by the U.S. Office of Foreign Assets Control ("OFAC"), and that neither Customer nor any of its principals is listed on the OFAC Specially Designated Nationals and Blocked Persons List, the U.S. Commerce Department’s Table of Denial Orders, the Bureau of Industry and Security Entity List, or any other applicable restricted party list maintained by the United States or any other applicable governmental authority.
3. Third Party Services
3.1 Third Party Providers. Customer acknowledges and agrees that certain services accessible through the Platform are provided by Third Party Providers, each of which is a regulated entity subject to supervision or oversight by a governmental or regulatory authority. Tesser is not a bank, money services business, licensed financial institution, or payment processor; Tesser's role with respect to all services provided by Third Party Providers is limited to providing the technology infrastructure through which such services are made accessible. Customer is responsible for accepting and complying with the terms of service of each Third Party Provider whose services Customer accesses through the Platform, and for ensuring that its End Users agree to such Third Party Provider's applicable terms of service and privacy policy prior to accessing such services. Customer acknowledges that additional regulatory, compliance, examination, and reporting obligations may apply to Customer's access to and use of a Third Party Provider's services, including obligations imposed by or at the direction of such Third Party Provider's supervisory or regulatory authority, and Customer shall comply with all such obligations as a condition of accessing such Third Party Provider's services through the Platform. Tesser is responsible for the selection and integration of Third Party Providers into the Platform and will use commercially reasonable efforts to ensure the continued availability and proper functioning of Third Party Provider services accessible through the Platform. All regulatory obligations, including without limitation licensing, registration, reporting, and compliance obligations arising from or relating to the provision of services by Third Party Providers, are and shall remain the sole responsibility of the applicable Third Party Provider; provided that Tesser acknowledges that its role as a technology service provider to a Third Party Provider may subject Tesser to certain examination, audit, or information-sharing obligations imposed by or on behalf of such Third Party Provider's supervisory or regulatory authority, and Tesser shall cooperate with such obligations to the extent required by applicable law or regulation.
3.2 Pass-Through Terms. Customer acknowledges that its access to Third Party Provider services through the Platform is subject to the terms and conditions imposed by each applicable Third Party Provider (collectively, the "Third Party Terms"), which may include enhanced compliance, onboarding, know-your-customer, reporting, recordkeeping, and examination requirements. Customer agrees to comply with all applicable Third Party Terms as a condition of accessing the applicable Third Party Provider's services through the Platform, and to flow down such Third Party Terms to its End Users as a condition of End Users accessing such services. Customer's failure to comply with, or to cause its End Users to comply with, the applicable Third Party Terms shall constitute a material breach of this Agreement. Customer acknowledges that the availability of Third Party Provider services through the Platform is dependent upon Tesser’s arrangements with the applicable Third Party Provider, and that any interruption, modification, or termination of such arrangements may adversely affect the availability of such services and may give rise to wind-down, notification, or other regulatory obligations. Tesser will use commercially reasonable efforts to notify Customer of any Third Party Terms that are applicable to Customer's use of the Platform. For the avoidance of doubt, End Users access Third Party Provider services subject to the applicable Third Party Provider's own terms of service and privacy policy, and Tesser is not a party to, and assumes no liability under, any agreement between Customer or an End User and a Third Party Provider.
4. Use and Support
4.1 Support. Tesser will provide support to Customer related to the Tesser Platform. Customer will provide to Tesser sufficient technical information to enable Tesser to perform testing, certification, and other support for Customer in accordance with this Agreement.
4.2 Feedback by Customer. To the extent Customer provides Tesser with any suggestions, comments, ideas, or reports of problems relating to the Tesser Platform or the Support Services (collectively, "Feedback”), Customer hereby assigns to Tesser all right, title, and interest in and to such Feedback, including all intellectual property rights therein. Customer agrees to execute such documents and take such further actions as Tesser may reasonably request to evidence or perfect the foregoing assignment. Feedback will be considered to be part of Tesser’s Confidential Information.
5. Fees and Taxes
5.1 Fees. Customer will pay to Tesser the fees set forth in the applicable Order Form, which may include pass-through fees from Third Party Providers. Unless otherwise specified in the Order Form, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Tesser to collect any amount that is not paid when due, except in the event of a bona fide dispute regarding the services or amounts due between the parties. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars.
5.2 Taxes. Fees do not include and are net of any foreign or domestic governmental taxes or charges of any kind that may be applicable to the licensing or distribution of the Tesser Platform or Support Services, including without limitation excise, sales, use, or value-added taxes; customs or other import duties; or other taxes, tariffs or duties. All payments by Customer will be made free and clear of, and without reduction for, any withholding taxes. Any taxes that are otherwise imposed on payments to Tesser will be the sole responsibility of Customer. Customer will provide Tesser with official receipts issued by the appropriate taxing authority or other evidence as is reasonably requested by Tesser to establish that the taxes have been paid.
6. Term and Termination
6.1 Term. The term of this Agreement commences on the Effective Date and continues for the period specified in the applicable Order Form, or if no period is specified, for a period of one year, unless terminated earlier in accordance with Section 6.2 (the “Initial Term”). At the end of the Initial Term (or any Renewal Term), this Agreement will automatically renew for additional one-year periods (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless either party gives notice to the other of its intent to terminate the Agreement by providing at least sixty (60) days’ written notice to the other party prior to the end of the Initial or then current Renewal Term. The notice period and other terms set forth in this Section may be superseded by the terms of an applicable Order Form or master services agreement between the parties.
6.2 Termination. If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving thirty (30) days' prior written notice, provided that the matters set forth in such notice are not cured to the non-breaching party’s reasonable satisfaction within the thirty (30) day period. If either party commits or suffers (voluntarily or involuntarily) an act of bankruptcy, receivership, liquidation, or similar event, the other party may immediately terminate this Agreement. Notwithstanding the foregoing, (a) no failure or delay in performance attributable to a Force Majeure Event under Section 15.5 will constitute a material breach for purposes of this Section 6.2, and the rights and obligations of the parties with respect to any such event will be governed exclusively by Section 15.5; and (b) where Tesser's failure to perform a material obligation results primarily from the acts or omissions of a Third Party Provider, the cure period applicable to such failure will be extended to sixty (60) days, provided that Tesser is using commercially reasonable efforts to remedy the non-performance, including by exercising its contractual rights and remedies against the applicable Third Party Provider.
6.3 Effects of Termination. Upon expiration or earlier termination of this Agreement, all rights and licenses granted to Customer hereunder will terminate, and Customer will promptly cease all use of the Tesser Platform, subject to the wind-down provisions of this Section. Tesser will provide reasonable cooperation to facilitate an orderly wind-down, including (a) completing the processing and settlement of any in-flight transactions initiated prior to the effective date of expiration or termination, (b) making Customer Data available for export in a commercially reasonable format for a period of ninety (90) days following the effective date of expiration or termination, and (c) cooperating with Customer in providing reasonable notice to affected End Users regarding the discontinuation of Services. Following such ninety (90) day period, each party will promptly (i) return to the other party all of its Confidential Information, or (ii) destroy all copies of such Confidential Information in its possession and certify such destruction in writing. Tesser will retain Customer Data only as required by applicable law or regulation.
6.4 Survival. All definitions and the following provisions will survive any expiration or termination of this Agreement: Sections 1, 4.2, 5, 6.3, 6.4, 7, 8.2, 9.1, 11, 13, 14, 15, and any other provisions that by their nature are intended to survive. The termination or expiration of this Agreement will not relieve Customer of the obligation to pay any fees that are due to Tesser under this Agreement.
7. Confidential Information
7.1 Definition. “Confidential Information” means any non-public proprietary information disclosed by one party to the other in any form that is marked or otherwise identified as confidential, or that a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. The Feedback and Tesser Platform will be deemed Confidential Information of Tesser whether or not marked as such. Oral disclosures constitute Confidential Information if designated as confidential at the time of disclosure and confirmed in writing within 30 days.
7.2 Exceptions. Confidential Information will not include any information that receiving party can show was publicly known and made generally available prior to the time of disclosure by the disclosing party; becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; is already in the possession of the receiving party at the time of disclosure; is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
7.3 Non-Use and Non-Disclosure. Each party will (a) treat the other party's Confidential Information as confidential, (b) not use it except in connection with performing its obligations or exercising its rights under this Agreement, and (c) not disclose it to any third party except on a need-to-know basis to persons bound by confidentiality obligations substantially as protective as this Section 7. A party may disclose the other party’s Confidential Information if required by law, provided it gives the other party prompt prior written notice (to the extent permitted) and reasonable assistance in seeking a protective order.
7.4 Confidentiality of Agreement. Neither party to this Agreement will disclose the terms of this Agreement to any third party without the consent of the other party, except as required by securities or other applicable laws. Notwithstanding the above provisions, each party may disclose the terms of this Agreement in connection with the requirements of a public offering or securities filing; in confidence, to accountants, banks, and financing sources and their advisors; in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or in confidence, in connection with a merger or acquisition or proposed merger or acquisition.
8. Proprietary Rights and Data
8.1 Proprietary Rights. Title to and ownership of the Tesser Platform whether in machine-readable or printed form, and including, without limitation, derivative works, compilations, or collective works and all related technical know-how and rights (including without limitation rights in patents, patents pending, copyrights, and applicable trade secrets), are and will remain the exclusive property of Tesser and its suppliers. Customer will not act to jeopardize, limit, or interfere in any manner with Tesser’s ownership of and rights with respect to the Tesser Platform. Customer will have only those rights in or to the Tesser Platform granted to it pursuant to this Agreement.
8.2 Data. As between Tesser and Customer, Customer retains all right, title, and interest, including all intellectual property rights, in and to Customer Data. Customer hereby grants Tesser a non-exclusive, worldwide, sublicensable right to use, copy, store, transmit, modify, and create derivative works from Customer Data solely as necessary to (a) provide the Services, (b) derive Usage Data and Aggregated Data, and (c) comply with applicable law. Tesser may process Usage Data and Aggregated Data for any lawful internal business purpose, including billing, support, performance monitoring, analytics, benchmarking, and product improvement. Customer will not interfere with the collection of Usage Data. As between the parties, Tesser owns all right, title, and interest in and to the Tesser Platform and any improvements to Tesser's products or services derived from its processing of Customer Data.
8.3 Right to Provide Customer Data. Customer is responsible for its Customer Data, including its content and accuracy, and will comply with all applicable laws and this Agreement when providing such Customer Data. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Tesser to process the Customer Data set forth in this Agreement without violating or infringing applicable laws, third-party rights, or terms or policies that apply to the Customer Data.
9. Trademark Usage
9.1 Tesser’s Trademarks. Customer and its employees and agents will not remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Tesser Platform delivered by Tesser. Except as set forth in Section 9.2, nothing contained in this Agreement will grant or will be deemed to grant to Customer any right, title, or interest in or to Tesser’s trademark, trade names, service marks, or other designations of origin (collectively, “Trademarks”). All uses of Tesser’s Trademarks, and all goodwill associated therewith, will inure solely to the benefit of Tesser and Customer obtains no rights with respect to any of Tesser’s Trademarks, other than as expressly set forth in this Agreement, and Customer irrevocably assigns to Tesser all such right, title, and interest, if any, in any of Tesser’s Trademarks. At no time during or after the Term of this Agreement will Customer challenge or assist others to challenge Tesser’s Trademarks (except to the extent expressly required by applicable law) or the registration thereof or attempt to register any of Tesser’s Trademarks or marks or trade names that are confusingly similar to those of Tesser. Upon termination of this Agreement, Customer will immediately cease use of all Tesser’s Trademarks.
9.2 Trademark License. Subject to the terms and conditions of this Agreement, Customer hereby grants to Tesser, during the Term, the limited right to use Customer's Trademarks in connection with the provision of the Services and for such other purposes, if any, specifically agreed to in writing by Customer.
10. Marketing and Publicity
10.1 Press Release. Except as expressly provided in this Section 10, neither party will use any copyrights or Trademarks of the other party in any advertising, announcement or press release without first obtaining the written approval of the other party. The parties may issue one or more joint press releases during the Term, provided that neither party will issue any press release related to this Agreement or the relationship created hereunder without obtaining the other party’s written prior approval.
10.2 Marketing. Customer agrees that it will not create or distribute any marketing materials referencing the Services without the prior written consent of Tesser, such consent not to be unreasonably withheld, conditioned, or delayed. Tesser will respond to any request for approval within ten (10) business days of receipt, and failure to respond within such period will be deemed approval. Notwithstanding the foregoing, Customer may, without Tesser's prior consent, include general references to the availability of the Services through Customer's platform, provided that such references do not disclose Tesser's Confidential Information or misrepresent the nature of the Services.
10.3 Conduct. In advertising and marketing the Services and otherwise performing under this Agreement, Customer will (a) not engage in any deceptive, misleading, illegal, or unethical practices; (b) comply with all applicable international, U.S. federal, and local laws and regulations; and (c) not make the Services available to or otherwise provide services to any entity or person within a territory that is subject to sanctions administered by OFAC or any other applicable governmental entity. Neither party will represent or identify itself as the other party or that it is a representative or agent of the other party at any time.
10.4 Compliance Responsibilities. Customer is solely responsible for all compliance obligations arising from or relating to the provision of the Services to End Users, including without limitation: (a) know-your-customer and customer due diligence obligations; (b) anti-money laundering and sanctions screening; (c) transaction monitoring and suspicious activity reporting; (d) obtaining and maintaining all regulatory licenses, registrations, and authorizations required for Customer's activities in each jurisdiction and corridor in which Customer operates; (e) consumer disclosures and complaints handling; (f) data privacy and security with respect to End Users; and (g) determining the suitability of each settlement corridor and the applicable regulatory requirements for Customer's use thereof, including any prefunding, data residency, or reporting obligations. Tesser will provide Customer with reasonable platform-level tooling to support Customer's compliance activities (including wallet screening and transaction monitoring capabilities), but the availability of such tooling does not relieve Customer of its independent compliance obligations. Tesser is responsible solely for compliance obligations arising from its own operations and regulatory status.
11. Indemnification
11.1 Tesser's Defense Obligations. Tesser will defend Customer from any third party claim arising out of or based upon an allegation that the Tesser Platform, as provided by Tesser and used in accordance with this Agreement, infringes or misappropriates any intellectual property right of a third party.
11.2 Customer's Defense Obligations. Customer will defend Tesser and its affiliates and their employees, directors, agents, and representatives ("Tesser Indemnified Parties") from any third party claim arising out of or based upon (a) Customer's gross negligence or willful misconduct in connection with its performance under this Agreement, (b) a claim that any content or data provided by Customer in connection with the Services infringes or misappropriates any intellectual property right of a third party, (c) any dispute between Customer and an End User arising from Customer's acts or omissions (excluding disputes arising from defects in or failures of the Tesser Platform), or (d) Customer's breach of Section 8.3.
11.3 Defense and Settlement Procedures. The defending party's obligations under Sections 11.1 and 11.2 are conditioned upon the defended party (a) giving the defending party prompt written notice of the claim (provided that failure to do so will not relieve the defending party of its obligations except to the extent materially prejudicial), (b) granting the defending party sole control over the defense and settlement of the claim, and (c) providing reasonable cooperation at the defending party's request and expense.
11.4 Indemnification. The defending party will indemnify the defended party against (a) all damages, costs, and attorneys' fees finally awarded against the defended party in any proceeding under Sections 11.1 or 11.2, (b) all reasonable out-of-pocket costs (including attorneys' fees) incurred by the defended party in connection with the defense of the proceeding (other than costs incurred without the defending party's consent after the defending party has accepted defense of the claim), and (c) all amounts agreed to by the defending party in settlement of the claims.
11.5 Mitigation of Infringement Action. If Customer's use of the Tesser Platform is, or in Tesser's reasonable opinion is likely to become, enjoined as a result of a proceeding arising under Section 11.1, then Tesser will either: (a) procure the continuing right of Customer to use the Tesser Platform; (b) modify the Tesser Platform in a functionally equivalent manner so that it no longer infringes; or (c) if, despite its commercially reasonable efforts, Tesser is unable to do either of the foregoing, terminate this Agreement with regard to the Tesser Platform subject to the infringement claim.
11.6 Exclusions. Tesser will have no obligation under Section 11.1 for any infringement to the extent that it arises out of or is based upon (a) unauthorized use of the Tesser Platform by Customer, or (b) any modification of the Tesser Platform not made by or for Tesser at its direction where such infringement would not have occurred absent such modification. Customer will have no obligation under Section 11.2 to the extent that Tesser is obligated under Section 11.1 to defend Customer against the same third party claim.
11.7 Exclusive Remedy. Section 11.1 and Section 11.5 state Tesser's sole and exclusive liability, and Customer's sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by the Tesser Platform.
11.8 Customer's Indemnification Obligation. Customer will indemnify each Tesser Indemnified Party against the categories of losses described in Section 11.4, applied mutatis mutandis to claims under Section 11.2; provided that Customer's obligation to reimburse defense costs will not extend to costs incurred without Customer's consent after Customer has accepted defense of the claim.
Warranties
12.1. Mutual Representations. Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the right, power and authority to enter into this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (c) the execution of an Order Form referencing this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of the party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. Customer further represents and warrants that: (i) Customer's use of the Services will not violate the privacy, intellectual property or other rights of any person or entity or any applicable laws, rules, or regulations, and (ii) Customer holds all regulatory licenses, registrations, authorizations, permits, and other permissions (or waivers) necessary to conduct its activities under applicable law.
Limitation of Liability; Disclaimer of Warranty
13.1 Disclaimer of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR END USERS FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF THESE DAMAGES OCCURRING.
13.2 Cap on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY CUSTOMER TO TESSER IN THE PREVIOUS 12 MONTHS UNDER THIS AGREEMENT (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). NOTWITHSTANDING THE FOREGOING, THE LIMITATION SET FORTH IN THIS SECTION 13.2 WILL NOT APPLY TO LIABILITIES RESULTING FROM OR ARISING OUT OF (A) EITHER PARTY'S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT; (B) EITHER PARTY'S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS; OR (C) CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 5.
13.3 Disclaimer of Warranty. EXCEPT AS SET FORTH IN SECTION 12, TESSER MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. TESSER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. TESSER DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE TESSER PLATFORM OR THE SERVICES OR AGAINST INFRINGEMENT. TESSER DOES NOT WARRANT THAT THE TESSER PLATFORM OR THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE TESSER PLATFORM OR THE SERVICES WILL BE SECURE OR UNINTERRUPTED. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF TESSER TO ANY END USER, OR OTHER THIRD PARTY.
13.3 Blockchain and Regulatory Disclaimer. TESSER HAS NO CONTROL OVER AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO BLOCKCHAIN PROTOCOLS, SMART CONTRACTS, OR DIGITAL ASSET NETWORKS, AND SHALL HAVE NO LIABILITY FOR ANY LOSSES ARISING FROM THE OPERATION OR FAILURE OF SUCH TECHNOLOGY. TESSER IS NOT A BANK, MONEY SERVICES BUSINESS, OR PAYMENT PROCESSOR AND DOES NOT HOLD OR TRANSFER FUNDS ON ANY END USER'S BEHALF.
13.4 Financial Services and Regulatory Status Disclaimer. TESSER IS NOT A BANK, MONEY SERVICES BUSINESS, LICENSED FINANCIAL INSTITUTION, BROKER-DEALER, INVESTMENT ADVISER, OR PAYMENT PROCESSOR. TESSER DOES NOT PROVIDE FINANCIAL, INVESTMENT, TAX, OR LEGAL ADVICE TO END USERS AND DOES NOT HOLD, CONTROL, OR TRANSMIT END USER FUNDS IN CONNECTION WITH THE SERVICES. THE TESSER PLATFORM SERVES AS A TECHNOLOGY INTERFACE THROUGH WHICH END USERS MAY ACCESS SERVICES PROVIDED BY THIRD PARTY PROVIDERS, AND NOTHING IN THIS AGREEMENT OR IN TESSER'S OPERATION OF THE TESSER PLATFORM SHALL BE CONSTRUED AS RENDERING TESSER A FINANCIAL SERVICES PROVIDER OR AS CREATING A FIDUCIARY, ADVISORY, OR CUSTODIAL RELATIONSHIP BETWEEN TESSER AND ANY END USER. TESSER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE VALUE, STABILITY, OR SUITABILITY OF ANY DIGITAL ASSET OR STABLECOIN ACCESSIBLE THROUGH THE PLATFORM. END USERS ASSUME ALL RISKS ASSOCIATED WITH THEIR USE OF THE SERVICES, INCLUDING RISKS RELATED TO DIGITAL ASSET VOLATILITY, REGULATORY CHANGES, AND BLOCKCHAIN NETWORK PERFORMANCE.
13.5 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY TESSER TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE TERMS OF THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
Operational Standards
14.1 Regulatory Examination. Tesser acknowledges that Customer is subject to examination and oversight by governmental and regulatory authorities (each, a "Regulatory Authority"). Tesser will cooperate with and provide reasonable access, information, and assistance to any Regulatory Authority in connection with any examination or inquiry relating to the Services or Customer's use of the Platform, to the extent required by applicable law or regulation or reasonably requested by Customer. Tesser will promptly notify Customer of any direct communication from a Regulatory Authority relating to the Services, to the extent permitted by applicable law.
14.2 Subcontractor Oversight. Tesser may engage subcontractors to perform portions of the Services, provided that (a) each such subcontractor is bound by obligations no less protective than those applicable to Tesser under this Agreement, and (b) Tesser remains responsible for its obligations under this Agreement notwithstanding any subcontracting.
14.3 Business Continuity. Tesser will maintain a commercially reasonable business continuity and disaster recovery plan ("BCP/DR Plan") designed to ensure the continued availability and integrity of the Services. The BCP/DR Plan will address data backup and recovery, infrastructure redundancy, recovery time and recovery point objectives, and will be tested no less than annually. Tesser will provide a summary of the BCP/DR Plan upon request and will promptly notify Customer of any material disruption, providing regular status updates until restoration.
14.4 Data Security. Tesser will implement and maintain administrative, technical, and physical safeguards designed to protect Customer Data in accordance with Tesser's then-current security program, which shall be designed to meet commercially reasonable standards and comply with applicable laws. Such safeguards shall include encryption in transit and at rest, appropriate access controls, regular vulnerability assessments, and incident response procedures. "Security Incident" means any unauthorized access to, acquisition of, use of, or disclosure of Customer Data. Tesser will promptly notify Customer of any Security Incident and will provide evidence of compliance with the foregoing upon reasonable request.
14.5 Anti-Bribery and Anti-Corruption. Each party represents and warrants that it has not and will not, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money or anything of value to any government official, political party, candidate for public office, or any other person for the purpose of influencing any act or decision in order to obtain or retain business or secure any improper advantage. Each party will comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010, and the Singapore Prevention of Corruption Act (Chapter 241), to the extent applicable. Neither party will make or permit any facilitation payments. Each party will maintain reasonable anti-bribery and anti-corruption policies, procedures, and internal controls, including training for relevant personnel. Each party will ensure that its agents, subcontractors, and intermediaries (including, in the case of Tesser, Third Party Providers to the extent within Tesser's contractual control) are subject to anti-bribery and anti-corruption obligations substantially consistent with this Section. Each party represents and warrants that, as of the Effective Date, neither it nor any of its directors, officers, or employees is the subject of any pending or, to its knowledge, threatened investigation or enforcement action by any governmental authority relating to bribery or corruption. Each party will promptly notify the other party if it becomes aware of any actual or suspected violation of this Section. A breach of this Section will constitute a material breach of this Agreement that is not subject to cure under Section 6.2, and the non-breaching party may terminate this Agreement immediately upon written notice.
Miscellaneous
15.1 Interpretation. For purposes of this Agreement, (a) "include,” “includes” and “including” mean "including without limitation"; (b) "or” is not exclusive; (c) words in the singular include the plural and vice versa; (d) headings are for convenience only and do not affect interpretation; and (e) references to laws mean such laws as amended from time to time. References to “$” and “dollars” are to United States dollars.
15.2 Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to act as an agent or direct or control the day-to-day activities of the other. Financial and other obligations associated with each party’s business are the sole responsibility of that party.
15.3 Assignability. Neither party may assign its rights and obligations under this Agreement without the prior written consent of the other party; provided, however, that either party may assign this Agreement without the other party's consent in connection with a merger, acquisition, consolidation, or sale of all or substantially all of its assets or the business unit to which this Agreement relates, so long as the assignee assumes all of the assigning party's obligations hereunder. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns.
15.4 Notices. Any notice required or permitted to be given under this Agreement will be effective if it is in writing and sent by email to the address specified by the receiving party. Notices to Tesser shall be sent to the email address designated in the applicable Order Form or as otherwise communicated by Tesser in writing. Notices to Customer shall be sent to the email address associated with Customer's account or as otherwise specified in the applicable Order Form. Either party may update its notice email address by providing written notice to the other party in accordance with this Section 15.4. Notices are deemed given on the business day sent if sent during the recipient's normal business hours, or on the next business day if sent outside of such hours.
15.5 Force Majeure. Except for payment obligations, neither party will be liable for any delay or failure in performance resulting from causes beyond its reasonable control, including acts of God, war, terrorism, governmental action, pandemic, labor disruption, infrastructure failure, natural disaster, blockchain network or protocol failures, payment network outages, or regulatory actions that prevent performance (each, a "Force Majeure Event"). For the avoidance of doubt, a failure by a Third Party Provider to perform will constitute a Force Majeure Event only to the extent such failure is itself caused by a Force Majeure Event affecting such Third Party Provider. The affected party will provide prompt written notice of the Force Majeure Event and will use commercially reasonable efforts to mitigate its effects. If a Force Majeure Event continues for more than sixty (60) consecutive days, either party may terminate this Agreement upon written notice to the other party, and Tesser will refund to Customer any prepaid fees attributable to the period following the effective date of such termination on a pro rata basis.
15.6 Arbitration. Any dispute, claim, or controversy between the parties arising out of or relating to this Agreement, whether in contract, tort, or otherwise, and the parties’ rights, remedies (collectively, “Disputes”) will be conclusively determined by a final and binding confidential arbitration proceeding to take place in the City and County of New York, New York. Such proceeding will be conducted in English and administered by JAMS pursuant to the JAMS Comprehensive Arbitration Rules and Procedures then in effect, before a single arbitrator chosen in accordance with such rules. The ruling by the arbitrator may be entered in any court having jurisdiction over the parties or any of their assets. The parties will evenly split the cost of the arbitrator’s fees, but each party will bear their own attorneys’ fees and other costs associated with the arbitration. Both parties agree that this arbitration provision may be enforced by injunction or other equitable order, and no bond or security of any kind will be required with respect to any such injunction or order. In addition, and notwithstanding the foregoing, each party will be entitled to seek immediate injunctive relief from a court of competent jurisdiction. Disputes must be brought to arbitration within the applicable period under law or they are waived. Each party irrevocably waives any right to commence, join, or participate in any class action, collective action, or representative proceeding in connection with any Dispute arising under or relating to this Agreement. All Disputes will be resolved on an individual basis, and the arbitrator will have no authority to consolidate claims or adjudicate any Dispute on a class-wide, collective, or representative basis.
15.7 Governing Law and Litigation. Subject to Section 15.6, this Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of New York, excluding its conflict of law provisions. The application of the United Nations Convention on the Sale of Goods is not applicable and expressly disclaimed by the parties.
15.8 Waiver and Severability. The waiver by either party of any breach of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation under this Agreement will not be a waiver of the party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement. If any part of this Agreement is unenforceable, the remaining portions of this Agreement will remain in full force and effect.
15.9 Entire Agreement. This Agreement, together with all Order Forms, the SLA, and any other policies or schedules expressly incorporated by reference herein, constitutes the final and complete expression of all agreements between these parties and supersedes all previous oral and written agreements regarding these matters. This Agreement may be changed only by a written agreement signed by the party against whom enforcement is sought; provided, however, that Tesser may update non-material, operational, or administrative terms from time to time by posting a revised version and providing written notice to Customer, with such updates becoming effective thirty (30) days after Customer's receipt of such notice unless Customer objects in writing within such period. For the avoidance of doubt, any amendment to the fees, scope of Services, liability limitations, indemnification obligations, or other material commercial or legal terms of this Agreement requires the written agreement of both parties. To the extent any provision of an Order Form conflicts with a provision of this Agreement, the terms of such Order Form will control.
15.10 Acceptance. This Agreement may be accepted by Customer through execution of an Order Form that references these Terms of Service. The Agreement may be executed and delivered electronically. By executing an Order Form, Customer acknowledges that it has read, understood, and agrees to be bound by these Terms of Service. Customer's use of the Platform is also subject to Tesser's Privacy Policy, available at http://www.tesser.xyz, which is incorporated into this Agreement by reference. Tesser will process personal data in accordance with its Privacy Policy and applicable data protection laws. In the event of any conflict between the Privacy Policy and the data protection provisions of this Agreement, the terms of this Agreement will control.