1. Applicability. These General Terms and Conditions (these “Terms”) are a legal agreement between you (the “Customer”) and Tez Technology, LLC, a Texas limited liability company (“TEZ”) and govern the provision of Services (defined below in Section 2) by TEZ. These Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and Customer’s Master Service Agreement (the Master Service Agreement and all exhibits and addenda attached thereto are collectively referred to herein as the “MSA”), these Terms shall govern, unless the MSA expressly states that the terms and conditions of the MSA shall control. These Terms prevail over any of Customer’s general terms and conditions, regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of Services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. 

2. Services. TEZ shall provide mobile applications, software, hardware, and other products and services to Customer as described in Customer’s MSA (the “Services”) in accordance with these Terms. TEZ may from time to time change the Services without the consent of Customer, provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the MSA. TEZ may charge for the time it spends assessing and documenting a change request of any nature whatsoever from Customer on a time and materials basis in accordance with the MSA.

3Performance Dates. TEZ shall use commercially reasonable efforts to meet any performance dates specified in the MSA, and any such dates shall be estimates only.

4. Customer’s Obligations. Customer shall:

(a) cooperate with TEZ in all matters relating to the Services and provide such access to Customer’s premises (if needed), and such accommodation and other facilities as may be requested by TEZ, for the purposes of performing the Services;

(b) respond promptly to any TEZ request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for TEZ to perform the Services in accordance with the requirements of Customer’s MSA;

(c) provide such Customer materials or information as TEZ may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and

(d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

5. Customer’s Acts or Omissions. If TEZ’s performance of its obligations under these Terms is prevented or delayed by any act or omission of Customer or Customer’s agents, subcontractors, consultants, or employees, TEZ shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

6. TEZ Equipment. If applicable to TEZ’s provision of the Services, TEZ agrees to provide Customer with certain equipment, including but not limited to Android devices, cases, power supplies, text messages, TEZ applications and all intellectual content viewed by Customer, tag sets, printers, credit card readers, grease pencils, lanyards, XPRESS stickers and other items required by TEZ to provide services (the “Equipment”) as more particularly set forth in Customer’s MSA. Customer may only use the Equipment in the course and scope of its business. TEZ shall retain all ownership rights, title and interest to the Equipment. Customer shall return all Equipment within ten (10) days following the expiration or earlier termination of Services. Customer shall be financially liable for the full replacement cost of any and all loss and damage to Equipment, except for ordinary wear and tear.

7. Fees and Expenses; Payment Terms; Interest on Late Payments.

(a) In consideration of the provision of the Services by TEZ and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the MSA (the “Fees”). TEZ will debit Customer’s credit card or bank account set forth in the MSA for the amount due at signing prior to shipping any Equipment to Customer or setting up Customer’s account. TEZ will invoice Customer on a monthly basis for the current month’s Services, as well as any overage from the previous calendar month.

(b) Upon execution of the MSA, TEZ will charge Customer for any fees associated with setting up Customer’s account, training Customer’s personnel, and shipping Equipment. If the contract start date listed in Customer’s MSA begins any time other than the first (1^st) day of a calendar month, TEZ will charge Customer a prorated portion of the amount due for such partial month, calculated on a day-for-day basis. Any usage of Customer’s account prior to the start date may be subject to an additional charge of the overage rate of Customer’s plan.

(c) Customer agrees to reimburse TEZ for all reasonable travel and out-of-pocket expenses incurred by TEZ in connection with the performance of the Services.

(d) Customer shall pay the Fees via credit card or automated clearing house debit (“ACH”) in accordance with the fee schedule set forth in Customer’s MSA. Customer shall pay all invoiced amounts due to TEZ upon receipt of TEZ’s invoice. Customer shall pay the Fees in US dollars via credit card or ACH on the fifth (5^th) day of the month. Customer agrees that all TEZ invoices are deemed to be approved five (5) days after Customer’s receipt unless Customer notifies TEZ in writing of Customer’s disapproval of such invoice. For non-sufficient funds (NSF) payments or declined transactions, a fee equal to Fifty and No/100 Dollars ($50.00) will automatically be added to the invoice.

(e) Customer agrees to pay any and all TEZ fees associated with a rejected payment including TEZ reasonable and actual attorneys’ fees for collection of Customer’s past due invoices.

(f) In the event Customer fails to pay the Fees within fifteen (15) days after the invoice for such Fees are issued, TEZ may:

(I) charge interest on any such unpaid amounts at a rate of one and a half percent (1.5%) per 15-day period or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and

(ii) suspend performance for all Services until payment of the Fees has been made in full.

(g) Customer hereby agrees that TEZ shall have the right to offset any payment or reverse ACH debit Customer for any and all past due Fees, ACH and credit card chargebacks or reversals, NSF charges as well as all other fees, costs or expenses owed by Customer to TEZ.

8. Taxes. Customer shall be solely responsible for all applicable state and local taxes associated with the Services, including but not limited to sales taxes, parking taxes, and any other related taxes imposed by state, local, or other relevant authorities (collectively referred to herein as “Taxes”). Customer agrees to pay these Taxes in accordance with the applicable laws and regulations. TEZ shall not be liable for any Taxes associated with the fees that Customer is paid by any third parties for parking. Customer shall indemnify, defend, and hold harmless TEZ and its affiliates, partners, officers, shareholders, owners, directors, members, trustees, beneficiaries, employees, principals, contractors, licensees, agents or representatives (the “TEZ Parties”) from any claims, demands, liabilities, costs, or expenses (including reasonable attorney’s fees) arising out of or related to any failure by Customer to comply with the tax obligations under this Section 8.

9. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, Equipment, and all other materials that are delivered to Customer under the MSA or prepared by or on behalf of TEZ in the course of performing the Services, including any items identified as such in the MSA (collectively, the “Deliverables”) shall be owned by TEZ. TEZ hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.

10. Payment Processing. By utilizing the Services, Customer acknowledges and agrees that in cases where Customer opts to utilize its own chosen third-party provider of payment processing services (a “Payment Processor”) for processing payment transactions, Customer will be solely responsible for designating and maintaining any required financial account established by Customer with such Payment Processor (a “Merchant Account”). Such Payment Processor must at all times be in compliance with Payment Card Industry Data Security Standard (“PCI DSS”) requirements. Customer agrees to provide evidence of PCI DSS compliance to TEZ upon request. Customer is responsible for ensuring that its Payment Processor’s systems and services are compatible with TEZ systems and payment processing requirements. TEZ reserves the right to request any documentation or information required by TEZ to verify compatibility. Customer further agrees to comply with all PCI DSS requirements, including implementing commercially reasonable security measures, conducting regular security assessments, and maintaining compliance with PCI DSS standards. Failure to comply with these requirements may result in termination of Customer’s access to the Services. Customer shall indemnify, defend and hold harmless the TEZ Parties from any claims, damages, losses, or liabilities arising out of or related to Customer’s use of Customer’s chosen Payment Processor and failure to comply with PCI DSS requirements. Customer shall execute any necessary forms provided by TEZ if Customer elects to use its own Payment Processor.

11. Insurance. Customer shall, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers, which shall include, but is not limited to: (a) commercial general liability (including product liability) in a sum no less than One Million and No/100 Dollars ($1,000,000.00) per occurrence and Two Million and No/100 Dollars ($2,000,000.00) in the aggregate; (b) commercial automobile liability with limits no less than One Million and No/100 Dollars ($1,000,000.00), combined single limit; and (c) worker’s compensation with limits no less than the minimum amount required by applicable law. Upon TEZ’s request, Customer shall provide TEZ with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in these Terms. Customer shall provide Service Provider with thirty (30) days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by applicable law, Customer shall require its insurer to waive all rights of subrogation against TEZ’s insurers and TEZ.

12. Confidential Information.

(a) All non-public, confidential or proprietary information of TEZ, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by TEZ to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services, these Terms, and the MSA is confidential, and shall not be disclosed or copied by Customer without the prior written consent of TEZ. Confidential Information does not include information that is:

(I) in the public domain;

(ii) known to Customer at the time of disclosure; or

(ii) rightfully obtained by Customer on a non-confidential basis from a third party.

(b) Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.

(c) TEZ shall be entitled to injunctive relief for any violation of this Section 12.

13. Representation and Warranty.  Customer represents and warrants to TEZ that: (a) Customer’s signatory is at least eighteen (18) years of age; (b) Customer is eligible to register and use the Services and have the right, power, and ability to enter into and perform under these Terms; (c) any information Customer provides in connection with the Services, including Customer’s business name, accurately and truthfully represents Customer’s business or personal identity under which Customer operates; (d) Customer and all transactions initiated by Customer will comply with all federal, state, and local laws, rules, and regulations applicable to Customer and/or Customer’s business; (e) Customer will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (f) Customer’s use of the Services will be in compliance with these Terms.

14. Disclaimer of Warranties. TEZ MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

15. Limitation of Liability.

(a) IN NO EVENT SHALL TEZ BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT TEZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL TEZ’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO TEZ IN THE ONE (1) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

(c) CUSTOMER’S SOLE REMEDY UNDER THESE TERMS SHALL BE TEZ’S USE OF COMMERCIALLY REASONABLE EFFORTS TO REPAIR OR RE-PERFORM SUCH SERVICES OR DEFECTIVE PART THEREOF.

16. Termination. In addition to any remedies that may be provided under these Terms or the MSA, TEZ may terminate these Terms and Customer’s MSA with immediate effect upon written notice to Customer, if Customer:

(a) fails to pay any amount when due under the MSA;

(b) has not otherwise performed or complied with any of the terms of these Terms or the MSA, in whole or in part;

(c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or

(d) commits fraud, or if TEZ reasonably believes that Customer may have committed fraud.

 

17. Waiver. No waiver by TEZ of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by TEZ. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

18. Force Majeure. Neither party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms or Customer’s MSA (except for any obligations of Customer to make payments to TEZ hereunder pursuant to the MSA), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, OTHER POTENTIAL DISASTER(S) OR CATASTROPHE(S), SUCH AS EPIDEMICS, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of these Terms; (f) national or regional emergency; (g) strikes, labor stoppages, or slowdowns or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within fifteen (15) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 18, either party may thereafter terminate Customer’s MSA upon thirty (30) days’ written notice.

19. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under these Terms or the MSA without the prior written consent of TEZ, which may be withheld in TEZ’s sole discretion. Any purported assignment or delegation in violation of this Section 19 is null and void. No assignment or delegation relieves Customer of any of its obligations under these Terms. TEZ may assign these Terms and all of the policies and other documents incorporated or referenced in it (including all rights, licenses, and obligations under it or them), in whole or in part and without notice to Customer and without Customer’s prior consent, for any reason, including for the purpose of internal restructuring (for example, mergers or liquidations).

20 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms or the MSA shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

21. No Third-Party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

22. Agreement Disclosure. TEZ may, after obtaining Customer’s prior written consent, publicize the business relationship between TEZ and Customer resulting from the MSA in the form of digital media, including but not limited to the platforms of LinkedIn, Twitter, Facebook, or Instagram, or press releases and public posts and announcements. Customer agrees that TEZ may include Customer’s name in TEZ Customer rosters for the purpose of TEZ business development efforts.  Customer shall, upon written request, be given reasonable opportunity to review and approve all information pertaining to Customer prior to public disclosure. Customer may also be requested to participate in additional activities, such as success stories, references and marketing initiatives.

23. Dispute Resolution. Any controversy or claim arising out of or relating to these Terms or the breach thereof shall be settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator shall be binding and may be entered in any court having jurisdiction thereof. Such arbitration shall be filed and conducted at an office of the AAA located in Dallas, Texas, and shall be conducted in English by one arbitrator mutually acceptable to the parties selected in accordance with AAA rules. Customer acknowledges and agrees that the arbitrator shall not have the power to award any punitive damages or any damages excluded by these Terms.

24. Attorneys’ Fees. If any action at law or in equity is necessary to enforce these Terms, the prevailing party will be entitled to reasonable and actual attorneys’ fees and costs.

25. Governing Law. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.

26. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in the City of Dallas and County of Dallas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

27. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the MSA or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by (i) personal delivery, (ii) nationally recognized overnight courier (with all fees pre-paid), (iii) facsimile (with confirmation of transmission), (iv) electronic mail (without notice of transmission error), or (v) certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 27.

28. Severability. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

29. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of these Terms including, but not limited to, the following provisions: Confidential Information, Governing Law, Insurance, Submission to Jurisdiction, and Survival.

30. Amendment and Modification. TEZ may amend these Terms at any time with notice that TEZ deems to be reasonable by (i) posting the revised version on TEZ’s website, (ii) communicating it to Customer through performance of the Services, or (iii) via delivery of notice by electronic mail to Customer (each such amended version of the Terms is referred to herein as a “Revised Version”). The Revised Version will be effective as of the time it is posted on the TEZ website, but will not apply retroactively. Customer’s continued use of the Services after the posting of a Revised Version constitutes Customer’s acceptance of such Revised Version. Any dispute that arises out of these Terms will be governed by the version of the Terms in place when the dispute arose.