Abacus Customer Agreement

This Customer Agreement (“Agreement”) is made effective as of the date Company accepts this Agreement in accordance with Section 1 below (the “Effective Date”), by and between Abacus Labs, Inc. with its principal office at 39 E. 20th Street, 4th Floor, New York, NY 10003 (“Abacus,” “we,” “us,” or “our”) and the company accepting this Agreement in accordance with Section 1 below (“Company,” “you,” or “your”). The Terms of Service and Privacy Policy are hereby incorporated into this Agreement by this reference. In the event of a conflict between the Terms of Service and the terms of this Customer Agreement, the terms of this Customer Agreement will prevail.

1. Acceptance of Agreement. By clicking “I Accept”, Company’s authorized representative (“Authorized Representative”) accepts this Agreement on behalf of Company and acknowledges that Authorized Representative (a) is authorized to accept this Agreement on behalf of Company and (b) has read and understood this Agreement. Company agrees that this Agreement is binding on Company as if executed in writing.

2. The Services. For purposes of this Agreement, www.abacus.com (the “Site”) and the services, features, content or applications offered by Abacus Labs, Inc. are individually, and collectively, referred to as the “Services”. Following acceptance of this Agreement by both parties, and provided that Company is not in breach of this Agreement, Company shall have access to the Services. Company’s access to and use of the Services is subject to Abacus’ policies and procedures provided by Abacus from time to time. Notwithstanding anything to the contrary in this Agreement, the Services, or any portion thereof, may be amended, modified, updated, discontinued or replaced by Abacus at any time in its sole and absolute discretion. Company hereby agrees to provide data, in the form required by Abacus, to enable Abacus to provide the Services. Company consents to Abacus’ use of such data for purposes of providing the Services to Company, and for purposes of improving the capabilities of the Services for Company and other clients of Abacus. Services are solely for purposes of monitoring and reconciling certain aspects of Company’s expense reimbursements. Company will use its access to the Services solely for purposes of this Agreement.

3. Trial Period. If you register on our Site, you may use the Services at no cost for a trial period of thirty (30) days (“Trial Period”). If you do not terminate the Services within the Trial Period the Services will continue at the fees set forth below.

IF YOU ELECT TO DISCONTINUE THE SERVICES AT THE END OF THE TRIAL PERIOD, YOU SHOULD EXPORT ALL OF YOUR DATA REGARDING THE SERVICES PRIOR TO THE EXPIRATION OF THE TRIAL PERIOD. IF YOU TERMINATE THE SERVICES AT THE END OF THE TRIAL PERIOD, WE ARE NOT RESPONSIBLE FOR SAVING ANY DATA YOU ENTER INTO THE SERVICES, OR ANY CONFIGURATIONS MADE TO THE SERVICES BY OR FOR YOU.

4. Updates to Terms of Service. Abacus reserves the right, to change, delete, or update this Agreement or other policies that govern use of the Site or the Services at its discretion, at any time, for any reason, without notice, including the right to terminate the Services, any part of the Services, or access to the Services. Any amendments and modifications by Abacus to this Agreement will be effective prospectively only, and unless otherwise provided in this Agreement, will be effective upon being posted on the Site. Abacus encourages you to review this Agreement periodically for updates and changes. Your continued access or use of the Site or the Services after such posting shall be deemed acceptance of all changes.

5. Company’s Responsibilities. Company will (a) be responsible for Participating Clients’ (as defined below) compliance with the Terms of Service, (b) be responsible for the accuracy, quality and legality of your and Participating Clients’ data and the means by which you or your Participating Clients acquired such data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify us promptly of any such unauthorized access or use, and (d) use the Services only in accordance with this Agreement, the Terms of Service and applicable laws and government regulations.

6. Participating Clients. An individual who is authorized by you to use a Service is a “Participating Client”. Participating Clients may include only employees, agents, consultants, contractors and customers whom you wish to receive Services and your employees who will administer Company’s participation in this Agreement (“Administrators”). Except for your Administrators, Participating Clients can only include individual and companies that Company must reimburse for business travel and other third party out-of-pocket business expenses. Company may not use the Services to provide expense reimbursement services to third parties. Company agrees to comply with Abacus’ policies and procedures for (a) approving Company's clients to become Participating Clients, (b) verification of each proposed Participating Client's identity, and (c) removing Participating Clients. Company acknowledges and agrees that it is solely responsible for Participating Clients’ compliance with Company’s expense management policy and the Terms of Service. Abacus shall have no liability for a Participating Client’s failure to comply with Company’s expense management policy or the Terms of Service.

7. Identity Verification. Company agrees that prior to approval of any Participating Client (or any employees of a Participating Client), Company shall have: (i) completed an inspection of identification documents (e.g., passport or U.S. issued driver’s license and social security card, or U.S. issued driver’s license and birth certificate) used to verify each client's identity; and (ii) obtained from each client the following: (a) name; (b) street address, (c) date of birth, and (d) Social Security Number. Notwithstanding the foregoing, Abacus reserves the right to request and obtain identity information and legal documentation directly from the client to verify the identity of any Participating Client. Without limiting anything herein, Abacus’ activities described in the preceding sentence may be performed directly by Abacus or through an Affiliate or subcontractor of Abacus on Abacus' behalf. During the term of this Agreement, Company represents and warrants that neither Company nor any of Company’s Participating Clients are: (1) listed on the U.S. Department of Treasury, Office of Foreign Assets Control, Specially Designated Nationals and Blocked Persons List (available at www.treas.gov/ofac), (2) listed on the U.S. Department of State’s Terrorist Exclusion List (available at www.state.gov), (3) a citizen or resident of, domiciled in, or operating under license issued by, North Korea, Sudan, Syria, Cuba, Iran or any jurisdiction now or later identified by the U.S. Department of State as a sponsor of international terrorism or which becomes subject to comprehensive economic sanctions by law, executive order or regulations (except for individuals residing in the United States that have been granted the right by the U.S. Government to reside in and/or work in the United States), or (4) included on any list of entities or individuals maintained and updated by any U.S. government organization including the Denied Persons List and the Entity List maintained by the Department of Commerce to whom the unlicensed export of goods and services is prohibited by U.S. laws, as updated from time to time, and Company shall not allow any such persons to be Participating Clients under this Agreement.

8. Approved Expenses. For purposes of this Agreement, each expense submitted by a Participating Client that is approved by Company shall be referred to as an “Approved Expense”. On a daily basis, Company will cause good and immediately available funds to be deposited into the account designated by Abacus (the “Expense Management Account”) in an amount equal to the Approved Expenses to be paid on the next business day. A file containing all data necessary to complete payment of the Approved Expenses (the “Expense Management Account Data File”) will be sent to the bank designated by Abacus (“Bank”) each business day. The Expense Management Account Data File will include all Approved Expenses from that business day. Abacus or Abacus’ processor will instruct Bank to debit or credit the Expense Management Account and applicable Participating Client accounts based on entries transmitted to it, and subject to the requisite funding. Company represents and warrants that as of, and at all times after, the approval of each Approved Expense: (i) the information contained in such approval is current, accurate and complete; (ii) each individual Participating Client for which such approval is granted is an client of Company, and (iii) each Approved Expense is for the payment of a business expense and is not for personal, family or household expenses.

Company is responsible for resolving all disputes by Participating Clients regarding amounts credited or debited to the Participating Client. Company agrees to cooperate with Abacus and any other parties involved in processing the Approved Expenses to recover funds credited to any Participating Client in error. Company agrees it is responsible for all instructions and any results therefrom with respect to the return of funds.

9. Suspension of Services. Abacus may suspend Company’s and Participating Clients’ access to the Services (a) in the event of any actual or suspected fraudulent or unauthorized activity, or (b) during the pendency of any actual or alleged failure to comply with the terms of this Agreement, the Terms of Service or Abacus’ policies and procedures for the Services provided by Abacus from time to time.

10. Uptime. Abacus will endeavor to make the Company facing online portal for the Services available on a 24x7x365 basis, except for scheduled maintenance and any unavailability caused by a Force Majeure.

11. Fees and Payment. For each Month (as such term is defined below) during the Term, Company will pay to Abacus the Monthly Fee. The “Monthly Fee” is equal to the Monthly Service Fee multiplied by the number of Active Users during the applicable Month. The “Monthly Service Fee” for the Services is the amount agreed to by Abacus and Company, which is available at www.abacus.com/pricing and is subject to change as provided herein. For purposes of calculating the Monthly Fee, “Active User” means, during a Month, a Participating Client for which an expense is approved during such Month. Monthly invoices are sent following the end of the Month and the Monthly Fee or Minimum Monthly Fee, as applicable, is automatically deducted from Company’s connected bank account on or about three (3) days after the invoice date. Abacus reserves the right to change its fees by providing thirty (30) days’ notice to Company. Company will pay all taxes and similar fees imposed on the delivery of the Services, except for taxes on Abacus’ net income in the United States. Except as expressly set forth in this Agreement, all fees due hereunder are non-refundable and are not contingent upon any additional services or products being provided by Abacus. If any invoiced amount is not received by Abacus by the due date, then without limiting our rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If Abacus incurs any fees, including, but not limited to, a returned item fee for any ACH transaction that is returned due to insufficient funds, a chargeback fee, or other fee charged as a result of Company blocking an authorized transaction, then Company will be liable for such fees on a pass-through basis, subject to applicable law.

12. Agreement and Authorization for Abacus to Charge to Bank Account. By clicking “I Accept” below, Company agrees as follows: (a) Company authorizes Abacus, or its third party service provider, to charge Company’s connected bank account for each Approved Expense in such amount as agreed to and on the approximate day that it is agreed to, (b) Company authorizes Abacus, or its third party service provider, to charge Company’s connected bank account for the Monthly Fee or Minimum Monthly Fee, as applicable, on or about three (3) days after the applicable invoice date. Company understands and agrees that the amount of the Monthly Fee will change each month based on the total number of Active Users. Company also understands and agrees that the Monthly Service Fee may be changed by Abacus upon thirty (30) days’ advance written notice to Company. Abacus may submit the charges described herein without further authorization from Company, until Company provides notice (receipt of which is confirmed by Abacus) that Company has terminated this authorization. Such notice will not affect charges submitted before Abacus reasonably could act. Company agrees to comply with the NACHA Operating Rules and Guidelines.

13. App and Website. Company acknowledges and agrees that Company’s use of the Abacus mobile application (“App”) and www.abacus.com (“Website”) is subject to the Terms of Service available at https://www.abacus.com/terms. Notwithstanding anything to the contrary in this Agreement, the App or the Website, or any portion thereof, may be amended, modified, updated, discontinued or replaced by Abacus at any time in its sole and absolute discretion.

14. Gramm-Leach Bliley Act Compliance. Abacus, as a service provider of the Company, will comply with the privacy provisions of the Gramm-Leach Bliley Act (Pub. L. 106-102; 15 U.S.C. 6801 et seq.) to the extent Abacus obtains non-public personal information of Company’s clients in connection with its performance of this Agreement. However, the Services are not designed to accept, and Company agrees not to provide Abacus with, any non-public personal information of Participating Clients. If Abacus nonetheless receives Participating Clients’ non-public information, Abacus will not share such information with any other party or use the information except for purposes of performing its obligations under this Agreement.

15. Abacus Business Continuity/Disaster Recovery Plan. Abacus maintains a business continuity/disaster recovery plan (“Plan”) designed to ensure the reasonably prompt resumption of the provision of the Services in the event of an outage. Abacus will provide a summary of the Plan to Company upon written request.

16. Intellectual Property Ownership. Company acknowledges that, as between Company and Abacus, Abacus owns all right, title and interest in and to the Services, and all Application and systems supporting such Services and to all suggestions for improvements or modifications made by Company to Abacus with respect thereto, and all intellectual property rights in any of the foregoing. Company will not do or attempt to do, or permit any other third party to do or attempt to do, any of the following: (a) make the Services, including any content or documentation, or any portion thereof, available for use or access to or by any third party; (b) modify, reverse engineer, disassemble, decompile, reproduce or create derivative works from or in respect of the Services or any Software or Systems thereof; (c) use or access the Services in order to: (i) develop a competitive or similar product or service, or (ii) otherwise copy any ideas, features, functions or graphics of the Services, or the underlying software; (d) interfere with or disrupt or attempt to interfere with or disrupt the integrity or the performance of the Services or any information or materials therein; or (e) gain or provide unauthorized access to the Services. Company will not use the Services for the operation of a service bureau or timesharing service.

17. Representations and Warranties by Company; Compliance. Company represents and warrants to Abacus that: (a) it is duly organized, validly existing and in good standing under the laws of its organizing jurisdiction; (b) it is duly authorized to enter into this Agreement and to perform its obligations hereunder. Company agrees to comply with this Agreement and Abacus’ policies and procedures for the Services provided by Abacus from time to time.

18. Representations and Warranties by Abacus. Abacus represents and warrants to Company that: (a) Abacus is duly organized, validly existing and in good standing under the laws of the State of Delaware; and (b) it is duly authorized to enter into this Agreement and to perform its obligations hereunder.

19. Disclaimer of Warranties. Except for any express warranties set forth in this Agreement, Abacus provides the Services “AS IS”, and makes no warranties, whether expressed, implied, or statutory, or any other warranties of any kind whatsoever in connection with Services, including, without limitation, any implied warranties of merchantability, title, non-infringement or fitness for a particular purpose, or any warranties arising out of a course of dealing or conduct, all of which are hereby expressly disclaimed. Abacus does not warrant that the operation of the Services will be error-free, available or will meet Company’s requirements. Abacus’ sole liability for any errors, acts or omissions arising out of the provision of the Services shall be limited to the reperformance of the Services at no additional charge to Company. Except for the foregoing reperformance of the Services, Abacus shall not be liable for any claim, loss or damage arising or alleged to arise out of the provision of the Services under this Agreement, regardless of the form of action. In no event shall Abacus be liable for any failure or delay in providing the Services arising from any Force Majeure. Company acknowledges its need for its own monitoring systems and services similar to the Services, and for its own business continuity and disaster recovery plans and systems. Abacus shall not be obligated to provide back-up equipment or services under this Agreement or to perform services hereunder in the event of malfunction of Company’s primary system or equipment.

20. Indemnification by Company. Company shall indemnify, defend, and hold Abacus, its officers, directors, employees, agents, contractors and assigns (collectively, the “Abacus Parties”) harmless from and against any and all losses, liabilities, costs, damages and expenses (including reasonable attorneys’ fees) (“Losses”), which any Abacus Party may incur or to which any Abacus Party may be subject, arising out of or in connection with: (a) any breach by Company of this Agreement; (b) the failure of any representation or warranty of Company to be true when made; (c) the gross negligence, fraud or willful misconduct of Company; or (d) a third party alleging that Company’s data, or Company’s use of any Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law.

21. Indemnification by Abacus. Abacus shall indemnify, defend and hold Company, its officers, directors, employees, agents, contractors and assigns (collectively, the “Company Parties”) harmless from and against any and all Losses, which any Company Party may incur or to which any Company Party may be subject, arising out of or in connection with any allegation that the Services provided by Abacus when used in accordance with this Agreement infringes the intellectual property right of any third party. The foregoing obligation will not apply to claims related to or arising from: (a) modifications to the Services made other than by or at the direction of Abacus; (b) Company’s use of the Services other than as instructed in writing by Abacus; or (c) any combination of the Services with any product, service or software not supplied by Abacus if the claim would not have arisen but for the combination. If the Services or the software used by Abacus to provide the Services becomes, or in Abacus’ opinion is likely to become, the subject of an infringement claim, Abacus may, at its option: (i) obtain for Company the right to continue using the Services; (ii) modify the Services in order to avoid the claim of infringement; or (iii) if in Abacus’ reasonable opinion neither (i) nor (ii) is commercially practicable, terminate the Services and this Agreement.

22. No Incidental or Consequential Damages; Limitation of Liability. Abacus shall not in any event be liable for any indirect, special, incidental, consequential, exemplary or punitive damages, including, without limitation, any cause of action in contract, tort, breach of warranty, negligence, strict liability, or products liability, even if Abacus has been advised of the possibility of such damages. The cumulative liability of Abacus for all claims whatsoever that are in any way related to or arise under this Agreement, including, without limitation, any cause of action sounding in contract, tort, breach of warranty, negligence, strict liability, or products liability, shall not exceed three (3) times the average monthly fees paid by Company to Abacus for the Services during the six (6) month period before the claim arose. The limitations and allocations of risk included herein are fundamental to this Agreement and have been reviewed by the parties hereto. The parties acknowledge that without such an allocation of risk Abacus would not be willing to enter into this Agreement.

23. Term and Termination. This Agreement will commence upon the Effective Date and shall remain in effect until the same date of the following month (each a “Month”) (e.g., if the Effective Date is January 15th, the second Month will commence on February 15th). Thereafter, this Agreement will automatically renew on a month-to-month basis unless Company notifies Abacus of its intent not to renew by clicking the “Suspend Account” option (or similar option) at least thirty (30) days before the end of the then-current monthly term or Company fails to comply with its payment obligations under this Agreement. This Agreement may be terminated: (a) by either party immediately upon written notice, in the event that: (i) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (ii) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (iii) the other party adopts a resolution for discontinuance of its business or for dissolution; or (b) by Abacus upon at least thirty (30) days’ prior written notice to Company, in the event that: (A) in the reasonable and good faith determination of Abacus, the continued use of the Services by Company may pose a threat to Abacus’ systems, equipment, processes or intellectual property, or to Abacus’ compliance with any law, regulation or regulatory guidance relating to Abacus’ business or the Services; or (B) Abacus adopts a resolution to cease providing services similar to the Services to all of its clients and customers.

24. Notice. All notices or other communications shall be in writing and shall be deemed given when delivered personally or by nationally-recognized overnight courier: (a) if to Abacus, to Abacus’ address set forth above or to such other address as Abacus has otherwise directed in writing in accordance with this provision, and (b) if to Company, to Company’s address provided to Abacus during the registration process or to such other address as Company has otherwise directed in accordance with this Agreement. References to "writing" or "written" in this Agreement will be deemed to include an electronic mail message that is sent using standard Internet protocols and whose receipt is confirmed by the recipient to the sender.

25. Force Majeure. Except with respect to payment obligations under this Agreement, neither party will be responsible for nor incur any liability to the other for any failure to comply with the terms of this Agreement due to causes beyond its control, including, without limitation, fire, storm, flood, acts of war, accident, insurrection, sabotage, terrorism, third-party labor disputes, third-party processing failures, failures of third-party service providers, computer system malfunction, acts of God, acts of third parties, acts of federal, state or local government or judicial action (each a "Force Majeure").

26. Mutual Dispute Resolution and Arbitration Agreement. If a dispute arises between you and Abacus, each of us will work in good faith to quickly and amicably resolve the dispute. A party may trigger this Dispute Resolution Process by providing a written Claim Notice to the other party.  The Claim Notice shall (i) describe the nature of the Dispute in reasonable detail, including a summary of argument supporting the party’s position, (ii) identify, if reasonably practicable, the dollar amount at issue, (iii) be accompanied by reasonable supporting documentation for that party’s claims; and (iv) provide the name and title of the executive who will represent that party, as well as any other person who will accompany the executive.  Within 30 days from the date a Claim Notice is delivered the executives of both parties shall discuss the Dispute by phone (“First Discussion”).  Unless otherwise agreed in writing, the Direct Business Negotiations shall end at the close of the First Discussion.  At no time prior to the First Discussion shall any party initiate an arbitration except if the other party refuses to participate in the First Discussion.

Any dispute arising under or related to this Agreement, the Terms of Service, the Site, or the Services (including the arbitrability of such a dispute and the existence, validity, interpretation, performance, termination, or breach thereof) that has not been resolved pursuant to the immediately preceding paragraph shall be finally settled through binding arbitration. The arbitration shall be administered by JAMS and conducted pursuant to the terms of this Agreement and, where not inconsistent with this Agreement, the then current JAMS Comprehensive Arbitration Rules.  The parties acknowledge that this Agreement evidences a transaction involving interstate commerce and, notwithstanding the provision dictating the applicable substantive law, the arbitration shall be governed by the Federal Arbitration Act.  The arbitrator shall be a retired judge or justice and must have previously served as an arbitrator at least 5 times where an award was rendered following a hearing on the merits.  The arbitration hearing shall be held in New York, New York.  At least 15 days following the Parties’ exchange of information as required by JAMS Rule 17 and at least 60 days before any arbitration hearing can begin, the Parties must participate in a mediation in New York, New York before a mutually agreed upon mediator or, if the parties cannot agree upon a mediator, a mediator appointed by JAMS.  The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be reasonably necessary to prepare for or conduct the arbitration hearing.  No party may apply to any court or arbitrator for any provisional, injunctive or ancillary relief unless and until necessary to enforce an order from the arbitration.  The arbitrator is not empowered to award punitive or exemplary damages, except as may be required by statute, or any pre-award interest; nor may the arbitrator award any incidental, indirect or consequential damages, including damages for lost profits or harm suffered by third parties.  The arbitrator shall issue a reasoned final award.  A final award rendered in connection with arbitration pursuant to this section shall be binding upon the parties, and if fully satisfied within 30 days of being issued, no party may seek to confirm the final award.  If a final award is not fully satisfied within 30 days then a party may apply to have judgment upon such an award entered and enforced in any court of competent jurisdiction.

The above obligations to arbitrate shall not prevent a party from seeking a preliminary injunction, temporary restraining order, specific performance or other procedures in a court of competent jurisdiction to obtain interim relief when deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by arbitration of the actual dispute.

Exclusive jurisdiction and venue for arbitration or any other legal action or proceeding in any way related to the Site, the Services, the Terms of Service, or this Agreement shall be in New York, New York. Any matter brought before a court shall be brought solely in the state or federal courts located in New York, New York.

27. General Provisions:

27.1 Independent Contractors. Company and Abacus are independent contractors, and neither is the partner, employee or agent of the other nor does it have the authority to bind or obligate the other in any way.

27.2 Waiver; Severability. The waiver or failure of either party to exercise any right provided for in this Agreement will not be deemed a waiver of any further or future right under this Agreement. If any provision of this Agreement is held invalid or unenforceable, it will be stricken from this Agreement and all other provisions of this Agreement will remain in full force and effect.

27.3 Assignment. This Agreement will be binding upon and will inure to the benefit of each party and its successors and assigns. Company will not assign or transfer its rights or obligations under this Agreement by operation of law or otherwise, without Abacus’ prior written consent.

27.4 Third-Party Beneficiaries. It is expressly intended and agreed that there are no third-party beneficiaries to this Agreement.

27.5 Governing Law. This Agreement will be governed by and interpreted in accordance with New York law, without regard to its conflict of laws principles; provided, however, that the Uniform Computer Information Transactions Act will not apply.

27.6 Export Compliance. The Services, content, other technology we make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Company agrees to not export any intellectual property of Abacus outside the United States. Company agrees that it is solely responsible for any use by it or any Participating Clients of the Services outside the United States. Each party represents that it is not named on any U.S. government denied-party list.

27.7 Publicity. Abacus may include Company’s name, logo and feedback on its website and in its marketing and promotional materials and ads as provided by Abacus to customers, potential customers and the general public. Any other use of Company’s name or logo by Abacus will require Company’s prior written consent, which will not be unreasonably withheld.

27.8 Entire Agreement; Modifications. This Agreement is the final, full and exclusive statement of the agreement between Company and Abacus with respect to the subject matter hereof. It supersedes all prior agreements and inducements relating to the subject of this Agreement. Except as provided above in the “Updating Terms” section, no modification to this Agreement made at or after the acceptance of this Agreement is binding unless it is in writing and signed by both parties.

27.9 Survival. Any provisions of this Agreement which by their express or implicit terms are intended to survive the termination of this Agreement will survive the termination of this Agreement and be enforceable in accordance with their terms.

Effective Date of Terms of Service: August 31, 2015