TERMS OF USE

CIRCULUS SERVICES AGREEMENT 

This Circulus Services Agreement (the “Agreement”) is between Circulus, LLC, a Texas corporation (“Circulus”, “we”, “us” or “our”), and you and any person or organization for which you act that has a Circulus account (the “Customer”, “you”, or “your”). You represent and warrant that you have the right and authority to enter into this Agreement on your own behalf and on behalf of the Customer, if applicable.  By clicking “I Accept” below, you agree that you and the Customer, if applicable, will be bound by the terms of this Agreement.  This Agreement incorporates by this reference terms and conditions displayed on the “Web Site,” defined below.

1. SERVICES

Circulus provides services (the “Service(s)”) through the Circulus web site at the URL www.circulus.io (the “Web Site”).  Each Customer may access one or more of the Services through the Customer’s Circulus account.

A Customer may invite you to create a free account.  These free accounts enable you to receive bill payment from the Customer who invited you, but you will not be able to use the other features.

A Circulus account may have multiple users with different roles, such as administrator, approver, accountant, clerk, payer, staff, or a user-defined custom role.  The functions of your role are as set forth in your Customer’s account on the Web Site and in applicable provisions of this Agreement.  Each Circulus account must have at least one administrator (“Administrator”) who may add additional users and designate their roles.

Accounts Payable.  The accounts payable component of the Services may include one or more of the following services:

1. Bill indexing and document management
2. Workflow and approvals
3. Synchronization of data with accounting software
4. Data Entry Service
5. Bill Payment Services

2. Circulus ACCOUNTS PAYABLE SERVICE

These terms and conditions govern use of the Accounts Payable component of the Services.

2.1. BILL INDEXING AND DOCUMENT MANAGEMENT.

A Customer may authorize one or more users to upload invoices, bills and other statements of account from vendors (“Statements”) to the inbox (“Inbox”) of the Customer’s Circulus account directly through the Web Site or by email or fax, using the email or fax numbers assigned by Circulus.  A Customer may also authorize vendors to send electronic Statements to the Customer’s Circulus account using the email or fax numbers assigned by Circulus. Circulus is not responsible for Statements that are misdirected or not received by Circulus.  Each Customer should regularly review its Inbox to assure that expected Bills are there.  A Customer may also authorize one or more users to upload in the same way documents that are not Bills that the Customer wishes to store electronically (“Additional Documents”). Without prior notice, Circulus reserves the right to cancel and reassign fax numbers for accounts that have been inactive or for which the ” Fees” (as defined below) are delinquent for thirty (30) days or more.

An Customer must designate each item in its Inbox as a new or existing Statement, vendor credit, vendor document or company document and input identifying details (such as vendor name, invoice number, invoice date, due date and amount (“Statement Details”)).  If a Customer elects the Data Entry Service, Circulus will provide the additional assistance described below.

2.2. WORKFLOW.

An Administrator of a Circulus account may invite persons, such as the Customer’s employees or accountant, to establish login access to the Circulus account.  The Administrator must define each user’s role, which may include managing vendors, Statements and Additional Documents; approving Statements; managing payments and bank accounts; managing the account and users; accounting; or receivables.  In this way, the Administrator can manage how Statements are recorded, approved, and paid by the Customer.

2.3. SYNCRONIZATION.

A Customer may choose to install Circulus software that enables the Customer to update the Customer’s accounting software program file with the latest payables transactions in Circulus, and synchronizes the list of accounts, classes, and vendors between the Customer’s Circulus account and the Customer’s accounting software program.  A Customer can sync with certain online accounting software programs without installing Circulus software.

2.4. DATA ENTRY SERVICE.

A Customer that is not associated with a Console may elect the data entry service to help process documents in the “Inbox” of the AP Customer’s Circulus account (“Data Entry Services”).  Alternatively, a Console Customer may elect the Data Entry Service for any Circulus account associated with the Console. Circulus (or its service provider) will enter Bill Details for legible Bills and return Documents to the AP Customer’s “Inbox” for processing by the AP Customer.  The Customer can then review, edit, approve and pay Bills, apply credits, and organize Documents according to the Customer’s internal processes. The Customer agrees to establish internal controls that can detect, correct and compensate for errors and failures of Data Entry Service.  If a Customer elects the Data Entry Service, the Customer expressly agrees that it releases Circulus from any and all claims, harms, damages, and/or losses related to Data Entry Services.  The Customer retains responsibility for timely and correct payment of its Bills.

2.5. BILL PAYMENT. 

To use the Bill Payment Service, each Customer and its vendor (“Vendor”) must enter on the Web Site the bank routing number and bank account number for one or more bank accounts (each a “Payment Account”).  When you enter Payment Account information, (1) you represent that you have authority to disclose the Payment Account information and to bind the Payment Account holder, (2) the Payment Account holder authorizes the initiation of debit or credit entries to the Payment Account in accordance with instructions input on the Web Site and, if necessary, the initiation of adjustments for any transactions debited in error, (3) you and the Payment Account holder acknowledge that transactions initiated to the Payment Account must comply with the provisions of U.S. law, and (4) this authorization will remain in effect until the Payment Account holder notifies Circulus Customer Support on the Web Site or in writing to cancel it in such time as to afford Circulus the opportunity to act on it, and (5) neither you nor the Payment Account holder will use the Service for personal, family, or household purposes except in connection with an accounting, bookkeeping, or other advisory business.

2.5.1.VERIFICATION.

Neither you nor any Customer, or Vendor may participate in the Bill Payment Service if Circulus cannot verify your, the Customer’s, or the Vendor’s (as applicable) identity, financial condition, creditworthiness or other necessary information.  You authorize Circulus, directly or through third parties, to make any inquiries they consider necessary to validate your, the Customer’s, and the Vendor’s respective identities, financial condition and creditworthiness. This may include asking for further information, requiring steps to confirm ownership of email addresses and Payment Accounts, ordering a credit report and verifying information against third party databases or through other sources.  In addition, you, the Customer, and the Vendor each agree that Circulus has the right to obtain financial information regarding the Payment Account from a financial institution or from anyone you pay or are paid by through the Service (for example, to resolve payment posting problems or for verification).  Notwithstanding any steps taken to verify information hereunder, you hereby represent and warrant that you have the right, power and authority to conduct and authorize transactions you make pertaining to any Payment Account and that all information you provided on the Web Site is complete, accurate and up to date.

2.5.2.PAYMENT PROCESSING.

You agree that electronic payment transactions will be governed by the Automated Clearinghouse (“ACH”) rules as in effect from time-to-time, under which you or the Customer is an “Originator”, and the Vendor is a “Receiver”, Circulus is a “Third Party Service Provider,” and the bank that holds Circulus’ master bank account is the “Originating Depository Financial Institution.”

Circulus reserves the right to debit a Receiver’s account if the ACH debit from an Originator’s Payment Account is returned because of insufficient funds or any other reason. The Originator shall be solely responsible for all penalties, interest charges, late payment fees and service fees resulting from such a debit to the Receiver.  In some cases, a Customer may reverse a transaction for up to 180 days after it settled, or a transaction may be invalidated for fraud or some other reason, in which case the funds will be removed from the Receiver’s Payment Account long after initial deposit.  You agree at all times to maintain sufficient funds in your Payment Account to satisfy all obligations including returns, reversals, and associated fees, and to add funds immediately if Circulus notifies you that your funds are insufficient.

Circulus may, in its discretion, contact a Customer’s Vendors regarding any payments to be made, or payments made, by the Customer for any reason.

Circulus reserves the right to suspend or cancel any payments if the Customer’s Circulus account is not in good standing. Circulus will credit back to the Payment Account any debits made to fund cancelled payments; provided, however, the Originator hereby authorizes Circulus, in its sole discretion, to withhold and collect from such amounts any service fees or other amounts owed to Circulus under this Agreement.

Circulus reserves the right to make use of third parties to provide the Bill Payment Service. Circulus may, in its discretion, impose limits on the amount of money sent through the Bill Payment Service and may change those limits from time to time without notice to you.  These limits may apply per transaction; per Customer or Vendor; or on a cumulative basis to any of the foregoing.

In recognition that banks do not make funds available immediately upon check deposit, and credit card processors do not make funds available immediately to merchants on the transaction date, each Customer agrees that as between it and its respective Vendors, that payments via the ACH will be deemed to have been received on the payment date selected by the Vendor for the purposes of determining whether the Vendor has made timely payment of an Invoice.

2.5.3. PROHIBITED PAYMENTS.

Circulus may refuse to issue a payment to any Vendor in its reasonable discretion.  The Bill Payment Service is not intended for payment of alimony, child support, taxes or other court-directed or government payments, fines or penalties, payments to settle securities transactions or payment in connection with gambling, fraudulent or illegal activities. Circulus will use commercially reasonable efforts to provide notice promptly if it refuses to issue a payment.  This notification is not required if an attempt is made to make a payment that is prohibited by law or the Agreement.

2.5.4. PAYMENT REVIEW.

Circulus reviews all payments for risk and for compliance with law, including without limitation anti-money laundering laws and regulations issued by the Office of Foreign Asset Control (“Payment Review”).  In its discretion, Circulus may place a hold on a payment for as long as reasonably required to conduct an appropriate inquiry regarding the Customer, Vendor, Statements, Additional Documents, invoices, payment history, and other relevant circumstances and factors.  Depending on the results of this review, Circulus may clear the payment, reverse the payment, or hold the payment pending instructions from a government agency.  At any time, a payment processed through your Payment Account may be reversed.

2.5.5. TAXES.

It is the Customer’s responsibility to determine what, if any, taxes apply to all payments made through the Web Site, and to collect, report and remit the correct tax to the appropriate tax authority. Circulus is not responsible for determining whether taxes apply to these payments, or for collecting, reporting or remitting any taxes arising from any payments.

3. GENERAL TERMS AND CONDITIONS APPLICABLE TO THE SERVICE

 These General Terms and Conditions apply to users of any component of the Services, except where otherwise expressly noted below.

3.1.  PASSWORDS AND SECURITY.

You shall not give or make available passwords or other means of accessing the Web Site to any unauthorized individuals.  If you give someone your email and password, you are authorizing that person to use the Web Site, and you any person or organization for which you act are responsible for all transactions that person performs, even if you did not want them performed, and even if they are fraudulent.  For your protection, sign off after every Circulus session and close your browser. If you choose to access your account through Quickbooks, you are making a determination that those login procedures are sufficiently secure for your purposes.  You must notify Circulus’ Customer Support immediately upon any suspicion that a password has been lost or stolen or that someone has attempted or may attempt to make payments or otherwise use the Web Site without authorization. Circulus will not have any liability to you for any unauthorized payment or transfer made using your password that occurs before you have notified Circulus of possible unauthorized use and we have had a reasonable opportunity to act on that notice.  Accordingly, you should log into your Circulus account regularly and review your transaction history for unauthorized transactions or access.   By using the Web Site, you acknowledge and agree that this Agreement sets forth security procedures that are commercially reasonable.  You agree to be bound by transactions initiated in compliance with these procedures, whether or not authorized, unless you have given us prior notice of possible unauthorized use as described above and we have had a reasonable opportunity to act on such notice.

3.2. CONSENT TO ELECTRONIC DISCLOSURES.

You agree that Circulus, on behalf of itself and third parties who administer services you choose, may send the following to you by email or by posting them on the Web Site:  this Agreement, including legal disclosures; future changes to this Agreement; Circulus’ US Online Privacy Notice; and other notices, legal communications or disclosures and information related to the Service or the Bill Payment Service (the “Circulus’ Communications”).  You consent to receive these Circulus’ Communications electronically.  You agree to notify us promptly if your email address changes.  Your consent to do business electronically and our agreement to do so covers all transactions you conduct through the Service and the Bill Payment Service.

3.2.1.  HARDWARE AND SOFTWARE REQUIREMENTS. 

In order to access and retain an electronic record of Circulus’ Communications, you will need:  a computer, a monitor, a connection to an Internet service provider, Internet browser software that supports 128-bit encryption, and an email address.  By clicking “I Accept” below, you are confirming to Circulus that you have the means to access, and to print or download, Circulus’ Communications.

3.2.2. WITHDRAWAL OF CONSENT. 

If you later decide that you do not want to receive future Circulus’ Communications electronically, contact Circulus at [email protected].  If you withdraw your consent to receive Circulus’ Communications electronically, we may terminate your use of the Service or the Bill Payment Service.

3.3. FEES. 

Each Customer shall pay to Circulus the fees and other charges applicable to the Service and the Bill Payment Service, if any, including without limitation monthly service fees, per payment fees, exceptions processing, setup and other special services and as set forth on the Web Site (“Fees”). Circulus reserves the right to change the Fees from time to time, in its sole discretion. Circulus will post the revised Fees on the Web Site or notify Customers by email in advance of the effective date of such changes (“Fee Modification Date”).  If the change in Fees is not acceptable, Customer’s sole and exclusive remedy shall be to stop using the Service and cancel Customer’s account by notifying Circulus Customer Support prior to the Fee Modification Date. By continuing to use the Service or Bill Payment Service after the Fee Modification Date, Customer accepts all changes in Fees. Fees are not refundable.

3.4. PAYMENT.

You or the Customer, as applicable, hereby authorize Circulus to debit the designated credit or debit card account (as updated from time to time), or the designated Customer bank account (each a “Billing Account”) in U.S. Dollars for all Service Fees and applicable Taxes.  If Circulus is unable to debit the Billing Account for any reason, all past due Service Fees and Taxes shall be paid within five (5) business days after written demand.  Interest shall accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received. Circulus shall be entitled to reimbursement for the reasonable costs of collection, including reasonable fees and expenses of attorneys and cost related to factoring agreements.

3.5. CIRCULUS LICENSE. 

Subject to the terms and conditions of this Agreement, including payment of all Fees, Circulus hereby grants you a personal, limited, non-exclusive, nontransferable license to access and use the software that enables the Service, together with any updates, bug fixes, help content, and other related materials that Circulus provides to you (collectively, the “Circulus Software”) during the term of this Agreement.

3.5.1. RESTRICTIONS. 

You shall not, and you shall not enable any third party, to (a) access or attempt to access any other irculus systems, programs or data that are not available for public use; (b) copy, reproduce, republish, upload, post, transmit or distribute in any way material from the Web Site; (c) work around any technical limitations in the Circulus Software, or decompile, disassemble or otherwise reverse engineer the Circulus Software except as otherwise permitted by applicable law; (d) perform or attempt to perform any actions that could interfere with the proper operation of the Circulus Software or Services, prevent access to or use of the Circulus Software or Services by Circulus’ other licensees or customers, or impose an unreasonable or disproportionately large load on Circulus’ infrastructure; or (e) otherwise use the Circulus Software except as expressly allowed under this Section.

3.5.2. RESERVATION OF RIGHTS AND OWNERSHIP. 

The Circulus Software is licensed and not sold, and Circulus retains all rights not expressly granted to you in this Agreement.  The Circulus Software is protected by copyright, trade secret, and other intellectual property laws. Circulus and its licensors own the title, copyright and other worldwide intellectual property rights in the Circulus’ Software and all copies thereof.  This Agreement does not give you any rights in Circulus’, or its licensors, trademarks or service marks.

 3.6. CUSTOMER LICENSE.

You and Customer hereby grants Circulus a perpetual, worldwide, non-exclusive, transferable, sub-licenseable license, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index any communications, content, images, emails, You and/or Customer provide to Circulus or grant Circulus access to. Subject only to the limited license expressly granted herein, You and/or Customer shall retain all right, title and interest in and to such content. Nothing in this Agreement will confer on Circulus any right of ownership or interest in such content or the intellectual property rights therein. You and/or Customer release Circulus from any and all liability related to any and all content You and/or Customer provide and/or grant access to. Additionally, You and/or Customer release Circulus form any and all liability related to any and all actions Circulus takes based on any content You and/or Customer provide and/or grant access to.

3.7. DISCLAIMER. 

ALL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION OF WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.  YOU ASSUME ALL RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICE.  CIRCULUS DOES NOT WARRANT THAT THE SERVICE IS COMPLETELY SECURE OR IS FREE FROM BUGS, INTERRUPTIONS, ERRORS, OR OTHER PROGRAM LIMITATIONS, OR THAT ALL ERRORS WILL BE CORRECTED. CIRCULUS FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CIRCULUS OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.  SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

3.8. LIMITATION OF LIABILITY.

IN NO EVENT SHALL CIRCULUS BE LIABLE TO YOUR CUSTOMER, OR VENDOR FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT CIRCULUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. CIRCULUS WILL NOT BE LIABLE FOR ATTORNEYS’ FEES, EXCEPT AS REQUIRED BY LAW.

NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL CIRCULUS’ AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT OR THE SERVICE EXCEED THE TOTAL FEES PAID TO CIRCULUS IN THE THREE MONTH PERIOD PRECEDING THE EVENTS THAT GAVE RISE TO SUCH LIABILITY, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.

3.9. INDEMNITY. 

Except as may be limited by applicable law, you and Customer agree to indemnify and hold Circulus, its vendors and distributors (and their respective officers, directors, employees and representatives) harmless (including payment of reasonable attorney’s fees) against any and all liability to third parties arising out of, or in connection with, (i) your, Customer’s, or Vendor’s use of the Service or the Bill Payment Service, (ii) any actions taken by Circulus pursuant to your or Customer’s instructions, (iii) your Customer’s breach of this Agreement, and/or any claim brought by you, Customer, Vendor or any other third party relating to your use of the Services.

3.10. ACKNOWLEDGEMENT.

The parties acknowledge that the limitations and exclusions contained in Section and elsewhere in this Agreement represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement and the Fees paid hereunder. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, LIABILITY OR CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY.

3.11. TERMINATION. 

The Customer may terminate the Services at any time by submitting an account cancellation request through the Web Site or by contacting Circulus Customer Support, provided that all payments in Customer’s Circulus account have cleared. Circulus may terminate the Services, for any reason (including failure to pay Service Fees or inactivity). Circulus will try to notify you in advance, but is not obliged to do so. If Customer cancels the Services, all accrued Fees will be immediately due and payable, including pro-rated monthly fees for the month of termination. Circulus may maintain copies of data, Statements and Additional Documents that you, Customer or any other third party entered while using the Services. Circulus may, in its sole discretion, permit Customer to continue accessing Customer’s data, Statements and Additional Documents through the Service for a limited period of time after termination.  Customer may request Circulus’ assistance in obtaining a copy of Customer’s data, Statements and Additional Documents by notifying Circulus within fifteen (15) days following Service termination.  Thereafter, Circulus may destroy or otherwise dispose of any such data, Bills or Documents in its possession. Circulus will invoice Customer for the cost of returning the data, Statements and Additional Documents at Circulus’ then-current rates.

3.12. NOTICES.

Circulus may give notice by means of a general notice on the Web Site, electronic mail to the e-mail address on record in Circulus’ account information or by first class mail to the address of record in Circulus’ account information.  Such notice shall be deemed given immediately upon posting to the Web Site, six (6) hours after sending by electronic mail, or forty-eight (48) hours after sending by first class mail.  Except as provided herein, you or Customer may give notice to Circulus by confirmed facsimile or delivery by nationally recognized overnight delivery service or first class mail to Circulus as specified on the Web Site.  Such notice shall be deemed given when received by Circulus.

3.13. CHANGES TO AGREEMENT.

Circulus reserves the right to modify the terms and conditions of this Agreement and its policies relating to the Service at any time, in its sole discretion. Circulus will post the revised terms and conditions of the Agreement or policies on the Web Site and provide notice in advance of the effective date of such changes (“Amendment Date”).  If the revised terms and conditions or policies are not acceptable, your sole and exclusive remedy shall be to stop using the Service and to cancel your account through the Web Site or by notifying Circulus Customer Support prior to the Amendment Date. Continuing to use the Service and failing to cancel your account after the Amendment Date constitutes acceptance of the revised terms and conditions of the Agreement.  Except as expressly provided herein, this Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.

3.14. GENERAL.

The Agreement and all matters arising out of or relating to the Agreement shall be governed by the laws of the State of Texas, without regard to its conflict of law provisions.  Any legal action or proceeding relating to the Agreement shall be brought exclusively in the state or federal courts located in the Dallas County.  You, Customer, and Circulus hereby agree to submit to the exclusive jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.  The United Nations Convention on Contracts for the International Sale of Goods will not apply.  The waiver of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach.  Except as expressly set forth in the Agreement, the exercise of any remedy under the Agreement will be without prejudice to other remedies available under the Agreement or otherwise.  In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.  You, Customer, and Circulus each agree to comply with all applicable laws and regulations with respect to its respective activities hereunder, including without limitation any export laws and regulations of the United States.  Nothing in the Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. The Agreement is intended for the sole and exclusive benefit of the parties thereto and is not intended to benefit any third party.  The Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning such subject matter.  The headings in the Agreement are for convenience of reference only and have no legal effect.  You may not assign or transfer the Agreement, in whole or in part, without Circulus’ written consent.  Any attempted assignment or transfer in violation of this Section 3.14 will be null and void. Circulus may assign its rights or delegate its obligations hereunder without consent.  Subject to the foregoing restrictions, the Agreement shall inure to the benefit of the successors and permitted assigns of the parties.