1. RESTRICTIONS AND RESPONSIBILITIES
1.1 Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
1.2 Further, Client may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
1.3 Client represents, covenants, and warrants that Client will use the Services in accordance with these Terms and Conditions and all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless Company and its affiliates, officers, agents, employees, and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses and costs of any kind or amount whatsoever (including without limitation costs and attorneys’ fees), which may result, in whole or in part, from the negligence of Client, its breach of this Agreement , or otherwise from Client’s use of Services. Client’s indemnification obligations set forth in this section 1.3 shall survive any dissolution of the Client, whether through bankruptcy, regulatory action, insolvency, or any other corporate action, and any successor in interest of Client following such a dissolution, in whatever form, shall assume Client’s indemnification obligations to Company that may accrue prior to or after such dissolution. Although Company has no obligation to monitor Client’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
1.4 Client represents and warrants that it has complied and continues to comply with all applicable data protection laws including, where relevant, the General Data Protection Regulation 2016/679 (the “GDPR“), in particular that is has obtained any necessary consents or given any necessary notices to data subjects, and otherwise has a legitimate ground to disclose information to Company and enable Company to use and process the information as necessary to provide the Services contemplated by this Agreement. Client shall indemnify and hold Company harmless for any claim, demand, proceeding, or action brought by a supervisory authority (as defined in GDPR) or data protection authority to the extent arising out of or in connection with Client's failure to comply with all applicable data protection laws including, where relevant, the GDPR in the collection, processing, and disclosure to Company of information in connection with the Services.
1.5 Data exchanged relating to this Agreement and the provision of Services by Company may include personally identifiable information (“PII”) defined in and regulated under certain data protection regimes relating to Client’s customers and accounts. Client represents and warrants that all customer information provided to Company is accurate and complete. Client is solely responsible for any claim that may arise due to Company’s use of inaccurate information provided by Client. Client is also solely responsible for Client’s compliance with applicable data protection regimes, including, but not limited to the Gramm-Leach-Bliley Act (“GLBA”) and the California Consumer Privacy Act (“CCPA”). Client is solely responsible for ensuring that all PII relating to Client’s customers and accounts is maintained, protected, and managed in compliance with any such regimes. Please see section [2.2] for additional information.
1.6 Client is solely responsible for Client’s compliance with applicable financial regulations, laws, rules, operating standards, and compliance requirements, including licensure requirements 3 applicable to Client’s operations relating to any Service, work provided to Client, or to this Agreement. Client shall comply with all rules, regulations or laws associated with its use of the Services, including those relating to usury, money transmission, truth-in-lending, fair credit reporting, equal credit opportunity, automated clearing house transfers, electronic funds transfer, privacy, and direct marketing, regardless of whether Client uses any forms or other materials, services, and/or systems supplied by Company. Client assumes all risk and liability associated with its accounts, including any risk of counterfeit, charged-back, fraudulent transactions, improper collections, improper tolling, and/or any transactional errors relating to the Services. Client authorizes Company to comply with all laws applicable to the Service, including any that pertain to the regulation and examination of Client, and shall pay Company any costs associated with furnishing data and/or output to agencies or other bodies that regulate Client.
1.7 Client may be subject to other data safekeeping requirements relating to Client’s customers, accounts, products, and/or other services provide by Client. Company cannot and shall not ensure any data standard, policy, protection, and/or data safekeeping mechanism is employed outside of those defined in this Agreement. Company shall not be responsible for ensuring compliance with any standard not defined herein. Client is solely responsible for all data safekeeping requirements applicable to Client, Client’s customers, and/or Client’s products and/or services.
1.8 Client shall not use any Services, software, work and/or any other related products or services provided by Company for any purpose that would require Company to register, report, submit for examination, and/or otherwise comply with any financial regulatory licensing and/or oversight regime. Company is not a regulated financial institution and does not provide any regulated financial service and/or support functionality for which a license is required. Client is prohibited from using the Services and or software in any way that would require Company to register with any governmental authority, apply for any license, and or submit any application for any regulatory or compliance oversight institution.
1.9 Client is ultimately responsible for compliance with applicable escheatment, identification, abandonment, compiling accurate information for dormancy tracking, and other escheatment specific requirements, regulations, laws, and operating rules applicable to Client’s accounts. Company is not acting as Client’s compliance department and does not provide legal services. Client is ultimately responsible for Client’s compliance with applicable escheatment laws, rules, and regulations. Under no circumstance will Company audit Client’s compliance or verify Client’s compliance with any legal regime, law, regulation, and/or practice standard or guideline. In the event of Client’s breach of this section 1.9 or failure to otherwise properly maintain or confirm any data relied on by Company in connection with the Services, Client, or Client’ successor in interest, as may be applicable, shall indemnify and hold Company harmless, in accordance with section 1.3, from any and all third-party claims brought against Company or for which liability is sought against Company.
1.10 Client is solely responsible for the continued operation, functionality, and support of Client’s data processing centers, servers, information and technological systems, and all persons, systems, and connectivity required to support the Services and Client’s operations, including Client’s banking core and related API and technological accessibility. Company may be unable to perform the services if Client fails to maintain functionality of and ensure accessibility to Client's data, accounts, core functionality, systems, and other servers, hardware, software, digital, cloud, and other applicable resource. Company is not responsible for maintaining, supporting, and/or ensuring the continued operation of Client’s systems and may be unable to provide the Services and or work defined by this Agreement and related documents if such systems are not functional or accessible to Company.
1.11 Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.
1.12 Client shall ensure the protection and safekeeping of any access information and credentials used to access the Services including username, log-in, password, and other credentials registered with Company by Client for accessing the Services. Client shall be solely responsible for ensuring that Client’s credentials are safeguarded, secured, and kept private. Company is not responsible for illicit, improper, unauthorized use of Client’s access credentials. Company reserves the right to suspend any Client user and/or credential at any time for suspicious, inappropriate, and/or prohibited behaviors relating to the service. Failure to adhere to Company’s credential requirements may cause errors, issues, interruptions, other problems with the provision of the Services.
- CONFIDENTIALITY; PROPRIETARY RIGHTS
2.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Client includes non-public data provided by Client to Company to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law, regulation, investigation, examination, regulatory inquiry, enforcement, and/or by regulatory request. To the extent that Company must furnish information to Client’s regulators and/or during any regulatory investigation, enforcement action, examination, and/or inquiry, Client shall reimburse Company for any costs incurred in providing, identifying, and producing such information.
2.2 To the extent that Company receives any personally identifiable information, as defined by applicable consumer data privacy law or regulation, e.g. the GLBA, (“Personal Data”), Company will not retain, use, or disclose that Personal Data for any purpose other than as permitted under such laws and regulations. In no event will Company sell any Personal Data. The parties acknowledge and agree that Company is a service provider for the purposes of the CCPA (to the extent it applies) and is receiving personal information to provide the Services pursuant to the Agreement, which constitutes a business purpose. Company shall not sell any such personal information. Company shall not retain, use, or disclose any personal information pursuant to the Agreement except as necessary for the specific purpose of performing the Services or otherwise as set forth in the Agreement or as permitted by the CCPA.
2.3 Company agrees to maintain appropriate security measures to protect such Personal Data in accordance with applicable laws and not to use any Personal Data other than in connection with the Services.
2.4 Client shall own all right, title, and interest in and to the Client Data, as well as any data that is based on or derived from the Client Data and provided to Client as part of the Services. Company shall own and retain all right, title, and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
2.5 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein and Company’s use as set forth herein shall not be deemed any breach of its obligations to Client.
3. PAYMENT OF FEES
3.1 Client will pay Company the then applicable fees described in the Order Form and Fee Schedule (attached hereto as Exhibit B) for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Client’s use of the Services 5 exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Client shall be billed for such usage and Client agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Client (which may be sent by email). If Client believes that Company has billed Client incorrectly, Client must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Inquiries should be directed to Company’s Client support department.
3.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Client shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
4. TERM AND TERMINATION
4.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for 1-year periods (each a, “Renewal Term”) (collectively, the “Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current term.
4.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Client will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Client Data available to Client for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Client Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5. USE OF SUBCONTRACTORS
In performing any of the Services pursuant to the Scope of Work, Company, may engage the services of independent contractors (each, a “Subcontractor”) for any reason and at Company’s sole discretion. Prior to any Subcontractor performing any of the Services, Company shall execute written agreements with such Subcontractor that shall include third party rights for Client’s benefit as well as contain indemnification and liability provisions substantially similar to those set forth in this Agreement. Company shall use a commercially reasonable standard of care in the selection and monitoring of any Subcontractor but Subcontractor shall at all times remain responsible for its performance in connection with the Services. Company shall be responsible for the execution of any agreements with its Subcontractors.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Company provides escheatment coordination services and technology-based solutions for Client’s escheatment compliance operations. Company does not make any warranty or guarantee relating to the accuracy, timeliness, completeness, and/or compliance of any software or service relating to this Agreement 6 with any legal, regulatory, and or governance requirement. Company is not a public accounting firm and does not provide services relating to or requiring a license to practice public accountancy. Company does not provide legal, regulatory, tax, and/or financial advice. Company is not a law firm, financial advisory, tax, and/or accounting service, is not a substitute for a law firm, accountant, or financial advisory, and does not provide legal, tax, accounting, and/or financial advisory services. Client acknowledges that it shall not rely on any aspect of the Services as, or as a substitute for, investment, accounting, and/or legal advice and agrees that it shall (a) consult its own attorney and (b) be solely responsible for any investment decisions made in based on or in connection with the Services. Software, services, and work provided relating to this Agreement may be limited, suspended, and or suffer delay, limitation, and or termination relating to certain regulatory, legal, and/or technological developments relating to escheatment, money services, financial regulation at the state and federal level, and the provision of software and software-as-a-service arrangements applicable to financial institutions. These changes, limitations, and restrictions may impact the viability, availability, and functionality of the services. To the extent that Company is deemed to be a covered service provider under any applicable financial regulatory regime, including regimes requiring licensure, application, oversight, and/or governmental authority for the provision of services, changes to such regimes may impact the Company’s ability to deliver the services.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Client except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. The parties hereby submit to the exclusive jurisdiction of the state and federal courts located in Kings County of the State of New York for any case or controversy arising out of this Agreement. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Client otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.