This Customer Agreement for Builders (“Agreement
”) is between Bluetape Inc. (“Company
”) and Customer (as defined below) concerning Customer’s access to Company’s certain workflow, document management, escrow, analytics, invoicing, payment and financing solution made available through the Site, as defined below (the “Platform
”) and Customer’s use of certain services offered through the Platform (the “Services
”). This Agreement is entered into by Company and Customer as of the date on which Customer agrees to the terms of this Agreement as described below (the “Effective Date
BY CLICKING OR CHECKING ANY BOX OR BUTTON LABELED “I AGREE
” OR SIMILAR, OR OTHERWISE USING THE PLATFORM OR SERVICES, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, YOU MUST NOT USE OR ACCESS THE PLATFORM OR SERVICES. YOU ALSO AGREE THAT YOU ARE SUBJECT TO ANY ADDITIONAL GUIDELINES, RULES, TERMS AND CONDITIONS POSTED BY COMPANY FROM TIME TO TIME, ON OR THROUGH THE PLATFORM OR COMPANY’S WEBSITE CURRENTLY LOCATED AT HTTPS://WWW.BLUETAPE.COM (THE “SITE”), INCLUDING COMPANY’S TERMS AND CONDITIONS CURRENTLY AVAILABLE AT HTTPS://WWW.BLUETAPE.COM/TERMS-CONDITIONS/ (“TERMS AND CONDITIONS
”), ALL OF WHICH ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT. COMPANY MAY MAKE AVAILABLE TO CUSTOMER ADDITIONAL FEATURES IN CONNECTION WITH THE PLATFORM, WHICH MAY BE SUBJECT TO ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS.
IF YOU ARE AN INDIVIDUAL ACCESSING OR USING THE PLATFORM ON OR FOR THE BENEFIT OF ANY ENTITY, THEN YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF AND SUCH ENTITY, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. REFERENCES TO “CUSTOMER
” IN THIS AGREEMENT REFER TO BOTH YOU AND TO ANY SUCH ENTITY.
CUSTOMER AGREES TO USE THE PLATFORM OR SERVICES FOR BUSINESS PURPOSES ONLY AND NOT FOR PERSONAL,FAMILY, OR HOUSEHOLD PURPOSES.
COMPANY MAY REFUSE TO PROVIDE THE SERVICES TO CUSTOMER AND/OR TERMINATE THIS AGREEMENT IF (I) COMPANY DETERMINES IN ITS SOLE DISCRETION THAT CUSTOMER PRESENTS EXCESSIVE FINANCIAL OR REPUTATIONAL RISK TO COMPANY; (II) COMPANY IS UNABLE TO VERIFY THE IDENTITY OF CUSTOMER; (III) CUSTOMER WOULD BE SUBJECT TO ANY ENHANCED DUE DILIGENCE REQUIREMENTS UNDER COMPANY’S OR ITS THIRD PARTY PARTNER’S ANTI-MONEY LAUNDERING POLICY; OR (IV) CUSTOMER APPEARS ON ANY GOVERNMENTAL LIST ISSUED UNDER THE USA PATRIOT ACT OR BY THE OFFICE OF FOREIGN ASSETS CONTROL.
Company may change this Agreement from time to time by notifying Customer of such changes by any reasonable means, including by posting a revised Agreement through the Site. Any such changes will not apply to any dispute between Company and Customer arising before Company posted the revised Agreement incorporating such changes, or otherwise notified Customer of such changes. Customer’s use of the Platform or Services following any changes to this Agreement will constitute Customer’s acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. Company may, at any time and without liability, modify or discontinue all or part of the Platform or Services (including access via any third-party links); charge, modify or waive any fees required to use the Platform or Services; or offer opportunities to some or all users.
1. Registration; User Names and Passwords.
Customer may need to register to use all or part of the Platform or Services, or may have the opportunity to register. Company may reject, or require that Customer change, any user name, password or other information that Customer provides to Company in registering. Customer’s user name and password are for Customer’s personal use only and should be kept confidential; Customer, and not Company, are responsible for any use or misuse of Customer’s user name or password, and Customer must promptly notify Company of any confidentiality breach or unauthorized use of Customer’s user name or password, or Customer’s Platform or Services account.
The Services may include the ability to receive, review and pay certain invoices issued by third parties for third-party goods and services (“Invoices
”). COMPANY DOES NOT ENDORSE, AND IS NOT RESPONSIBLE OR LIABLE FOR, ANY SUCH THIRD PARTIES (“SUPPLIERS
”) OR SUCH GOODS OR SERVICES (“SUPPLIER GOODS
”), INCLUDING THE ACCURACY, COMPLETENESS, TIMELINESS OR VALIDITY OF ANY INVOICE. COMPANY IS NOT THE SELLER OF ANY SUPPLIER GOODS. SUPPLIER IS SOLELY RESPONSIBLE FOR ALL ISSUES RELATING TO THE APPLICABLE SUPPLIER GOODS, INCLUDING THEIR SHIPPING AND HANDLING, AND ANY REFUNDS OR EXCHANGES, ALL OF WHICH ARE SUBJECT TO SUPPLIER’S APPLICABLE POLICIES. Any questions or concerns regarding Invoices or Supplier Goods must be directed to the applicable Supplier. Company is not responsible or liable for any dispute between Customer and any Supplier, or otherwise relating to any Invoices or Supplier Goods. IF CUSTOMER HAS ANY DISPUTE WITH A SUPPLIER OR OTHERWISE RELATING TO ANY INVOICES OR SUPPLIER GOODS, CUSTOMER HEREBY AGREES TO RELEASE COMPANY AND THE AFFILIATED ENTITIES (AS DEFINED IN THE TERMS AND CONDITIONS) FROM ANY CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED (INCLUDING ACTUAL, CONSEQUENTIAL AND PUNITIVE DAMAGES), ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE. CUSTOMER HEREBY WAIVES ANY PROVISIONS OF ANY STATE, PROVINCE, OR COUNTRY LAW THAT LIMIT OR PROHIBIT A GENERAL RELEASE, INCLUDING, IF APPLICABLE, SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
The Services are subject to certain fees, as described in further detail in the product and/or as otherwise communicated by Company to Customer (including during the payment process), as updated by Company from time to time (the “Fees
”). Customer agrees to pay all Fees incurred by Customer or on its behalf, at the prices in effect when such Fees are incurred. All Fees are non-refundable unless agreed otherwise by Company. Company reserves the right to charge Fees to any payment method that Customer has provided.
The Services may include the ability to make or receive certain payments, including paying Invoices and Fees as set forth above (each, a “Transaction
”). If Customer wishes to make a Transaction, certain information may be required, such as bank account information, credit card number and its expiration date, and billing address. Customer understands and agrees that Company does not itself process Transactions, and the processing of Transaction will be provided by a third party designated by Company. Customer may be required to enter into and agree upon separate terms with such third party in order to make a Transaction. Customer further understand and agrees that Company is not responsible for, or liable to Company or any third parties for, any claims, damages or losses arising out of, connected to or related to failed, faulty or fraudulent Transactions. Verification of information may be required before the acknowledgment or completion of any Transaction, which may include a third-party verification process. By submitting such information, Customer is granting to Company the right to provide such information to third parties for purposes of facilitating Transactions. The submission of information through any third-party service is at Customer’s risk and is subject to any additional terms, conditions and policies applicable to such third-party service. CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT TO USE ANY PAYMENT CARD OR OTHER PAYMENT METHOD OR FINANCIAL ACCOUNT THAT IT SUBMITS IN CONNECTION WITH A TRANSACTION. Company reserves the right to prohibit Customer or any other user from making any Transaction. Customer is responsible for any taxes applicable to its Transactions (including any sales, use, value added or other taxes).
5. ACH Services.
5.1. In General.
The Services may include ACH origination services (the “ACH Services
”) by which Customer may initiate ACH credit and debit entries (“Entries
”) in accordance with this Agreement. Customer hereby authorizes Company (through Company’s Originating Depository Financial Institution (“ODFI
”)) to originate Entries on Customer’s behalf to accounts of receivers (as defined under the NACHA Rules, each a “Receiver
”). Customer shall comply with the operating rules of the National Automated Clearing House Association (“NACHA Rules
”), this Agreement and any applicable agreement(s) entered into between Customer and Company. Customer acknowledges and agrees that Customer has access to the current NACHA Rules.
CUSTOMER UNDERSTANDS AND AGREES THAT NEITHER COMPANY NOR ANY OF ITS AFFILIATES ARE A BANK.
Customer may only initiate Entries to transfer funds to and from an omnibus custodial account maintained by the ODFI for the benefit of Customer and other customers of the ODFI (the “Custodial Account”). Customer funds held in the Custodial Account may be eligible for FDIC deposit insurance up the FDIC deposit insurance limits. For more information on FDIC insurance coverage, please visit www.FDIC.gov. Customer is responsible for determining the extent of available FDIC insurance coverage in accordance with FDIC rules.
5.2. Customer Responsibilities.
5.3. Accuracy of Entries.
- Not originate Entries that violate the laws of the United States;
- Obtain written authorization from any Receiver prior to the initiation of a debit Entry against the account of a Receiver and obtain and maintain all other authorizations required by the NACHA Rules;
- Provide to Company upon demand a copy of any such debit authorization;
- Complete and execute all required documentation required by Company to provide the ACH Services;
- Not originate Entries on behalf of or for the benefit of any entity other than Customer itself;
- Originate only the types of Entries permitted by Company;
- Provide Company will all necessary information pertaining to Entries no later than the cut-off time specified by Company, in the manner specified by Company, and Customer acknowledges responsibility for any delayed remittance of funds and additional fees incurred, if any, as a result of its failure to timely provide Company with all necessary information;
- Have available in Customer’s designated bank account (“Customer’s Account”) good, collected funds in an amount sufficient for Company to cover the Entries initiated by Company, as authorized by this Agreement, no later than then opening of business two banking days prior to the Effective Entry Date (as defined in the NACHA Rules);
- Compare all reports on credit or debit Entries initiated by Company to Customer’s records and promptly notify Company of any discrepancies; and
- Notify Company of any change in the Customer information provided to Company in connection with the ACH Services at least 14 days before the effective date of any such change.
Customer acknowledges and agrees that, if an Entry describes a Receiver inconsistently by name and account number, payment of the Entry transmitted to the Receiving Depository Financial Institution (“RDFI
”) might be made by the RDFI (or by the ODFI, in the case of an on-us Entry) on the basis of the account number even if it identifies a person different from the named Receiver, and that Customer’s obligation to pay the amount of the Entry is not excused in such circumstances.
5.4. Exposure Limits.
Customer’s ability to originate Entries under this Agreement is subject to exposure limits in accordance with the NACHA Rules, and the ODFI’s exposure limits. The total dollar amount of Entries transmitted, frequency of origination and payment application (debits or credits) originated by Customer is subject to any exposure limits set by Company (on behalf of the ODFI) in its sole discretion.
5.5. Insufficient Funds.
Should Customer have insufficient funds in the Customer’s Account available at the time of any debit Entry initiated by Customer, and Company incurs one or more insufficient funds (“NSF
”) fees, Customer must transfer to Company the full amount of the unfunded file plus all applicable NSF fees immediately upon Company’s request, and Customer further agrees that Company, the ODFI or its agents may debit any account maintained by or for the benefit of Customer with the ODFI or any affiliate of the ODFI, or that the ODFI may set off against any amount the ODFI owes to Customer, in order to obtain payment of Customer’s obligations under this Agreement. Customer agrees to reimburse Company for any and all expenses Company may incur, including interest and reasonable attorneys’ fees, in taking action to collect any amounts due to Company under this Agreement. Company reserves the right to discontinue any or all ACH Services at any time due to NSF occurrences. Customer hereby authorizes Company or the ODFI or its agent to utilize any other account maintained either on Customer’s behalf or by Customer to recover any deficiencies. In the event of an NSF fee, Company will have no obligation to remit any unpaid liabilities of Customer to any Receiver and any resulting repercussions, including but not limited to penalties, interest, or cancellations, will be the sole obligation of Customer and not the responsibility or liability whatsoever of Company.
5.6. Refunds, Adjustments and Inconsistent Instructions.
Any refunds or adjustments will not be processed by Company until Company can verify that good, collected and the final funds from Customer are in Company’s account. Customer agrees that Company or the ODFI or its agent may hold any or all funds in custody if Company or the ODFI or its agent reasonably determines that there are inconsistent instructions regarding an Entry or regarding settlement or claims on any such funds or accounts (including, without limitation, any claim by judgment creditor of Customer, levy or other legal process, or proceeding in bankruptcy). The ODFI may interplead any or all funds, freeze or hold funds, prevent withdrawals or transfers, or otherwise act to prevent or reduce loss or risk to the ODFI, and (in addition to any other remedy the ODFI may have) Customer shall reimburse Company or the ODFI for any costs associated with the same.
5.7. Data Retention.
Customer will retain data on file adequate to permit remaking of all Entries for ten (10) business days following the ACH settlement date, and will provide that data to Company upon Company’s request. The data retained shall be in sufficient detail to enable Company and the ODFI to substantiate Customer’s performance of its obligations under this Agreement. Without limiting the generality of the foregoing, Customer specifically agrees to be bound by and comply with all applicable provisions of the NACHA Rules regarding the retention of any document or any record, including without limitation, Customer’s responsibilities to retain all items, source documents and records of authorization in accordance with the NACHA Rules.
Company and the ODFI may audit Customer for compliance with this Agreement and the NACHA Rules.
5.9. Limitation of Liability.
Without limiting Company’s limitation of liability in Section 9
, Company’s sole liability to Customer or any third party with respect to the ACH Services shall be for claims arising out of errors or omissions in the ACH Services caused solely by Company, and the sole remedy shall be to furnish a correct advice of deposit, and/or corrected or reversal debit or credit Entry, as the case may be; provided that, in each case Customer advises Company no later than one (1) business day after the occurrence of such errors or omissions.
5.10. Indemnification; Reimbursement.
Customer acknowledges that Company is acting solely in the capacity of data processing agent and is not a source of funds for Customer. Customer shall be liable for each Entry initiated by Company. Customer promises to pay Company on demand the amount of any unfunded direct deposit file, with interest, and all Company or third party fees or charges including, without limitation, any debit Entries returned to Company due to insufficient or uncollected funds or for any other reason. Should Customer not reimburse Company for funds advanced by Company in good faith, the principal officer(s)/owner(s) of Customer agree to be personally liable for the deficit amount. Such deficits are subject to interest and service charges. Customer shall indemnify and hold harmless Company from and against any loss, liabilities, claims or damages, including attorneys’ fees, arising from any breach by Customer of the terms and conditions of this agreement or any fraudulent or dishonest acts or omissions of Customer or Receivers, employees or agents involving Customers use of the ACH Services. Customer shall be responsible and liable to Company for all losses arising out of (a) processing of Entries submitted incorrectly, fraudulently, or without adequate authorization; (b) fraud and fraud-related theft at or caused by Customer; or (c) Customer’s use of the ACH Services in a manner not intended by this Agreement or for purposes in violation of the NACHA Rules.
5.11. Termination of ACH Services.
Company may (itself or on behalf of the ODFI), in its sole discretion, terminate Customer’s use of the ACH Services immediately without prior notice to Customer if
- Customer breaches the NACHA Rules;
- Customer’s Account is not funded as required by this Agreement and as a result any debit to Customer’s Account is returned to Company or the ODFI and/or its agent;
- Customer fails to pay any sum due to Company hereunder or perform any obligation required to be performed hereunder;
- Customer files or has filed against it a petition for bankruptcy or becomes insolvent or has a substantial portion of its property become subject to levy, execution or assignment;
- ODFI and/or its agent notifies Company that it is no longer willing to originate Entries for Customer for any reason; or
- Company’s agreement with ODFI and/or its agent is terminated.
If Company terminates the ACH Services, Company’s obligation under this Section 5
shall cease and Company’s sole responsibility to Customer shall be to return to Customer any funds then held by Company after the deduction of all fees and expenses due Company, ODFI and/or its agent.
6.1. Limited License.
Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a limited, personal, non-exclusive, revocable, non-transferable license (without the right to sublicense), to use the Platform solely for Customer’s own business operations, consistent with the limitations specified or referenced in this Agreement or any documentation.
Customer will not copy, use or otherwise exploit the Platform except as expressly permitted by this Agreement. Customer will not relicense or sublicense the Platform. Customer will not, and will not permit any third party to, reverse engineer, disassemble or decompile the Platform, except to the extent expressly permitted by applicable law.
Customer acknowledges and agrees that Company has the right to monitor and analyze Customer’s use of the Platform (including any of its functionality) to obtain Feedback, as defined below. Company will have the right to use, publicize freely and otherwise exploit the results of Customer’s Feedback, and such right will not require the consent of Customer in any way. “Feedback
” means all suggestions, comments, feedback, data (including metadata), insights, ideas or know-how, in any form, regarding the Platform (including any of its functionality), including those derived from Company’s monitoring and analysis of Customer’s use of the Platform (including any of its functionality)
Company will retain all rights, title and interest in and to the Platform, and any derivative works thereof, including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property and proprietary rights, subject only to the limited license set forth herein. Customer does not acquire any other rights, express or implied, in the Platform. All Feedback will be the sole property of Company, and, to the extent Customer has any right, title or interest in any Feedback, Customer hereby assigns to Company all right, title and interest to such Feedback (including any intellectual property rights therein) and agrees to perform such further acts as may be reasonably necessary to evidence such assignment.
7. Term and Termination.
7.1. Term and Termination.
This Agreement is effective until terminated. Either party may terminate this Agreement at any time upon thirty (30) days written notice to the other party. Company may suspend any or all Services immediately and without notice in the case of any actual or suspected fraudulent activity or security incident, or breach of this Agreement by Customer.
7.2. Effect of Termination.
Termination of this Agreement will not limit either party from pursuing other remedies available to it, including injunctive relief. The parties’ rights and obligations under Sections 1, 2, 3, 5.5–5.12, 6.2–6.4, and 7–12 will survive termination of this Agreement. Upon termination or suspension, unless otherwise agreed by the parties, Customer’s right to use the Platform will immediately cease, and Company may, without liability to Company or any third party, immediately deactivate or delete Company’s user name, password and account, and all associated materials, without any obligation to provide any further access to such materials.
8. Disclaimer of Warranty.
COMPANY DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR SERVICES WILL MEET ANY EXPECTATIONS OR SPECIFICATIONS OF CUSTOMER. THE PLATFORM AND SERVICES ARE MADE AVAILABLE “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND. COMPANY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY HEREBY DISCLAIMS ANY AND ALL LIABILITY FOR ANY DAMAGE TO OR OTHER IMPACT ON CUSTOMER’S PROJECTS, MATERIALS, EQUIPMENT, CUSTOMERS AND SUPPLIERS, WHETHER OR NOT CAUSED BY OR RELATED TO (EITHER DIRECTLY OR INDIRECTLY) CUSTOMER’S USE OF THE PLATFORM OR SERVICES. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND ITS AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
9. LIMITATION OF LIABILITY.
IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; OR DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, USE OR COST OF SUBSTITUTE PROCUREMENT, INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, INCLUDING IN CONNECTION WITH THE USE OF A THIRD-PARTY COMPONENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. COMPANY HAS NO LIABILITY WHATSOEVER WITH RESPECT TO ANY SUPPLIER’S ACTS OR OMISSION, OR ANY INVOICE OR SUPPLIER GOODS. WITHOUT LIMITING THE FOREGOING, COMPANY’S TOTAL AGGREGATE LIABILITY FOR DAMAGES HEREUNDER WILL IN NO EVENT EXCEED FIFTY U.S. DOLLARS (US$50). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
Customer agree to defend, indemnify and hold harmless Company, the ODFI, and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Platform and Services (including all Invoices and Supplier Goods, and disputes between Customer and any Supplier); and (b) any violation or alleged violation of this Agreement by Customer.
11. Third Party Components.
For the avoidance of doubt, Company does not own, and makes no claim to own, the intellectual property rights in any open-source or third-party proprietary software (collectively, “Third Party Components
”) that may be included in or used with the Platform. Customer acknowledges that the Platform includes or uses Third Party Components, and that (a) such Third Party Components are not licensed to Customer by Company; and (b) Customer is solely responsible for obtaining all necessary consents and other rights with respect to such Third Party Components, and that such consents and other rights may be subject to applicable third-party terms, conditions and policies. Subject to the terms and conditions of this Agreement, Customer will comply with all such third-party terms, conditions and policies. In the event of any conflict or inconsistency between such third-party terms, such third-party terms will control to the extent of such conflict or inconsistency, solely with respect to the applicable Third Party Component.
11.2. Finicity Services.
Third Party Components may include certain products and services made available by Finicity Corporation (“Finicity
” and such products and services, the “Finicity Services
”). Customer shall: (a) not attempt to gain unauthorized access to the Finicity Services or their related systems or networks; (b) not knowingly access and/or engage in any use of the Finicity Services in a manner that abuses or materially disrupts Finicity’s networks, security systems, and/or websites; (c) not knowingly interfere with or disrupt the integrity or performance of the Finicity Services or third-party data contained therein; (d) not knowingly access or use the Finicity Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property rights or other right of any third party; (e) not access or use the Finicity Services for purposes of competitive analysis of the Finicity Services, or the development, provision or use of a competing software service or product; (f) not use the Finicity Services for fraudulent purposes or otherwise in violation of applicable law; (g) with the exception of Customer saving its own credentials for accessing its own accounts, not retain, save, or otherwise maintain any Customer credentials or other personally identifiable information with respect to Finicity Services that could be used to access such Customer’s financial information or other data; and (h) not use the Finicity Services for any “screen scraping” process(es) to obtain Customer’s data directly or indirectly from any of those financial institutions from which Finicity obtains Customer’s data on behalf of Customer through the use of registration data (and not APIs or data feeds provided by or on behalf of Finicity as part of the Finicity Services). If Customer becomes aware of any actual or threatened activity prohibited by this Section 11.2, Customer shall promptly: (x) take all reasonable and lawful measures within its control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Finicity Services); and (y) notify Finicity of any such actual or threatened activity.
11.3. CBW Services
. Third Party Components may include certain products and services made available by CBW Bank. Customer authorizes Company or CBW Bank to retrieve information about Customer from third parties, including credit reporting agencies and information bureaus and Customer authorizes and direct such third parties to compile and provide such information to Company or CBW Bank. Customer further consents to Company and its respective affiliates and service providers to share information about Customer, your accounts, and account transactions with affiliates and third parties, including CBW Bank, unless applicable law prohibits us from doing so.
12. General Terms.
12.1. Relationship Between the Parties.
Company and Customer are independent contractors under this Agreement. Nothing in this Agreement creates a partnership, joint venture or agency relationship between the parties.
12.2. Additional Features.
Company may make available to Customer additional features, which may be subject to additional or different terms and conditions from Company. BY USING ANY SUCH ADDITIONAL FEATURES, CUSTOMER IS HEREBY AGREEING TO SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS. IN THE CASE OF ANY CONFLICT BETWEEN SUCH TERMS AND CONDITIONS AND THIS AGREEMENT, SUCH TERMS AND CONDITIONS WILL CONTROL WITH RESPECT TO THE APPLICABLE FEATURE.
12.3. Governing Law; Arbitration.
This Agreement shall be governed by the laws of the United States (including federal arbitration law) and the State of California, U.S.A., without regard to its choice of law rules, and regardless of Customer’s location. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN CUSTOMER AND COMPANY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND COMPANY AND CUSTOMER EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. CUSTOMER AGREES THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND CUSTOMER IS AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Medication Procedures (currently accessible at https://adr.org/sites/default/files/CommercialRules_Web.pdf
) as amended by this Agreement. Any arbitration hearing will be held in San Mateo, California. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. The parties hereby submit to the non-exclusive jurisdiction of the state and federal courts located in San Mateo, California for the confirmation or enforcement of any award rendered by the arbitrator pursuant to this agreement to arbitrate, and the parties waive any objection to the venue or personal jurisdiction of such courts, and any objection based on inconvenient forum.
12.4. Severability and Waiver.
If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
12.5. No Assignment.
Customer may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Company. Any purported assignment, transfer or delegation by Customer in violation of the foregoing will be null and void. Company may assign, sell, transfer, delegate or otherwise dispose of this Agreement without consent. Subject to the foregoing, this Agreement will be binding upon the parties and their respective successors and assigns.
12.6. Entire Agreement.
This Agreement, including the Terms and Conditions, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom will be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement will supersede the terms in any Customer purchase order or other ordering document.
Customer shall promptly provide notice to Company of any changes to the information provided to Company when enrolling in the Platform or Services, including Customer’s name, address, phone and email address. Upon Company’s reasonable request, Customer shall provide updated information or additional information regarding the Customer’s business.