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Dated: October 16, 2023
These Client Services Terms and Conditions (“Client Services Terms”) govern the rights and obligations of Client and Unit with respect to the Unit Services and are effective as of the Effective Date in the Order. Client and Unit have the meanings set forth in the Order and may each be referred to herein individually as a “Party” and collectively as the “Parties.” These Client Services Terms form a part of, and are incorporated by reference into, the Client Services Agreement.
1.1 “Applicable Law” means all federal, state and local laws, codes, statutes, ordinances, regulations, regulatory bulletins and guidance, rules, published court opinions, attorney general opinions, Payment Rules, written requirements of a Governmental Authority, and orders pursuant to a legal proceeding, in each case as applicable to the subject matter of the Client Services Agreement and Unit, Bank Partner, or Client.
1.2 “Bank Partner” means the bank or other financial institution identified on an Order Form who will provide Banking Services in connection with the Unit Services and as further described in the applicable Banking Services Agreement.
1.3 “Banking Services” means all banking and other financial services provided by Bank Partner to Client and End Users under the Banking Services Agreement referenced in the Order Form.
1.4 “Banking Services Agreement” or “BSA” means the agreement between Client, Bank Partner, and Unit (as applicable) governing the Banking Services.
1.5 “Client-Side Software” means any software in source or object code form that Unit makes available to Client for use in connection with the Unit Services.
1.6 “Client Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client through the Unit Services; provided that, for purposes of clarity, Client Data as defined herein does not include Derivative Data or End User Data.
1.7 “Client Platform” means Client’s technology platform including mobile platforms, websites, and applications.
1.8 “Client Services Agreement” or “CSA” means the agreement between Client and Unit governing the Unit Services, including these Client Services Terms.
1.9 “Derivative Data” means data and information related to or derived from Client Data, End User Data or Client’s use of the Platform Services that has been aggregated and/or anonymized by Unit.
1.10 “Documentation” means Unit’s documentation relating to the Unit Services available at https://docs.unit.co/, as may be amended from time to time. Documentation may include, without limitation, additional product terms and compliance requirements, as applicable.
1.11 “End User” means anyone other than Client who receives Banking Services from Bank Partner.
1.12 “End User Data” means any data or information relating to any End User that is provided to or obtained in connection with the Client Services Agreement, including data generated from End User transactions.
1.13 “Governmental Authority” means any federal, state, or local regulatory agency or other governmental agency, department, court, commission, board, bureau, instrumentality or political subdivision thereof, or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case having jurisdiction over any Party, End User, Bank Partner, or the subject matter of the Client Services Agreement.
1.14 “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby
1.15 “Net Interchange” means the net interchange fees paid by the applicable payment card network after deducting all applicable fees, including, without limitation, card network and processing fees.
1.16 “Net Revenue” means (i) the Base Fees paid by Client to Unit under the CSA plus (ii) the portion of any Net Interchange retained by Unit in excess of the amount of such Net Interchange shared with Client.
1.17 “Order” means the purchase order, order form, or any other ordering document entered into by the Parties that is incorporated, along with these Client Services Terms, into the Client Services Agreement.
1.18 “Payment Rules” means the rules, regulations, directives and guidance that govern any network or payment platform used to process Client or End User transactions, including without limitation (i) rules, regulations, directives, and guidance promulgated by Mastercard, Visa, or any other applicable card network (“Network Rules”), and (ii) the then-current NACHA Operating Rules and Guidelines and any regulations, policies, procedures, agreements, manuals, bulletins, notices and similar documents issued by NACHA (“NACHA Rules”).
1.19 “Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal data”, “personally identifiable information”, or any such similar terms under Applicable Law.
1.20 “Professional Services” means training, migration, technical development, implementation, integration, or other professional services that are memorialized in writing in an Order or a Statement of Work and provided to Client in connection with Client’s use of the Platform Services hereunder.
1.21 “Statement of Work” means a written statement of work for Professional Services executed by both Parties that is incorporated, along with these Client Services Terms, into the Client Services Agreement.
1.22 “Third-Party Products” means any third-party products provided with, integrated with, or incorporated into the Unit Services for which Client uses or elects to use through the Unit Services or for which it has a direct contract governing such use with a third party.
1.23 “Unit IP” means the Unit Services, the Client-Side Software, Documentation, Usage Guides, and any and all intellectual property provided to Client or any End User in connection with the foregoing. For the avoidance of doubt, Unit IP includes Derivative Data and any information, data, or other content derived from Unit’s provision of the Unit Services but does not include Client Data or End User Data.
1.24 “Unit Services” means Unit’s proprietary hosted software platform, application programming interfaces (“APIs”), and software development kits (“SDKs”) as made available to Client and End Users from time to time and as set forth on any applicable Order.
1.25 “Usage Guides” means Unit’s guides and resources relating to Client’s use of the Unit Services, including any made available at https://guides.unit.co, as may be amended from time to time. Usage Guides may include, without limitation, additional product terms and compliance requirements, as applicable.
2.1 Provision of Access. Subject to and conditioned on Client’s compliance with the terms and conditions of CSA, the Documentation, Usage Guides, and the Banking Services Agreement, and fulfillment of the integration requirements (as set forth below), Client may access and use the Unit Services during the Term on a non-exclusive, non-transferable (except in compliance with the CSA), and non-sublicensable basis to facilitate the delivery and provision of Banking Services from Bank Partner to Client and End Users (the Unit Services and Banking Services together referred to as the “Platform Services”). The foregoing includes a limited license for Client to install and use the Client-Side Software solely in support of Client’s authorized use of the Platform Services. Unit will make available to Client a dashboard (the “Unit Dashboard”) through which Client will be able to monitor and manage its implementation of the Unit Services. Unit will provide reporting to Client with a variety of usage, transaction, and compliance data through the Unit Dashboard.
2.2 Integration Requirements; Documentation and Usage Guides License. Unit will provide Client with integration requirements including, without limitation, functional and/or technical specifications relating to the applicable Unit Services. Client will integrate its APIs with the Unit Services in accordance with the requirements described in the Documentation. Client’s production use of the Unit Services is contingent upon Client’s satisfaction of the integration requirements, as determined by Unit. Subject to and conditioned on Client’s compliance with the CSA and BSA, Unit hereby grants to Client a non-exclusive, non-transferable (except in compliance with the CSA), and non-sublicensable license to use the Documentation and Usage Guides during the Term solely for Client’s internal business purposes in connection with its use of the Unit Services.
2.3 Updates. Unit may make enhancements or modifications to the Unit Services at any time, provided that in case such changes are likely to materially reduce the functionality of the Unit Services, Unit will use commercially reasonable efforts to provide notice of the changes through the Unit Services before implementing them, provided further that Unit shall have no obligations to notify of any changes that it deems necessary to address any security concern or requirement of Applicable Law, any Governmental Authority, or any Bank Partner. Client may access information about updates to the Unit Services on the Unit website available at https://updates.unit.co/.
2.4 Support. During the Term, Unit will support and maintain the Unit Services in accordance with the Service Level Agreement set forth in the CSA.
2.5 Banking Services. The Parties agree that (a) the services provided by Unit solely include the technology, data processing, and related non-banking services set forth in the CSA, and (b) all Banking Services will be provided to Client and End Users by the applicable Bank Partner.
2.6 Fraud Monitoring. Unit and Client will each monitor End Users’ use of the Platform Services for fraudulent activity and will coordinate with one another and Bank Partner concerning fraud levels and mitigation. Each Party shall promptly notify the other Party of known or suspected fraudulent activity related to the Platform Services raised by each Party’s own fraud risk monitoring processes or systems. Unit does not guarantee that the fraud monitoring tools and related services provided by Unit will be sufficient to protect Client against End User fraud or violations of Applicable Law. As between the Parties, Client acknowledges and agrees that Client shall be financially responsible for all End User fraud, negative balances, and unauthorized transactions.
2.7 Professional Services. Unit may perform Professional Services as described in an Order or Statement of Work. Client will provide Unit all reasonable cooperation required for Unit to perform the Professional Services, including without limitation timely access to any reasonably required Client materials, information, or personnel. Subject to any limitations identified in an Order or Statement of Work, Client will reimburse Unit’s reasonable travel and lodging expenses incurred in providing Professional Services. To the extent the Professional Services result in any software code or other tangible work product (“Work Product”), all such Work Product will remain owned solely and exclusively by Unit and may be used by Client solely in connection with Client’s authorized use of the Unit Services under the CSA.
2.8 Unit Policies and Plans. During the Term of the CSA, Unit may obtain, develop and/or maintain policies, procedures, and advance arrangements relating to insurance, information security, disaster recovery and business continuity, and other functions related to Unit’s business and operations (the “Unit Policies and Plans”), copies or summaries of which may be provided to Client upon written request.
3.1 General. Client is solely responsible for all the actions, transactions, and information included, created, or initiated in or through the Unit Services, including the Unit Dashboard, by Client and for any inaction or omission by Client’s authorized users, including but not limited to actions or inactions of End Users and Client’s employees, contractors or agents, and with or without Client’s prior knowledge or consent. For clarity, Client is responsible for the use of Client Data and End User Data by its employees, contractors or agents with whom it makes such data accessible. Without limiting the foregoing, any act or omission by an End User that would constitute a breach of the CSA if taken by Client will be deemed a breach of the CSA by Client.
3.2 Reporting. Client will promptly respond to all requests for information and documentation from Unit or any Bank Partner or Governmental Authority concerning Client’s or End Users’ use of the Platform Services, including as further set forth in the BSA.
3.3 API Keys. Client is solely responsible for maintaining adequate security and control of any API keys and any other access credentials issued by Unit to Client. Client will keep such API keys and other access credentials confidential and disclose them only on a need-to-know basis, and Client will not sell, transfer, sublicense, or disclose the API keys or other access credentials to any third party, other than to a service provider performing services on Client’s behalf that has been disclosed to Unit and approved by Unit in writing. If Client suspects or has actual knowledge that its API keys or access credentials have been compromised, Client will notify Unit immediately and Unit will revoke such API keys and issue new API keys to Client once Client demonstrates to Unit’s satisfaction that the vulnerability that compromised the API keys has been cured.
3.4 Accuracy of Data; Cooperation. Client will ensure all Client Data and End User Data is accurate and complete to the best of Client’s knowledge. All information submitted regarding End Users must be submitted by Client to Unit as provided by the End User. Client is responsible for any error resulting from Client’s or End User’s failure to provide accurate and complete information to Unit.
3.5 Third-Party Products. Unit may from time to time make Third-Party Products available to Client or Unit may allow for certain Third-Party Products to be integrated with the Unit Services, which may allow for the transmission of Client Data and End User Data between such Third-Party Products and the Unit Services. Some Third-Party Products are subject to their own terms and conditions entered into between Client and such third party. Unit is not responsible for the operation of any Third-Party Products and makes no representations or warranties of any kind with respect to such Third-Party Products or their respective providers. If Client does not agree to abide by the applicable terms for such Third-Party Products, then Client should not install or use such Third-Party Products. Client hereby authorizes Unit to transmit Client Data and End User Data between Third-Party Products and the Unit Services.
3.6 Client Control and Responsibility. Client has and will retain sole responsibility for: (a) all Client Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Client or any End User in connection with the Platform Services; and (c) the Client Platform and Client's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party platforms or service providers ("Client Systems").
4.1 Unit IP; Feedback. Unit reserves all rights not expressly granted to Client in the CSA. Except for the limited rights and licenses expressly granted under the CSA, nothing in the CSA grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Unit IP. Client acknowledges that, as between Client and Unit, Unit owns all right, title, and interest, including all intellectual property rights, in and to the Unit IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. If Client or any of its employees, contractors, or agents sends or transmits any communications or materials to Unit by mail, email, telephone, or otherwise, suggesting or recommending changes to the Unit IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Unit is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
4.2 Derivative Data. Notwithstanding anything to the contrary in the CSA, Unit may monitor Client’s and End Users’ use of the Unit Services and collect and compile Derivative Data. As between Unit and Client, all right, title, and interest in Derivative Data, and all intellectual property rights therein, belong to and are retained solely by Unit. Client acknowledges that Unit may compile Derivative Data based on Client Data and End User Data provided through the Unit Services. Notwithstanding anything to the contrary in the CSA, Client acknowledges that Unit may use and disclose Derivative Data for any lawful purpose, including to improve the Unit Services.
4.3 Client IP. Unit acknowledges that, as between Unit and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data, Client Platform, and Client Systems (collectively, the “Client IP”).
4.4 Unit Services Restrictions. Client shall not use the Unit Services for any purposes beyond the scope of the access granted in the CSA. Client shall not at any time, directly or indirectly, and shall not permit any Client employees, contractors, agents or End Users to: (a) copy, modify, or create derivative works of any Unit IP, whether in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Unit Services or Documentation to any third party, except to End Users as contemplated by the CSA; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Unit Services, in whole or in part; (d) remove any proprietary notices from any Unit IP; (e) use any Unit IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable Law; (f) access or use any Unit IP for purposes of competitive analysis of Unit or the Unit Services, or for purposes of the development, provision, or use of a competing software service or product; (g) bypass or breach any security device or protection used by the Unit Services or access or use the Unit Services other than by an End User through the use of valid access credentials; or (h) input, upload, transmit, or otherwise provide to or through the Unit Services any information or materials, including Client Data or End User Data, that are unlawful or injurious or that infringe or otherwise violate any third party’s intellectual property or other rights, or that contain, transmit, or activate any Harmful Code.
5.1 Fees. Client shall pay to Unit the fees identified in the applicable Order beginning on the Billing Commencement Date (as defined in the Order) or otherwise as set forth in the Order. Fees paid by Client are non-refundable. All fees are payable by Client within thirty (30) days following the invoice date. Client shall make all payments in USD via electronic check, wire, or other means permitted by Unit. Upon written request from Unit, Client will associate at least one active (1) bank account held at Bank Partner or a third-party financial institution (“Payment Account”) with the CSA. Client authorizes Unit to debit the Payment Account to cover any amounts owed to Unit under the CSA and agrees to complete such additional authorization forms as may be necessary to give effect to such right. Client agrees to give prior written notice to Unit of any change to the account details or funding status of the Payment Account that would render the amounts owed uncollectable from such account. Client’s failure to have sufficient available funds in the Payment Account to meet such obligations to Unit as and when required constitutes a material breach of the CSA. Client acknowledges that Unit may make reasonable adjustments to the fees during the Term upon thirty (30) days prior written notice to Client in the event that there are material increases (as determined in Unit’s good faith discretion) in Unit’s third-party costs for providing the Unit Services. Additionally, Unit may adjust fees for any Renewal Term by providing Client with written notice prior to the renewal of the then-current Term. If Client fails to make any payment when due, and Client has not notified Unit in writing within ten (10) days of the payment becoming due and payable that the payment is subject to a good faith dispute, without limiting Unit’s other rights and remedies: (a) Unit may charge interest on the undisputed past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under Applicable Law; (b) Client shall reimburse Unit for all reasonable costs incurred by Unit in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for ten (10) days or more, such failure shall constitute a material breach of the CSA and Unit may suspend Client’s access to or use of all or any part of the Unit Services until such amounts are paid in full.
5.2 Taxes. All fees and other amounts payable by Client under the CSA are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Unit’s income
5.3 Client Revenue. Unit will promptly deposit all revenue due to Client under the CSA into Client’s revenue account with the applicable Bank Partner at the times set forth in the Order or CSA. Client agrees that Unit may deduct amounts owed to Unit from revenue otherwise payable to Client pursuant to the CSA.
6.1 Definition. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (a) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (b) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Confidential Information does not include End User Data or any information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information.
6.2 Duty of Confidentiality. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, vendors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a Governmental Authority, or as otherwise necessary to comply with Applicable Law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order at the expense of the disclosing Party; (b) to establish a Party’s rights under the CSA or a BSA, including to make required court filings; or (c) to Bank Partner as permitted under the applicable BSA. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of the CSA to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.
6.3 Return of Materials; Effects of Termination/Expiration. On the expiration or termination of the CSA, upon the written request of the disclosing Party, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed, except that the receiving Party may retain copies of disclosing Party’s Confidential Information (a) in order to comply with the order of a Governmental Authority, or as otherwise necessary to comply with Applicable Law; (b) for regulatory, audit or legal compliance purposes; (c) as required or otherwise permitted under the CSA or the applicable BSA; or (d) if electronically stored for back-up purposes in accordance with the receiving Party’s ordinary course archival, back-up or document retention policies, in each case (a) – (d) subject to the confidentiality and non-use obligations of the CSA for the duration of the retention. Except as stated otherwise, each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of the CSA; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under Applicable Law), such obligations of non-disclosure will survive the termination or expiration of the CSA for as long as such Confidential Information remains subject to trade secret protection under Applicable Law.
7.1 Client Data; End User Data. Client hereby grants to Unit a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and End User Data and perform all acts with respect to the Client Data and End User Data (a) as may be necessary to exercise its rights and carry out its obligations under the CSA and BSA and to facilitate Bank Partner’s provision of the Banking Services; and (b) for analytics and conducting quality assurance, fraud detection and compliance-related activities, risk assessment and monitoring, and product and service enhancements.
7.2 Security Measures. Unit will implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect Client Data and End User Data from unauthorized access, use, alteration, or disclosure. More information on Unit’s security measures are available at https://www.unit.co/security. Client will implement and maintain an information security program and related minimum security safeguards as may be set forth in the Documentation, Usage Guides, and the applicable BSA.
8.1 Mutual Representations. Each Party represents and warrants (a) it has been duly formed and is in good standing in the state of its organization and is qualified to do business in the states where such qualification is required; (b) the CSA constitutes its legal, valid, binding, and enforceable agreement; and (c) execution and performance of the CSAby it: (i) does not breach any agreement of such Party with any third party, or any duty arising in law or equity; (ii) does not violate any law, rule, or regulation applicable to it; (iii) is within its organizational powers; and (iv) has been authorized by all necessary action of such Party.
8.2 Unit Representations. Unit represents and warrants that: (a) the Unit Services will operate materially in accordance with the Documentation during the term of the applicable Order; (b) Unit uses industry standard methods to scan the Unit Services for Harmful Code; and (c) Unit will perform the Professional Services in a professional and workmanlike manner and in compliance with all Applicable Law. In the event of failure to satisfy any of these warranties, Unit will, at Unit’s election and expense, as Client’s sole and exclusive remedy and Unit sole and exclusive liability, use its commercially reasonable efforts either, as applicable: (i) to promptly repair the Unit Services so that it materially conforms to the Documentation; or (ii) to promptly re-perform the Professional Services.
8.3 Client Representations. Client further represents and warrants (a) it has all necessary rights and consents to provide Client Data and End User Data to Unit in connection with the CSA; (b) it is not under any federal or state restriction preventing it from using, , accessing, making available, or participating in the Platform Services; (c) it is not under any federal or state investigation for fraud or misconduct; (d) its officers have not been convicted of any crime of fraud, dishonesty, breach of trust, or money laundering; (e) in the performance of its obligations under the CSA and the BSA, it will comply with Applicable Law; and (f) all instructions issued by such Client in connection with the Platform Services are duly authorized and may be relied upon by Unit in performing the Unit Services hereunder without verification.
8.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE UNIT IP AND UNIT SERVICES ARE PROVIDED “AS IS” AND UNIT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. UNIT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. UNIT MAKES NO WARRANTY OF ANY KIND THAT THE UNIT IP OR UNIT SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9.1 Unit Indemnification.
(a) Unit shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) brought against Client alleging that the Unit Services, or any use of the Unit Services in accordance with the CSA, infringes or misappropriates such third party’s intellectual property rights.
(b) If such a claim is made or appears imminent, Unit may in its sole discretion: (i) modify or replace the Unit Services, or component or part thereof, to make such services non-infringing; or (ii) obtain the right for Client to continue use of the Unit Services. If Unit determines that neither alternative is reasonably commercially available, Unit may terminate the CSA, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client.
(c) This Section will not apply to the extent that the alleged infringement arises from: (i) Client’s use of the Unit Services in combination with data, software, hardware, equipment, or technology not provided by Unit or authorized by Unit in writing; (ii) modifications to the Unit Services not made by Unit; (iii) Client IP; or (iv) Third-Party Products.
(d) This section sets forth Client’s sole remedies and Unit’s sole liability and obligation for any actual, threatened, or alleged claims that the Unit Services infringe, misappropriate, or otherwise violate any intellectual property of any third party.
9.2 Client Indemnification. Client shall indemnify, hold harmless, and, at Unit’s option, defend Unit from and against any Losses resulting from (a) any Third-Party Claim alleging that the Client IP, or any use of the Client IP in accordance with the CSA, infringes or misappropriates such third party’s intellectual property or other rights and (b) any Third-Party Claims based on (i) the willful or negligent submission of incorrect, illegal, or improper record of information, data, or other documentation submitted by Client on behalf of itself or on behalf of an End User in connection with the Unit Services; (ii) Client’s breach of the BSA; (iii) Client’s use of the Unit Services in a manner not authorized by the CSA; (iv) Client’s or End User’s violation of Applicable Law in using the Platform Services; or (v) Client’s use of the Unit Services in combination with data, software, hardware, equipment or technology not provided by Unit or authorized by Unit in writing.
9.3 Process. The obligations under this Section 9 will apply only if the Party seeking defense or indemnity (a) gives the other Party prompt written notice of the claim; (b) permits the other Party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other Party (at such other Party’s expense) in the defense and settlement of the claim. In no event will either Party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other Party.
10. 1 IN NO EVENT WILL UNIT BE LIABLE UNDER OR IN CONNECTION WITH THE CSA OR UNDER THE BSA UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER UNIT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
10.2 IN NO EVENT WILL UNIT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CSA AND/OR THE BSA UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE NET REVENUE PAID TO UNIT UNDER THE CSA IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING THE ABOVE, IN THE EVENT SUCH LOSS, DAMAGE OR OTHER HARM ARISES OUT OF OR IN CONNECTION WITH UNIT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT THEN THE CUMULATIVE AND AGGREGATE LIABILITY WILL BE UNCAPPED.
11.1 Term. The initial term of the CSA begins on the Effective Date and, unless terminated earlier pursuant to the express provisions of the CSA, will continue in effect for the period identified in the Order (the “Initial Term”). The CSA will automatically renew for additional terms as set forth in the Order unless earlier terminated pursuant to express provisions of the CSA or either Party gives the other Party written notice of non-renewal as set forth in the Order (each a “Renewal Term” and together with the Initial Term, the “Term”).
11.2 Extension for Transition Period. Notwithstanding Section 11.1, the Term of the CSA shall include and extend until the conclusion of any transition period provided for under the applicable BSA. For clarity, Client agrees to continue to pay all fees due and other amounts owing to Unit hereunder during such transition period.
11.3 Suspension. Notwithstanding anything to the contrary in the CSA, Unit may temporarily suspend Client’s and/or any End User’s access, as applicable, to or use of any portion or all of the Unit Services if: (a) Unit reasonably determines that (i) there is a threat or attack on any of the Unit IP; (ii) Client’s or any End User’s use of the Platform Services disrupts or poses a security risk or other risk of imminent harm to Unit, Bank Partner, their respective affiliates or any other client or vendor of Unit or Bank Partner; (iii) Client suffers a security incident which has not yet been remediated to Unit’s satisfaction; (iv) Client, or any End User, is using the Platform Services for activities that are fraudulent, illegal or otherwise prohibited by the CSA; (v) subject to Applicable Law, Client has ceased business operations in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (vi) Unit’s provision of the Unit Services to Client or any End User is prohibited by Applicable Law, or Client is otherwise violating Applicable Law in any material respect; or (vii) any Client Data or End User Data submitted, posted, or otherwise transmitted by or on behalf of Client or an End User through the Unit Services may infringe or otherwise violate any third party’s intellectual property or other rights, as determined by Unit; or (b) Client is in material breach of the CSA or the BSA (any such suspension described above, a “Service Suspension”). Unit shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Unit Services following any Service Suspension. Unit shall use commercially reasonable efforts to resume providing access to the applicable Unit Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured, as determined by Unit in its reasonable discretion. Unit will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client, any End User or other third party may incur as a result of a Service Suspension.
11.4 Termination. In addition to any other express termination right set forth in the CSA:
(a) Unit Termination. Unit may terminate the CSA, effective on written notice to Client, if Client fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after Unit’s delivery of written notice thereof.
(b) Mutual Termination. Either Party may terminate the CSA, effective upon written notice to the other Party, if (i) the other Party materially breaches the CSA or the BSA, and such breach: (x) is incapable of cure; or (y) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; (ii) upon written notice to the other Party of a material violation by such Party of Applicable Law in connection with the performance of the CSA or the BSA; (iii) following any change to or enactment of any Applicable Law which renders any material portion of the Unit Services illegal, or otherwise has a material adverse effect upon a Party’s ability to exercise its rights or perform its obligations under the CSA; (iv) if required or directed by any Governmental Authority; or (v) upon termination of the applicable BSA.
(c) Insolvency. Either Party may terminate the CSA, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
11.5 Remediation; Reformation. Prior to either Party terminating the CSA under Section 11.4(b)(ii)-(iv), unless otherwise required by Applicable Law, a Governmental Authority or Bank Partner, the parties shall engage in good faith negotiations for at least thirty (30) days to address the applicable issues and will terminate the CSA only if such negotiations are unsuccessful in reaching agreement on the activities giving rise to such concerns.
11.6 Effect of Expiration or Termination. No expiration or termination will affect Client’s obligation to pay all fees or charges that may have become due before such expiration or termination (including during any applicable transition period) or entitle Client to any refund. For the avoidance of doubt, in the event of a termination for cause by Unit due to a material breach by Client of the CSA or BSA, including, without limitation, a termination by Unit pursuant to Sections 11.4(a); 11.4(b)(i)-(ii); 11.4(b)(iv)-(v) due to a breach by Client; or 11.4(c), Client shall promptly pay all remaining amounts owed to Unit under the CSA. Transition services provided by Unit in its sole and reasonable discretion shall be subject to Unit’s standard rates or any other rates negotiated by the Parties in good faith.
11.7 Survival. This Section 11.7 and Sections 1, 2.5, 2.6, 3, 4, 5, 6, 7.1, 8, 9, 10, 11.6, and 12, along with any other terms and conditions that require continued performance, compliance, or effect beyond the termination date of the CSA, will survive any termination or expiration of the CSA.
12.1 Entire Agreement. The CSA, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of the CSA and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the Order, these Client Services Terms, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, the Order; (b) second, these Client Services Terms; and (c) third, any other documents incorporated herein by reference.
12.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth in the Order (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in the CSA, a Notice is effective only: (a) upon receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.
12.3 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached the CSA, for any failure or delay in performing its obligations under the CSA (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a Governmental Authority, including imposing an embargo.
12.4 Amendment and Modification. No amendment or modification to the CSA is effective unless it is in writing and signed by an authorized representative of each Party.
12.5 Waiver. No failure or delay by either Party in exercising any right or remedy available to it in connection with the CSA will constitute a waiver of such right or remedy. No waiver under the CSA will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
12.6 Severability. If any provision of the CSA is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the CSA or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the CSA so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.7 Governing Law; Jurisdiction; Arbitration. The CSA is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York, except that the governing law of the applicable BSA will govern the CSA, and the Parties agree that the venue of the applicable BSA will apply to this CSA, where disputes or issues arise that relate to the Banking Services provided by Bank Partner to Client and End Users under the applicable BSA together with any disputes or issues that relate to Unit Services provided hereunder. Unless prohibited by Applicable Law, any controversy or claim arising out of or relating to the CSA, or the breach thereof, that cannot be resolved informally shall be settled by arbitration (to be held in English) in accordance with the Comprehensive Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each Party will have a right to seek injunctive or other equitable relief in a court of law from any court of competent jurisdiction. The prevailing Party will be entitled to receive from the non-prevailing Party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing Party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Except as stated otherwise in this Section 12.7, the Parties hereby consent to the arbitration to be held in New York, NY. BY AGREEING TO THE ARBITRATION PROVISIONS IN THIS SECTION 12.7, EACH PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THE CSA AND AGREES THAT ANY SUCH DISPUTE SHALL NOT BE TRIED BEFORE A JURY.
12.8 Assignment. Client may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, in the case of a Change of Control, or otherwise, without the prior written consent of Unit. “Change of Control” means, the (a) consolidation or merger of Client with or into any person or entity, including by operation of law; (b) sale, transfer or other disposition of all or substantially all of the assets of Client’s business; or (c) acquisition by any person or entity, or group of persons or entities acting in concert, of beneficial ownership of more than fifty percent (50%) of the outstanding voting securities or partnership interests of Client. Unit’s prior written consent will not be unreasonably withheld in the event that Client undergoes a Change of Control involving an entity that is not a competitor of Unit and such acquirer agrees in writing to fulfill Client’s obligations under the CSA. Any purported assignment, transfer or delegation in violation of this Section will be null and void. No assignment, transfer or delegation will relieve the assigning or delegating Party of any of its obligations hereunder except as permitted otherwise. The CSA is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
12.9 Export Regulation. The Unit Services utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Client shall not, directly or indirectly, export, re-export, or release the Unit Services or the underlying software or technology to, or make the Unit Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Unit Services or the underlying software or technology available outside the US.
12.10 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Client, Section 4.4, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
12.11 Publicity. Unit may identify Client as a user of the Platform Services and may use Client’s name, logo, and other trademarks in Unit’s Client list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Client). Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval.
