TERMS OF USE
PLEASE READ CAREFULLY BEFORE USING THIS SAAS SERVICE. BY ACCESSING AND USING THE SAAS SERVICE AND THE ASSOCIATED APPLICATIONS, WEBSITE AND TOOLS, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN. THESE TERMS OF USE FORM PART OF THE SAAS SUBSCRIPTION AGREEMENT, WHICH YOU ARE REQUIRED TO ACCEPT IN CONNECTION WITH YOUR INITIAL AND SUBSEQUENT USE OF THE SAAS SERVICE.
Access to the Service
You have acquired the right to access the Bankingly Service (the "SaaS Service" or the "Service"), which generally consists of the services shown in each Purchase Order that has been completed and authorized under the SaaS Subscription Agreement.
The Service Provider agrees to make the Platform available to you by creating an account, providing the access credentials for that account within 5 business days following the effective date, as determined in the Purchase Order Form.
If the Purchase Order Form provides a schedule for delivery, the date is an estimate and is subject to service availability, site preparation for installation, and programming to be performed by the Customer's installers, as applicable. In the event that the service is not available within a reasonable period of time from the scheduled delivery date, you may optionally (a) cancel the purchase of undelivered services, or (b) accept the postponement of delivery until delivery of the service can be completed. In no event shall the Service Provider be liable to you or any user for any delay, costs, or damages associated with any delay in delivery or for partial or incomplete delivery.
Unless otherwise stated in the Purchase Order Form, you agree to be responsible for all site preparation, including utility connections and acquisition of necessary equipment or peripheral devices and integration with the Services.
You will have a maximum of 90 (ninety) days to complete the integration work and make the service available to your Users. Once that period has expired without the integration work being completed, the Service Provider will suspend the service until you are in a position to activate the service for your Users.
SaaS Services; Rights Granted
The Service Provider delivers to you and your customers (collectively, the "Users"), for the term of the service indicated in the Purchase Order Form, a limited, non-exclusive, temporary, and non-transferable license to access and use the services, tools, and applications provided through the SaaS Service subject to these Terms of Use. The SaaS service may include download areas and product information provided by the Service Provider or third-party providers. All SaaS Services, including updates, enhancements, new features, and/or the addition of any new Web property, are subject to these Terms of Use. All rights not expressly granted to you and your users pursuant to the SaaS Subscription Agreement are reserved for the Service Provider, and all uses of the SaaS Service not expressly permitted are prohibited.
In case of breach of any term of these Terms of Use and if the breach is not remedied within 10 days of receiving the notification of breach, the Service Provider may terminate the service in its entirety or in part, immediately, by notifying you in writing. Notwithstanding the foregoing, the 10-day period will not apply when the breach is not remediable, and the Service Provider may terminate the Agreement immediately, without any liability.
Description of SaaS Services
The SaaS Services will be provided in accordance with the following conditions: A) Limited customization of the service with the scope determined in the Annex to the SaaS Subscription Agreement ("Scope and Conditions").
B) Monitoring of the Service. The Platform is monitored 365 days a year through the definition of different types of alerts, so events and/or errors are proactively addressed.
C) Update of the Platform, with the scope determined in the referred Annex ("Scope and Conditions"). In case it is required to impact the integration services, Bankingly will notify you at least 30 (thirty) days in advance. To continue with the enabled services, you must apply the changes to your On-Premises infrastructure within a maximum period of 90 (ninety) days. Once the period has expired, services may be suspended due to incompatibility.
D) Supply of key documentation related to the use of the Platform, as determined in the referred Annex ("Scope and Conditions").
E) Support Terms. Support Terms include remote support during normal business hours and 24x7 as determined in the referred Annex ("Scope and Conditions"). You will designate a person who will be the authorized point of contact for all technical support communications between the Service Provider and you at all times.
The Service Provider will make all commercially reasonable efforts to keep the services available 24 hours a day, 7 days a week, with the exception of scheduled downtimes (for short periods, usually on Sundays and communicating to you in advance the estimated downtime) for the purpose of regular maintenance, cases of unforeseen maintenance, system interruptions, or routine testing of the Services.
Permitted and Prohibited Use
You agree, on your own behalf and as a guarantee for all your enabled Users, as a condition of use of the SaaS Services, not to use the SaaS Services for purposes that are illegal or prohibited by the terms and conditions established in the SaaS Subscription Agreement, the Terms of Use, and/or the Purchase Order Forms.
You and your enabled Users may not use the SaaS Service in any way that could damage, disable, overburden, or impair the Service Provider's networks or installations, those of other clients, or other enabled users, or interfere with other users' access to any of the SaaS Services.
You and your Enabled Users may not obtain or attempt to obtain unauthorized access to any part of the SaaS Service, other accounts, computer systems, or networks connected to any service provider or any part of the SaaS Services, through hacking, password mining, or any other means. You and your enabled Users may not obtain or attempt to obtain material or information through any means not intentionally made available through the SaaS Services.
You and your enabled Users are expressly prohibited from: (i) copying, reproducing, altering, modifying, transmitting, creating derivative works from, publishing, sub-licensing, distributing, or circulating the SaaS Services, or any of the associated applications, tools, or data thereof; (ii) disassembling, decompiling, or reverse engineering the software used to provide the SaaS Services; using a robot, spider, or any similar device to copy or catalog any material or information available through the SaaS Services; or (iii) carrying out any activity, whether intentional or unintentional, that could bypass, disable, damage, or impair the control or security systems of the SaaS Services, or allow or assist a third party to do so.
The Service Provider may at any time suspend (or require that You suspend) the access of Users to the SaaS Services and/or disable their access credentials in case of violation of the terms and conditions established in this Agreement, the Terms of Use, and/or the Purchase Order Forms. The causes for suspension of the service include, but are not limited to, legal or regulatory violations; investigation of suspicious activities; order issued by the authorities; if the Service Provider or you have grounded reasons to suspect that the User is engaged in activities that may violate the SaaS Subscription Agreement, these Terms of Use, or the current legislation; in all cases where their activities are considered harmful to the Service Provider, you, the networks or installations of the Service Provider, you or other Users; among other causes.
The Service Provider will not be liable to the Users for the suspension of access to the SaaS Services, regardless of the cause that gave rise to it. You agree to hold the Service Provider harmless from any claim or liability that Users may claim.
Effects of Termination of SAAS Subscription Agreement
Upon termination of the SaaS Subscription Agreement for any reason, all rights granted herein will revert to the Service Provider. All access and use of the SaaS Services by Users must cease, and all materials, tools, and applications downloaded from the SaaS Service must be deleted, removed, or destroyed immediately or, if necessary, within a maximum of 48 (forty-eight) business hours.
The Service Provider will destroy all your data, after giving you access to the system for the purpose of backing up such data for a period of 15 (fifteen) days.
Links to Third Parties
The SaaS Service may provide links that allow you or your users to leave the Service Provider's site and/or access third-party websites. The linked sites are in many cases not under the control of the Service Provider. The Service Provider is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. The Service Provider is not responsible for webcasting or any other form of transmission received from any linked site. The Service Provider provides these links only as a convenience and the inclusion of these links does not imply endorsement of the site by the Service Provider.
Use of Passwords; Internet
You are responsible for providing and managing usernames and passwords for all users (the "Log-In Information"). Each user must have a valid username and password for the purpose of accessing the SaaS Services. You and your users must keep all Log-In Information strictly confidential. The Log-In Information may only be used by the assigned user and cannot be shared or transferred without your consent and control.
You and your users are responsible for maintaining the confidentiality of that user's username and password. You and your users are responsible for any and all activities that occur under the accounts of all your users. You agree to notify the Service Provider immediately of any unauthorized use of your users' accounts or any other breach of security. The Service Provider will not be liable for any loss that you or a user may incur as a result of someone else using passwords or accounts, either with or without the knowledge of the respective users.
The Service Provider does not guarantee the security of any information transmitted to or from you or any user over the Internet, in particular through the use of email. Internet access, if used, is your responsibility and the responsibility of each user and the Internet service provider(s) you select. The Service Provider accepts no liability for unavailability of service due to Internet services, including telecommunications services and related equipment.
The Service Provider agrees to make its best technical efforts to protect the security of the data flowing within the different components of the Service.
Communications from the Service Provider
The Service Provider may contact you or Users periodically for service purposes. By accessing the SaaS Services, you and each user provide your consent to receive this type of communications. You agree that the Service Provider may reference your business relationship with you in its marketing or sales material.
Specific Statement as to Software Available with the SaaS Services
Any software that is available for download from the SaaS Services ("Software") is the intellectual property of the Service Provider and/or its suppliers.
The Software is made available solely for your use in accordance with these Terms of Use. Any reproduction or redistribution of the Software not in accordance with these Terms of Use is expressly prohibited and will result in civil and criminal penalties as provided by Law. Without prejudice to the foregoing, copying or reproducing the Software to any other server or alteration for further reproduction or redistribution is expressly prohibited, unless such reproduction or redistribution is expressly permitted by the license agreement accompanying such Software.
Ownership
The SaaS Services, any material or information supplied pursuant to the SaaS Services, any associated applications, tools, or data, and all additions, modifications, and improvements made or specified by the Service Provider, its agents, or contractors, are the exclusive property of the Service Provider, and are protected by national and international laws of copyright, trademark, and patents, as applicable. By using the SaaS Services, neither you nor your Users obtain any ownership rights over them.
The Service Provider does not obtain ownership of your usage information or that which your Users provide for the use and operation of the SaaS Services, which is your exclusive property. The Service Provider may use such information solely to operate and manage the SaaS Services and under no circumstances may use it for other purposes, whether commercial or not.
You agree that the Service Provider may update, modify, replace, or reconfigure the SaaS Services at any time, always having to notify you at least thirty (30) days in advance for changes that materially and adversely affect any use of the SaaS Services. The Service Provider may modify the Support Terms by giving at least thirty (30) days' notice. Such notice must be made through an email sent to the account representative designated by you. In all cases where the modifications or updates substantially affect the SaaS Service under the terms agreed upon in these Terms of Use and/or the Purchase Order Forms, you may automatically terminate the SaaS Subscription Agreement without any liability. Once 10 (ten) calendar days have elapsed from the notice of the modifications or updates without you communicating your non-acceptance, the new conditions will be binding between the parties.
Changes to the Terms of Use
The Service Provider reserves the right to modify these Terms of Use when it deems necessary. These changes will take effect when the Service Provider has communicated the new Terms of Use of the service or posted them on any related website. The most current version of the Terms of Use can be reviewed by going to http://www.bankingly.com/terminos-de-uso/. Users must review the Terms of Use frequently, as they are subject to the Terms of Use that have been communicated or posted, from the date of their communication or publication on the related website. The modified Terms of Use replace all previous versions. If there is a relevant change in them that substantially affects the previously agreed Service, you may automatically terminate this agreement without any liability, having to communicate it in an undeniable manner to the Service Provider. Once 10 (ten) calendar days have elapsed from the notice of the modifications without you communicating your non-acceptance, the new Terms of Use will be fully binding between the parties.
Any modification made to these Terms of Use will be carried out once it has been verified that compliance with the relevant regulations is preserved in the territories with active clients.
Limitations of Liability and Warranties
To the extent that the original manufacturer is not the Service Provider or one of its affiliates and that manufacturer establishes warranties regarding the services it provides, the Service Provider assigns those warranties to you subject to the conditions and limitations established by the manufacturer. The Service Provider will collaborate with you, at your expense, to carry out any claim seeking to execute those warranties, but the
Service Provider assumes no other responsibility with respect to them. The warranties established by the manufacturer displace any other warranty relating to the services, express or implied, including but not limited to, any warranty arising from any description or specification provided by the services, any sample or model presented to you or your representatives, any implied warranty of merchantability, fitness for a particular use or purpose, or title. Any claim based on the condition, operation, defect, or lack of conformity with the services must be made against the original manufacturer, enforcing the warranties (if any) provided by said original manufacturer.
The SaaS Services and any tool, application, information, or material provided to you in connection with the SaaS Services are provided as described in the SaaS Subscription Agreement, and all warranties of any kind, past or present, emerging from the law, trade usage, as well as those discussed during the negotiations of the parties, including implied warranties of merchantability, fitness for a particular purpose, accuracy, performance or information, security and, unless otherwise stated in this agreement, the obligation of "non-infringement", are expressly excluded to the maximum extent permitted by Law.
In all cases, the total liability of the Service Provider for any damage and loss arising under or as a consequence of the Contract or the Purchase Orders, whether contractual, tort, or of any other nature, will be limited to the total amount paid to the Service Provider for the services under the order that gives rise to the liability in the period of six (6) months immediately preceding the event that gave rise to such liability, less corresponding refunds or credits.
No oral or written information and/or advice given by the Service Provider or its employees will create a warranty or in any way increase the scope of the Service Provider's obligations hereunder. The Service Provider will be responsible for making its best efforts to safeguard the reliability and security of the service. In no event shall the Service Provider be liable for lost or damaged data, downtime, lost profits, business interruption, service change, or any other special, incidental, consequential, punitive, or indirect damage, however caused, to the extent permitted by applicable law.
The Service Provider and its affiliates are not responsible for loss, damage, or harm of any kind to any person or entity resulting from any use, state, operation, defect, or failure in the SaaS Services, except for negligence or willful misconduct. You and your Users release and waive all claims against the Service Provider, its parent company, subsidiaries, affiliates, agents, or content providers and the directors, trustees, officers, shareholders, employees, agents, and representatives of each of the foregoing (the "Service Provider Group"), from any and all claims, damages, liabilities, costs, and expenses arising from the use by you and your Users of the SaaS Services, except for negligence or willful misconduct.
If any failure should occur by the Service Provider in providing the SaaS Services, the sole remedy you will have and the sole liability the Service Provider will have will consist of the correction of the deficient services that caused the failure. If the Service Provider is unable to substantially correct the deficiency in a commercially reasonable manner, you may terminate the deficient services and the Service Provider will refund the fees corresponding to the services you have pre-paid for the period after termination, if applicable.
Representations and Warranties
You represent and warrant that (i) you have the power and authority to enter into the SaaS Subscription Agreement and agree to all the terms and conditions contained therein and in these Terms of Use; (ii) only you and your users will be authorized to access the SaaS services and any related tools, applications, information, and material provided in connection with the SaaS Services; and (iii) you will obtain and keep in force all permits, licenses, and authorizations necessary for the purchase and use of the SaaS Services.
You acknowledge and agree that the SaaS Services and the tools, applications, information, and material provided in connection with the SaaS Services possess a special, unique, and extraordinary character that makes it difficult to assess monetary damages that would result from unauthorized use, and that unauthorized use may cause immediate and irreparable harm to the Service Provider for which you agree to hold the Service Provider harmless.
Reporting of Infringements
By accessing and/or using the SaaS Services, Users agree to inform the Service Provider of all claims or alleged claims of copyright or other intellectual property infringement of the Service Provider or other proprietary rights. Claims of infringement must be directed to legal@bankingly.com.
If you believe that any information on the SaaS Service infringes your copyright, you must notify the Service Provider of this circumstance. The Service Provider will process notifications of alleged copyright infringement in accordance with applicable intellectual property laws. The notification of the infringement must be made in writing and must be addressed to legal@bankingly.com.
To be effective, the notification of the infringement must contain the following information: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of the right that has allegedly been infringed; (2) Identification of the work whose copyright has been violated, or, if it involves multiple works on a single online site, a representative list of such works on that site; (3) Identification of the material that is understood to be infringing and that must be removed or access to which must be disabled, and information reasonably sufficient to allow the service provider to locate the material; (4) Information reasonably sufficient to allow the Service Provider to contact the complaining party, such as an address, telephone number, and, if available, an email address where the complaining party can be contacted; (5) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) A statement that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Confidentiality
The Service Provider assumes the strictest obligation of secrecy and confidentiality, being expressly prohibited from disclosing, directly or indirectly, all information provided or that will be provided to it, as well as that to which it accesses as a consequence of the execution of this Agreement, linked to you.
It is understood, by way of example but not limitation, that such confidential information includes: data referring to your partners, users, or clients, your suppliers, branches, subsidiaries, and/or related companies, your products, methods and processes, marketing and sales ideas, business plans, technical information, as well as prices, costs, and the know-how used.
Regarding the mentioned information and all other information known by virtue of its relationship with you, without exception, the Service Provider assumes the obligation of secrecy and confidentiality, not only during the term of this Agreement, but also after the termination of the same.
The Service Provider acknowledges that said confidential information is your exclusive property, as well as all material provided by yourself for the execution of this Agreement (such as, manuals, brochures, reports, diskettes, client lists, product lists, or any other documentation or information related to the business).
The Service Provider agrees to return to you all documentation and information provided and not to use your data in the event of termination of this agreement for any reason or cause.
Miscellaneous
Neither party will be liable for failure or delay in performing its obligations if caused by force majeure, acts of war, natural disaster, interruption of telecommunications services, internet, or electricity that are not caused by the obligated party, governmental restrictions, intellectual property rights, or any similar event beyond the reasonable control of the parties.
The Service Provider will not be liable for any loss or damage of any kind or the consequences thereof caused by delay or impossibility of delivery caused by strikes, lockouts, fire, theft, shortage, impossibility of obtaining materials or space on ships, breakdowns, delays of carriers, manufacturers, or suppliers, or by any cause beyond its reasonable control.
These Terms of Use will be interpreted and enforced in accordance with the laws and jurisdiction of the State of Florida, United States of America. The User waives any judicial and extrajudicial claims related to this Service.
In the event that any provision of this document is deemed null or unenforceable, the remaining provisions thereof will remain in force and said provision will be replaced by another in accordance with the purpose and target of this document.
No waiver of any breach of this document will be considered a waiver of any other breach thereof.
Section headings are provided solely for convenience, and may not be used to interpret the meaning of any section thereof.
