Terms of Use
PLEASE READ CAREFULLY BEFORE USING THIS SAAS SERVICE. BY ACCESSING AND USING THE SOFTWARE AS A SERVICE (SAAS) AND THE ASSOCIATED WEBSITE, APPLICATIONS 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 ALL SUBSEQUENT USE OF THE SAAS SERVICE.
Last update: 05/07/2022
Use of the Service
You agree to acquire the right to access Bankingly Service (the “SAAS Service” or the “Service”), consisting generally of the services shown in each Order Form that is completed and approved under the SAAS Subscription Agreement.
Service Provider (Bankingly) agrees to make available the Platform to the Customer by setting up an account for the Customer on the Platform, and providing the Customer login details for that account within five business days following the Effective Date, according to the Order Form.
If the Order Form provides a schedule for delivery, the schedule is an estimate and is subject to availability of the Service, readiness of the site for installation, and scheduling of installers, as applicable. In the event the Service is not available within a reasonable period of time of the scheduled delivery, you may at your option (a) terminate the purchase of undelivered Services, or (b) accept postponement of delivery until the delivery of the Service can be completed. In no event shall Service Provider be liable to you or any users for any delay or impact costs or damages associated with any late, partial or incomplete delivery.
Unless otherwise indicated in the Order Form, you agree to be responsible for all needed preparation, including, by way of example, utility connections and procurement of necessary equipment or peripheral devices, and for integration with the Services.
You have a maximum of 90 (ninety) days to complete the integration work and make the service available to its Users. After the expiration of that term without the integration work completed, Service Provider will suspend the Service until you are able to activate the service to its Users.
SAAS Services; Grant of Rights
If SAAS Services are obtained pursuant to an Order Form, Service Provider grants you and your customers (collectively, the “Users”), for the Term of Service indicated in the Order Form, a limited, non-exclusive, terminable, non-transferable access and use of 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 Service Provider or third-party vendors. All SAAS Services, including any updates, enhancements, new features, and/or the addition of any new Web properties, 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 to Service Provider, and all uses of the SAAS Service not expressly permitted hereunder are prohibited.
In the event of breach of any term of this Terms of Use, and if the breach is not cured within 10 days after receipt of notice of the breach, Service Provider may terminate the service in whole or in part immediately upon written notice to you. Notwithstanding the foregoing, there shall be no cure period for any breach that is not curable.
Description of SAAS Services
The SAAS Services will be provided according to the following terms: A) Limited personalization of the Service with the scope details determined in the Exhibit to the SAAS Subscription Agreement (“Scope and Conditions”). B) Monitoring of the Service. Service Provider monitors and manages the SAAS Services 365 days a year. The Bankingly platform is monitored 365 days a year through different levels of incidents, has proactive problem resolution and is backed by the Operations technicians, who resolve the incidents based upon the technical support severity categories. C) Updates of the Platform with the scope determined in the Exhibit (Scope and Conditions) of the SAAS Subscription Agreement. If changes are required on Bankingly integration services, Bankingly will provide at least 30 (thirty) days’ advance notice. The Customer shall impact those changes in their on-premises infrastructure within a period of 90 (ninety) days. Once the deadline expires, the services may be suspended due to incompatibility issues. D) Provision of key documentation related to Customer’s use of the Platform, with the scope determined in the Exhibit (Scope and Conditions) of the SAAS Subscription Agreement. E) Support Services. Support Services include unlimited remote service and support during normal business hours and 24×7 for emergency support, with the scope determined in the Exhibit (Scope and Conditions) of the SAAS Subscription Agreement. Customer will designate one representative who will be the authorized contact for all technical support communications between Service Provider and Customer at all times. Service Provider will apply all the commercially reasonable efforts to keep the SAAS Services available on a 24 hours a day, 7 days a week basis, subject to occasional scheduled downtime (for short and controlled periods of time and communicated in advance) for maintenance purposes, unforeseen maintenance and systems outages, or routine testing of the Services.
Permitted and prohibited use.
You agree, on behalf yourself and all your Users, as a condition of use of the SAAS Services, not to use the SAAS Services for any purpose that is unlawful or prohibited by these Terms of Use, the SAAS Services Agreement and the Order Forms.
You and your Users may not use the SAAS Service in any manner that could damage, disable, overburden, or impair any Service Provider or subscriber server, or the network(s) connected to any Service Provider or subscriber server, or interfere with any other party’s use and enjoyment of any of the SAAS Services.
You and your Users may not attempt to gain unauthorized access to any part of the SAAS Services, other accounts, computer systems or networks connected to any Service Provider or subscriber server or to any part of the SAAS Services, through hacking, password mining or any other means. You and your Users may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the SAAS Services.
Except as expressly set forth herein, you and your Users may not (i) copy, reproduce, alter, modify, transmit, perform, create derivative works of, publish, sub-license, distribute, or circulate the SAAS Services, or any associated applications, tools or data thereof; (ii) disassemble, decompile, or reverse engineer the software used to provide the SAAS Services, or use a robot, spider, or any similar device to copy or catalog any materials or information made available through the SAAS Services; or (iii) take any actions, whether intentional or unintentional, that may circumvent, disable, damage or impair the SAAS Services’ control or security systems, or allow or assist a third party to do so.
Service Provider may at any time suspend (or require that you suspend) the access of Users to the SAAS Services and/or disable their Login Information in the event of violation of these Terms of Use, the SAAS Service Agreement and/or the Order Forms. Grounds for doing so are not limited but may include legal or regulatory reasons, investigation of suspicious activities, action by authorities, or if Service Provider or the Customer have had reasons to suspect any such User is engaged in activities that may violate the Agreement, this Terms of Use, any applicable laws or subscriber policies, or are otherwise deemed harmful to Service Provider, the Customer’s organization, the Costumer and Service Provider respective network or facilities, or other Users.
Service Provider shall not be liable to any User for suspension of access to the SAAS Services, regardless of the grounds. Customer agrees to keep Service Provider harmless from any claim or liability that Users may pursue.
Termination of the SAAS Subscription Agreement; effect of termination or expiration.
Upon expiration or prior termination of the SAAS Subscription Agreement, all rights granted herein shall revert to Service Provider. All access to and use of the SAAS Services by Users must then cease, and all materials, applications and tools downloaded from the SAAS Service must be immediately erased, deleted, or destroyed, or, if needed, in a maximum of 48 (forty eight) hours.
Service Provider will destroy all the Customers Data after giving you access to the system in order to back-up such Data for a period of 15 (fifteen) days.
Links to Third Party Sites
The SAAS Service may provide links that allow you or your Users to leave Service Provider’s site and/or access third party websites. The linked sites in most cases are not under the control of Service Provider and 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. Service Provider is not responsible for webcasting or any other form of transmission received from any linked site. Service Provider provides this links functionality only as a convenience, and the inclusion of any link does not imply endorsement by Service Provider of the site.
Use of Passwords; Internet
You are responsible for providing and administering 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 configuration Portal for the SAAS Services. You and your Users must keep all Log-In Information strictly confidential. Log-In Information may be used only by the assigned User and may not 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 all your Users’ accounts. You agree to notify Service Provider immediately of any unauthorized use of your Users’ accounts or any other breach of security. Service Provider will not be liable for any loss that you or a User may incur as a result of someone else using your Users’ passwords or accounts, either with or without the applicable Users’ knowledge.
Service Provider does not guarantee the security of any information transmitted to or from you or any User over the Internet, including through the use of e-mail. Access to the Internet, if employed, is your and each User’s sole responsibility and the responsibility of Internet provider(s) you select. Service Provider does not accept any responsibility for failure of service due to Internet facilities, including related telecommunications or equipment.
Service Provider will make its best technical efforts to ensure the security of the data that flows inside the different components of the Service.
Communications from Service Provider
Service Provider may periodically contact you or Users for customer service purposes. By accessing the SAAS Services, you and each User consent to receive such communications. You agree that Service Provider may reference its business relationship with you in its marketing or sales materials.
Notice Specific to Software Available with the SAAS Services
Any software that is made available to download from the SAAS Services (“Software”) is the copyrighted work of Service Provider and/or its suppliers.
The Software so provided is made available for download solely for use according to this Terms of Use. Any reproduction or redistribution of the Software not in accordance with this Terms of Use is expressly prohibited and may result in civil and criminal penalties. Without limiting the foregoing, copying or reproduction of the Software to any other server or location 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 provided pursuant to the SAAS Services, and any associated applications, tools or data, and all additions, modifications and improvements made or specified by Service Provider, its agents or contractors, are the property of Service Provider, and are protected by United States and international copyright, trademark and patent laws, as applicable. By using the SAAS Services, neither you nor your Users gain any ownership interest over them.
Service Provider does not claim ownership on the information you or your Users provide for the use and operation of the SAAS Services. Service Provider may use such information to operate and administer the SAAS Services exclusively.
Service Provider reserves the right to upgrade, modify, replace or reconfigure the SAAS Services at any time, provided that you will be given at least thirty (30) days’ advance notice for changes that materially and adversely affect any use of the SAAS Services. Service Provider may also change the Support Terms and service level agreements for the SAAS Services subject to at least thirty (30) days’ advance notice. If any such changes notified in an email sent to your account representative substantially affect the terms agreed in this Terms of Use, the SAAS Service Agreement or any Order Form, you may terminate the SAAS Service Agreement without responsibility. The modifications and updates will become effective if after a 10 (ten) day period from the notification you don´t communicate Service Provider your non acceptance.
Changes to Terms of Use
Service provider reserves the right to change these Terms of Use from time to time. Such changes will become effective when Service Provider posts the revised terms of use as part of the service or on any related website. The most current version of the Terms of Use can be viewed on https://www.bankingly.com/terms-of-use. Users shall check the Terms of Use from time to time, as they are bound by the terms of use so posted from and after the time the changes are posted. Any revised terms of use shall supersede all previous versions. If any such changes substantially affect the Service previously agreed, you may terminate the SASS Service Agreement without responsibility, giving Service Provider due notice. The modifications will become effective if after a 10 (ten) day period from the notification you don´t communicate Service Provider your non acceptance.
Changes to these Terms of Use will be executed once it has been verified that regulatory compliance is preserved in all territories with ongoing operations in place.No Warranties, Limitation of Liability
To the extent that the original manufacturer is not Service Provider or one of its affiliates and such manufacturer makes any warranties covering the services, Service Provider assigns those warranties to you, subject to the conditions and limitations provided by the manufacturer. Service Provider will cooperate with you, at your cost, to process any warranty claim, but Service Provider assumes no other responsibility for such warranties. The foregoing assignment of warranties is expressly in lieu of any and all other warranties pertaining to the services, express or implied, including, but not limited to, any express warranty arising from any description or specification provided for the services, or any sample or model presented to you or your representatives, or any implied warranties of merchantability, fitness for a particular use or purpose, or title. Your exclusive remedy for any claim based on the condition, performance, defect or non-conformity of the services shall be made to the original manufacturer for the warranties (if any) provided by the original manufacturer.
The SAAS Services and any tools, applications, information or materials provided to you in connection with the SAAS Services are provided “as is,” and all warranties of any kind, past or present, whether statutory, common-law or from a course of dealing or usage of trade, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, accuracy, results or output, security and, except as may be otherwise stated in this agreement, non-infringement, are expressly disclaimed to the fullest extent permitted by Law.
No oral or written information or advice given by Service Provider or its employees shall create a warranty or in any way increase the scope of Service Provider obligations hereunder. While Service Provider will make its best efforts to safeguard the Service’s reliability and security, in no event shall Service Provider be liable for any lost or corrupted data, downtime, lost profits, business interruption, replacement service or other special, incidental, consequential, punitive or indirect damages, to the extent permitted by applicable law.
Service Provider and its affiliates shall not be liable for indirect damages, consequential damages any emerging damage, loss, data loss or injury or damage of any kind to any person or entity resulting from any use, condition, performance, defect or failure in the SAAS Services. You and your Users release and waive all claims against Service Provider, its parent, subsidiaries, affiliated companies, 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 out of your and your Users’ use of the SAAS Services.
If there occurs any breach by Service Provider in the provision of de Services, the only remedy you will have, and the only responsibility Service Provider will be liable for, will be to correct the deficient services that caused the breach. If Service Provider is unable to substantially correct the deficiency in a reasonable manner, you may terminate the Services and Service Provider will reimburse you all the charges you may have anticipated for the period after termination.
Under no circumstance, regardless of the basis of the claim, the total liability of Service Provider as a result of the SAAS Service Agreement or any Order Form under these or torts, judicial or extrajudicial or of any other nature, will be limited to proven damages after final and firm court rulings: and shall exceed the total amount of the payments made effective to Service Provider for the Service resulting from that Order Form within the last 6 (six) calendar months previous to the event that gives rise to the claim, minus the credits that may apply.
Subscriber Representations
You represent and warrant that (i) you have full power and authority to enter into the SAAS Subscription Agreement, and to agree to all the terms and conditions contained therein and in these Terms of Use; (ii) only you and your Users shall be permitted to access the SAAS Services and any related tools, applications, information and materials provided in connection with the SAAS Services; (iii) you shall obtain and maintain in effect all permits, licenses and authorizations necessary for the purchase and intended use of the SAAS Services; and (iv) you shall check from time to time this Terms of Use, for you to be updated.
Reporting Infringement
By accessing and/or using the SAAS Services, Users agree to report to Service Provider all claims or suspected claims of copyright or other infringement of Service Provider’s intellectual property or other proprietary rights. Claims of infringement should be directed to legal@bankingly.com.
If you believe that any information on the SAAS Service infringes on your copyright, you should notify Service Provider of your claim. Service Provider will process notices of alleged infringement in accordance with applicable copyright laws. The notification of claimed infringement is required to be in writing and addressed to legal@bankingly.com.
To be effective, the notice of infringement must contain the following information: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (3) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; (4) Information reasonably sufficient to permit the Service Provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may 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 under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.Confidentiality
Service Provider assumes the obligation of reserve and confidentiality, and it is expressly forbidden to disclose, directly or indirectly, any information provided, as well as that which it access as a consequence of the SAAS Service Agreement or this Terms of Use, linked to you.
It is understood that such confidential information may include, but is not limited to: data referring to partners, users or customers of the Customer, its suppliers, branches, subsidiaries, and/or related companies, its products, methods and processes, sales and marketing ideas, business plans, technical information, as well as prices, costs and know-how.
With respect to the above mentioned information or any other that it accesses by virtue of its relationship with you and your Users, without exception, Service Provider assumes the obligation of reserve and confidentiality, during the term of the Agreement and after its termination.
Service Provider acknowledges that such confidential information is the exclusive property of the Customer or its Users, as well as all the materials provided by you for the execution of the Services (i.e. manuals, brochures, reports, diskettes, client lists, products lists or any other documents or information related to the business).
Service Provider agrees to return to you all the documentation and the information provided and not to use its data in the event of termination of the Agreement due to any cause.Miscellaneous.
Failure to perform by reason of any law, natural disaster, labor controversy, encumbered intellectual property right, war or any similar event beyond a party’s reasonable control shall not be a breach hereof.
Service Provider shall not be liable for any loss or damage of any kind or for any consequences thereof resulting from delay or inability to deliver caused by strikes, lockouts, fire, theft, shortage, inability to obtain materials or shipping space, breakdowns, delays or carriers, manufacturers, or suppliers, acts of God, governmental statutes, proclamations or regulations, riot, civil commotion, war, malicious mischief, or by any cause beyond its reasonable control. .
You acknowledge and agree that the SAAS Services and the tools, applications, information and materials provided in connection with the SAAS Services possess a special, unique and extraordinary character that makes difficult the assessment of the monetary damages that would be sustained as a result of unauthorized use, and that unauthorized use may cause immediate and irreparable damage to Service Provider or other Subscribers for which Service Provider or such other Subscribers would not have an adequate remedy at law. Therefore, you agree that, in the event of such unauthorized use, in addition to such other legal and equitable rights and remedies as may be available to Service Provider, Service Provider shall be entitled to injunctive and other equitable relief without the necessity of proving damages or furnishing a bond or other security.
This Terms of Use shall be construed and enforced under the laws of the State of Florida, USA without reference to the choice of law principles thereof. User hereby consents to and submits to the jurisdiction of the federal and state courts located in the State of Florida. User waives any defenses based upon lack of personal jurisdiction or venue, or inconvenient forum.
If any provision herein is unenforceable, then such provision shall be of no effect on any other provision hereof.
No waiver of any breach hereof shall be deemed a waiver of any other breach hereof.
Section headings are provided for convenience only, and shall not be used to construe the meaning of any section hereof.
