Date Last Revised: 09/14/2016
This Paybook Sync Service Agreement (this “Agreement”), effective as of the date of acceptance of this Agreement (the “Effective Date”), is entered between Paybook, Inc. (“Paybook”) and you, or the individual, company or other entity that you represent (“Customer”). If you are entering into this Agreement on behalf of a company or other entity, you represent and warrant that (i) you have the authority to bind such company or other entity to this Agreement and (ii) such company or other entity is legally in existence and in good standing in its jurisdiction of formation. By clicking “I agree” or otherwise accessing the APIs, Customer indicates its acceptance of and agreement to be bound by, the terms and conditions of this Agreement.
1. ACCESS RIGHTS; RESTRICTIONS.
1.1 Access. Subject to Customer’s compliance with the terms and conditions of this Agreement, Paybook hereby grants to Customer during the Term (defined below) of this Agreement, the non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license to: (i) internally use the package of application programming interface materials provided by Paybook (the “APIs”) solely as necessary to make or enhance an application owned and operated by the Customer (the “Customer Application”) to inter-operate with the Paybook Sync Service described on http://paybook.com/sync (as updated from time to time) (collectively, the “Service”), and (ii) provide the Service, solely as part of the Customer Application, to Customer’s end users who are natural individuals (or third parties acting on their behalf as legal agent) (the “End Users”). All use of the APIs and the Service must be only as provided in this Agreement and only in accordance with Paybook’s applicable user documentation and all other Paybook-provided written instructions.
1.2 Restrictions. Customer shall not (and shall not allow any third-party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service; (ii) modify, translate, or create derivative works based on the Service; (iii) copy, re-sell, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third-party (except End Users as authorized hereunder); (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) take any action that imposes or may impose (as determined by Paybook in its sole discretion) an unreasonable or disproportionately large load on Paybook’s (or its third party providers’) infrastructure; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (viii) bypass, circumvent or attempt to bypass or circumvent any measures Paybook may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (ix) run any form of auto-responder or “spam” on the Service; (x) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of Paybook’s websites; (xi) harvest or scrape any content from the Service; or (vii) otherwise take any action in violation of Paybook’s guidelines and policies.
1.3 Ownership. Except for the rights expressly granted under this Section 1 (Access Rights; Restrictions), Paybook retains all right, title, and interest in and to the Service, which includes but is not limited to, the APIs and any related data, software, products, works, and other intellectual property created, used, or provided by Paybook for the purposes of this Agreement. To the extent the Customer provides Paybook with any feedback relating to the Service (including, without limitation, feedback or other information related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Paybook shall own all right, title and interest in and to such Feedback and Customer hereby makes all assignments necessary to achieve such ownership.
1.5 Supported Institutions
The list of sources or origins of information (including, without limitation, documents, servers, URLs or websites) from which Paybook extracts information via various retrieval methods (“Data Sources”) currently supported by the Service are available at https://www.paybook.com/sync/institutions. Paybook will give Customer access to all Data Sources offered by Paybook, provided that Paybook may in its sole discretion discontinue or remove a Data Source or any services from a Data Source for any or no reason at any time. In such event, Paybook will use commercially reasonable efforts to notify Customer in writing prior to the discontinuation or removal if time permits. Paybook may from time to time notify Customer of new Data Sources via email, the Site or other methods such as social media, and this Agreement will be automatically amended to include such new Data Sources effective as of the date they are added by Paybook. Notwithstanding any provision of this Agreement to the contrary, Customer shall not have any right to a refund for any discontinuation, removal or other change to Data Sources.
2. Service Plans; Fees; Trial Period.
2.1 Fees. Customer agrees to pay the applicable fees and charges to Paybook as set forth in the service plan selected by Customer, as such Service Plan may be upgraded or modified by Paybook from time to time (collectively, the “Service Plans”). Paybook’s current Service Plans are available at https://www.paybook.com/sync/pricing. Subject to any temporary free or trial plan (described in Section 2.3 below), invoices will be issued during regular intervals and such other times as determined by Paybook.
2.2 Payment. Except as otherwise required by the terms of any Service Plan or posted pricing and invoices to Customer are in another currency, Customer shall pay all invoices in U.S. Dollars within ten (10) days from the invoice date using one of Paybook’s accepted payment methods. Customer shall be responsible for all taxes and duties associated with invoices issued to Customer. All Customer payments are non-refundable (except as otherwise specifically set forth herein), non-cancellable, and not subject to set-off. Unpaid invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer’s access to the Service is contingent and conditioned on full payment of all invoices when due.
2.3 Trial Period. Paybook may, in its discretion, offer Customer a temporary free or trial plan in which Customer may evaluate the Service under the defined trial usage conditions. If Customer chooses to continue using the Service thereafter, Customer will be billed, and Customer shall be responsible for paying all Paybook invoices, from the day following expiration of the defined trial period.
3. Term; Termination. This Agreement shall have a term beginning from the Effective Date and continuing for the term specified in the Service Plan purchased by Customer (the “Initial Term”). Customer may terminate this Agreement at any time upon notice to Paybook delivered in accordance with Section 13 (Miscellaneous). Unless Customer terminates this Agreement or Customer sets its account to not auto renew (if such option is available to Customer), Customer’s Service Plan will automatically renew at the end of its Initial Term (each a “Renewal Term”, and together with the Initial Term, the “Term”), and Customer authorizes Paybook without notice to collect, and Customer agrees to pay, the then-applicable fees and any taxes for the renewed Service Plan. Service Plan fees and features may change over time. Changes are effective on notice given to Customer. Customer’s Service Plan for a Renewal Term will be the plan Paybook chooses as being closest to Customer’s Service Plan from the prior term. Upon any termination of this Agreement by Customer or by Paybook following a default by Customer, Paybook shall retain all amounts prepaid by Customer and Customer will be responsible for the payment of all fees and charges for the period up to and including the date on which termination occurs. Customer will be in default of this Agreement if: (a) Customer fails to pay any amount owed to Paybook or any amount appearing on Customer’s invoice; (b) Customer breaches any provision of this Agreement; (c) Customer violates any policy applicable to the Service; (d) Customer is subject to any proceeding under any bankruptcy or insolvency laws; or (e) if, in Paybook’s sole discretion, Paybook believes that Customer’s continued use of the Service presents a threat to the security of Paybook or to any users of the Service or to Paybook’s reputation. If Customer is in default, Paybook may, without notice to Customer, suspend the Service and terminate Customer’s access to the APIs (copies of which Customer shall immediately return to Paybook or destroy), withhold refunds, and terminate this Agreement and all rights of Customer hereunder, in addition to all other remedies available to Paybook. Paybook may require reactivation charges to reactivate the Service. Upon any termination of this Agreement by Paybook if Customer has not defaulted under this Agreement, Customer will receive a refund of the pro rata portion of any amounts prepaid by Customer corresponding to Service to be provided after the termination date and Customer shall be responsible for all other fees and charges. Paybook may, in its discretion, set off any refund by the amount of any other fees and charges due by Customer to Paybook. Except for Section 1.1 (Access) and Section 10 (Maintenance; Support; Upgrades), all provisions of this Agreement will remain in force and survive in the event of this Agreement’s termination.
4. Confidentiality. During the Term, Paybook may provide Customer with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by Paybook to Customer shall be deemed Confidential Information of Paybook, including, without limitation, the Service, the APIs, all Feedback, and the terms of this Agreement. Customer shall maintain the confidentiality of the Confidential Information and shall not disclose such information to any third-party without Paybook’s prior written consent. Customer shall only use the Confidential Information internally for the purposes contemplated under this Agreement. Customer may disclose Confidential Information solely as required by law or court order; provided that Customer provides Paybook with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Paybook’s request, Customer shall return to Paybook all Paybook’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof.
5. Indemnity. Customer shall defend, indemnify and hold Paybook harmless from and against all claims, actions, proceedings, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees) arising from or in connection with (i) Customer’s breach or default of this Agreement, (ii) Customer’s breach of any laws or regulations (including with respect to privacy), (iii) Customer’s violation of any agreements it has with any third-party, (iv) any End User’s use of the Customer Application, (v) Customer’s negligence or other fault, (vi) any aspect of the Customer Application, or (vii) any infringement by Customer.
6. WARRANTY; DISCLAIMER. THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. PAYBOOK HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. PAYBOOK MAKES NO WARRANTY THAT (I) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) THE RESULTS OF USING THE SERVICE WILL MEET USER'S REQUIREMENTS.PAYBOOK DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. IN ADDITION, PAYBOOK MAKES NO WARRANTY THAT ANY END USER DATA WILL BE TIMELY, ACCURATE OR COMPLETE.
7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PAYBOOK SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (A) ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE, OR TECHNOLOGY, OR LOSS OF BUSINESS; (C) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF PAYBOOK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (D) MATTERS BEYOND ITS REASONABLE CONTROL; OR (E) AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY CUSTOMER TO PAYBOOK DURING THE THREE (3) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES (PROVIDED THAT, IF NO FEES ARE PAID, SUCH AMOUNTS SHALL BE LIMITED TO FIVE HUNDRED DOLLARS (US$500.00)).
8. NON-SOLICITATION. During the Term and for one (1) year following the termination of this Agreement, the Customer will not encourage or solicit any employee or consultant of Paybook to leave Paybook for any reason.
9. MARKETING. Notwithstanding anything to the contrary in this Agreement, Customer agrees that during the Term Paybook is authorized to (and hereby granted the right and license to) identity Customer on Paybook's website and otherwise inform the public that Customer is a client of Paybook in all media worldwide.
10. MAINTENANCE; SUPPORT; UPGRADES.
10.1 Maintenance. Paybook may provide regularly scheduled maintenance of the Service during the Term during off-peak hours, typically Saturdays from 12:00 p.m. to 6:00 p.m. CST, and will use reasonable efforts to notify Customer in advance of such scheduled maintenance. If Paybook determines that emergency maintenance is required, Paybook may perform such maintenance at any time with or without notice to Customer (but Paybook will use reasonable efforts to notify Customer of downtime of the Services if time permits).
(a) Basic Support. If Customer requires support during the Term, Customer may access the online resources at https://help.paybook.com and in the Paybook support forums at https://forum.paybook.com (English) and https://foros.paybook.com (Spanish), as such sites may be updated from time to time. Customer shall be solely responsible for providing and managing all support and contact with Customer’s end-users for its own products and services, including, without limitation, issues relating to the Service.
(b) Paid Support Plans. Paybook’s Paid technical support plans are described at www.paybook.com/sync/pricing. If Customer purchases a paid technical support package, all terms and conditions of Paybook’s Support Terms shall be deemed to be incorporated by reference into this Agreement.
10.3. Upgrades. Paybook may, from time to time during the Term, offer the Customer the option to upgrade to new releases of the Service. Paybook does not guarantee the compatibility of any new release or upgrade with any Customer Application. Customer is solely responsible for modifying its Customer Application(s) to insure compatibility with Service upgrades.
11. SECURITY. Paybook does not guarantee the security of (and hereby disclaims all liability for) any Customer Applications. Paybook reserves the right to terminate this Agreement (or any individual End User’s access to the Service) without notice if Paybook suspects that there is a risk of security breach as set forth in Section 3 (Term; Termination). Although Paybook cannot ensure that Customer follows all necessary security protocols, Paybook recommends that Customer adhere to the following minimum security protocols: Customer should (i) use Payment Card Industry Data Security Standard (PCI DSS) compliant servers, (ii) use Secure Hypertext Transfer Protocol (HTTPS) for all API requests, (iii) not store End-User credentials and identifiable information, and (iv) at the expense of Customer, conduct periodic audits, preferably performed by a reputable third-party organization, to assess Customer’s security protection measures.
12. MODIFICATION OF THIS AGREEMENT. Paybook reserves the right to amend this Agreement (including, without limitation, the Service Plans and any linked terms or other documents) at any time and in any manner in its sole discretion by: (a) posting a revision to the Agreement at http://paybook.com; or (b) sending information regarding the amendment to the email address you provide to us. CUSTOMER SHALL BE DEEMED TO HAVE ACEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE SERVICE FOR MORE THAN 10 DAYS AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO CUSTOMER. Customer agrees that Paybook shall not be liable to Customer or to any third party for any modification of this Agreement. If Paybook amends this Agreement and the amendment has a material adverse impact on Customer’s rights or use of the Service, Customer may terminate this Agreement by giving Paybook notice within 10 days of the date Paybook notifies Customer, and Customer will receive a refund of the pro rata portion of any amounts prepaid by Customer corresponding to Service to be provided after the termination date.