Bank Portal Terms of Use
In consideration for Lithic, Inc (“Lithic”) providing you with access to Lithic’s Bank Portal (as defined below) you agree to these bank portal terms of use (“Terms”) as an agent of the Bank (as defined below). To the extent any other valid agreements between the Bank (as defined below) and Lithic conflict with these Terms, such other agreements override these Terms with respect to the conflicting clauses.
The “Bank Portal” means Lithic-provided the dashboard or platform provided by Lithic to you, as an agent of the Bank, to use in managing and overseeing a program that works with both Bank and Lithic, and includes all supporting documentation (such as user manuals, specifications, and technical documentation).
By agreeing to these Terms, you represent that you are a duly authorized employee, contractor, or agent of the entity (the “Bank”) on behalf of which you are accessing the Bank Portal. “You” and “your” refer to you in your capacity as an authorized agent of the Bank.
The Bank is responsible for all activities conducted (including acts or omissions) by all users, including you, that the Bank enables or allows to access the Bank Portal using login credentials designated for agents of the Bank.
1. License.
a. Lithic owns all rights, title, and interest (including all related intellectual property rights) in and to the Bank Portal, including any Work Product (as defined below). Lithic grants Bank a worldwide, royalty-free, non-exclusive, time-limited, non-sublicensable, non-transferable (except to a successor in interest as permitted hereunder), revocable (except as otherwise permitted herein) license to use the Bank Portal, any developer toolkits, dashboard, documentation and other software (collectively, the “Lithic IP”) during the term of these Terms for purposes of using the Bank Portal. This license grant includes all updates, upgrades, new versions and replacement software for your use in connection with the Bank Portal.
b. If you do not comply with the documentation and any other requirements provided by us, then you will be liable for all resulting damages suffered by you, Lithic and third parties.
c. Except for the express licenses granted above, we are not granting or assigning to the Bank, its service providers or its affiliates any right, title, or interest, express or implied, in or to our IP, or the IP of any third party to which we have been granted a license; and we reserve all rights in our IP, and to the IP rights granted to us by any third party.
d. As between Bank and Lithic, we and our licensors and service providers exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the Lithic IP or any copies thereof. Lithic IP is protected by copyright, trade secret, patent, and other intellectual property laws, and all rights in Lithic IP not expressly granted to Bank in this Agreement are reserved.
e. You may choose to submit comments or ideas about improvements to our Bank Portal or any other component of our products or services (“Ideas”). If you submit an Idea to us, we will presume, and you agree, that your submission was voluntary, and delivered to us without any restrictions or expectations on our use of the Idea. You also agree that we have no fiduciary or any other obligation to you in connection with any Idea you submit to us, and that we are free to use your Ideas without any attribution or compensation to you.
f. You agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Bank Portal or other Lithic IP.
2. Access. You agree to use reasonable efforts to prevent unauthorized access transmission of any sensitive information of the Bank Portal and to promptly notify Lithic if you believe any of your user credentials have been lost, stolen, or compromised, or if an unauthorized third party has otherwise accessed your Bank Portal.
3. Disclaimer. Except to the extent any other valid agreement between Bank and Lithic conflicts (in which case such other agreement controls), the Bank Portal and any other Lithic technology or professional services are provided on an “as is” basis, and Lithic disclaim any and all other warranties, whether express, implied, or statutory, including but not limited to the implied warranties of merchantability, suitability or fitness for a particular purpose, as well as any warranties of regulatory compliance, performance, accuracy, reliability, non-infringement, or that the use of the Bank Portal and any other Lithic technology or professional services provided will be secure, timely, uninterrupted, error- or defect-free, or that errors or defects will be corrected, to the maximum extent permitted by applicable law. No oral or written information or advice given by Lithic or its representatives shall create a warranty or in any way increase the scope of Lithic’s obligations.
4. Term. The term of these Terms begins on the date you agree to these Terms and continues until the earliest of:
a. When Bank terminates its relationship with Lithic,
b. When Bank terminates your Bank Portal access rights,
c. When you cease to be a duly authorized agent of the Bank, or
d. When Lithic withdraws your access to the Bank Portal (at the Bank’s direction or as determined in Lithic’s sole discretion).
5. Confidentiality. Except to the extent any other valid agreement between Bank and Lithic conflicts (in which case such other agreement controls), the following confidentiality terms apply:
a. “Confidential Information” means information and materials disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) under these Terms, and includes any computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), technology, finances, customers, plans, product developments, unannounced products and services, forecasts, strategies, program data, transaction data, cardholder data, personal data, the terms of these Terms, and any other data or information, oral or written (electronic, digital, or otherwise), that relates to a Disclosing Party’s business activities, or any other information or material that the receiving party knew or should reasonably have understood to be confidential or proprietary. “Confidential Information” does not include information or materials that: (i) is or becomes publicly known through lawful means; (ii) was rightfully in Receiving Party’s possession or part of Receiving Party’s general knowledge prior to agreeing to these Terms; (iii) is disclosed to Receiving Party without confidential or proprietary restrictions; or (iv) Receiving Party can demonstrate was developed independently by Receiving Party without reference to the Confidential Information.
b. You agree to: (a) hold our Confidential Information in strict confidence and protect such Confidential Information from unauthorized or accidental loss, destruction, alteration, disclosure, acquisition or access in accordance with Section 5; (b) not disclose our Confidential Information to any other Person, except as permitted in these Terms; (c) not disclose or otherwise give access to our Confidential Information to any personnel, affiliate, or service provider that does not have a legitimate “need to know” such information for the performance of these Terms, and bind any such Person to enter into a written confidentiality agreement that contains terms equivalent to this Section 5; (e) except as expressly permitted in these Terms, not use, copy or process our Confidential Information for any purpose or in any manner not directly related to fulfillment of your obligations under these Terms or the reason for which the Bank Portal was provided to you; (f) not decompile, disassemble or otherwise reverse engineer any Confidential Information, or use any similar means to discover its underlying composition, structure, source code or trade secrets; and (g) not export or re-export (within the meaning of U.S. or other export control laws or regulations) any Confidential Information or product thereof in violation of U.S. or other export control laws or regulations. In no event will the disclosure of Confidential Information constitute the grant of any title, or any other ownership interest in such Confidential Information, whether express or implied, to you.
c. Receiving Party (as defined below) may disclose Confidential Information to an affiliate or service provider that is performing any obligation under these Terms or any other valid agreement between Bank and Lithic, provided that the Receiving Party Party only discloses the Confidential Information that is necessary for the affiliate’s or service provider’s performance. Confidential Information disclosed to or accessed by a party’s affiliates or service providers will remain the Receiving Party’s responsibility and constitute Confidential Information in your possession, custody or control for purposes of this Section 5.
d. Except as otherwise provided in these Terms, at any time or upon the termination of these Terms, you will, at Lithic’s discretion: (a) return to us all materials belonging to us that constitute our Confidential Information, or (b) securely destroy our Confidential Information and provide us a written certification signed by an authorized officer of yours that all such information was destroyed; except that you may retain our Confidential Information to the extent required to comply with Applicable Law or Rules; provided that you will continue to maintain the confidentiality of our Confidential Information pursuant to these Terms.
e. Each party acknowledges that its unauthorized disclosure or use of any Confidential Information would cause irreparable injury to the other. Therefore, each party shall, in addition to all other available legal or equitable remedies and damages, be entitled to seek injunctive relief, without the necessity of posting or filing a bond or other security, to restrain the threatened or actual violation of these Terms by the other party, its principals, employees and all other persons acting therefor or in concert therewith.
6. Indemnification. Except to the extent any other valid agreement between Bank and Lithic conflicts (in which case such other agreement controls), Lithic will indemnify the Bank against third-party claims, demands, suits, or proceedings filed against the Bank in the U.S. alleging that the Bank Portal directly infringed the intellectual property rights of such third party, and will indemnity and hold Bank harmless against any damages, costs, and expenses awarded by a court for such a claim, demand, suit, or proceeding. This Section 6 is the Bank’s sole remedy against Lithic for any third-party claim described herein (except to the extent any other valid agreement between Bank and Lithic conflicts, in which case such other agreement controls).
7. Survival. If these Terms are terminated or expire, Sections 1 and 5 shall survive.
8. Limitation of Liability. Except to the extent any other valid agreement between Bank and Lithic conflicts (in which case such other agreement controls), the following limitation of liability applies.
WE WILL NOT BE LIABLE TO YOU WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSSES, LOST PROFITS OR LOST REVENUES (EVEN IF SUCH LOSSES ARE FORESEEABLE, AND REGARDLESS OF WHETHER YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES) RESULTING FROM, ARISING OUT OF, CAUSED OR INCURRED BY, OR RELATED TO OUR PERFORMANCE OF OUR OBLIGATIONS UNDER THIS AGREEMENT.
IN NO EVENT WILL OUR CUMULATIVE LIABILITY TO YOU FOR DIRECT LOSSES EXCEED THE TOTAL AMOUNT OF PROGRAM FEES EARNED BY LITHIC FROM THE PROGRAM(S) FOR WHICH THE BANK’S ACCESS TO THE BANK PORTAL GAVE RISE TO THE RELEVANT CLAIM(S), IN THE TWO (2) MONTHS PRECEDING THE DATE ON WHICH THE RELEVANT CLAIM AROSE.
9. Force Majeure. Lithic will not be liable for delay or failure to perform, in whole or in part, any of its duties under these Terms due to factors beyond its reasonable control, including strike, lockout or other labor disturbance, sabotage, health emergency, terrorism, acts of war or other armed conflict, earthquake, storm, fire, electrical supply or telecommunications failure (each, a “Force Majeure Event”).
10. Severability. If any provision of these Terms are held invalid or unenforceable for any reason, then such provision shall be fully severable and will not affect the validity of the remaining provisions of these Terms.
11. Changes; Waiver. We may amend, change, or update these Terms with commercially reasonable notice to Bank. Our waiver of any breach of these Terms by you will not operate or be construed as the waiver of the same or any other similar breach on a subsequent occasion, nor will any delay in exercising any right, power or privilege granted by these Terms constitute such a waiver.
12. Dispute Resolution and Binding Arbitration. Except to the extent any other valid agreement between Bank and Lithic conflicts (in which case such other agreement controls), the following dispute resolution and arbitration terms apply.
You agree to arbitrate any and all disputes arising under these Terms by a neutral arbitrator who has the power to award the same damages and relief that a court can. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST US.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association according to this Section and the applicable arbitration rules for that forum. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. Any arbitration hearing will occur in New York County, New York, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. If we prevail on any claim for which we are legally entitled to attorney’s fees, we will ask the arbitrator to recover those fees from you. For purposes of this arbitration provision, references to you and us also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings will be brought in and you hereby consent to the exclusive jurisdiction and venue in state court in New York County, New York, or federal court for the Southern District of New York.
13. Governing Law. Unless prohibited by a law, any dispute, controversy or claim resulting from a party’s rights and obligations under these Terms, whether in contract, tort, equity or otherwise, and including any question regarding its existence, validity, construction or termination, will be governed by, construed, interpreted, and enforced in accordance with the laws of the state of New York; and subject to Section 11, will be subject to the exclusive jurisdiction of the state and federal courts located in New York City.