Terms and Conditions
This is a legally binding agreement. Please read these terms and conditions carefully. By registering for use of the Bank Shot Mobile™ application, you acknowledge your agreement to be bound by the terms and conditions of this agreement. If you do not agree to these terms and conditions, you may not register for use of the web platform or mobile app.
1. Definitions.
"Access Credentials" means any username, identification number, password, code, security key, token, pin, or other security code or method, as defined herein, used alone or in combination, to verify an individual's identify and provide a Customer User authorized access to the Customer Portal. Each portion of the Access Credentials will be unique to each Customer User.
“Affiliate” means, as to a party, any other entity or individual that directly or indirectly, through one or more intermediaries, controls the party, is under common control with the party, or is controlled by the party; as used in this definition, “control” (including the terms "controlled by" and "under common control") means possessing the direct or indirect power to direct the management, activities, and/or policies of an entity.
“API” means the application programming interface supplied or made available to a Customer User or End User by Bank Shot that enables the automated transfer of data between the Mobile App and the Customer Portal; between the Mobile App and Customer Systems; between the Mobile App and the End User; between the Customer Portal and Customer Systems; between the Customer Portal and the End User; and between the Customer Portal and any vendor, system, or other data source authorized by Customer in order to effectuate a transaction.
“Business Hours” means Bank Shot’s normal business hours (currently 9:00 a.m. to 5:00 p.m. Eastern Time weekdays except business and federal holidays observed by Bank Shot including, but not limited to, all Federal Bank Holidays as designated by the U.S. Federal Reserve System).
“Confidential Information” means any information of any type in any form that is disclosed to, observed by, or obtained by one party from the other party (or from a person the recipient knows or reasonably should assume has an obligation of confidence to the other party) as a result of this Agreement and is either: (i) designated as confidential or proprietary at the time of such disclosure or within a reasonable time thereafter or (ii) is of a nature that the recipient knew or reasonably should have known, under the circumstances, would be regarded by the owner of the information as confidential or proprietary. Without limiting any other provisions of this Agreement, and whether or not otherwise meeting the criteria described herein, the parties agree that the Customer Portal, Customer Data, Customer Property, Company Code, Documentation, Licensed Materials, and the content of this Agreement (other than the fact of its existence and the identities of the parties hereto) constitute Confidential Information. Additionally, the parties agree that all information and data relating to a party's business operations, business strategies, pricing, employees, customers, vendors, software, programs, trade secrets, know-how, technology, work product, and/or inventions constitute Confidential Information. For purposes of this Agreement, however, the term “Confidential Information” does not include any portion of the foregoing that: (i) was in the recipient’s possession or knowledge at the time of disclosure and was not acquired directly or indirectly from the other party, (ii) was disclosed to the recipient by a third party that did not have an obligation to keep such information confidential and the recipient knew that no such obligation existed at the time of the disclosure; or (iii) was otherwise available in the public domain. A selection or combination of information will not meet any of the foregoing exceptions solely because some or all of its individual component parts are so excepted and will meet such exception(s) only if the selection or combination in its entirety is so excepted. In the event of any ambiguity as to whether information is Confidential Information, the foregoing shall be interpreted strictly and there shall be a rebuttable presumption that such information is Confidential Information.“Customer Data” means all data entered into the Mobile App by End Users, all data entered into the Customer Portal by Customer Users, and all data transmitted through Bank Shot's API. Customer Data includes, but not limited to, the identity of Customer's bank, Customer's bank account number, Customer's Bank account routing number, End User's email address, End User's password, Customer User's Access Credentials, Company Code, transaction and/or payment details (including, but not limited to, the identity of the residential real estate and/or title insurance agent, identity of the real estate attorney, End User's phone number, the identity of the seller of a residential real estate property, property address, transaction and/or payment amount, all information and/or data located on End User's check or electronic check, all information associated with End User's ACH payment, End User's bank account routing number, End User's bank account number, End User's check or electronic check number, the date and time of transaction and/or payment, the purpose of a transaction and/or payment, transaction and/or payment status, payment and/or transaction rejection reason, payment and/or transaction hold reason, transaction and/or payment process date and time, etc.). Customer Data also includes all data, in any form or medium, collected, downloaded, or otherwise received, directly or indirectly, from Customer through Bank Shot's provision of Services under this Agreement. Customer Data includes the forgoing data that is stored and/or maintained by Bank Shot from time to time. For the avoidance of doubt, Customer Data does not include data and information maintained in an aggregate and anonymized manner, including, but not limited to data used to compile statistical and performance information related to the provision and operation of the Customer Portal, and/or Services as provided by Bank Shot under this Agreement.
"Customer Internal Business Purposes" means any purpose that advances the lawful and legitimate business of Customer or Customer's Affiliate. Customer Internal Business Purpose does not include any act set forth in Section 2(e) executed, either directly or indirectly, by Customer, Customer's Affiliate, or Customer User set forth in Section 2(e).
“Customer Portal” means Bank Shot's patented system and method for transferring payments and documents with a web-based management system accessed using a browser via the internet, at such URL as Bank Shot shall identify to Customer from time to time, provided to Customer on a software as a service basis, and any associated database structures and queries, user interfaces, system interfaces, tools, and the like, together with any and all revisions, modifications, specifications, and updates thereof, all as are made available to Customer by Bank Shot pursuant to this Agreement.
“Customer Property” means all Customer Data and any other property delivered to Bank Shot by Customer or at Customer’s direction to facilitate Bank Shot’s provision of Services under this Agreement.
"Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services authorized by Customer.
“Customer User” means an individual: (i) who is an employee, independent contractor (and employees of independent contractors), or an Affiliate of Customer to whom Customer provides Access Credentials in order for the individual to access and use the Customer Portal pursuant to the terms and conditions of this Agreement on behalf of Customer; and (ii) for whom access to the Customer Portal has been purchased by Customer. Any such individual who is not an employee of Customer shall execute a written agreement with Customer imposing upon such individual confidentiality obligations concerning the Licensed Materials that are no less protective than those imposed on Customer by this Agreement. If an individual's right to access and/or use the Customer Portal has been revoked and/or terminated by either Customer or Bank Shot, that individual is not a Customer User and that individual's continued access or use of the Customer Portal is considered Unauthorized Access.
“Data Breach” means any unauthorized use of, unauthorized access to, or disclosure of Customer Data that is Personal Identifiable Information of an End User as to which Customer is obligated by applicable law to notify such End User and/or any governmental authority if such unauthorized use, access, and/or disclosure results from Bank Shot’s gross negligence, willful misconduct, or violation of applicable law.
“De-identified Customer Data” means Customer Data from which data elements have been removed permanently such that the resulting data reasonably cannot be used to identify any natural person.
“Designated Support Contact” means a duly qualified and knowledgeable Customer User identified to Bank Shot by Customer to serve as a liaison between Customer and Bank Shot concerning the Customer's use of the Customer Portal; provided, however, that any such person shall be trained or otherwise approved by Bank Shot.
“Documentation” means all manuals, instructions, demonstrations, charts, documents, information, data, devices, methods, processes, systems, hardware, software, other technologies or inventions, technical or functional descriptions, plans, reports, and/or any other materials in any form or medium supplied or made available to Customer by Bank Shot for use with or in support of the Mobile App, Customer Portal, and/or Services, including, but not limited to, any and all revisions, modifications, and updates thereto as may be supplied or made available by Bank Shot to Customer during the Term and all copies thereof made by or on behalf of Customer. Documentation includes, but is not limited to, manuals, instructions, demonstrations, charts, documents, information, data, devices, methods, systems, processes, hardware, software, other technologies or inventions, technical or functional descriptions, plans, reports, and/or any other materials in any form or medium which describe the functionality, components, features (including modifications and updates), or requirements of the Mobile App, Customer Portal, and/or Services, including, but not limited to, any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“End User” means an individual who downloads the Mobile App and to whom Customer provides a Company Code in order for the individual to access and use the Mobile App in accordance with Bank Shot’s then-current procedures. If an individual's right to access and/or use the Mobile App has been revoked and/or terminated by either Customer or Bank Shot, that individual is not an End User and that individual's continued access or use of the Mobile App is considered Unauthorized Access.
“End User Terms of Use” has the meaning ascribed in Section 2(b).
“Fees” Shall be defined as any Services, transaction, subscription, bank fees, and any other applicable items as agreed to between the parties, or as referenced herein.
“Fraudulent Use” has the meaning ascribed in Section 11(e).
“Functional Specifications” means the specifications describing features and functions of the Mobile App and/or Customer Portal as expressly set forth in the applicable Schedule.
“Hosting Services” means the provision, administration, and maintenance of servers and related equipment, the provision of bandwidth at the hosting facility, and the operation of the Mobile App for access and use by End Users and the Customer Portal for access and use by Customer Users pursuant to this Agreement.
"Information Security Standards” means techniques generally outlined in published materials that attempt to protect the cyber environment of a user or organization. As used herein, Information Security Standards are industry standard physical, electronic, technical, and organizational safeguards designed to protect information from accidental loss and unauthorized access, use, alternation or disclosure.
“Infringement Claim” means a claim made during the Term by a third-party, other than an Affiliate or Customer, that Customer's use of the Licensed Materials in accordance with the terms and conditions of this Agreement infringes a United States patent or a United States copyright held by such party and/or that such use of the Licensed Materials misappropriates such party’s trade secrets pursuant to laws of the United States or a state in the United States.
“License Restrictions” means, collectively, the limitations on use set forth in Section 2(e).
“Licensed Materials” means the Mobile App, the Customer Portal, Bank Shot's APIs, and the Documentation.
“Losses” means all losses, liabilities, penalties, damages, awards, settlements, claims, suits, proceedings, costs, and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, expert witness fees, settlement, judgment, interest, and penalties).
“Malfunction” means a material failure of the Mobile App or Customer Portal, when operated in accordance with the Documentation, to provide the functionality described in the Functional Specifications or to perform in conformance with any standards and specifications expressly stated therein.
“Mobile App” means Bank Shot's proprietary software application made available by Bank Shot for download from Distribution Platforms to Mobile Devices known as “Bank Shot Mobile” and any associated database structures and queries, user interfaces, system interfaces, tools, and the like, all in object code (or encrypted source code) form only, together with any and all revisions, modifications, and updates thereof, all as are made available to Customer by Bank Shot pursuant to this Agreement.
"Mobile Device" means a portable computing device that: (i) has a small form factor such that it can easily be carried by a single individual; (ii) is designed to operate without a physical connection (e.g., wirelessly transmit or receive information); (iii) possesses local, non-removable data storage; and (iv) is powered-on for extended periods of time with a self-contained power source. A Mobile Device may also include voice communication capabilities, on board sensors that allow the device to capture information (e.g., take a photograph, record a video or audio clip, and/or determine location), and/or built-in features for synchronizing local data with remote locations. Examples include smart phones and tablets.
"Personal Identifiable Information" means any representation of information that permits the identity of an individual to whom the information applies to be reasonably inferred by either direct or indirect means.
“Problem Report” means a written report delivered to Bank Shot by Customer at support@getbankshot.com describing in reasonable detail a suspected Malfunction.
"Professional Services” Shall mean any service provided by Bank Shot to Customer for onboarding and support, or any other managed assistance as agreed upon by the parties.
"Representative" means, with respect to any party, that party's employees, officers, directors, agents, independent contractors, service providers, advisors, owners, and/or consultants.
“Receiving Bank” or receiving depository financial institution means the financial institution that collects an electronic transfer from another banking institution, and where an End User maintains such account.
“Services” means the services performed or to be performed by Bank Shot under this Agreement as set forth in Section 4.
“Supported Mobile Device Operating System” means an operating system for a Mobile Device that is listed on the applicable Schedule as being supported under this Agreement.
“System Administrator” means the individual identified by Customer as such in the Customer Information Section of this Agreement who will serve as Bank Shot's point of contact for all implementation and training required under this Agreement.
“Term” means the term of this Agreement that will commence on the Effective Date and will last for a period of one (1) year unless terminated pursuant to this Agreement. After the expiration of the initial Term, the Agreement will automatically renew thereafter for additional periods of one-year increments unless either party notifies the other of the non-renewal at least 60 days prior to the expiration of the then-current term. All renewal periods are also referred to herein as the Term.
“Third Party Payment Processor” means any third-party vendor who processes the payments on behalf of Bank Shot, Customers, and End Users.
"Unauthorized Access" means any individual's or entity's access and/or use of the Mobile App if the individual and/or entity is not an End User and the access and/or use of the Customer Portal if the individual and/or entity is not a Customer User.
“Unlawful Use” has the meaning ascribed in Section 11(d).
“Usage Data” means statistical information that does not contain Personal Identifiable Information regarding End Users' use of the Mobile App and/or Customer Users' use of the Customer Portal to the extent such information cannot reasonably be used to identify Customer, any Affiliate of Customer, any End User, any Customer User, and/or or any other individual.
2. License to Customer.
(a) Use of Customer Portal & Mobile App by Customer. Subject to the terms and conditions of this Agreement, including the applicable License Restrictions, Bank Shot grants to Customer a non-exclusive, non-transferable (except as otherwise provided herein) license during the Term as follows, in each case, for use solely from within the United States:
(i) for Customer Users to access and use the Customer Portal for a Customer Internal Business Purpose;
(ii) for Customer Users to use the Customer Portal in furtherance of the implementation, maintenance, and technical support of the Customer Portal for a Customer Internal Business Purpose;
(iii) for Customer Users to use the Documentation for a Customer Internal Business Purpose;
(iv) for Customer Users to use the APIs provided by Bank Shot for a Customer Internal Business Purpose; and/or
(v) for Customer Users to use the Mobile App solely to the extent necessary for supporting End Users’ use of the Mobile App for a Customer Internal Business Purpose or the implementation, testing, maintenance, and technical support of the Mobile App only in accordance with applicable law and for a Customer Internal Business Purpose.
(b) Return of Funds. In the event that an End User attempts to retrieve funds being transferred through the Services or does not have a sufficient bank account balance to cover the funds of the transfer, Customer shall return or reimburse such funds to Bank Shot account within two (2) business days. Any such funds not reimbursed within two (2) business days will incur a 1% interest charge per 24-hour period until such funds are received by Bank Shot.
(i) Any and all such funds being reimbursed must be electronically wired to the following Bank Shot account:
Bank: First Horizon Bank
Account Name: Bank Shot Holdings LLC
Routing Number: 084000026
Account Number: 20002361906
(c) Prohibition on Sharing User Access. Customer acknowledges and agrees that each Customer User must be assigned unique Access Credentials in order to access and use the Customer Portal and may not disclose such Access Credentials or permit any other person to utilize such Access Credentials in order to access or use the Customer Portal. Customer shall cause all Customer Users to comply with the foregoing, and any such unauthorized disclosure or misuse of Access Credentials shall be a material breach of this Agreement. Should Customer become aware of such unauthorized disclosure or misuse, Customer will immediately notify Bank Shot of the same.
(d) Limitations of Bank and Third-Party Payment Processor. Customer acknowledges and agrees that the ability of an End User using the Mobile App and of a Customer User using the Customer Portal to process a payment is subject to the availability and processing hours of the Receiving Bank and of the Third-Party Payment Processor utilized by Bank Shot. Bank Shot shall not be responsible or liable for any delays, processing failures, mistakes, or errors on the part of any such banking or financial institution or payment processor.
(f) Restrictions. Except as may be authorized expressly in this Agreement, Customer shall not, nor shall it authorize any person or entity, to do any of the following:
(i) use the Licensed Materials for any purpose and/or in any manner not specifically authorized by this Agreement;
(ii) make any copies or prints, or otherwise reproduce or print, any portion of the Licensed Materials, whether in printed or electronic format;
(iii) modify the Licensed Materials for any purpose and/or in any manner not specifically authorized by this Agreement;
(iv) distribute, republish, download, display, post, or transmit any portion of the Licensed Materials;
(v) create or recreate the source code for, or re-engineer, reverse engineer, decompile, or disassemble any Licensed Materials containing software;
(vi) modify, adapt, translate, or create derivative works from or based upon any part of the Licensed Materials, or combine or merge any part of the Licensed Materials with or into any other software, document, or work;
(vii) refer to or otherwise use any part of the Licensed Materials as part of any effort to develop a product or service having any functional attributes, visual expressions, or other features or purposes similar to those of Licensed Materials;
(viii) remove, erase, or tamper with any copyright, logo, or other proprietary or trademark notice printed or stamped on, affixed to, or encoded or recorded in the Licensed Materials, or use a proxy, reverse proxy, or any other such mechanism that is intended to, or has the effect of, obscuring any of the foregoing or confusing an End User or Customer User as to Bank Shot’s rights in the Licensed Materials;
(ix) fail to preserve all copyright and other proprietary notices in any copy of any portion of the Licensed Materials made by or on behalf of Customer;
(x) sell, market, license, sublicense, distribute, rent, loan, or otherwise grant to any third party any right to possess, access, or utilize any portion of the Licensed Materials without the express prior written consent of Bank Shot (which may be withheld by Bank Shot for any reason or conditioned upon execution by such party of a confidentiality and non-use agreement and/or other such other covenants and warranties as Bank Shot in its sole discretion deems desirable);
(xi) use the Licensed Materials to gain or attempt to gain access to any software applications, computer systems, or data not expressly authorized under this Agreement;
(xii) knowingly use the Mobile App or Customer Portal to store, receive, or distribute any information that violates any applicable law;
(xiii) access or use the Licensed Materials for the purposes of a competitive analysis of the Licensed Materials and/or for the purposes of developing, improving, or distributing any product or service that would compete with the Licensed Materials in the residential real estate market;
(xiv) input, upload, transmit, or otherwise provide to or through the Licensed Materials any information or data that contains, transmits, or activates any virus, worm, malware, or other malicious computer code whose purpose or the effect of which is to permit Unauthorized Access to the Licensed Materials or would destroy, disrupt, distort, or otherwise harm any of the Licensed Materials or any of Bank Shot's systems, databases, servers, or networks; and/or
(xv) attempt to or assist any individual or entity in attempting to do any of the foregoing.
(g) Emergency Suspension & Termination. Any provision of this Agreement to the contrary notwithstanding, Bank Shot may suspend, terminate, or limit the use of the Licensed Materials to the extent and for such time as Bank Shot reasonably deems necessary or appropriate, without prior notice to Customer, Customer's Affiliate, Customer User, or End User (provided, however, that Bank Shot shall use reasonable efforts to notify Customer as soon as reasonably practicable) if Bank Shot reasonably believes that use of the Mobile App or Customer Portal by Customer, Customer's Affiliate, Customer User, or End User will or could: (i) disrupt operation of either the Mobile App or Customer Portal; (ii) interfere with Bank Shot's other customers' or other end users' use of the Customer Portal or Mobile App; (iii) interfere with the Mobile App's or Customer Portal's infrastructure; (iv) result in Unauthorized Access; (v) pose a security threat or result in an attack on the Mobile App or Customer Portal; (vi) result in fraudulent or illegal activities, or (vii) if Customer or End User are not capable of covering the balance of transfers. Bank Shot shall have no liability for any Losses or any other consequences that Customer may incur solely as a result of any such suspension, termination, and/or use limitation.
(h) Security. Bank Shot may impose or cause to be effective from time-to-time password complexity requirements, multi-factor authentication, and such other protocols as Bank Shot reasonably determines are necessary or desirable for safeguarding the Mobile App, Customer Portal, Documentation, Customer Data, and/or the data of other Bank Shot customers and/or their end users.
3. Customer Users. Customer warrants to Bank Shot that it will maintain at least two Customer Users at all times during the Term. Customer shall immediately revoke a Customer User's access to the Customer Portal upon the termination of employment or engagement of the Customer User by Customer or its Affiliate, when a Customer User is otherwise no longer eligible to have such access pursuant to this Agreement, and/or when such Customer User is or reasonably should be suspected to constitute a material threat to the security of the Customer Portal.
4. Services.
(a) Services Provided. Subject to terms and conditions of this Agreement and provided Customer is not in breach of its obligations hereunder, Bank Shot shall provide the following Services during the Term (collectively "Services"):
(i) Services. Subject to Customer’s cooperation and assistance as reasonably requested by Bank Shot, Bank Shot shall provide Customer with access to the Customer Portal, a unique Company Code to provide to Customer's End Users in order for such End Users to access and use the Mobile App, Documentation, and the implementation, training, and/or other support, if any, as necessary.
(1) Solely as mutually agreed by the Parties, Customer may provide access to the Mobile App to Customer’s End Users with Customer’s branding (“White Labeled Services”), provided that Customer shall be wholly responsible for any trademarks used for such branding including any claims of infringement of any third party’s trademarks. Further, such White Labeled Services do no alter or waive all existing intellectual property rights of Bank Shot.
(ii) Hosting. Bank Shot shall use reasonable efforts to provide the Hosting Services in accordance with the service level agreement(s) regarding the Hosting Services set forth in the applicable Schedule;
(iii) Support. During the Term, Bank Shot shall provide to Customer’s Designated Support Contact training, consultation, and assistance with operational and technical support for any issues arising from a Customer User's use of the Customer Portal and/or an End User's use of the Mobile App during Business Hours, pursuant to requests for support services submitted by telephone, e-mail, or to a web portal at such number, e-mail address, and/or URL as Bank Shot shall provide to Customer. Bank Shot shall provide such services as promptly as is reasonably practicable based on priority determined in good faith by Bank Shot. Customer acknowledges that some such support services are dependent upon Bank Shot interacting with its payment processor and/or Customer’s receiving bank, which may not maintain the same business hours as Bank Shot, in which circumstances such support services may be delayed pending such interaction;
(iv) Maintenance. In response to a Problem Report, Bank Shot shall use reasonable efforts to investigate, confirm, and correct a reported Malfunction and/or to provide a reasonable workaround sufficient to alleviate any substantial adverse effect of any confirmed Malfunction, provided the Customer assists Bank Shot in its efforts by making available, as reasonably requested by Bank Shot, information, documentation, access to personnel, and/or testing. In the event a Malfunction exists due to an error in the Functional Specifications, Bank Shot may correct such Malfunction by providing corrected Functional Specifications; provided, however, that no such revision shall eliminate or materially diminish any feature or operational functionality of the Mobile App or Customer Portal described therein as of the Effective Date; and
(v) Other Services. Bank Shot may perform such other services as set forth in the applicable Schedule and/or as agreed to in writing by the parties at Bank Shot's then current rates.
(b) Supported Use and Environment. Bank Shot’s support and maintenance obligations pursuant to this Agreement are conditioned upon (i) access to and use of the Mobile App by End Users on a Mobile Device running a Supported Mobile Device Operating System in accordance with the Documentation; and (ii) access to and use of the Customer Portal by Customer Users in accordance with the Documentation. Upon reasonable notice to Customer from time to time, Bank Shot may revise the Documentation and the required Supported Mobile Device Operating System; provided, however, that no such revision shall eliminate or materially diminish any feature or operational functionality of the Mobile App or Customer Portal described therein as of the Effective Date without the written approval of Customer.
(c) Enhancements. From time to time at its discretion, Bank Shot may implement releases of the Mobile App and/or Customer Portal that contain changes, updates, patches, fixes, enhancements to functionality, and/or additional functionality. Bank Shot, in its sole discretion, will determine whether to include, as part of the maintenance services hereunder, features or functionality not originally specified for in the Functional Specifications. However, Bank Shot shall have no obligation to disclose or offer to Customer any such additional features or functionality.
(d) Service and System Control. Except as otherwise provided in this Agreement, Bank Shot has and will retain sole control over the operation, provision, maintenance, and management of the Licensed Materials and all associated information, data, documents, materials, works, other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, and/or reports.
5. Fees and Taxes.
(a) Customer shall pay all Fees due to Bank Shot pursuant to this Agreement and Schedule 3. Customer agrees that all such payments will be made in U.S. Dollars by bank account auto-draft or automatic charge to a credit or debit card against such bank account or payment card as Customer has provided to Bank Shot in the "My Billing" section of the Customer Portal without any further notice to Customer.
(b) Bank Shot may increase the fees set forth in Schedule 3 from time to time based on market and/or operational considerations. However, Bank Shot may not increase the fees more than once in any 12-month period. No fee increase will occur during the initial eighteen month Term. Thereafter, Bank Shot may increase any of the fees set forth in Schedule 3 by up to 10% without notice. For any increase over 10%, Bank Shot will provide Customer with 30 days' written notice of the same.
(c) Customer shall pay when due (and Bank Shot at its discretion may collect and pay on Customer’s behalf) all taxes, levies, or assessments based on or in any way measured by this Agreement, the Licensed Materials, and the Services provided hereunder, excluding taxes based on Bank Shot's net income; provided, however, that if Customer notifies Bank Shot in writing that Customer is exempt from paying applicable state, county, city, or other local sales or use taxes and delivers to Bank Shot a copy of Customer’s tax exemption certificate or other evidence satisfactory to Bank Shot demonstrating such exemption, Bank Shot shall not collect and pay such taxes on Customer’s behalf except pursuant to an order from a court of competent jurisdiction or notice from such taxing authority. If Customer has notified Bank Shot of such a tax exemption, Customer shall notify Bank Shot promptly of any change in the status of the same.
6. Customer Responsibilities.
(a) Company Code. Customer exclusively shall be responsible for conveying to each End User the Company Code and for ensuring that such End User accurately enters the Company Code in configuring such End User’s use of the Mobile App. Customer shall maintain and cause to be maintained the confidentiality of the Company Code, and Customer shall be solely responsible for all use or misuse thereof. Except as otherwise required by applicable law, Bank Shot shall have no obligation to monitor for or report any use or attempted use of the Company Code. The Company Code shall be deemed to be Confidential Information of both Customer and Bank Shot.
(b) Payment Handling Procedures. Customer is exclusively responsible for developing, implementing, and maintaining such policies, procedures, guidelines, and controls as Customer deems necessary or appropriate for Customer Users, other Customer personnel, and End Users regarding use of the Mobile App and/or Customer Portal with regard to the processing of payments to Customer and for training, monitoring, and enforcement with respect thereto. Customer acknowledges that Customer (or its Affiliate, as applicable) solely determines and controls the handling of each payment processed through the Mobile App and/or Customer Portal, including whether to deposit, hold, or reject any such payment. Customer further acknowledges that once Customer (or its Affiliate, as applicable) rejects a payment through the Customer Portal, the End User will be required to resubmit the payment in order for it to be processed as a deposit.
(c) Bank Information Contact. The Customer Contact – Bank Information shall be Bank Shot’s single point of contact for providing Customer's bank account information to Bank Shot as necessary for utilization of the Customer Portal. Customer shall notify Bank Shot immediately, by the most expedient means practicable, followed within one business day by written notice, if any Customer Contact – Bank Information is terminated or is otherwise no longer authorized by Customer to provide such information and/or to make such requests.
(d) System Administrator – Bank Shot Access Control. Until Bank Shot provides Customer the ability to have Customer's System Administrator grant, suspend, and/or terminate Customer Users' access to the Customer Portal, Customer acknowledges and agrees as follows:
(i) the System Administrator shall be Bank Shot’s single point of contact concerning Customer's ability to grant, revoke, and/or suspend Customer Users' access to the Customer Portal;
(ii) the System Administrator shall comply with Bank Shot’s then-current procedures that Bank Shot provides to Customer from time to time outlining the procedure Customer must follow in order to request that Bank Shot grant, suspend, and/or terminate a Customer User’s access to the Customer Portal;
(iii) the System Administrator will have the sole responsibility for authenticating individuals to whom access to the Customer Portal is granted and shall perform such authentication in accordance with generally accepted Information Security Standards and the processes and procedures outlined in the Documentation; and
(iv) upon the termination of employment or engagement of any Customer User by Customer or its Affiliate, when a Customer User is otherwise no longer eligible to have such access pursuant to this Agreement, and/or when such Customer User is or reasonably should be suspected to constitute a material threat to the security of the Customer Portal, the System Administrator shall notify Bank Shot immediately, by the most expedient means practicable, followed within one business day by written notice, to terminate and/or suspend the access of such Customer User.
(e) System Administrator – Customer Access Control. If Bank Shot has authorized Customer’s System Administrator to grant, suspend, and/or terminate Customer Users access to the Customer Portal, Customer acknowledges and agrees as follows:
(i) the System Administrator, utilizing generally accepted Information Security Standards and the processes and procedures outlined in the Documentation, will have the sole responsibility for authenticating Customer Users and providing Customer Users with access to the Customer Portal and for suspending and/or terminating Customer Users' access to the Customer Portal as required, including terminating such access upon the termination of a Customer User's employment or engagement by Customer or Customer's Affiliate and/or when a Customer User is no longer eligible to use the Customer Portal pursuant to this Agreement;
(ii) when a Customer User is or reasonably should be suspected to constitute a material threat to the security of the Customer Portal, the System Administrator shall immediately terminate and/or suspend the access of such Customer User and shall notify Bank Shot immediately by the most expedient means practical, followed within one business day by written notice, of such termination and/or suspension; and
(iii) Customer shall notify Bank Shot immediately, by the most expedient means practicable, followed within one business day by written notice, of the need to terminate a System Administrator's access to the Customer Portal upon the termination of a System Administrator's employment or engagement with Customer or its Affiliate, when a System Administrator is no longer eligible to use the Customer Portal pursuant to this Agreement, and/or when a System Administrator is or reasonably should be suspected to constitute a material threat to the security of the Customer Portal.
(f) Other System Administrator Duties. The System Administrator will have responsibility for providing and maintaining configurations and general information in the Customer Portal regarding information and data concerning Customer and, as applicable, Customer's Affiliates.
(g) Access Credentials & Security. Customer shall maintain and cause to be maintained the confidentiality of all such Access Credentials and shall implement and enforce policies and procedures as reasonable and appropriate to maintain such confidentiality; and Customer, at all times, shall maintain (and shall cause any Affiliate having Customer Users to maintain) adequate technical, physical, and administrative safeguards, including access controls and system security requirements, to ensure that access to the Customer Portal by or through Customer or Customer's Affiliate is limited to Customer Users and that access to the Mobile App is limited to End Users. Customer shall cause its Customer Users (and those of any Affiliate having Customer Users) to not share Access Credentials. Customer exclusively shall be responsible for all use or misuse of Access Credentials, and, except as otherwise required by applicable law, Bank Shot shall have no obligation to monitor for or report any use, misuse, or attempted use/misuse of the Access Credentials of Customer Users or the use/misuse of the Company Code provided to End Users.
(h) Customer Privacy Statement. Customer shall provide to Bank Shot Customer’s (and/or its Affiliate's) privacy statement or privacy policy regarding Customer’s (or any Affiliate's) use, disclosure, and safeguarding of End User's Personal Identifiable Information. The privacy statement will also be provided to Bank Shot in the form of a URL for Bank Shot to incorporate in the End User Terms of Use as indicated therein. Customer warrants that such URL shall display such privacy statement or privacy policy at all times during the Term and that Customer shall comply with all provisions thereof at all times with regard to such information.
(i) Customer Connection. Customer and each End User, at their own expense, shall be responsible for selecting, obtaining, and maintaining all equipment and ancillary services needed to access and use the Customer Portal and Mobile App as provided by the Documentation.
7. License to Use and Disclose Customer Data. Customer grants to Bank Shot a non-exclusive, royalty-free license during the Term to use (including to create De-identified Customer Data) and disclose Customer Data solely to perform its obligations under this Agreement, including for purposes of monitoring, correcting, and improving the Licensed Materials. Customer represents and warrants that it owns or has the legal right and authority and will continue to own or maintain the legal right and authority to grant to Bank Shot during the Term the license set forth in this Section.
8. Ownership.
(a) Customer Data. As between Bank Shot and Customer, Customer has and retains exclusive ownership of all Customer Data and all intellectual property and proprietary rights therein.
(b) Licensed Materials. As between Bank Shot and Customer, Bank Shot has and retains exclusive ownership of the Licensed Materials and all intellectual property and proprietary rights therein.
(c) Suggestions and Joint Efforts; Usage Data; De-identified Customer Data. Customer may suggest, and the parties jointly may discover or create findings, inventions, improvements, discoveries, or ideas that Bank Shot, at its sole option, may incorporate in the Licensed Materials or in other products or services that may or may not be made available to Customer. Any such finding, invention, improvement, discovery, or idea, whether or not patentable, that is conceived or reduced to practice during the Term of this Agreement, whether by a party alone or by the parties jointly, arising from or related to this Agreement or the Licensed Materials, shall be and remain solely the property of Bank Shot. Customer acknowledges and agrees that Bank Shot has and retains exclusive and valid ownership of all Usage Data and De-identified Customer Data. Customer hereby assigns to Bank Shot, without any warranties whatsoever (all of which, express or implied, are disclaimed) any and all right, title, and interest in and to any such findings, inventions, improvements, discoveries, ideas, Usage Data, and De-identified Customer Data. Unless otherwise expressly agreed in writing, Customer shall not obtain any right, title, or interest (other than the license expressly set forth herein) in or to anything created or developed by Bank Shot in connection with or incident to this Agreement.
9. Confidentiality.
(a) Security of Confidential Information. In addition to any other restrictions or obligations imposed at law or provided under this Agreement, each party possessing Confidential Information of the other party will maintain all such Confidential Information under secure conditions, using the same security procedures used by such party for the protection of its own Confidential Information of a similar kind and in any event not less than reasonable security measures.
(b) Non-Disclosure Obligation. Except as otherwise may be permitted by this Agreement, neither party shall disclose any Confidential Information of the other party to any person without the express prior written consent of the other party; provided, however, that either party may disclose appropriate portions of Confidential Information of the other party to those of its employees, contractors, owners, agents, and professional advisors who require access to such information in order to meet the party's obligations under this Agreement or exercise the party's rights under this Agreement, provided that all such persons (i) have been instructed that such Confidential Information is subject to the obligation of confidence set forth by this Agreement and (ii) are bound by contract, employment policies, or fiduciary or professional ethical obligation to maintain such information in confidence.
(c) Compelled Disclosure. If either party is ordered by a court, administrative agency, or other governmental body of competent jurisdiction to disclose Confidential Information, or if it is served with or otherwise becomes aware of a subpoena, document request, motion requesting disclosure, and/or similar request, such party will not be liable to the other party for disclosure of Confidential Information if such party complies with the following requirements: (i) if an already-issued order calls for immediate disclosure, then such party immediately shall move for or otherwise request a stay of such order to permit the other party to respond as set forth in this paragraph; (ii) such party shall otherwise immediately notify the other party of the subpoena, document request, motion, or similar request by the most expeditious means possible; (iii) such party shall not oppose a motion or similar request by the other party for an order protecting the confidentiality of the Confidential Information, including not opposing a motion for leave to intervene by the other party; and (iv) such party shall exercise its best efforts to obtain reasonable assurance that confidential treatment will be applied to the Confidential Information ordered to be disclosed.
(d) Non-Use Obligation. Except as expressly authorized in this Agreement, during the Term and forever thereafter (or for such shorter period as may be imposed by applicable law), neither party shall use any Confidential Information of the other party, except at the request of and for the benefit of the other party, without the express prior written consent of the other party.
(e) Copying of Confidential Information. Except as otherwise may be permitted by this Agreement, neither party shall copy or otherwise reproduce any part of any Confidential Information of the other party, nor attempt to do so, without the prior written consent of the other party. Any embodiments of Confidential Information of a party that may be generated by the other party, either pursuant to or in violation of this Agreement, will be deemed to be the sole property of the first party and fully subject to the obligations of confidence set forth herein.
(f) Proprietary Legends. Without the other party’s prior written consent, neither party shall remove, obscure, or deface on or from any embodiment of any Confidential Information any proprietary legend relating to the other party’s rights.
(g) Reports of Misappropriation. Each party immediately shall report to the other party any act or attempt by any person, of which such party has knowledge or reasonably suspects, of (i) using, disclosing, or coping any Confidential Information without authorization from the other party, or (ii) reverse assembling, reverse compiling, or reverse engineering any part of the Confidential Information.
(h) Post-Termination Procedures. Except as otherwise expressly provided in this Agreement, promptly upon the expiration or any termination of this Agreement or other expiration or termination of a party’s right to possess and/or use Confidential Information, each party shall turn over to the other party (or destroy and certify the same in writing, if agreed in writing by the other party) any embodiments of any Confidential Information of the other party.
10. Marketing. Bank Shot shall not display or use Customer’s logos, trademarks, service marks, or other indicia of origin without Customer’s prior written consent (which may be given in email) in its sole discretion, and any such consent may be revoked at any time upon reasonable advanced written notice from Customer to Bank Shot; provided, however, that Bank Shot may identify Customer as a Bank Shot customer in its marketing materials and advertisements, on its website, and in presentations. Bank Shot shall not acquire any intellectual property rights in any such logos, trademarks, service marks, or other indicia of origin.
11. Representations and Warranties; Disclaimers.
(a) Services. Bank Shot warrants that it will perform the Services in a workmanlike manner using duly qualified and experienced personnel possessing the required skill, experience, and qualifications to perform the Services in a manner in accordance with generally recognized industry standards. Customer’s exclusive remedy and Bank Shot’s sole liability for breach of the foregoing warranty shall be for Bank Shot, at its election, either to re-perform the Services or to refund any fees paid to Bank Shot with respect thereto, subject to the terms and conditions of Section 4 and Schedule 3.
(b) Viruses. Bank Shot represents that to its knowledge the Licensed Materials do not contain any computer code designed to disrupt, disable, harm, or otherwise impede the operation thereof or of any associated software, firmware, hardware, computer system, or network (sometimes referred to as “viruses” or “worms”) and warrants that it will take commercially reasonable steps to protect against the foregoing.
(c) REPRESENTATION AND WARRANTY DISCLAIMERS. THE EXPRESS WARRANTIES AND EXPRESS REPRESENTATIONS OF BANK SHOT SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND BANK SHOT DISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE LICENSED MATERIALS OR THE SERVICES HEREUNDER OR ANY PART OF THE FOREGOING, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT BANK SHOT KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR OTHERWISE IS IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. BANK SHOT EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER.
(d) Regulatory & Legal Compliance. Customer exclusively will be responsible for determining whether use of the Mobile App by End Users and/or the Customer Portal by Customer Users is lawful in the applicable jurisdiction(s), and Customer shall not use or authorize or permit any Customer User and/or End User to use the Customer Portal or Mobile App in any manner not fully in compliance with all applicable laws or regulations, including but not limited to all laws governing "good funds" or "collected funds" as those terms are used in connection with the closing of residential real estate transactions (“Unlawful Use”).
(e) Compliance with Export Controls. Service may be subject to export control laws and regulations of the US. Parties agree not to transfer Service in violation of any applicable export control laws and regulations, including those governing the destination, end use or end user, and US sanctions.
(f) Fraud. Customer exclusively will be responsible for any fraudulent, misleading, and/or unethical use of the Licensed Materials by any End User or Customer User. (“Fraudulent Use”).
(g) Customer Responsibilities. Bank Shot disclaims any obligation or liability with respect to any responsibility allocated to Customer under this Agreement or arising from or related to Customer’s failure to exercise such responsibility.
(h) Other Disclaimers. Customer will be exclusively responsible for, and Bank Shot makes no representation or warranty with respect to, determining whether the Licensed Materials will achieve the results desired by Customer, ensuring the accuracy of any Customer Data, and/or selecting, procuring, installing, operating, and maintaining the technical infrastructure necessary for Customer to access and to use the Licensed Materials. Bank Shot shall not be liable for and shall have no obligations with respect to: (i) any aspect of the Licensed Materials modified in any way and/or for any purpose by any person or entity other than Bank Shot; (ii) use of the Licensed Materials other than in accordance with the Documentation; (iii) Malfunctions, other problems, defects, or failures of software or hardware resulting from any acts or omissions of Customer, Customer's Affiliate, Customer Users, End Users, or any third party. Customer acknowledges that the operation of the Licensed Materials will not be error free in all circumstances and that all defects in the Licensed Materials may not be corrected.
12. Indemnification.
(a) Infringement.
(i) Bank Shot’s Indemnity. Bank Shot shall indemnify Customer, its Affiliates, and their Representatives ("Customer Indemnitees") against any final judgment entered with respect to an Infringement Claim by a court of competent jurisdiction and against any settlements arising out of such a claim.
(ii) Bank Shot’s Mitigation. If an Infringement Claim has occurred or in Bank Shot’s reasonable opinion is reasonably likely to occur, Customer agrees to permit Bank Shot, at Bank Shot’s option and expense, to procure for Customer the right to continue using the Licensed Materials; replace or modify the same so that they become non-infringing but provide Customer substantially similar or better capabilities; or if Bank Shot reasonably determines that both of the foregoing are technically impracticable or commercially infeasible, immediately terminate both parties’ respective rights and obligations under this Agreement with respect to the infringing Licensed Materials, in which case Customer shall return to Bank Shot all copies of such Licensed Materials in its possession or control and Bank Shot shall be responsible only to refund to Customer any fees pre-paid by Customer for the then-current Term prorated for the portion of the Term through the date of such termination notwithstanding any contrary provision of Schedule 3.
(iii) Exceptions. The foregoing notwithstanding, Bank Shot shall have no liability for any Infringement Claim arising from: the combination, operation, or use of any Licensed Materials with equipment, devices, or software not supplied by Bank Shot if such claim would not be valid but for such combination, operation, or use; modification of any Licensed Materials other than by or on behalf of Bank Shot; Bank Shot’s compliance with Customer’s designs, specifications, or instructions; or Customer’s use of the Licensed Materials after Bank Shot has informed Customer of modifications or changes in the Licensed Materials required to avoid such claims if such claims would have been avoided by implementation of Bank Shot’s recommended modifications and Bank Shot offered to pay Customer’s out-of-pocket costs to implement any such modifications.
(iv) EXCLUSIVE REMEDY. SECTION 12(a)(i)-(iii) STATES THE ENTIRE OBLIGATION OF BANK SHOT, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO THIRD-PARTY CLAIMS REGARDING INFRINGEMENT OF INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS AND MISAPPROPRIATION OF TRADE SECRETS.
(b) Data Breach. Bank Shot shall indemnify, defend with its own choice of counsel, and hold harmless Customer Indemnitees from and against any Losses resulting from a claim of a third party arising from or relating to a Data Breach.
(c) Unlawful or Fraudulent Use. Customer shall indemnify, defend with Bank Shot’s choice of counsel, and hold harmless Bank Shot, its Affiliates, and their Representatives ("Bank Shot Indemnitees") from and against any Losses resulting from or relating to a claim of a third party arising from or alleging Unauthorized Use, Unlawful Use, and/or Fraudulent Use.
(d) Customer Data. Customer shall indemnify, defend with Bank Shot’s choice of counsel, and hold harmless Bank Shot Indemnitees from and against any Losses resulting from or relating to a claim of a third party regarding Bank Shot’s use or disclosure of Customer Data or information relating to the processing of Customer Data except to the extent that such claim is subject to indemnification by Bank Shot pursuant to Section 12(b).
(e) Procedure. A party’s obligations specified in Section 12 will be conditioned on the other party notifying the indemnifying party promptly in writing of the claim or threat thereof (whether or not litigation or other proceeding has been filed or served) and giving the indemnifying party full and exclusive authority for, and information for and reasonable assistance with, the defense and, subject to the indemnified party’s approval (which shall not be withheld, delayed, or conditioned unreasonably), settlement of such claim and any subsequent appeal. No withholding of such consent by the indemnified party shall be deemed unreasonable if such settlement involves any admission of fault or liability on the part of the indemnified party or does not include a full and unconditional release of the indemnified party from any liability.
13. Risk Allocation.
(a) EXCLUSION OF INDIRECT DAMAGES. OTHER THAN FOR CUSTOMER’S BREACH OF THE LICENSE RESTRICTIONS, AND WITHOUT LIMITING A PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT WITH REGARD TO THIRD-PARTY CLAIMS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, LOSS OF OR DAMAGE TO DATA, LOSS OF BUSINESS, OR OTHER ECONOMIC DAMAGE), WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, SHOULD HAVE ANTICIPATED, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE.
(b) MAXIMUM AGGREGATE LIABILITY. CUSTOMER’S BREACH OF THE LICENSE RESTRICTIONS, OR A PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL A PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY (INCLUDING LIABILITY TO ANY PERSON OR PERSONS WHOSE CLAIM OR CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY OR THROUGH SUCH PARTY), WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT WITH REGARD TO A GIVEN EVENT OR SERIES OF RELATED EVENTS, IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER PURSUANT TO THIS AGREEMENT DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT OR SERIES OF RELATED EVENTS GIVING RISE TO CLAIM; PROVIDED, HOWEVER, THAT BANK SHOT’S LIABILITY WITH REGARD TO DATA BREACH (INCLUDING ITS INDEMNIFICATION OBLIGATIONS WITH REGARD THERETO) SHALL NOT EXCEED, IN THE AGGREGATE, 200% OF SUCH AMOUNT.
(c) Intentional Risk Allocation. Each party acknowledges that the provisions of this Agreement were negotiated, as a material part of the Agreement memorialized herein, to reflect an informed, voluntary allocation between them of all risks (both known and unknown) associated with the transactions involved with this Agreement. The warranty disclaimers and limitations in this Agreement are intended, and have as their essential purpose, to limit the circumstances of liability. The remedy limitations and the limitations of liability are separately intended, and have as their essential purpose, to limit the forms of relief available to the parties.
14. Termination; Disposition of Customer Property.
(a) Termination for Breach. A party may terminate this Agreement upon written notice to the other party for breach of any provision of this Agreement if such breach has not been cured 30 days after providing written notice of the breach by the non-breaching party (or, if the breach is of an obligation to pay money, five business days, and if the breach reasonably cannot be cured within 30 days, immediately upon such notice).
(b) Termination upon Certain Events. This Agreement shall terminate automatically, to the extent permitted by applicable law in the jurisdiction or jurisdictions in question, if Customer makes an assignment for the benefit of its creditors, files a petition in bankruptcy, receivership, reorganization, or other like proceeding under any present or future debtor relief law (or is the subject of an involuntary such petition or filing that is not dismissed within 30 days after the effective filing date thereof), or admits general inability to pay its debts as they become due.
(c) Effect of Termination on Licenses. Termination of this Agreement by Customer or Bank Shot shall terminate all licenses granted to Customer herein, including all licenses granted by Customer to End Users and Customer Users.
(d) Remedies Cumulative. Any termination of this Agreement shall be in addition to, and not in lieu of, any other rights or remedies available at law or in equity.
(e) Disposition of Customer Data. Upon Customer’s written request within 30 days following the expiration or any termination of this Agreement, Bank Shot promptly shall deliver to Customer or permit Customer’s System Administrator to access and download a copy of the Customer Data in a .CSV file or other industry-recognized electronic format. Customer’s failure to make such a request within such time shall be deemed a request by Customer for Bank Shot to destroy the Customer Data at the conclusion of the 30 days following the expiration or any termination of this Agreement. Promptly following the conclusion of such time, Bank Shot shall destroy the Customer Data; provided, however, that to the extent Bank Shot is required by applicable law or legal process to retain any portion of the Customer Data, or to the extent that destruction of any Customer Data is infeasible, Bank Shot shall retain such Customer Data as though it were Confidential Information for such time as is required by such law or process or until destruction is no longer infeasible, after which Bank Shot promptly shall destroy the Customer Data.
15. Other Provisions.
(a) Interpretation. For purposes of this Agreement, (i) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation” unless otherwise expressly indicated in a given instance, (ii) the word “or” is not exclusive, and (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. The definitions given for any defined terms in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine, and neuter forms. Unless the context otherwise requires, references herein to sections mean the sections of this Agreement, reference to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, or modified from time to time to the extent permitted by the provisions thereof, and reference to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The division of this Agreement into sections, subsections, and paragraphs and the use of captions and headings in connection therewith are solely for convenience and shall have no legal effect in construing the provisions of this Agreement. Unless otherwise indicated, references to sections, subsections, and paragraphs are to provisions of this Agreement and references to schedules are to Schedules appended to this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
(b) Nature of Relationship. Bank Shot shall provide all services hereunder as an independent contractor to Customer. Nothing contained herein shall be deemed to create any agency, partnership, joint venture, or other relationship between the parties or any of their Affiliates, and neither party shall have the right, power, or authority under this Agreement to create any duty or obligation on behalf of the other party.
(c) Force Majeure. Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control of such party and not due to such party’s own fault or negligence or that of persons acting on its behalf, and that cannot be overcome by the exercise of due diligence and could not have been prevented through commercially reasonable measures, including acts of God, acts of terrorists or criminals, acts of domestic or foreign governments (including the imposition of or any increase in any tariff), change in any law or regulation, fires, floods, explosions, epidemics and other public health events, disruptions in communications, power, or other utilities, strikes or other labor problems, riots, or unavailability of supplies.
(d) Notice. Except as otherwise expressly provided herein, notices shall be given under this Agreement in writing, in the English language, by personal delivery (in which case such notices shall be deemed given when so delivered), by certified or registered U.S. mail, postage pre-paid, from within the United States (in which case such notices shall be deemed given on the third business day after deposit), or by a recognized overnight courier, pre-paid, with next-business-day delivery instruction (in which case such notices shall be deemed given on the next business day after deposit). Such notices shall be sent to Bank Shot Holdings, LLC at Bank Shot, 3490 Piedmont Road NE, Suite 1350, Atlanta, GA 30305. Such notices shall be sent to Customer at the address shown on the Customer Information Page. Either party may change its address for purposes of notice by providing written notice thereof to the other party.
(e) Survival. The covenants herein concerning Confidential Information, indemnification, post-termination procedures, and any other provision that, by its nature, is intended to survive this Agreement shall survive any termination or expiration of this Agreement.
(f) Governing Law; Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Georgia without application of its conflicts or choice of law rules, and venue for any dispute that may arise under or relating to this Agreement shall be in the superior or federal courts located in Fulton County in the State of Georgia. Each party hereby consents to the exclusive jurisdiction of such courts.
(g) Jury Trial Waiver. THE PARTIES SPECIFICALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY CLAIM, COUNTERCLAIM, OR CROSS-CLAIM AGAINST THE OTHER ARISING OUT OF OR CONNECTED IN ANY WAY TO THIS AGREEMENT, BECAUSE THE PARTIES HERETO BELIEVE THAT THE COMPLEX COMMERCIAL AND PROFESSIONAL ASPECTS OF THEIR DEALINGS WITH ONE ANOTHER MAKE A JURY DETERMINATION NEITHER DESIRABLE NOR APPROPRIATE.
(h) Attorney Fees. If litigation or other action is commenced between the parties concerning any dispute arising out of or relating to this Agreement, the prevailing party will be entitled, in addition to any other award that may be made, to recover all court costs and other official costs and all reasonable expenses associated with the litigation or other action, including reasonable fees and expenses of counsel. A party will be considered a prevailing party in the following circumstances: the party, if the plaintiff/claimant, obtains permanent injunctive or monetary relief against the other party; and/or the party, if the defendant/respondent, receives a final judgment/order relieving the party of any liability to the other party or, even if found liable, the other party fails to recovery any monetary damages or obtain any permanent injunctive relief.
(i) Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns permitted by this Agreement.
(j) No Third-Party Beneficiaries. Except with regard to Customer Indemnitees and Bank Shot Indemnitees under express indemnification as set forth in this Agreement, nothing in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties any rights, remedies, obligations, or liabilities whatsoever.
(k) Entire Agreement. This Agreement and its Schedules constitute the entire agreement between the parties concerning the subject matter hereof. No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the parties with reference thereto will be of any force or effect. Each party represents and warrants that, in entering into and performing its obligations under this Agreement, it does not and will not rely on any promise, inducement, or representation allegedly made by or on behalf of the other party with respect to the subject matter hereof, nor on any course of dealing or custom and usage in the trade, except as such promise, inducement, or representation may be expressly set forth herein.
(l) Amendment and Waiver. Except as otherwise expressly provided herein, no modification or amendment to this Agreement will be valid or binding unless in writing and duly executed Customer and Bank Shot. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect the right of such party to require performance of that provision. Any waiver by either party of any breach of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under this Agreement.
(m) Severability. If any provision of this Agreement is ruled wholly or partly invalid or unenforceable by a court or other body of competent jurisdiction, then (i) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable will be unaffected, (ii) the effect of the ruling will be limited to the jurisdiction of the court or other body making the ruling, (iii) the provision held wholly or partly invalid or unenforceable shall be deemed amended, and the court or other body is authorized and encouraged to reform the provision, to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein, and (iv) if the ruling or the controlling principle of law or equity leading to the ruling subsequently is overruled, modified, or amended by legislative, judicial, or administrative action, then the provision in question as originally set forth in this Agreement shall be deemed valid and enforceable to the maximum extent permitted by the new controlling principle of law or equity.
(n) Injunctive Relief. Each party acknowledges that any violation of its covenants in this Agreement relating to the other party’s Confidential Information and/or intellectual property would result in damage to such party that is largely intangible but nonetheless real and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give such party the right to a court-ordered injunction or other appropriate order to enforce specifically those covenants without bond and without prejudice to any other rights or remedies to which such party may be entitled as a result of a breach of this Agreement.
(o) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. An executed counterpart of this Agreement delivered via email (including PDF or any electronic signature complying with the U.S. Federal ESIGN Act of 2000, e.g., www.docusign.com), by fax, or by other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. In making proof of this Agreement, it shall not be necessary to produce or account for more than one counterpart hereof signed by each of the parties.