PLEASE READ THESE SPONSOR TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY MONEY EXPERIENCE, INC. (“MONEY EXPERIENCE”). BY CLICKING THE “ACCEPT” BUTTON OR BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH MONEY EXPERIENCE WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU, ON BEHALF OF THE ENTITY YOU REPRESENT (“SPONSOR”), AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH SPONSOR SUBMITS VIA MONEY EXPERIENCE’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY MONEY EXPERIENCE SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF SPONSOR DOES NOT UNCONDITIONALLY AGREE TO ALL THE TERMS OF THIS AGREEMENT, SPONSOR WILL HAVE NO RIGHT TO USE THE SERVICES. BY CLICKING THE “SUBMIT” BUTTON, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
1. License to Services.
a. Order Forms. Upon mutual execution, each Order Form shall be incorporated into and form part of the Agreement.
b. License to Sponsor. Subject to Sponsor’s compliance with the terms and conditions of this Agreement, Money Experience grants Sponsor a nonexclusive, nonsublicensable, nontransferable right and license during the applicable Order Form Term (as defined below) to internally access and use the Money Experience product(s) and/or service(s) specified in such Order Form (the “Services”) solely for Sponsor’s
internal business purposes. As part of the registration process, Sponsor will identify administrator(s) for Sponsor’s administrative account(s) (“Sponsor Accounts”) and set up administrative name(s) and password(s) for Sponsor Accounts. Money Experience reserves the right to refuse registration of, or cancel passwords it deems inappropriate (for example passwords not meeting Money Experience’s then-current minimum security requirements). Money Experience will either (i) assign Sponsor a unique URL (“Access Link”) or (ii) generate a set of anonymized usernames and passwords (“Access Credentials”), and shall provide such Access Link or Access Credentials (as applicable) to Sponsor for Sponsor’s distribution to Admin Users and Individual End Users (each as defined below). Sponsor shall be responsible for maintaining the security of the Access Link and Access Credentials, account passwords and files. Sponsor is responsible and liable for any use of the Services and/or use of the Sponsor Accounts by any and all employees, contractors or agents of Sponsor and by any and all Admin Users (collectively “Sponsor Agents”) including all acts and omissions of Sponsor Agents; any act or omission by any Sponsor Agent that would be a breach of this Agreement if committed by Sponsor shall be deemed to be a breach of this Agreement by Sponsor. Sponsor shall be fully liable for any breach of this Agreement by any Sponsor Agent.
c. Right to Grant Limited License to Admin Users. In addition, and subject to Sponsor’s compliance with the terms and conditions of this Agreement, Money Experience grants Sponsor a non-exclusive right and license during the applicable Order Form Term to provide access and use of the Services to certain third party administrators up to the number indicated on the applicable Order Form (“Admin User”) solely for the Admin Users’ internal business purposes; provided that Sponsor shall ensure that any and all Admin Users shall comply with the terms and conditions of this Agreement. For clarity, an Admin User is not a member of Sponsor’s personnel, but rather is a member of an intermediary organization between Sponsor and the individual End Users.
2. Implementation. Upon payment of any applicable fees set forth in each Order Form, Money Experience agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If Money Experience provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Money Experience otherwise provides additional services beyond those agreed in an Order Form, Sponsor will pay Money Experience at its then-current hourly rates for consultation.
3. Service Updates. From time to time, Money Experience may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Money Experience shall have no obligation under this Agreement or otherwise to provide any such Updates. Sponsor understands that Money Experience may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Money Experience shall use commercially reasonable efforts to give Sponsor reasonable prior notice of any major changes.
4. Restrictions. Use, reproduction, modification, distribution or storage of any materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, maps, images, illustrations (collectively, “Content”) other than purposes of using the Services is expressly prohibited without Money Experience’s prior written permission. The Services may allow Sponsor to copy or download certain Content; even where these functionalities exist, all of the terms and conditions in this Agreement still apply. Except as expressly set forth in this Agreement, Sponsor shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Money Experience product or service; (vii) interfere or attempt to interfere with the proper working of the Services or Content (or any activities conducted on the Services); (viii) bypass any measures Money Experience may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (ix) “crawl “scrape,” or “spider” any page, data or portion of or relating to the Services or Content (through use of manual or automated means); (x) pre-fetch, store, index, cache, rehost or reshare our Content outside the Services; (xi) create content from the Content, including through tracing, digitizing, or creating other datasets based on the Content; or (xii) copy or store any significant portion of the Content (including bulk downloads of geocodes). Sponsor is responsible for all activity under Sponsor Account and for all of Sponsor’s activity in connection with the Services, including but not limited to uploading Sponsor Data (as defined below) onto the Services.
a. By Sponsor. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Sponsor (and its licensors) shall retain all rights, title and interest (including all intellectual property and other proprietary rights) in and to Sponsor Data (as defined below).
b. By Money Experience. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Money Experience (and its licensors) shall retain all rights, title and interest (including all intellectual property and other proprietary rights) in and to the Services (including without limitation Content), all copies, modifications and derivative works thereof, and all Money Experience trademarks, names, logos, all rights to patent, copyright, trade secret and other intellectual property and proprietary rights. In addition, Money Experience shall own any and all suggestions for correction, change or modification to the Services, and other feedback, information and reports provided to Money Experience hereunder (collectively, “Feedback”), and Sponsor shall and hereby does assign any rights in such Feedback to Money Experience.
a. Sponsor Data. For purposes of this Agreement, “Sponsor Data” shall mean any data, information or other material provided, uploaded, generated or submitted by Sponsor in the course of using the Services or otherwise to Money Experience. For clarity, Sponsor Data does not include any Individual End User Data. Sponsor shall retain all right, title and interest in and to the Sponsor Data, including all intellectual property rights therein. Sponsor, not Money Experience, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Sponsor Data. Money Experience shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Sponsor Data. Money Experience is not responsible to Sponsor for unauthorized access to Sponsor Data or the unauthorized use of the Services unless such access is due to Money Experience’s gross negligence or willful misconduct. Sponsor acknowledges and agrees that Sponsor Data may be irretrievably deleted if Sponsor is ninety (90) days or more delinquent on payment of fees due for the Services. Notwithstanding anything to the contrary, Sponsor acknowledges and agrees that Money Experience may (i) internally use and modify (but not disclose) Sponsor Data for the purposes of (A) providing the Services to Sponsor and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Money Experience’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Money Experience’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Money Experience in connection with Sponsor’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Sponsor.
b. Individual End User Data.
i. Sponsor shall use Individual End User Data solely in accordance with the Authorization granted by the applicable Individual End User with respect thereto, the terms of this Agreement, and any and all Applicable Laws.
ii. Sponsor shall give Admin Users access to Individual End User Data solely to the extent that Sponsor has received Authorization from the applicable Individual End User for their Individual End User Data to be shared with Admin Users.
iii. Sponsor shall implement appropriate technical and organizational measures to protect the Individual End User Data. At a minimum, Sponsor shall use at least the same level of privacy protection as is required by Applicable Law, and shall promptly notify Money Experience of any inability to provide such protection. In the event that Sponsor suffers a security breach or unauthorized disclosure, access, loss or use of Individual End User Data (“Data Breach”), Sponsor shall notify Money Experience without undue delay and the parties shall reasonably cooperate with each other in taking such measures as may be necessary to notify affected Individual End Users, comply with each party’s obligations under Applicable Law, and to mitigate or remedy the effects of such Data Breach. In addition, Sponsor shall make available to Money Experience all information Money Experience reasonably deems necessary to demonstrate compliance by Money Experience with its obligations under Applicable Laws relating to Individual End User Data.
7. Third Party Services. Sponsor acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by Money Experience. Money Experience is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Sponsor is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Sponsor Data, Individual End User Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Money Experience does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Sponsor and a third party provider is solely between Sponsor and such third party provider and is governed by such third party’s terms and conditions.
8. Fees; Payment.
a. Sponsor shall pay Money Experience fees for the Service as set forth in each Order Form (“Fees”).
b. Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are due and payable in U.S. dollars on Sponsor’s receipt of invoice. All Fees paid are non-refundable and are not subject to set-off, and Sponsor will not be eligible for a prorated refund of any portion of Fees paid or payable. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law.
c. Sponsor shall be responsible for all taxes associated with Service (excluding taxes based on Money Experience’s net income) unless Sponsor has provided Money Experience with a valid tax-exempt certificate.
d. If Sponsor exceeds any user or usage limitations set forth on an Order Form, then (a) Money Experience shall invoice Sponsor for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Money Experience’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (b) if such Order Form Term renews (in accordance with Section 9 below), such renewal shall include the additional fees for such excess users and usage.
e. Sponsor may purchase additional Seat Licenses during the applicable Order Form Term at the rate set forth in the applicable Order Form or otherwise specified by Money Experience by executing a new Order Form. Money Experience will invoice Sponsor for such additional Seat Licenses upon execution of the new Order Form. Any such additional Seat Licenses will be valid only for the remaining portion of the applicable Order Form Term.
f. In the event that Sponsor wishes to use a credit card to pay the Fees (as indicated on the applicable Order Form), the following additional terms shall apply:
ii. By choosing to pay for the Services using a credit card, Sponsor agrees to pay Money Experience, through the Payment Processor, all Fees for the Services in accordance with the applicable payment terms, and Sponsor authorizes Money Experience, through the Payment Processor, to charge Sponsor’s chosen payment provider (Sponsor’s “Payment Card”). Sponsor agrees to make payment using that selected Payment Card, and Sponsor shall provide current, complete and accurate information applicable to its Payment Card to the Payment Processor as necessary to complete such payment. The terms of Sponsor’s payment will be based on Sponsor’s Payment Card and may be determined by agreements between Sponsor and the financial institution, credit card issuer or other provider of Sponsor’s chosen Payment Card. Money Experience reserves the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. If Money Experience, through the Payment Processor, does not receive payment from Sponsor, Sponsor agrees to pay all amounts due upon demand and nothing herein waives Money Experience’s right to seek payment directly from Sponsor.
iii. Unless Sponsor provides notice of its intent to not renew an applicable Order Form in accordance with the terms of Section 9 below or an Order Form is not subject to automatic renewal as set forth therein, Sponsor shall pay all Fees due upon each renewal term using the Payment Card unless Sponsor has elected to pay the Fees due in such renewal term using a different payment method (e.g., wire, bank transfer, check or different credit card), and Sponsor shall provide current, complete and accurate information applicable to its Payment Card to the Payment Processor as necessary to complete such payment. For the avoidance of doubt, nothing herein shall affect in any way Sponsor’s obligation to pay (whether via a Payment Card or some other method) any and all Fees due and payable prior to the effective date of termination or expiration of the applicable Order Form.
iv. Any free trial or other promotion that provides access to the Services must be used within the specified time of the trial. Sponsor must terminate the applicable Order Form before the end of the trial period in accordance with the termination terms applicable thereto, in order to avoid being charged for the Services. If Sponsor terminates the Order Form prior to the end of the trial period and is inadvertently charged for the Services, please contact us at [SUPPORT EMAIL].
9. Term; Termination. This Agreement shall commence upon the effective date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (a) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (b) following the Order Form Initial Term, shall (unless otherwise expressly set forth in the applicable Order Form) automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then- current Order Form Renewal Term, as applicable. In the event of a material breach of this Agreement by either party the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Money Experience may suspend or limit Sponsor’s access to or use of the Services if (i) Sponsor’s payment of an invoice is more than ninety (90) days past due, or (ii) Sponsor’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with Money Experience’s ability to provide access to the Services to other customers; provided that in the case of subsection (ii): (A) Money Experience shall use reasonable good faith efforts to work with Sponsor to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (B) prior to any such suspension or limitation, Money Experience shall use commercially reasonable efforts to provide notice to Sponsor describing the nature of the damage or degradation; and (C) Money Experience shall reinstate Sponsor’s use of or access to the Services, as applicable, if Sponsor remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
10. Representations and Warranties. Sponsor hereby represents and warrants that (a) it shall use the Services in compliance with all Applicable Laws and the terms of this Agreement, (b) it shall obtain Authorization from all Individual End Users with respect to Individual End User Data; (c) it shall comply with Section 6(b) above; (d) Sponsor Data, and Money Experience’s use thereof, does not infringe, violate or misappropriate any third party intellectual or other proprietary rights; (e) it shall not use the Services in a manner that violates any third party intellectual property or other proprietary rights; and (f) if Sponsor has provided Money Experience with a tax-exempt certificate, such tax-exempt certificate is valid and binding.
11. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND ALL CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
a. To the fullest extent allowed by applicable law, Money Experience shall defend, indemnify and hold harmless Sponsor, its affiliates, and each of its and its affiliates’ officers, directors, employees, successors, assigns, contractors, suppliers and representatives from all third party claims or actions, damages, liabilities, assessments, losses, costs and other expenses (including without limitation
reasonable attorneys’ fees and expenses) (collectively, “Losses”) arising from or relating to any claim that the Service infringes any third party intellectual property or other proprietary right. Notwithstanding the foregoing, Money Experience shall have no obligation under this subsection (a) with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Money Experience (including without limitation any Sponsor Data or Individual End User Data), (ii) made in whole or in part in accordance to Sponsor specifications, (iii) modified after delivery by Money Experience, (iv) combined with other products, processes or materials not provided by Money Experience (where the alleged Losses arise from or relate to such combination), (v) where Sponsor continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Sponsor’s use of the Service is not strictly in accordance with the terms of this Agreement.
b. To the fullest extent allowed by applicable law, Sponsor shall defend, indemnify and hold harmless Money Experience, its affiliates, and each of its and its affiliates’ officers, directors, employees, successors, assigns, contractors, suppliers and representatives from Losses arising from or relating to (i) any breach by Sponsor of any representation or warranty in this Agreement or (ii) any gross negligence, willful misconduct, recklessness or fraud by Sponsor.
c. The applicable indemnified party shall give the indemnifying party prompt written notice of any claim and give reasonable assistance necessary to carry out the indemnifying party’s obligations under this Section 12, provided that indemnifying party shall reimburse the applicable indemnified party’s reasonable out-of-pocket expenses incurred in providing such assistance and provided further that the applicable indemnified party’s failure to promptly notify the indemnifying party will affect the indemnifying party’s obligations solely to the extent that the applicable indemnified party’s failure prejudices the indemnifying party’s ability to defend the applicable claim. The applicable indemnified party shall have the opportunity to participate in the defense and settlement of the claim at any time at the indemnified party’s own expense with counsel of its own choosing. Subject to the applicable indemnified party’s prior written consent, the indemnifying party shall have no authority to settle any claim that gives rise to such indemnified party’s liability or fault.
13. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF SECTION 6(B), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY SPONSOR TO MONEY EXPERIENCE HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
14. Miscellaneous. This Agreement represents the entire agreement between Sponsor and Money Experience with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Sponsor and Money Experience with respect thereto. In the event of a conflict between these Terms and an Order Form, these Terms shall control. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Boston, Massachusetts. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; pandemics or epidemics; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Sponsor grants Money Experience a limited, non-transferable, non-exclusive, royalty-free license to include Sponsor’s name and standard logo within its list of customers utilizing the Services, both on Money Experience’s public-facing website and in its marketing and promotional materials. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Money Experience may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.