ELA - Payitoff

PLEASE READ THIS EVALUATION LICENSE AGREEMENT CAREFULLY BEFORE YOU SUBMIT INFORMATION TO PAYITOFF TO PARTICIPATE IN THE LIMITED FREE TRIAL AND/OR START USING “PAYITOFF FOR ADVISORS” (the “PAYITOFF PRODUCT”) MADE AVAILABLE TO YOU AS PART OF THIS LIMITED FREE TRIAL. THESE TERMS AND CONDITIONS ENTERED INTO BY YOU AND PAYITOFF ARE REFERRED TO AS THE “AGREEMENT.” UNLESS OTHERWISE DEFINED HEREIN, CAPITALIZED TERMS SHALL HAVE THE MEANINGS SET FORTH BELOW.

BY ACCEPTING, YOU ARE AGREEING ON BEHALF OF THE PERSON OR ENTITY OBTAINING THE PAYITOFF PRODUCT (“COMPANY”) THAT THE COMPANY WILL BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT AND CERTIFYING THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY. IF THE COMPANY DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE COMPANY TO THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE PAYITOFF PRODUCT IN ANY MANNER.

UNLESS AND UNTIL YOU AND THE COMPANY HAVE AGREED TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, NEITHER YOU NOR THE COMPANY HAS BECOME A LICENSEE OF, AND NEITHER IS AUTHORIZED TO ACCESS AND/OR USE, THE PAYITOFF PRODUCT. THE “EFFECTIVE DATE’ OF THIS AGREEMENT IS THE DATE YOU SIGN OR ACCEPT THE AGREEMENT.

1. Scope of License and Related Terms.

1.1 License Grant. During the Evaluation Period, and subject to the conditions and limitations set forth below, Payitoff hereby grants you a limited, non-exclusive, revocable, non-transferrable right, without the right to grant sublicenses, to use the Payitoff Product solely for the purpose of internally evaluating the sustainability of the Payitoff Product. All rights not expressly granted herein are reserved by Payitoff.

1.2 Your Responsibilities. You and the Company shall: (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Payitoff Product and (b) notify Payitoff in writing immediately of any unauthorized use of, or access to, the Payitoff Product or any user account or password thereof.

1.3 License Limitations Any uses of the Payitoff Product beyond the scope of the license granted in Section 1.1 are prohibited. Without limiting the breadth of the preceding sentence, nothing in this Agreement grants or shall be construed to grant any right to license or sell commercial products or services that include or use, or are derived from, the Payitoff Product. You understand and agree that you must enter a separate commercial license agreement with Payitoff to acquire such rights. The Payitoff Product provided to you and the Company under this Agreement is licensed, not sold, by Payitoff. Payitoff reserves all rights under copyright, patent, trade secret, and any other intellectual property or similar laws.

1.4 Use Restrictions. Neither you nor the Company shall, directly or indirectly: (a) sublicense, resell, rent, distribute, market, commercialize, or otherwise transfer rights or usage to the Payitoff Product or any modified version or derivative work of the Payitoff Product created by or for the Company; (b) provide or allow access to the Payitoff Product on a timesharing, service bureau or other similar basis; (c) remove or alter any copyright, trademark, or proprietary notice in the Payitoff Product; (d) decompile, disassemble, or otherwise reverse engineer the Payitoff Product, except to the extent that such acts cannot be prohibited under applicable law; (e) modify the Payitoff Product in any way; (f) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Payitoff Product of Payitoff’s systems; or (g) use any intellectual property rights protected by applicable laws and contained or accessible through the Payitoff Product for the purpose of building a competitive product or service or copying its features or user interface.

1.5 Feedback. If you or the Company provide suggestions, enhancement or feature requests or other feedback to Payitoff with respect to the Payitoff Property (as defined below), services, or related documentation (collectively, “Feedback”). Payitoff shall be free to use, disclose, reproduce, license, or otherwise distribute and exploit the feedback in its discretion, without restriction or obligation of any kind or nature. Feedback shall not create any obligation of confidentiality for Payitoff.

2. Proprietary Rights and Data

2.1 Ownership. Payitoff owns all right, title, and interest, including all intellectual property rights, in and to the Payitoff Product, and all Modifications thereto (collectively, the “Payitoff Property”). Payitoff retains all rights, title, ownership interest in and to the Payitoff Property, and no other intellectual property rights or license rights are granted by Payitoff to the Company under this Agreement, either expressly or by implication, estoppel, or otherwise.

2.2 Business Information; Company Data. You and the Company agree to allow Payitoff to store and use contact information, including names, business phone numbers, and business e-mail addresses that you provide to Payitoff. To the extent that (i) anydata is input into or resides in the Payitoff Product as part of this evaluation (the “User Data”) and (ii) the User Data contains personal data about a living individual (“Personal Data”), Payitoff will process that Data only as a Data Processor acting on your behalf (as the Data Controller) and in accordance with the requirements of this Agreement and applicable law.

2.3 Usage Data. In the course of providing the Payitoff Product, Payitoff may collect, use, process, and store diagnostic and usage related content from the computer, mobile phone, or other devices used to access the Payitoff Product or service. This may include, but is not limited to, IP address and other information like internet service, location, the type of browser and modules that are used and/or accessed (the “Usage Data”). Payitoff may process Usage Data to create and compile anonymized, aggregated datasets and/or statistics about the Payitoff Product or services in order to: (a) maintain and improve the performance and integrity of the Payitoff Product or services; (b) understand which Payitoff Product or services are most commonly deployed and preferred by customers and how customers interact with the Payitoff Product or services; (c) identify the types of Payitoff services that may require additional maintenance or support; and (d) comply with all regulatory, legislative and/or contractual requirements.

3. Term and Termination.

3.1 Term. This Agreement commences on the Effective Date and continues for a period of thirty (60) days thereafter (“Evaluation Period”), unless terminated sooner pursuant to Section 3.2.

3.2 Termination. Either party may terminate this Agreement at any time by providing a minimum of two (2) days written notice to the other party. Additionally, either party may terminate this Agreement if the other party materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for two (2) days following written notice of the breach.

3.3 Effect of Termination or Expiration. Upon any expiration termination of this Agreement, whichever occurs first, (a) the rights granted under this Agreement will be immediately revoked and Payitoff may immediately deactivate the Company’s free evaluation account; and (b) the Company Data will be deleted by Payitoff from the Payitoff Product. Sections 1.3, 1.4, 1.5, 2, 3.3, 4, and 5 survive termination or expiration of this Agreement.

4. Disclaimer of Warranties; Limitation of Liability.

4.1 Disclaimer of Warranties. YOU AND THE COMPANY EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE PAYITOFF PRODUCT IS AT YOUR SOLE RISK. THE PAYITOFF PRODUCT IS PROVIDED TO COMPANY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FIN THE USE OF THE INTERNET AND PAYITOFF IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.

4.2 Limitation on Damages. EXCEPT FOR YOUR BREACH OF SECTIONS 1.1, 1.4, OR 1.5, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, OR ON ANY OTHER THEORY OF LIABILITY, FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING UNDER THIS AGREEMENT AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN NO EVENT SHALL PAYITOFF’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE AMOUNT OF $5.

5. General

5.1 Assignment. You cannot assign any rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Payitoff. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section 5.1 shall be void.

5.2 Relationship of the Parties. Payitoff and the Company are independent contractors, and nothing in this Agreement or any attachment hereto will create a partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.

5.3 Choice of Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York and the federal U.S. laws applicable therein, excluding its conflicts of laws provisions. The Company and Payitoff agree to submit to the personal and non-exclusive jurisdiction of the courts located in New York County, New York. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

5.4 Attorneys’ Fees. In any action by or against Payitoff related to this Agreement, you and the Company agree that Payitoff shall be entitled to recover its reasonable attorneys’ fees and reasonable costs.

5.5 Notice. Notices regarding this Agreement shall be in writing and addressed to Company at the address the Company provides, or, in the case of Payitoff, sent via electronic mail to [email protected] Notices regarding the Payitoff Product in general may be given by electronic mail to your e-mail address on record with Payitoff.

5.6 Entire Agreement; Other Terms. This Agreement and any URLs referenced herein represent the entire agreement of the parties and supersede all prior discussions, e-mails and/or agreements between the parties and is intended to be the final expression of their Agreement. To the extent there is a conflict between this Agreement and any additional or inconsistent terms, the terms of this Agreement shall prevail, unless expressly stated otherwise. The Agreement may not be modified or altered except by written instrument, and no amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed (either manually or electronically) by an authorized representative of Payitoff. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. Except as otherwise provided, remedies specified herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

6. Definitions.

6.1 “Data Controller” means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or European Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or European Community law.

6.2 “Data Processor” means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the Data Controller.