Master Subscription Agreement
We have updated our Master Subscription Agreement. If you are a new customer, then this Master Subscription Agreement will be effective as of April 19, 2018. For a prior version of our terms, click here.
THIS MASTER SUBSCRIPTION AGREEMENT (“MSA”) IS ENTERED BETWEEN YOU, AS A CUSTOMER, AND INSTRUMENTAL LABS, INC. (“INSTRUMENTAL”) AS SERVICE PROVIDER OF “PAYITOFF FOR ADVISORS” (THE “PAYITOFF PRODUCT”). YOU AND INSTRUMENTAL ARE INDIVIDUALLY REFERRED TO AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES.”
THE TERMS AND CONDITIONS OF THIS MSA WILL BE LEGALLY BINDING ON YOU UPON YOUR EXECUTION OF THIS MSA. BY ACCEPTING THE TERMS OF THIS MSA, YOU ARE AGREEING ON BEHALF OF THE PERSON OR ENTITY OBTAINING THE PAYITOFF PRODUCT (THE “CUSTOMER”) THAT THE CUSTOMER WILL BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT AND CERTIFYING THAT YOU HAVE THE AUTHORITY TO BIND THE CUSTOMER. IF THE COMPANY DOES NOT AGREE TO ALL OF THE TERMS OF THIS MSA OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER TO THIS MSA, DO NOT ACCESS AND/OR USE THE PAYITOFF PRODUCT IN ANY MANNER.
UNLESS AND UNTIL YOU AND THE CUSTOMER HAVE AGREED TO BE BOUND BY ALL THE TERMS OF THIS MSA, NEITHER YOU NOR THE CUSTOMER HAS BECOME A LICENSEE OF, AND NEITHER IS AUTHORIZED TO ACCESS AND/OR USE THE PAYITOFF PRODUCT. THE “EFFECTIVE DATE” OF THIS MSA IS THE DATE YOU SIGN OR ACCEPT THE MSA.
1. Scope of License and Related Terms.
1.1 License Grant. Instrumental hereby grants you a limited, non-exclusive, non-transferable, revocable right, without the right to grant sublicenses, to use the Payitoff Product for your own business purposes, subject to the terms of this MSA. All rights not expressly granted to you herein are reserved by Instrumental.
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 Instrumental in writing immediately of any unauthorized use of, or access to, the Payitoff Product or any user account or password thereof
1.3 Use Restrictions. You shall not, 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 Customer; (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 or any part thereof or otherwise attempt to discover any source code of the Payitoff Product; (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; 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.
1.4 Feedback. If you provide suggestions, enhancement or feature requests or other feedback to Instrumental with respect to the Payitoff Property (as defined below), services, or related documentation (collectively, “Feedback”). Instrumental 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 Instrumental.
2. Proprietary Rights and Data
2.1 Ownership. Instrumental 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”). Instrumental retains all rights, title, ownership interest in and to the Payitoff Property, and no other intellectual property rights or license rights are granted by Instrumental to the Customer under this MSA, either expressly or by implication, estoppel, or otherwise.
2.2 Business Information; Company Data. You agree to allow Instrumental to store and use contact information, including names, business phone numbers, and business e-mail addresses that you provide to Instrumental. To the extent that (i) any data is input into or resides in the Payitoff Product (the “User Data”) and (ii) the User Data contains personal data about a living individual (“Personal Data”), Instrumental 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 MSA and applicable law.
2.3 Usage Data. In the course of providing the Payitoff Product, Instrumental 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”). Instrumental 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 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 Free Trial. By agreeing to this MSA, the Customer may access the Payitoff Product for a period of thirty (30) days (the “Trial Period”) unless a "Trial Period" has already occurred. Access to the Payitoff Product during the Trial Period is free. You will be billed monthly starting on the first day after the Trial Period, until the MSA is terminated in accordance with Section 4.2.
3.2 Fees. The Customer agrees to pay all fees or charges to its account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable as consideration for access to the Payitoff Product (“Fees”). All Fees are exclusive of taxes, levies, duties, or similar government assessments of any nature (“Taxes”) and the Customer shall be responsible all such Taxes associated with your use of the Payitoff Product. If the Customer does not pay the Fees within thirty (30) days of the due date, Instrumental may suspend or terminate the Customer’s access to the Payitoff Product, or both.
3.3 Payment. Your subscription to the Payitoff Product is billed in advance on a monthly basis. After the Trial Period, Instrumental will automatically bill the Customer’s credit card for the monthly subscription for the Payitoff Product at the beginning of each monthly billing period. You authorize Instrumental to charge your credit card or bank account for all Fees payable at the beginning of each monthly billing period. You further authorize Instrumental to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
3.4 Billing Information. You agree to provide Instrumental with complete and accurate billing information in the form of a credit card or bank account and contact information, including your legal company name, street, address, e-mail, and name and telephone number of an authorized billing contact. You agree to update this information within thirty (30) days of any change to it. All fees are billed in full in U.S. dollars unless otherwise specified in writing by the Parties.
3.5 Disputes. In the event that the Customer in good faith disputes the Fees billed or charged, the Customer shall promptly identify in writing the amounts in dispute and the reasons for the dispute, and work in good faith with Instrumental to resolve the dispute. Notwithstanding any such dispute, the Customer shall pay all undisputed Fees within 30 days of the due date. All Fees must be paid in full in United States dollars to Instrumental. The Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Instrumental to collect any Fees not paid when due.
4. Term & Termination
4.1 Term. This MSA commences on the Effective Date and shall automatically renew, after the Trial Period, on a monthly basis (“Renewal Term”), until terminated in accordance with Section 4.2.
4.2 Termination. Either Party may terminate this MSA at any time by providing a minimum of two (2) days written notice to the other Party. Additionally, either Party may terminate this MSA 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.
4.3 Refund. If the Customer terminates this MSA pursuant to Section 4.2, Instrumental will issue you a prorated refund for payment previously received by Instrumental corresponding to any period after the effective date of such termination. If Instrumental terminates the MSA pursuant to Section 4.2, the Customer will pay any unpaid Fees covering the remainder of the Renewal Term. In no event will any termination relieve you of the obligation to pay any fees payable to Instrumental for the period prior to the effective date of termination.
4.4 Effect of Termination. Upon the termination of this MSA, (a) the rights granted under this MSA will be immediately revoked and Instrumental may immediately deactivate the Customer’s subscription to the Payitoff Product; and (b) any data, information, or material the Customer provided, submitted, or uploaded to the Payitoff Product (“Customer Data”) will be archived for a period of six (6) months. You agree and acknowledge that Instrumental is under no obligation to retain Customer Data for more than six (6) months after termination or expiration of this MSA and may destroy Customer Data in its possession or control six (6) months after termination or expiration of this MSA. Sections 1.3, 1.4, 2, 4.3, 5, and 6 survive termination of this MSA.
5. Disclaimer of Warranties; Limitation of Liability.
5.1 Disclaimer of Warranties. YOU 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, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY OR COMPLETENESS OF RESPONSES, AND RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PAYITOFF'S PRODUCT OR SERVICE MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND INSTRUMENTAL IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.
5.2 Limitation on Damagaes. EXCEPT FOR YOUR BREACH OF SECTIONS 1.1, 1.3, OR 1.4, 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
5.3 Exclusion of Payment Obligations. THE LIMITATIONS IN THIS SECTION 5 DO NOT APPLY TO THE CUSTOMER’S OBLIGATIONS TO PAY FEES WHEN DUE AND PAYABLE
6.1 Assignment. You cannot assign any rights or obligations under this MSA, whether by operation of law or otherwise, without the prior written consent of Instrumental. Subject to the foregoing, this MSA shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section 6.1 shall be void.
6.2 Relationship of the Parties. Instrumental and the Customer are independent contractors, and nothing in this MSA or any attachment hereto will create a partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
6.3 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 Customer and Instrumental 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.
6.4 Attorneys’ Fees. In any action by or against Instrumental related to this MSA, you agree that Instrumental shall be entitled to recover its reasonable attorneys’ fees and reasonable costs.
6.5 Notice. Notices regarding this MSA shall be in writing and addressed to Customer at the address the Customer provides pursuant to Section 3.4, or, in the case of Instrumental, 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 Instrumental.
5.6 Entire Agreement; Other Terms. This MSA 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 MSA and any additional or inconsistent terms, the terms of this MSA shall prevail, unless expressly stated otherwise. The MSA 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 Instrumental. If any provision of this MSA 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.
7.1 “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.
7.2 “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.
7.3 “Modifications” means any work based on or incorporating all or any portion of the Payitoff Product, including, without limitation, modifications, enhancements and customizations to the Payitoff Product developed by or on behalf of Instrumental.