SOFTWARE END-USER LICENSE AGREEMENT
IMPORTANT -- READ CAREFULLY: This End-User License Agreement ("Agreement") is a legal contract between you (either an individual or a single business entity) and IGG Software, Inc. for the BANKTIVITY product identified above, which includes computer software and, as applicable, associated media, printed materials, and "online" or electronic documentation (the "Software Application").
BY CLICKING THE "AGREE" OR [ACCEPT] BUTTON BELOW, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE APPLICATION, INCLUDING, BUT NOT LIMITED TO ACCESSING THE SOFTWARE AS A SERVICE YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE APPLICATION, AND EXIT NOW.
This Software End-User License Agreement (this “Agreement”) sets forth the terms and conditions of your use of the accompanying software (the “Software”). For the purposes of this Agreement, “you” means you, the end-user, and “Licensor” means IGG SOFTWARE, INC. and its subsidiaries and affiliates, subsidiaries, successors and assigns.
I. LICENSE GRANT
Licensor hereby grants to you a non-exclusive and non-transferable license to (1) use the Software and Documentation solely for its internal operations at the Location(s) and on the Designated Environment, and (2) copy the Software and Documentation for archival or backup purposes only, provided that all titles, trademarks, and copyright, proprietary and restricted rights notices shall be reproduced in all such copies, and that all copies shall be subject to the terms of this Agreement. Licensor hereby grants to you a non-exclusive and non-transferable license to use the Software and related documentation (“Documentation”) solely for the intended purposes of the Software as set forth in the Documentation, according to the provisions contained herein, and subject to payment of applicable license fees. You are not permitted to lease, rent, distribute or sublicense the Software or any rights therein. You also may not install the Software on a network server, use the Software in a time-sharing arrangement or in any other unauthorized manner. Further, no license is granted to you in the human readable code of the Software (source code). Except as provided below, this Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in the Software and Documentation. This Agreement entitles you to receive any upgrades to or newer versions of this Software as delivered through the online provision of access of the software (Software as a Service or “SaaS”).
You may reproduce and provide one (1) copy of the Software and Documentation for each device, computer or workstation on which the Software is installed. Otherwise, the Software and Documentation may be copied only as essential for backup or archive purposes. You must reproduce and include all copyright notices and any other proprietary rights notices appearing on the Software and Documentation on any copies that you make.
II. NO ASSIGNMENT; NO TRANSFER
You agree not to transfer or assign the Software and this Agreement or both to another party without the prior written consent of Licensor. If such consent is given and you transfer or assign the Software and this Agreement, then you must at the same time either transfer any copies of the Software and Documentation to the same party or destroy or return to Licensor any such materials not transferred. Except as set forth above, you may not transfer or assign the Software or rights under this Agreement.
III. NO MODIFICATION; NO REVERSE ENGINEERING
You agree not to modify, translate, reverse engineer, decompile, disassemble, or create derivative works of the Software or assist someone in performing such prohibited acts.
IV. IMPORT/EXPORT RESTRICTIONS
You agree not to import or export the Software or any Documentation (or any copies thereof) or any products utilizing the Software or any Documentation in violation of any applicable laws or regulations of the United States or the country to which you have imported or exported. You shall indemnify Licensor from liability if you violate any such laws or regulations.
You agree that Licensor owns and holds title to the Software and Documentation and all Content therein and all subsequent copies thereof regardless of the form or media. Furthermore, title, ownership rights, and intellectual property rights in the Software and Documentation and Content therein shall remain with Licensor. The Software and Documentation are protected by copyright and other intellectual property laws and by international treaties.
VI. TERM AND TERMINATION
This license will be perpetual from the date that you first use the Software, if it is not earlier terminated. You may terminate this license at any time by destroying the Software and Documentation together with all copies in any form. It will also terminate immediately if you fail to comply with any term or condition of this Agreement, file for bankruptcy, or are placed in receivership. Upon such termination, you shall destroy the Software and Documentation, together with all copies thereof. You agree not to be entitled to a refund of any applicable license fee upon early termination of this Agreement.
VII. GOVERNING LAW
This Agreement and any claims arising out of relating to this Agreement, whether in contract or tort, statutory or common law, shall be governed exclusively by, and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws.
Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE LENDER’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE.
Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HERETO HEREBY WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY ANCILLARY DOCUMENT, THE PURCHASE AND SALE OR THE NEGOTIATION, TERMS OR PERFORMANCE HEREOF OR THEREOF, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES HERETO AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES HERETO. THE PARTIES HERETO FURTHER AGREE TO IRREVOCABLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING AND ANY SUCH PROCEEDING WILL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
VIII. NO WARRANTIES
LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS. TO THE FULL EXTENT PERMITTED BY LAW. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO DEALER, AGENT, OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS SECTION VIII.
THIS SOFTWARE AND THE ACCOMPANYING FILES ARE PROVIDED "AS IS." VENDOR AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR SUCH FILES. VENDOR AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO TITLE OR INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IGG SOFTWARE, INC. AND ITS LICENSOR(S) DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF THE CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS OR OTHERWISE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE. THE EXCLUSION OF IMPLIED WARRANTIES IS NOT PERMITTED BY SOME JURISDICTIONS. THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
IX. LIMITATION OF REMEDIES
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL LICENSOR, OR ITS SUPPLIERS OR RESELLERS, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTIONS, WORK STOPPAGE, PERSONAL INJURY, PHYSICAL OR EMOTIONAL IMPAIRMENT, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE SOFTWARE (WHETHER OR NOT DUE TO ANY DEFECTS THEREIN) OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS BY THIRD PARTIES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL LICENSOR, OR ITS SUPPLIERS OR RESELLERS, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY AMOUNTS IN EXCESS OF THE AMOUNT OF THE LICENSE FEE PAID BY YOU FOR THE LICENSE GRANTED UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
IN NO EVENT WILL IGG SOFTWARE, INC. AND ITS LICENSOR(S), AND THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY IGG SOFTWARE, INC. AND ITS LICENSORS) BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF IGG SOFTWARE, INC. AND ITS LICENSOR(S) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN ANY EVENT, IGG SOFTWARE, INC.’S AND ITS LICENSORS' LIABILITY TO YOU FOR ACTUAL DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION WILL BE LIMITED TO THE PRICE YOU PAID IGG SOFTWARE, INC. FOR THIS PRODUCT. IN NO EVENT WILL IGG SOFTWARE, INC. (OR ANY OF ITS MEMBERS) BE HELD ACCOUNTABLE FOR ANYTHING THAT ARISES FROM THE USE OF THIS PRODUCT.
Good data processing procedure dictates that any program be thoroughly tested with non-critical data before relying on it. The user must assume the entire risk of using the Software Application. ANY LIABILITY OF VENDOR FOR A DEFECTIVE COPY OF THE SOFTWARE APPLICATION WILL BE LIMITED EXCLUSIVELY TO REPLACEMENT OF YOUR COPY OF THE SOFTWARE APPLICATION WITH ANOTHER COPY OR REFUND OF THE INITIAL LICENSE FEE VENDOR RECEIVED FROM YOU FOR THE DEFECTIVE COPY OF THE PRODUCT. IN NO EVENT WILL VENDOR OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A VENDOR REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY.
Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long a given warranty may last, so the above limitations may not apply to you.
You shall defend, indemnify and hold harmless Licensor, its suppliers and its resellers from and against liabilities, costs, damages and expenses (including settlement costs and reasonable attorneys’ fees) arising from any claims from anybody that result from or relate to your use, reproduction or distribution of the Software or your breach of any representation, warranty or obligation under this Agreement.
In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired.
XII. ENTIRE AGREEMENT
You further agree that this Agreement is the complete and exclusive statement of the Agreement between you and Licensor which supersedes all proposals or prior agreements, oral or written, and all other communications between you and Licensor relating to the subject matter of this Agreement. This Agreement may only be modified by a written agreement signed by both you and Licensor.
By downloading, installing or using any part of this Software, you indicate that you have read this Agreement, understand it, and shall be bound by its terms and conditions.
Except as explicitly provided herein, Licensee shall not: (1) make available nor distribute all or part of the Software or Documentation to any third party by assignment, sublicense, or by any other means; (2) copy, adapt, reverse engineer, decompile, disassemble, or modify, in whole or in part, any of the Software or Documentation; or (3) use the Software to operate in or as a time-sharing, outsourcing, or service bureau environment, or in any way allow third-party access to the Software.
XV. OTHER LIMITATIONS
You may not rent, lease or lend the Software Application.
Vendor may provide you with support services related to the Software Application ("Support Services"). Use of Support Services is governed by Vendor policies and programs described in the user manual, in "online" Documentation, and/or in other Vendor-provided materials. Any supplemental software code provided to you as part of the Support Services shall be considered part of the Software Application and subject to the terms and conditions of this Agreement. With respect to technical information you provide to Vendor as part of the registration of your license to the Software Application or in connection with the Support Services, Vendor may use such information for its business purposes, including for product support and development.
Without prejudice to any other rights, Vendor may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. In such event, you must destroy all copies of the Software Application and all of its component parts, and Vendor may suspend or deactivate your use of the Software Application with or without notice.
XVII. PROPRIETARY RIGHTS
Copyright. All title and copyrights in and to the Software Application (including, without limitation, any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Software Application), the accompanying media and printed materials, and any copies of the Software Product are owned by Vendor or its suppliers. The Software Application is protected by copyright laws and international treaty provisions. Therefore, you must treat the Software Application like any other copyrighted material, subject to the provisions of this Agreement.
U.S. Government Restricted Rights. The Software Application and Documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer for such purpose is IGG Software, Inc., P.O. Box 584, Ashland, Oregon 97520.
Website, Live Chat and Email Submissions. Should you decide to transmit to Vendor's website or servers by any means or by any media any materials or other information (including, without limitation, ideas, concepts or techniques for new or improved services and products), whether as information, feedback, data, questions, comments, suggestions or the like, you agree such submissions are unrestricted and shall be deemed non-confidential and you automatically grant Vendor and its assigns a non-exclusive, royalty free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display and perform the same.
Web and Other Online Services. Should you decide to use any of Vendor’s online services, such as Cloud Sync, stock quote download, currency exchange rate download, or other web service, you agree that Vendor shall not be responsible for any lost or stolen data. Vendor reserves the right to shut down such services at any time without prior notice. Vendor also reserves the right to delete and/or duplicate data on any of its servers for backups, troubleshooting or other reasons Vendor deems appropriate.
You are licensing to Vendor and its service providers, including but not limited to, Envestnet | Yodlee (“Yodlee”), any information, data, passwords, materials or other content you provide through or to the Software Application (collectively “Content”). Vendor and Yodlee may use, modify, display, distribute and create new material using such Content to provide the services within the Software Application to you. By submitting Content, you automatically agree, or promise that the owner of such Content has expressly agreed that, without any time limit, and without the payment of any fees, Vendor and Yodlee may use the Content for any purposes necessary to fulfill the Software Application's intended functions and services.
Submissions. Should you decide to transmit to Vendor's website by any means or by any media any materials or other information (including, without limitation, ideas, concepts or techniques for new or improved services and products), whether as information, feedback, data, questions, comments, suggestions or the like, you agree such submissions are unrestricted and shall be deemed non-confidential and you automatically grant Vendor and its assigns a non-exclusive, royalty free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display and perform the same.
XVIII. BANK ACCESS
The Software Application uses the Open Financial Exchange protocol to access your financial records and initiate payments via Bill Pay, if supported by your financial institution. The primary setting is to identify the Software Application as Banktivity for your financial institution. If your institution does not recognize Banktivity as an accepted Software Application, it will default to an alternative identification. You agree to allow the Software Application to collect data to inform IGG Software which financial institution rejected Banktivity as the identifier. IGG Software may use this information to contact your financial institution to become a recognized Software Application.
AGAIN, BY CLICKING THE "AGREE" OR [ACCEPT] BUTTON BELOW, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE APPLICATION, AND EXIT NOW.
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