Terms of Service

NEOCOVA OPERATIONS, LLC 

TERMS OF SERVICE

Neocova Operations, LLC (“Neocova,” “we,” “us,” and “our”) provides the Neocova Platform to deliver financial institution-related hosted applications, analytics, and data services (the Neocova Platform and any financial institution-related hosted applications, analytics, and data services provided by Neocova are, collectively, the “Services”) to the customer executing the Neocova Platform Order Form that is accompanied by this document (“Customer”, “you”, and “your”).  These Terms of Service contain the terms and conditions that govern the use of all of our Services, including access to the Neocova Platform.  Services will be ordered through Order Forms subject to these Terms of Service.  These Terms of Service and any Order Forms will be collectively referred to as the “Agreement”. 

Capitalized words in this Agreement, if not defined elsewhere, have the meaning set forth in the attached Appendix A (Glossary), or as defined in referenced or linked documents or policies.

  1. Services

The Neocova Platform is a cloud-based set of services and is designed to be highly available, as specified in the applicable Order Form.  We will provide (through our resources, or those of third-party providers) the facilities, personnel, equipment, software, and other resources necessary to provide the Services.  

You will provide hardware, software, and connectivity to access and use the Services.  You may access the Services only to the extent of authorizations granted to you under these Terms of Service.  You are responsible for use of the Services by you, your Affiliates, your Customers, and by any User who accesses the Services with your account credentials. 

To become a User of the Services, you agree to the terms of the Agreement, including any policies or additional terms that are linked or referenced therein (collectively, the “Terms”) by signing and returning to us one or more executed Order Form.

Conversion of your Customer data to the Services, to the extent applicable, is included as a part of our Services and only fees specified in an Order Form are charged.  Deconversion of Service Data upon termination of Services is provided at our then standard rates.

  1. Intellectual Property Rights

2.1Your Rights

  • Retention of Rights.  We respect your Intellectual Property rights.  Unless otherwise provided under this Agreement, you retain all rights in and to your Service Data, including to any Intellectual Property you have in such Service Data.  Use of the Services will not affect your ownership of such Service Data.  We, our Affiliates, and our contractors may access and use the Service Data solely for the purposes of providing and managing the Services and as permitted in Section 2.2B.
  • Right to Use the Service.  Subject to your compliance with the Agreement, including the payment of applicable fees, we grant to you a non-exclusive, personal, non-transferable, limited, non-sublicensable (except to the extent the applicable Service includes use by your Customers to use the Services), right to access  the features and functions of the Services, during the Term.  Your right to use will be extended to any of your Affiliates that are expressly listed under an Order Form.  Your right to allow your Customers to use the Service does not include the right to allow any other financial institution to use the Service.  Your right to use the Services is subject to the terms and conditions of this Agreement, including any usage or other parameters or limitations set forth in the applicable Order Form.  You shall undertake reasonable efforts to make all Users aware of the provisions of this Agreement that are applicable to their use of the Services and shall cause them to comply with such provisions.
  • Limited Trademark License.  We grant to you a limited, nonexclusive, royalty-free, non-transferable license to display our authorized trademarks and logos so that you can reference that you are a customer of ours and our Services and during the Term.  This grant is conditioned upon our review and approval as to the use and presentation of our trademarks and logos.  Any goodwill that is derived from the use of our marks inures to our benefit.

2.2 Our Rights

  1. Retention of Rights.  Except as expressly granted in this Agreement, we retain all rights, title, and interests in and to the Services and all related Intellectual Property, including any improvements, modifications, updates, and enhancements thereto.
  2. License Grant to Service Data.  You grant to us a nonexclusive, worldwide, fully paid-up, royalty-free, license to the Service Data to allow us to provide the Services and (in de-identified, aggregate form) to exercise our rights under the Agreement, including the right to develop, improve, and commercially offer the Services and new services.
  3. Limited Trademark License.  You grant to us a limited, non-exclusive, royalty-free, non transferable license to display your approved trademarks and logos for the limited purpose of allowing us to reference that you are a customer of our Services.  Any goodwill that is derived from the use of your marks inures to you.  In addition, to the extent that you engage us to assist in private-labeling any of the Services, you grant us a limited, non-exclusive, royalty-free, non-transferable license to use your approved trademarks, logos, and related Intellectual Property.
  4. Feedback.  Any suggestions or ideas that you provide to us for the improvement of the Services or our other offerings will be our sole property, including all Intellectual Property and any changes or improvements to the Intellectual Property.  All feedback will be deemed non-confidential.

2.3 Third-party Service Data and Software.  Any third-party materials including, but not limited to, any data, documentation, white papers, software, and algorithms available for use through the Services (“Third-party Service Data”) are the property of the owner of that Third-party Service Data, or its licensors or suppliers.  The use of some Third-party Service Data may be offered under the terms of one or more license agreements (a “Third-party License”).  If you access or use any Third-party Service Data that is governed by a Third-party License, you agree that the use of such Third-party Service Data by you or your Users is subject to the terms and conditions of any applicable Third-party License.  We do not sponsor or endorse any Third-party Service Data, and disclaim all liability regarding any use of it by you or any of your Users, and any such use is on an as-is basis, and at the risk of you and your Users.  We are not a reseller or sub-licensor of any Third-party Service Data.  The Services may require the use of enabling software that you download to your systems.  You may use enabling software only in connection with use of the Services and according to any terms specified by us.  Enabling software is provided as-is, without warranties of any kind.

2.4 Limitations of Use.  You and your Users may use the Services only for the purposes authorized in this Agreement.  In addition, you and your Users will not do any of the following: (i) copy, modify, or reproduce the Services; (ii) market, sell, grant access to, or distribute the Services except as expressly authorized under the Agreement; (iii) modify or create derivative works of the Services; (iv) rent, lease, or otherwise make the Services available to any third-party except for Authorized Users; (v) remove, alter, or deface any legends, restrictions, product identification, copyright, trademark, or other proprietary notices from or in the Services, or; (vi) reverse engineer any aspect of the Services.  You also may not combine the Services with any of your products or services to create a commercially available branded solution that you market, unless otherwise agreed upon in writing by us.

  1. Obligations of the Parties

3.1 Support from Us.  We will provide support services for the Services as specified in the applicable Order Form.

3.2 Disaster Recovery.  In accordance with FFIEC business continuity guidelines, we have a disaster recovery plan.  Our recovery time objective under the plan is set forth in the continuity program summary document made available to you in Appendix B (Disaster Recovery).  We maintain adequate backup procedures in order to recover Service Data to the point of the last available good backup, with a recovery point objective as set forth in the continuity program summary document.  We test our disaster recovery plan at least annually.  Upon request, we will provide a summary of our disaster recovery plan and test results, excluding any proprietary information or Confidential Information.  You are responsible for adopting a disaster recovery plan relating to disasters affecting your facilities and for securing business interruption insurance or other insurance necessary for your protection.

3.3 User Obligations.  You and your Users are responsible for transmitting all data (including Service Data) and verifying the accuracy, completeness, and authenticity of all data.  You are also responsible for your conduct and your User’s conduct while accessing or using the Services, and for refraining from: (i) any use that is illegal, defamatory, deceptive, obscene, offensive, fraudulent, or otherwise inappropriate; (ii) uses that violate or infringe upon the rights of any other person including, but not limited to, Intellectual Property; (iii) “spamming,” sending unsolicited bulk e-mail or other messages on the Services or sending unsolicited advertising or similar conduct; (iv) threats to or harassment of another; (v) impersonating another person or other misrepresentation of source; (vi) intentionally distributing viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; (vii) monitoring, crawling, caching, or scraping another system without authorization, or doing so in a manner that impairs or disrupts the system being so utilized; (viii) performing Denial of Service (DoS) attacks or otherwise interfering with the proper functioning of a system; (ix) interfering with another User’s enjoyment of the Services; (x) using the Services in connection with illegal peer-to-peer file sharing; (xi) carrying out any illegal or prohibited transaction or activity; or (xii) assisting or permitting any person in any of the prohibited activities described in this section.  Your access to the Services may be suspended or terminated immediately upon written notice if we, in our commercially reasonable business judgment, believe you or any of your Users have breached these conduct obligations.

3.4 Confidentiality.  Each party may learn of or have access to confidential, trade secret, or proprietary information concerning the other party or third parties to whom the other party has an obligation of confidentiality (“Confidential Information”).  Without limitation, the Services and all Intellectual Property related thereto are Neocova Confidential Information.  Without limitation, all Service Data and all Intellectual Property related thereto are your Confidential Information.  Confidential Information also includes, without limitation, each party’s fees and pricing, business information, financial information, employee information, information regarding new products, marketing plans, business plans, customer names and lists, or any other information that by its nature would be understood by a reasonable person to be proprietary or confidential.  Confidential Information may be disclosed in a variety of forms including, but not limited, to verbal, electronic, and/or written communication.

Unless otherwise reasonably necessary to receive or provide the Services or access to the Neocova Platform, or otherwise agreed upon in writing or authorized under this Agreement, you and we agree that you and we will each: (i) use the other party’s Confidential Information only as necessary to perform our respective obligations to provide or receive the Services; (ii) treat the other party’s Confidential Information as confidential and proprietary and will not disclose such information to any third party without the prior written consent of the other party; (iii) take at least such precautions to protect the other party’s Confidential Information as we each take to protect our own Confidential Information, and in no case less than commercially reasonable precautions to protect the other party’s Confidential Information; and (iv) provide prompt notice to the other party of any unauthorized or inadvertent disclosure, misuse, or compromise of Confidential Information.

Upon termination or expiration of this Agreement, unless otherwise required by Regulation, each party will after a retention period of ninety (90) days (or other period agreed to by the parties) return to the other party or certify as destroyed all tangible items containing any of the other party’s Confidential Information.  Each party is responsible for any breach of its confidentiality obligations by its respective Affiliates, employees, agents, or contractors.  The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized use or disclosure of Confidential Information and that in the event either party’s Confidential Information is used in a manner not explicitly authorized in this Agreement, or in a manner that violates this Agreement, the affected party will be entitled, without waiving other rights or remedies, to seek injunctive, mandatory, or other equitable relief in any court of competent jurisdiction, without the need to post a bond.  If either party believes it is required by law or by a subpoena or court order to disclose any of the other party’s Confidential Information, it will promptly notify the other party and will make all reasonable efforts to allow the other party an opportunity to seek a protective order or other judicial relief prior to any disclosure.

Each party may disclose Confidential Information in response to valid legal processes, such as subpoenas, search warrants, regulatory orders, and court orders, or to establish or exercise its legal rights or defend against legal claims.  Neither you nor we will be liable for any use or disclosure of Confidential Information under such circumstances.

3.5 Fees and Payments

  1. Fees.  Fees will apply to your access to the Services, as set forth in an applicable Order Form.
  2. Billing.  Except as may be set forth in an Order Form, billing for Services will occur annually in advance and in accordance with any terms included in our invoice.  Fees for Services are non-refundable.  Invoiced statements are due within thirty (30) days following presentation of the invoice.  All invoicing will be electronic.  Paper invoicing may be subject to additional fees.  If any invoiced amount is not received by the due date, those fees are subject to late fees equal to one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.  If any undisputed amounts owed by you are more than thirty (30) days past due, we may suspend the Services until such amounts are paid in full.  Disputed amounts (up to an amount equivalent to fifteen percent (15%) of the annual Services fees under the applicable Order Form) may remain unpaid so long as a good faith dispute over the amount exists and you are in good faith working to resolve the dispute.  You are responsible for paying all reasonable expenses, including reasonable and actually incurred attorneys’ fees, we incur arising out of collecting outstanding fees.  You waive all claims contesting any charges unless claimed in writing within ninety (90) days after the charge is invoiced.
  1. Cancelations; Liquidated Damages.  You may cancel a Service solely pursuant to the opt-out procedures as set forth in Section 5.1and in doing so, you will be required to forfeit the total unused portion of the annual subscription fee and any other services prepaid for your then-current subscription year. In the event that this Agreement is terminated in connection with a Change of Control (as defined in Section 11.6), then you or such successor (as the case may be) will be required to pay any unpaid amounts due for the remainder of the Term as liquidated damages and not as a penalty (“Liquidated Damages”).  You will not be required to pay Liquidated Damages if you terminate this Agreement as provided in section 3.5E or if you terminate this Agreement under section 5.2 and you are a non-breaching party.
  2. Audits and Additional Support Services.  If you ask us to perform additional services related to audits or other efforts above our standard support services, such services will be provided at our sole discretion.  If we agree to provide additional services under this section, we will perform those services on a time and materials basis at our then standard hourly rate for professional services and pursuant to a mutually agreed upon statement of work.
  3. Pricing Changes.  In general, fees for Services (unless otherwise specified in an Order Form) will remain at the rate set forth in the Order Form for the Term, not subject to a pricing discount, subject to any cost of living adjustment agreed to in an Order Form.  Exceptions include: (i) for any annual invoice for an upcoming subscription year where the number of accounts or transactions or data costs have increased by more than 10 percent in the last subscription year for your Services; and (ii) where we are required to make a change to the Services due to changes in the Regulations applicable to financial institutions.  If fees increase greater than ten percent (10%) due to such change in Regulations, you may terminate Services under the Agreement without incurring any Liquidated Damages (see Section 3.5C above).  If fees for Services are revised, you will be given at least one month’s prior written notice of the pricing change.   
  4. Taxes.  You are solely responsible for the payment of your own taxes including, without limitation, all federal, state, local, social security, workers’ compensation, or other taxes related to you, your income, and your use, participation in, or involvement with the Services.  Other than any sales, use, or other fees specifically identified upon billing, all fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies, or duties, including any income taxes (but not for our income tax liability).
  1. Changes in Services or Platform

We may modify our Services from time-to-time, with the intent to: (i) improve or clarify existing commitments; (ii) maintain alignment to current adopted standards and applicable Regulations; or (iii) provide additional features and functionality.  Modifications will not degrade the security, data protection features, or functionality of the Services.

  1. Term and Termination 

5.1 Term.  The term for these Terms of Service will commence upon execution of an Order Form incorporating these terms and will continue as long as any Order Forms incorporating these Terms of Service are in effect.  The term for each Order Form will be set forth in such Order Form (the “Term”); provided, however, that you may choose to opt out of this Agreement prior to your next subscription year of the Term upon providing us with written notice at least sixty (60) days prior to the end of your then-current subscription year for the Term.   In the event that this Agreement is terminated in connection with a Change of Control (as defined in Section 11.6), then you or your business successor (as the case may be) will be required to pay Liquidated Damages pursuant to Section 3.5(C).

5.2 Termination for Breach; Suspension of Services.  In the event of a material breach of this Agreement, the non-breaching party may notify the breaching party of such breach in writing and that the breaching party has thirty (30) days to cure the material breach (the “Cure Period”).  In the event the material breach is not cured within the Cure Period or, if such a cure cannot be completed during the Cure Period, if the breaching party has not commenced a cure within the Cure Period and pursued completing the cure in good faith, the Agreement may be terminated by the non-breaching party, effective ninety (90) days after the initial notice of material breach.  If we determine in our commercially reasonable business judgment that (i) you are in breach of Section 2.4 (Limitations of Use), Section 3.3 (User Obligations), or Section 3.4 (Confidentiality) (ii) that the use by you or your Users puts the Neocova Platform or Services at risk or (iii) you have failed to pay undisputed fees owed (or disputed fees beyond the fifteen percent (15%) cap specified in Section 3.5B above), we may immediately, without notice, suspend or terminate your access to the Services, and may immediately terminate this Agreement upon notice to you.

  1. Warranties 

6.1 Warranties by You.  You warrant that: (i) you have the authority to enter into this Agreement; (ii) you and your Users will comply with all applicable Regulations; and (iii) you have the right and authority to grant to us and any User all of the licenses and rights set forth in this Agreement.

6.2 Our Warranties.  We warrant that:  (i) we have the authority to enter into this Agreement; (ii) we have the rights necessary to grant the rights and licenses and perform the services in each Order Form; (iii) we will comply with all applicable Regulations as it specifically relates to our acting as a service provider; (iv) we will perform the Services in each Order Form in a good and workmanlike manner consistent with industry standards; and (v) we will cause the Services to operate in conformance with all material standards set forth in the Documentation. 

  1. DISCLAIMERS

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.2 ABOVE: (i) WE DISCLAIM ALL LIABILITIES, REPRESENTATIONS, AND WARRANTIES WHATSOEVER REGARDING THE SERVICES, AND ALL CONTENT, DATA, SERVICE DATA, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT, TITLE, AND SUITABILITY; (ii) WE DO NOT WARRANT THAT CONTENT OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND (iii) WE DO NOT CONTROL, REVIEW, REVISE, OR ENDORSE ANY THIRD-PARTY CONTENT, AND DISCLAIM ALL LIABILITY FOR ANY THIRD-PARTY CONTENT OR ANY CONTENT, OR DATA, MATERIALS, OR OTHER INFORMATION PROVIDED BY YOU OR ANY THIRD PARTY.

  1. Indemnities

8.1 Indemnities by You.  You agree to defend, hold harmless, and indemnify us and our subsidiaries, Affiliates, officers, directors, agents, attorneys, employees, licensors, suppliers, and partners from and against any third-party claims, including any liability or expense arising from any claims, losses, damages (actual and consequential, direct, indirect, and punitive), suits, judgments, litigation costs, and attorneys’ fees, of every kind and nature (collectively, “Claims”), arising from or in any way related to your or any User’s: (i) material breach of this Agreement; (ii) use of the Services;(iii) material breach of any of our Intellectual Property rights or those of any third party; (iv) violation of any Regulations; and (v) Service Data.  Your indemnification obligations do not extend to any Claims arising out of our gross negligence or willful misconduct.

8.2 Indemnities by Us.  We agree to defend, hold harmless, and indemnify you and your subsidiaries, Affiliates, officers, directors, agents, attorneys, employees, licensors, suppliers, partners, and Users from and against any third-party Claims arising from or in any way related to our infringement (including a threatened Claim of infringement) by any third party related to Intellectual Property arising out of the Services.  Our indemnification obligations do not extend to any Claims arising out of your or your User’s negligence or willful misconduct.

8.3 Indemnification Procedures. If any third party makes a Claim covered by Section 8.1 or Section 8.2 against an indemnitee (a “Covered Party”) with respect to which the Covered Party intends to seek indemnification under this Agreement, the Covered Party shall give prompt written notice of the Claim to the indemnifying party, including a brief description of the amount and basis for the Claim, if known.  Upon receiving such notice, the indemnifying party shall be obligated to defend the Covered Party against the Claim, and shall be entitled to assume control of the defense and settlement of the Claim.  The Covered Party may participate in the defense and settlement of the Claim at its own expense, using its own counsel, but without any right of control.  The indemnifying party shall keep the Covered Party reasonably apprised as to the status of the Claim.  Neither the indemnifying party nor any Covered Party shall be liable for any settlement of a Claim made without its consent.  Notwithstanding the foregoing, the Covered Party shall retain responsibility for all aspects of the Claim that are not subject to indemnification by the indemnifying party hereunder.  

  1. Limitation on Our Liabilities

9.1 In no event will our total aggregate liability to you, your Users, and your Affiliates, officers, directors, agents, attorneys, employees, licensors, supplier, and partners for all damages (other than as may be required by applicable law) exceed the annual subscription fee for the Neocova Platform.  This limitation will apply regardless of the form of action, whether in contract, tort, negligence, strict liability, or otherwise, and even if: (i) the above stated remedy fails of its essential purpose; (ii) we were advised in advance of the possibility of such damages; or (iii) such damages were foreseeable.  You agree that we have set our prices and entered into this Agreement with you in reliance upon the limitation of liabilities provided in this section, as well as the disclaimers of warranties and indemnification obligations you have agreed to in this Agreement, and that they accurately reflect the agreed upon allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss).  

9.2 In no event will either party or their respective employees, attorneys, managers, officers, directors, affiliates, or agents be liable for any indirect, special, exemplary, incidental, punitive, consequential, or other damages (including, but not limited to, lost profits, revenue, and business), whether based on breach of contract, breach of warranty, tort (including gross negligence), statute, equity, product liability, infringement of any property right (including intellectual property rights), misappropriation, fundamental breach, or otherwise, arising from or related to this Agreement, the Services, content, or data, regardless of whether or not such party has been advised of the possibility of any such damages.  The foregoing limitation shall not apply with respect to material breach by you of any of our Intellectual Property rights or those of any third party.

  1. TSP Audit and Vendor Diligence Information

10.1 TSP Diligence Generally.  We will cooperate with you regarding your responsibilities to perform due diligence and assess us as a third-party service provider (“TSP”), as contemplated by the FFIEC IT Examination Handbook and related guidelines (“TSP Guidelines”), no more frequently than once every twelve (12)-month period.  We will make available audit reports and materials that address your vendor management and due diligence requirements under the TSP Guidelines.  Specific information regarding the available materials meeting the TSP Guidelines will be made available upon request.

10.2 Vendor Diligence and Audit Materials.  If requested, once every twelve (12)-month period we will provide access to you of summary audit reports, attestations, and other reasonable information regarding our internal systems testing and procedures, and our information security and data privacy controls. These audit materials and attestations evidence our compliance with industry and regulatory standards and include recent independent audits (such as SSAE 18s), third-party attestations and certifications (such as ISO certifications and PCI AoCs), and information and testing results regarding physical, technical, and administrative controls used by the Services.

10.3 Governmental Access.  We will permit governmental agencies that regulate you to examine our books and records to the same extent as if that Service were being performed by you on your own premises, subject to the provisions of this Agreement and our confidentiality and security policies and procedures; provided that we receive sufficient prior notice and that the conduct and scope of the examination will not unduly disrupt our course of business.

  1. General Terms

11.1 Relationship of the Parties.  The parties are independent contractors to each other, and neither will be deemed the agent of the other for any purpose.  Any directions, suggested usage, or guidance provided by us does not constitute financial, legal, accounting, or other licensed professional advice.  You are responsible for your use of the Services.

11.2 Export Regulations.  Any Software made available through the Services are subject to United States export controls.  Software from the Services may not be downloaded or otherwise exported or re-exported to certain countries.  Software may not be exported or re-exported: (i) into (or to a national or resident of) any U.S. embargoed countries; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.  By downloading and using Software from the Services, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

11.3 Choice of Law; Arbitration; Responding to Process.  This Agreement is governed by and construed exclusively in accordance with the internal laws of the State of New York, without regard to principles of conflicts of law.

The parties agree that with respect to any dispute, difference, controversy, or claim arising out of or related to this Agreement (“Agreement Claim”), the parties will first attempt to resolve the Agreement Claim through good faith negotiations, including the use of a mediator if agreed upon by the parties.  If the Agreement Claim cannot be resolved through good faith negotiations, then any Agreement Claim, other than a threatened violation of Section 3.4, will be settled by binding arbitration before a single arbitrator in St. Louis, Missouri, in accordance with the Commercial Arbitration Rules (including the AAA Procedures for Large, Complex, Commercial Disputes) of the American Arbitration Association.  Judgment of any resulting award may be entered into by any court having jurisdiction over the parties or their respective property.  The arbitrator will decide any issues submitted in accordance with the terms and purposes of this Agreement and will not have the power to award damages other than those described in the Agreement.  The prevailing party in any dispute arising out of the Agreement will be entitled to, and the arbitrator will have jurisdiction to award, the recovery of reasonable attorneys’ fees, costs, and expenses.

If we are required (i) by subpoena or other legal process to produce documents, testify, or otherwise respond as a non-party in an investigation, arbitration, or other proceeding in which you or any of your Users is party or a subject or (ii) in connection with such a proceeding, to preserve documents, materials, or other data not otherwise required to be preserved under our standard retention policies, then upon our request you will reimburse us for expenses, including reasonable attorneys’ fees and other costs reasonably and actually incurred in responding or complying with such requirements.

11.4 Individual Basis.  You (on your behalf and for all of your Users) and we agree that any proceedings to resolve or litigate any Agreement Claim, whether in arbitration, in court, or otherwise, will be conducted solely on an individual basis, and that none of you, your Users, or we will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you, any User, or we act or propose to act in a representative capacity.  You (on your behalf and for all of your Users) and we further agree that no proceeding will be joined, consolidated, or combined with another proceeding without the prior written consent of us.

11.5 Limitation on Actions.  Any action relating to this Agreement must be commenced within two (2) years after the date upon which the cause of action first arose, or within the statute of limitations provided by applicable law, whichever period is shorter.

11.6 Assignment.  You may not assign or otherwise transfer any of your rights or obligations under this Agreement (whether by operation of law, change of control, or otherwise), except to any successor to your business by merger, acquisition, consolidation, or sale of substantially all of your assets, or to any Affiliate (each, a “Change of Control”); provided, however, that in such a case such entity must agree to be bound by this Agreement as a condition of such assignment, and such entity agrees to negotiate with us in good faith any required changes to the Services which may include, but are not limited to, changes in scope of services or pricing terms. We may assign or transfer our rights and obligations under this Agreement.

11.7 Severability.  If any part of a provision of this Agreement is found to be illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the remaining portions of that provision and all other provisions of this Agreement will not be affected.

11.8 No Third-party Beneficiaries.  Except for those persons and entities afforded indemnification in this Agreement, there are no third-party beneficiaries and nothing in this Agreement will confer any right, remedy, or obligation upon any third party.

11.9 Ambiguities; Headings.  Ambiguities in this Agreement will not be construed against either party and will be resolved in favor of the meaning that permits the parties to comply with applicable law and any applicable Regulations, and to enforce the terms of the Agreement.  Headings and titles of articles and sections are for convenience only and are not a part of this Agreement.

11.10 No Waiver.  Any failure of a party to exercise or enforce any of its rights under this Agreement will not act as a waiver of such rights.

11.11 Expenses.  Unless specifically provided for in an Order Form or other writing, each party is solely responsible for its own expenses incurred during the performance of this Agreement including, without limitation, facilities, equipment, software, or other expenses.  If we incur any travel or living expenses in providing the Services, you will reimburse us within 30 days after invoicing.

11.12 Force Majeure.  No failure, delay, or default in performance of any obligation of a party to this Agreement will constitute a default or breach to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, beyond the control of the party (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; pandemic; epidemic, and the like), provided that the party has acted without negligence or willful misconduct and is otherwise not chargeable with willful failure, delay, or default.  Either party desiring to rely upon any of the foregoing as an excuse for failure, default, or delay in performance will, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice in writing of that fact to the other party.  If any performance date by a party under this Agreement is postponed or extended pursuant to this section for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.  

11.13 SurvivalSections 2.1A, 2.2A, 2.2D, 2.3, 2.4, 3.4, 5, 6, 7, 8, 9, and 11 and the terms within our applicable Documentation that by their nature should survive, will survive expiration or termination of this Agreement for any reason.

11.14 Complete Agreement.  This Agreement, including these Terms of Service, all Appendices, all Order Forms, any statements of work, and the terms, exhibits, and policies incorporated by reference or link contain the entire agreement between the parties related to its subject matter.  This Agreement supersedes any prior or contemporaneous agreements or understandings between the parties hereto.

APPENDIX A

GLOSSARY

“Affiliate” – means any person, corporation, company, or other entity that controls, is controlled by, or is under common control with a Party. 

“Authorized User” – means Users of the Services explicitly authorized by Customer to be a User, including employees, officers, directors, agents, Affiliates, and Customers, 

“Customers” – means any commercial or consumer customer of Customer’s financial services. 

“Documentation” – means the Agreement and all deliverables, user guides and other descriptions provided by Neocova (written or online), related to the Services. 

“Intellectual Property” – means patents, copyrights, trade secrets, mask works, trademarks (including trade names, logos and service marks), and confidential know- how, in each case whether registered or unregistered, and including any application(s) or registrations for any of them, and their equivalents on a world-wide basis, and all rights related to each of them. 

“Neocova Platform” – means the software and related services operated by Neocova for the provision of financial data processing, including without limitation, all related software, technologies, tools, data, developments, Service Data, and other materials. 

“Order Form” – means a document executed by the Parties ordering Services under this Agreement.  References to Order Form within the Agreement will include references to statements of work or other documents that order services under the Agreement whether or not named an “Order Form”.

“Parties” – whether or not capitalized, means collectively Customer and Neocova; and each is a “Party.” 

“Regulations” – means laws and regulations applicable to: (i) Customer as a regulated financial institution; (ii) financial services; or (iii) the provision of the Services by Neocova for Customer’s use of the Services, including without limitation all laws and regulations concerning the privacy and/or security of personal information, breach notification, Social Security Act § 1173(d) and all applicable state and federal privacy laws, including those governing sensitive conditions and Customer’s use of Services or the Neocova platform. Regulations also include any rules, guidelines, service manuals, or circulars published or promulgated by any provider of the Services including, but not limited to, any organization providing payment processing, item clearing, or related or similar financial services. 

“Service Data” – means all information and materials provided by Customer or any User, whether in electronic form or otherwise, including but not limited to non-public personal information of consumers under the Gramm-Leach-Bliley Act of 1999, financial data, transaction data, and all other Customer information. 

“SLA” – means any and all of the service level agreements measuring performance of the Services under the Agreement. 

“Software” – means any software and related materials. 

“Third-Party License” – means one or more license agreements for the use of Third-Party Service Data. 

“Trademark User Guidelines” – means those guidelines found at a URL to be provided separately. 

User” – means all Authorized Users, as well as any other person or entity that accesses the Services through Customer’s Account, whether authorized or not.