TERMS OF SERVICE
Date Last Revised for Intuit and Mint Bills: January 20, 2015
These Biller Program Terms of Service, including any associated Services Order Form, is a legally binding agreement (collectively, the "Agreement"), between Intuit Mint Bills, Inc., an Intuit company and a Delaware corporation ("Intuit"), and the Biller Program business user (the "Company"). This Agreement governs Company's use of the Intuit service. Intuit provides a personal finance service that includes, among other things, a web and mobile application that facilitates the electronic payment of bills. Company wishes to accelerate the adoption of electronic bill payment for its customers via the Intuit service. Capitalized terms used but not defined herein shall have the meanings given to them in a Services Order Form.
The following are defined terms:
1.1. "Basic Account Data" means, for a particular Customer, account name, account number, billed amount due and bill due date.
1.2. "Company's Confidential Information" means Confidential Information (as defined below) that is proprietary to the Company.
1.3. "Confidential Information" means financial, technical, legal, marketing, network, and/or other business information, reports, records, or data (including, but not limited to, computer programs, code, systems, applications, analyses, passwords, procedures, output, information regarding software, sales data, vendor lists, customer lists, and other customer-related information, business strategies, advertising and promotional plans, creative concepts, specifications, designs, and/or other material) which the disclosing party deems, and the receiving party should consider, proprietary and/or confidential to (and of independent economic value to) the disclosing party. Confidential Information may be disclosed between parties by delivery, electronic or manual, access to networks or computers of the other party, or any other means in which the other party is, or becomes, in possession of Confidential Information of the other party.
1.4. "Customer" means those customers of Company who use or access the Service.
1.5. "Documentation" means the documentation provided with the Service, which Intuit provides and/or makes available electronically, and includes any updates or supplemental materials generally provided or made available to the Service users.
1.6. "Intellectual Property Rights" means all patents, patent rights, copyrights, moral rights, trade secret rights, trademark, service mark and trade dress rights and all other intellectual property rights, as may exist now and/or hereafter come into existence, including derivative rights, and all renewals and extensions thereof, under the laws of the United States or any other state, country or jurisdiction.
1.7. "Intuit's Confidential Information" means Confidential Information that includes the Service and its specifications.
1.8. "Law(s)" means all federal, state and local laws, rules and regulations as now in effect and as amended from time to time that apply to a party's business.
1.9. "Service" means Intuit's proprietary personal finance service that includes, among other things, a web and mobile application that facilitates the electronic payment of bills.
2. General Purpose and License Grant
2.1 General Purpose. The general purpose of this Agreement is to facilitate the adoption and use of electronic payment by Customers of Company. This goal is achieved by the Company working, in concert with Intuit, to encourage its customers to enroll in and use the Service.
2.2 Rights Granted; License Restrictions. Intuit grants Company, for the Term (as defined below) of this Agreement, a non-exclusive, non-transferable license to access the Service as described in this Agreement for use by Company and Customers, only via Intuit and for the direct benefit of its Customers. Company has no right to sublicense, rent, lease, or distribute the Service, except as otherwise provided under this Agreement. Company shall not reproduce, copy, modify, translate, reverse engineer, disassemble, decompile or otherwise attempt, or permit others to attempt, to discover the source code of the Service, in whole or in part. Company agrees not to directly use the Service to design or develop a competing product.
3. Responsibilities of the Parties
3.1.1 Intuit will support Company in the Service with the features generally available to all Intuit customers. Such features may include bill presentment, alerts and reminders, and payments.
3.1.2 For those Customers who provide (i) account number or (ii) user name and password information, Intuit will provide functionality common to the generally available Service, including mobile electronic presentment of bill information, payment capabilities, alert messaging, bill statement tracking and display (File Cabinet), etc. This will also include the ability for Customers to make one-time payments to Company.
3.1.3 Intuit will provide operational reporting regarding the Service via a payments portal, including payment tracking, individual transaction detail and problem tracking.
3.1.4 Intuit will provide business intelligence reporting via e-mail, including number of payments made using the Service (including by week and by month), Customers registered and average payment amount.
3.1.5 Intuit will provide online and telephone-based support services to Customers. Intuit shall work with Company to coordinate processes for handling inquires from Customers as between Intuit and Company customer service functions.
3.1.6 Intuit will provide Company with a standardized marketing toolkit to facilitate its use of the Service.
3.2.1 Company shall provide Intuit with Basic Account Data for its entire customer base in electronic form and update such data daily.
3.2.2 Company will prominently promote Intuit as an available and authorized payment channel on all customer-facing online and print listings of bill payment options.
3.2.3 Within 60 days after the Effective Date, Company will promote Intuit on its home page for at least the first 14 months of the Term using the Intuit-supplied widget and HTML.
3.2.4 Within 60 days after the Effective Date, Company will prominently promote Intuit on the outside of its monthly customer billing envelope for at least the first 14 months of the Term.
3.3 Customers. Customers will need to provide their own compatible computing and/or mobile devices with current software, download the Service and/or agree to any applicable terms of service.
4.1 Fees. The fees applicable to this Agreement are set forth in our Rate Card.
4.2 Chargebacks and Returns. Intuit is responsible for any chargebacks or ACH returns that occur on Customer accounts in the course of Customer use of the Service for payments to Company.
4.3 Invoices. In applications of the Service where Company, rather than Customer, is responsible for the payment transaction fees of the Service, Intuit will generate a monthly invoice for all fees incurred by Company. Invoices will be provided to the Company within 15 calendar days after the end of each calendar month.
4.4 Payment Terms. Payments on invoices are due to Intuit on a Net 30 basis. Payments are to be made via check sent to Accounts Receivable at Intuit's headquarters office. Late payments are subject to a fee of 1.5% per month or the maximum amount permitted by applicable law. Company shall reimburse Intuit for any and all expenses that Intuit may incur (including interest, attorneys' fees and any expenses) in connection with Intuit's efforts to collect any amounts due to Intuit hereunder.
5. Intellectual Property
5.1 Intuit. Intuit shall own all right, title and interest, including all Intellectual Property Rights, in and to the Intuit Confidential Information, the Service, the Documentation and all works, ideas, and deliverables made, reduced to practice, created or developed under this Agreement. Intuit shall own all improvements, including all Intellectual Property Rights in the same, in and to the Service.
5.2 Company. Company shall own all right, title and interest, including all Intellectual Property Rights to the Company Confidential Information.
5.3 Trademark Licenses; Notices. Intuit hereby licenses to Company the trademarks it actively provides to Company for the Term and for the limited purpose of promoting the Service to the Customers. Company hereby licenses to Intuit the trademarks it actively provides to Intuit for the Term and for the limited purpose of facilitating the provision of the Service to the Customers. Neither party shall remove any copyright or other proprietary rights notices of the other party on any materials provided by the other party under this Agreement.
6. Confidential Information
6.1.1 Intuit agrees (a) to hold Company's Confidential Information in strict confidence, (b) not to disclose Company's Confidential Information to any third party, and (c) not to use Company's Confidential Information for any purpose other than as permitted by this Agreement.
6.1.2 Company agrees (a) to hold Intuit's Confidential Information in strict confidence, (b) not to disclose Intuit's Confidential Information to any third party, and (c) not to use Intuit's Confidential Information for any purpose other than as permitted by this Agreement.
6.1.3 Each party may disclose the other party's Confidential Information to its employees or authorized contractors who (i) have executed or are otherwise knowingly bound by a non-disclosure agreement requiring such employee or contractor to hold in confidence all third party confidential information obtained in connection with such employment or consultancy and (ii) have a bona fide need to know such information, but only to the extent necessary to carry out this Agreement. Each party agrees to instruct all such employees and consultants not to disclose such Confidential Information to third parties without the prior written permission of the disclosing party. Upon termination of this Agreement, the receiving party will promptly return to the disclosing party all tangible items containing or consisting of the disclosing party's Confidential Information and shall remove or destroy all copies or records of such Confidential Information except as may be required by law, rule, regulation or administrative order.
6.2 Exceptions. Notwithstanding the foregoing, Confidential Information does not include information which: is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; was acquired by the receiving party before receiving such information from the disclosing party and without restriction as to use or disclosure; is hereafter rightfully furnished to the receiving party by a third party, without restriction as to use or disclosure; is information which the receiving party can document was independently developed or obtained by the receiving party without use of the disclosing party's Confidential Information; or is disclosed pursuant to the lawful requirement or order of a court or governmental agency, provided that, upon the receiving party's request for such a disclosure, the receiving party gives prompt notice thereof to the disclosing party (unless such notice is not possible under the circumstances, or is prohibited by such lawful order) so that the disclosing party may have the opportunity to intervene and contest such disclosure and/or seek a protective order or other appropriate remedy.
7.1 By Intuit. Intuit shall indemnify, defend and hold harmless Company, its officers, directors, employees and agents from and against all losses, costs, damages, judgments, settlements, penalties, liabilities and expenses (including reasonable attorneys' fees) arising out of third party claims that the Service, as provided by Intuit to Company under this Agreement and used within the scope of this Agreement, infringes or misappropriates any valid U.S. patent, trade secret, copyright or trademark, provided, however, that Company (i) notifies Intuit promptly in writing of the claim, (ii) provides reasonable assistance in connection with the defense and/or settlement thereof, and (iii) permits Intuit to control the defense and/or settlement thereof.
7.2 Limitations. Intuit's obligation to indemnify Company shall not apply to the extent that any such third party claim arises out of (a) any Company trademarks, or (b) Company's or any Customer's use of the Service other than as expressly provided in this Agreement.
7.3 Intuit Options. In the event of an infringement action against Company in connection with the Service, or in the event Intuit believes such a claim is likely that is subject to the indemnity provisions of the Agreement, Intuit shall be entitled, at its option but without obligation or additional cost to Company, to (i) appropriately modify or replace the Service with functionality which is functionally similar in all material respects and which, in Intuit's opinion, does not infringe the claimed third party rights; (ii) obtain a license with respect to the applicable third party intellectual property rights; or (iii) if neither (i) nor (ii) is commercially practicable, immediately terminate this Agreement and all obligations hereunder.
7.4 By Company. Company shall indemnify, defend and hold harmless Intuit, its officers, directors, employees and agents from and against all losses, costs, damages, judgments, settlements, penalties, liabilities and expenses (including reasonable attorneys' fees) arising out of third party claims that (a) Company's trademarks infringe or misappropriate any valid worldwide trademark or other intellectual property right, publicity right or similar personal right, or (b) Company violated any rights of third parties while using the Service; provided, however, that Intuit (i) notifies Company promptly in writing of the claim, (ii) provides reasonable assistance in connection with the defense and/or settlement thereof, and (iii) permits Company to control the defense and/or settlement thereof.
8. Disclaimer; Limitation of Liability
8.1 EXCEPT AS SPECIFICALLY SET FORTH HEREIN, INTUIT MAKES NO warranties concerning the SERVICE, WHETHER express, implied or otherwise, AND INTUIT specifically disclaims the implied warranties of merchantability, fitness for a particular purpose AND noninfringement with respect THERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INTUIT SPECIFICALLY DOES NOT WARRANT THAT the SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, INTUIT WILL NOT BE LIABLE FOR ANY DAMAGES THE COMPANY OR CUSTOMER MAY SUFFER ARISING OUT OF USE, OR INABILITY TO USE THE SERVICE PROVIDED HEREUNDER. INTUIT WILL NOT BE LIABLE FOR FAILURE OF THE INTERNET OR TELECOMMUNICATIONS SYSTEMS.
8.2 IN NO EVENT WILL INTUIT OR COMPANY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, and notwithstanding the failure of the essential purpose of any remedy. THE LIABILITY OF ANY PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, the GREATER OF (I) fees received by INTUIT DURING THE MOST RECENT 12 MONTHS OF THE TERM; OR (II) ONE MILLION DOLLARS ($1,000,000).
8.3 NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH ABOVE SHALL NOT APPLY TO THE FOLLOWING: (I) EACH PARTY'S RESPECTIVE INDEMNIFICATION OBLIGATIONS; (II) EITHER PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (III) EITHER PARTY'S MISUSE OF THE OTHER'S INTELLECTUAL PROPERTY; AND/OR (IV) THE WILLFUL MISCONDUCT AND/OR INTENTIONAL OR GROSSLY NEGLIGENT ACTIONS OF EITHER PARTY HEREUNDER.
9. Term and Termination
9.1 Term. The term of this Agreement shall commence on the Effective Date and continue unless terminated as set forth below (the "Term").
9.2 Termination. Either party may terminate this Agreement for convenience (i.e., for any reason or for no reason) with thirty (30) days notice to the other party.
9.3 Responsibilities Upon Termination. Upon the termination or expiration of this Agreement, and without limiting any other provision hereof: (i) any and all licenses granted under this Agreement shall immediately terminate; (ii) Company shall immediately cease its use of the Service; and (iii) except in the event of insolvency of Company, Company shall, at Intuit's election, either promptly return to Intuit or destroy all Confidential Information, copies of any software, or third party software, if any, (including back-up copies), related documentation, deliverables, if any, and all other materials, whether tangible or intangible, furnished by Intuit pursuant to this Agreement. Intuit shall not be liable to Company or any third-party for any termination of access to the Service.
10. General Provisions
10.1 Publicity. Intuit may use Company's name for promotional purposes, including publishing customer lists. The content of any press releases will be mutually agreed upon by the parties.
10.2 Governing Law; Venue; Compliance. This Agreement and any disputes arising under, in connection with, or relating to this Agreement will be governed by the laws of the State of California, excluding its conflicts of law rules. Any litigation pertaining to the interpretation or enforcement of this Agreement shall be filed in and heard by the state or Federal courts located in Santa Clara, California, and the parties hereby submit to the jurisdiction of and waive any venue objections against such courts. Each party will perform all of its activities, obligations and responsibilities contemplated under this Agreement in compliance with all applicable Laws and will obtain all licenses or permits as may be required by any applicable Laws in order to conduct the activities contemplated hereunder. Each party shall acquire and maintain in effect all governmental regulatory authorizations, licenses and permits of every type from every state or federal agency necessary for each party's respective business. Each party is responsible for legal compliance and monitoring of its own respective website for legal and regulatory compliance.
10.3 Assignment. Neither party may assign or transfer this Agreement or any of its rights or obligations under this Agreement without the prior written permission of the other. Notwithstanding the foregoing, (i) either party may, without the other's consent, assign or transfer this Agreement in full in connection with a merger, consolidation, or sale of all or substantially all of its assets, provided that the non-assigning party is given notice of such assignment and the assignee explicitly assumes all obligations under this Agreement; and (ii) Intuit may, without Company's consent, assign or transfer this Agreement in full, without notice, to any entity Intuit controls, is controlled by, or is under common control with, where control is direct or indirect beneficial ownership of a majority of the outstanding voting securities of an entity, or the contractual or other power or authority to appoint a majority of the board of directors, or other similar governing body. This Agreement shall be binding upon, and inure to the benefit of, the permitted successors and assigns of each party. Any attempt to transfer, sublicense or assign any of the rights or duties in violation of this Section is prohibited and shall be null and void.
10.4 Relationship of Parties. Neither this Agreement nor the parties' business relationship established hereunder will be construed as a partnership, franchise, joint venture, or agency relationship. The parties are independent contractors of one another. Neither party's employees or contractors are, or shall be deemed for any purpose to be, employees of the other. Neither party shall be responsible to the other or any governing body for any payrollâ€‘related taxes related to the performance of this Agreement.
10.5 Survival; Waiver; Force Majeure. Sections 1, 4, 5, 6, 7, 8, 9.3 and 10 shall survive any termination or expiration of this Agreement. No waiver of any breach of any provision of this Agreement will be considered to be a waiver of any prior, concurrent or later breach of the same provisions or different provisions, and will not be effective unless made in writing and signed by an officer of the waiving party. Neither party will have any liability to the other under, in connection with, or for any reason relating to, this Agreement as a result of any failure of performance as a result of an event of "force majeure." For purposes of this Agreement, "force majeure" means an event beyond a party's reasonable control whether or not foreseeable and includes, in any case, the following events that may prevent or significantly hinder a party from performing this Agreement or acting in connection with this Agreement: armed conflicts, terrorist act, famine, floods, acts of God, labor strikes or shortages, governmental decree or regulation, court order, severe weather, fire, earthquake, failure of suppliers and breakdowns in telecommunications networks. Upon receipt of such notice, this Agreement shall immediately be suspended. If the period of nonperformance exceeds fifteen (15) business days from the receipt of notice of the force majeure, the party whose ability to perform has not been so affected may give notice to terminate this Agreement.
10.6 Notices; Modifications. Any notice required or permitted by this Agreement shall be in writing and shall be sent by any means reasonably used to provide the other party with notice such as a softcopy (e.g., e-mail, banner notification via the Service) or hard copy (e.g., mail, overnight carrier or hand delivery). Intuit may modify the terms of this Agreement or the features of the Service at any time. In the event that such modification constitutes a material change in Intuit's sole discretion, Intuit will provide notice to Company. Company's continued use of the Service after any modification of this Agreement or of the Service will constitute acceptance of any such modifications.
10.7 Entire Agreement; Severability. This Agreement, including its exhibits, constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings or agreements, whether written or oral. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force.