SECTION 1 DEFINITIONS
The following defined terms shall have the meanings set forth below:
"EULA" shall mean this End-User License Agreement.
"Application(s)" shall mean the computer software programs offered to you over the Internet that are accessible by agreeing to this EULA, including any associated media, printed materials, and online or electronic documentation. Your access to the Application(s) and the features available will depend on the arrangement between Provider and Customer.
"Customer" shall mean the person (whether one or more) who entered into agreements with the Financial Institution for the credit card account(s) utilized in connection with the Application(s).
"End User" shall mean you, individually, as the user of the Application(s), as well as the Customer, jointly and severally. Any references in this EULA to "you" or "your" shall mean the End User as defined in the foregoing sentence.
"Financial Institution" shall mean BancorpSouth Bank.
"Information" shall mean any data, information, statements, or reports provided or displayed by Provider through the Application(s).
"Intellectual Property" shall mean, to the extent that any of the following are recognized anywhere in the world, intellectual property and/or proprietary rights, whether registered or unregistered, including without limitation copyrights, patent rights (including without limitation applications for patent protection), publicity rights, trade secret rights, and Trademark rights.
"Paying Account" shall mean any account designated by End User to fulfill payment requests made through the Application(s).
"Provider" shall mean, depending upon the context, the Financial Institution and/or any third-party involved in providing the Application(s), Related Services, and Information.
"Related Services" shall mean any ancillary services performed by Provider that are necessary for the proper operation of the Application(s), including without limitation routine data or file processing, email notifications, managing returned emails, and processing payment requests.
"Trademark" shall mean any registered or otherwise protected trademarks, trade names, service marks, and any protections from trademark dilution.
SECTION 2 SCOPE OF AGREEMENT
This End-User License Agreement ("EULA") governs the provision and use of the Application(s) and any Related Services and Information provided to you, as such may be authorized by the Financial Institution and as may be modified or enhanced from time to time. This EULA is a legal agreement between the End User and the Provider of the Application(s). This EULA is in addition to the Customer's Cardholder Agreement and the disclosures made therein and any other agreements between the Financial Institution and the End User, and this EULA shall control as it relates to matters within its scope.
Provider may modify this EULA from time to time, as set forth in Section 10. You will be required to agree to the revised EULA to continue using the Application(s). The most recent and governing version of the EULA will be accessible through the Application(s) and can be printed for your review and permanent records.
SECTION 3 LICENSES
Grant of License. In consideration for the performance of all material obligations under this EULA, Provider hereby grants the End User, and the End User hereby accepts, a nontransferable, nonexclusive, revocable, limited license to access and use the Application(s) in accordance with the terms and conditions set forth in this EULA, in a manner intended for authorized use, and to the extent authorized by Financial Institution and Customer. This license shall become effective upon accepting this EULA and remain valid during the term of this EULA, unless otherwise terminated or revoked as provided hereunder. Provider hereby reserves and retains all ownership, proprietary, or other rights not expressly granted hereunder.
Termination of License. Unless otherwise agreed to by Provider, the license granted hereunder shall terminate upon the occurrence of any one of the following events: (i) any relationship between the Financial Institution and Customer is terminated or suspended for any reason; (ii) this EULA is terminated pursuant to the terms set forth herein; or (iii) you do not agree to modifications to this EULA that Provider, in its sole discretion, determines to be reasonable.
Revocation of License. Provider reserves the right to immediately revoke any license granted hereunder if the End User attempts to use the Application(s) in an unauthorized manner, in a manner that is not intended by Provider, or in contravention of End User's obligations set forth in Section 5.
SECTION 4 OWNERSHIP OF PROPRIETARY RIGHTS
The following property is owned by and constitutes the Intellectual Property of one or more entities defined as the Provider or provided to the End User pursuant to valid licensing agreements: the Application(s), any enhancements to the Application(s), any software or code developed to customize the Application(s) for an End User or to enable the End User to interact with the Application(s); and certain Trademarks displayed in the Application(s). All such Intellectual Property is protected by applicable copyright, patent, trademark or other intellectual property law.
You acknowledge that this EULA does not convey or grant any Intellectual Property or other proprietary right to you, except for the limited licenses set forth in Section 3. Except as expressly authorized therein, you may not copy, reproduce, transmit, sell, display, distribute, publish, broadcast, circulate, modify, disseminate, or commercially exploit such Intellectual Property in any manner (including electronic, print, or other media now known or hereafter developed) without the written consent of Provider. You hereby agree to refrain from doing or causing, directly or indirectly, any act that might impair Provider's rights, title, or interest in any of the Intellectual Property.
SECTION 5 END USER OBLIGATIONS
Acceptable Use Policy. You are solely responsible for any and all acts and omissions that occur under your account or password, and you agree not to engage in unacceptable use of the Application(s), including but not limited to the following activities: (i) creating a false identity or otherwise attempting to mislead any person as to your identity or the origin of any communication transmitted through the Application(s); (ii) using accounts, account numbers, or attempting to authorize transactions through accounts for which you do not have full authority to conduct such activities; (iii) disseminating or transmitting any materials or messages that do not pertain to the intended use of the Application(s) or that contain anything that is obscene, defamatory, harassing, offensive, or malicious; (iv) disseminating or transmitting files, graphics, software, or other material that actually or potentially infringes the Intellectual Property right of any person or entity; (v) exporting, re-exporting, or otherwise transmitting data, information, or software in violation of any applicable export or import law, regulation, or restriction; (vi) interfering with, disrupting, or attempting to gain unauthorized access to information or other accounts hosted on the Application(s); or (vii) attempting to copy, modify, or reverse engineer the Application(s) without the express written permission from an authorized representative of Provider; (viii) engaging in any other activity deemed by the Provider to be in conflict with the spirit or intent of this EULA or the intended use of the Application(s). Provider and Financial Institution hereby expressly disclaim any and all liability arising from or relating to End User's violation of this Acceptable Use Policy.
Account Information. It is solely your responsibility to maintain current and accurate information for account(s) utilized within the Application(s). If you fail to maintain a current and valid email address, you will not be notified when Information becomes available through the Application(s) and you will not be provided payment confirmations by email. You assume responsibility for all consequences arising from your failure to maintain accurate account information within the Application(s).
Application Access. Provider shall make the Application(s) available over the Internet to allow the End User to electronically and remotely access the Application(s). You shall provide at your own expense, all necessary telephone lines, Internet connections, equipment, software (including a compatible Web browser), and services for you to effectively access the Application(s). You are responsible for upgrading and configuring your internal systems (e.g., network settings, Internet routing, fire walls, and Web browsers) to be and remain compatible with and optimize the performance of the Application(s). You acknowledge that the availability and performance of the Application(s) may be subject to interruption or delay due to causes beyond the reasonable control of Provider.
The account information accessible through the Application(s) does not replace the periodic statements issued by the Financial Institution for the account(s) utilized through the Application(s). In the event of any conflict between information accessible through the Application(s) and the Financial Institution's records, the latter will control.
User Codes. Your access to the Application(s) will be controlled by a user name and password (collectively referred to as "User Codes"). The User Codes are for your personal use only, and you agree not to disclose them to any third party. You are responsible for safeguarding and maintaining the confidentiality of the User Codes and for taking steps to protect against disclosure of your User Codes. Such steps include, but are not necessarily limited to, your keeping secure and protected from malicious software and codes all computers and other devices through which you utilize or access the Application(s). You are responsible for all transactions, statements made, acts or omissions that relate to your user account while access to the Application(s) is obtained using your User Codes, regardless of whether you authorized such use. You are responsible for any damages, losses, costs, or breaches of security incurred or caused by your failure to safeguard or maintain the confidentiality of your User Codes. You agree to IMMEDIATELY notify Financial Institution (using the "Contact Us" link) if you become aware or suspect that your User Codes have been lost, stolen, or compromised in any way, or if you become aware of possible or actual unauthorized use of the Application(s).
Payment Authorization. If you make a payment request through the Application(s), you hereby acknowledge and agree, or represent that: (i) you are a legal owner of the Paying Account to be debited upon payment, or you have full authority to authorize such payments; (ii) Provider and Financial Institution are authorized to maintain information concerning the Paying Account and to process your payment requests; (iii) you will ensure that the Paying Account information is accurate each time a payment is requested and that there are sufficient funds in the Paying Account to cover such payment request; (iv) any payment requests made through the Application(s) may take 3 to 5 business days or longer before the payment is posted to the payee account; (v) you are solely responsible for submitting payment requests far enough in advance to ensure timely payment; and (vi) neither Provider nor Financial Institution is liable for any penalties, overdraft charges, insufficient fund charges, or late payment charges resulting from your failure to maintain sufficient funds to cover such payment requests or delays in making or processing the payment request.
Transmissions across the Internet can fail for various reasons and without warning. A payment request will not be considered transmitted to Provider until you receive an email confirmation of such payment request ("Payment Confirmation"). You agree that until you receive a Payment Confirmation, the Provider will be deemed not to have received your payment request. You further agree that regardless of whether you receive a Payment Confirmation, your payment request will not be fulfilled if there is an inaccuracy in the Paying Account information provided by you or if there are insufficient funds available in the Paying Account and that you will not be notified through the Application(s) about such payment failures and that neither Provider nor Financial Institution will be liable for such payment failures, including any associated fees or charges incurred by you.
SECTION 6 LINKS TO OTHER SITES
SECTION 7 WARRANTIES
Ownership. Provider warrants that it has full title and ownership of the Application(s) or is providing the Application(s) pursuant to valid licenses. Provider further warrants that it has the full power and authority to grant the licenses conveyed by this EULA to End User and that the license granted to the End User and the normal use of the Application(s) will in no way constitute an infringement or other violation of any Intellectual Property of any third party.
Availability. Provider further warrants that it will use commercially reasonable efforts to maintain acceptable availability and performance of the Application(s) and minimize any interruption or degradation of performance of the Application(s); however, you hereby acknowledge that from time to time the Application(s) may be inaccessible, inoperable, or experiencing performance degradation for various reasons, including normal data or file processing, periodic maintenance of or enhancements to the Application(s), operation malfunction, and causes beyond the control of Provider. Provider makes no guarantee of the availability or performance of the Application(s).
Limitations. The Application(s), Related Services, and Information provided pursuant to this EULA are provided "as is" and "as available." Except as expressly warranted above, Provider, Financial Institution and their related parties hereby expressly disclaim all express and implied warranties, including without limitation, warranties of availability, reliability, usefulness, and the implied warranties of merchantability, fitness for a particular purpose, course of dealing, and usage of trade. Neither Provider nor Financial Institution warrants the accuracy, adequacy, or completeness of the Information and expressly disclaim liability for errors or omissions in the Information.
SECTION 8 ALLOCATION OF RISK
Limitation of Liability. In no event will Provider or Financial Institution be liable for any damages (including without limitation direct, indirect, punitive, special, incidental or consequential damages, cost of procuring substitute services, lost profits, losses, or other expenses) arising in connection with the provision or use of the Application(s), Related Services or Information provided pursuant to this EULA, regardless of whether such claims are based on contract, tort, strict liability, or otherwise, or whether Provider or Financial Institution has been advised of the possibility of such damages, losses, or expenses.
Without limiting the foregoing, this limitation of liability includes, but is not limited to, the unavailability of the Application(s), unauthorized access or payments, any failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus, or system failure. Provider cannot and does not guarantee continuous, uninterrupted or completely secure access to the Application(s).
If you are dissatisfied with Application(s), Related Services, or Information, or any portion thereof, your exclusive remedy shall be to cease using such products or services.
Reliance on Limitations. End User acknowledges that Provider has set its prices and entered into this EULA in reliance upon the limitations and disclaimers of liability, damages, and warranties set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitation and exclusions of liability and disclaimers specified in this EULA will survive and apply even if found to have failed their essential purpose.
SECTION 9 PRIVACY & CONFIDENTIALITY OF INFORMATION
In addition, Provider may aggregate statistical data from the information provided through the Application(s), without identifying the End User or the Customer as its source, which may be used by Provider or other third parties to assist in providing better products and services to you. You hereby expressly consent to such use of the information.
Each user session with the Application(s) is secured by encryption technology to protect against the unauthorized interception of information. The Application(s) may generate emails to notify or confirm activities within the Application(s) that are not encrypted; however, highly sensitive information (e.g., account numbers) is "masked" to protect against unauthorized access to such information. You hereby acknowledge that information may be intercepted during transmission to or from the Application(s) and that Provider cannot and does not guarantee that the use of the Application(s) is completely secure. You hereby agree to assume any and all risk associated with the unauthorized access to your information during transmission of such information between the Application(s) and you and after such information has been delivered to you.
Nothing in this Section 9 shall prohibit Provider or Financial Institution from providing Customer with information concerning your use of the Applications(s), and you hereby consent to the providing of all such information to Customer. By utilizing the Application(s), you authorize Provider and Financial Institution to verify any information you provide, and you agree that such verification may be obtained through the use of third party services. You agree that for security purposes Financial Institution may view, monitor and record your activity in the Application(s) without further notice to you and that information gathered from such viewing, monitoring and recording may be shared with law enforcement agencies. Notwithstanding the foregoing, Financial Institution does not undertake to detect or prevent fraudulent activity, and End User expressly disclaims any expectation that Financial Institution will detect or prevent fraudulent activity.
SECTION 10 GENERAL TERMS & CONDITIONS
Term and Termination. Either party may terminate this EULA without advance notice. Provider may discontinue or change the Application(s), Related Services, Information, or their availability to you, at any time or for any reason, with or without notice. If you breach any of the terms of this EULA, your authorization to access and use the Application(s) will terminate absent Provider's written waiver of such breach.
Governing Law. You and Provider agree that all matters arising from or relating to the Provider's provision of the Application(s), Related Services, Information, and your access to and use thereof, shall be governed by the laws of the State of Mississippi and the United States, without regard to conflict of laws principles.
Assignment. The EULA shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. You may not assign the EULA or your rights or obligations hereunder. Provider may assign, at its sole discretion, the EULA or any of its rights or obligations hereunder without notice to End User.
Modification. Provider, in its sole discretion, may make reasonable modifications to the terms and conditions of this EULA to address changes or enhancements to the Application(s) or Related Service or to address changes in applicable law. If this EULA is modified, you will have the opportunity to review the revised EULA and decide whether to agree to the terms. You will be required to agree to the revised EULA to continue using the Application(s). The most recent and governing version of the EULA will be accessible through the Application(s) and can be printed for your review and permanent records. No modification or amendment of any provision of this EULA shall be effective against Provider unless the same is in writing and signed by an authorized official of Provider.
Waiver. A party's failure to exercise any right, power, or remedy under this EULA shall not operate as a waiver of a continuing breach or a similar breach in the future. All rights and remedies provided under this EULA are cumulative and not exclusive of any other rights or remedies which are otherwise available at law or equity.
Severability. If any provision of this EULA is declared or found to be illegal, unenforceable, or void, then both parties shall be relieved of the obligations imposed by such provision, but only to the extent that such provision is illegal, unenforceable, or void. The remaining terms and provisions of this EULA shall continue in full force and effect.
Notices. All notifications to Provider pertaining to this EULA or the provision or use of the Application(s) shall be communicated through the "Contact Us" link in the Application(s) with the phrase "EULA LEGAL NOTICE" in the subject line. All notifications to the End User shall be communicated using the End User's email address on record in the Application(s). End User shall be responsible for maintaining accurate email contact information in the Application(s).
Headings. The headings referred to or used in this EULA are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof.
Survival. To the extent applicable, the provisions of this EULA relating to the following rights or obligations shall survive the termination, cancellation, expiration, and/or rescission of this Agreement: Section 4 (Ownership of Proprietary Rights), Section 6 (Advertising and Links to Other Sites), Section 7 (Warranties), Section 8 (Allocation of Risk), Section 9 (Privacy & Confidentiality of Information), and any provision that: (i) expressly states its survival, (ii) is necessary for the enforcement of this EULA, including Governing Law , (iii) is necessary to interpret surviving provisions, or (iv) provides for a remedy available under this EULA.