BancVue®️, Ltd. ("We", "Us", "Our") and Client Financial Institution ("You", "Your") agree to the following.
SCOPE. These Kasasa Marketing Services Terms and Conditions (“T&C”) apply to Your use of additional Kasasa consulting and other professional services provided by Us on a project-by-project or ongoing basis as specifically identified in one or more ordering documents signed by You, including any statements of work or insertion orders that incorporate these Terms and Conditions (“Order” or “Orders”) in order to assist You in marketing the Kasasa product ( “Marketing Services”). The T&C are governed by the BancVue Master Services Agreement and/or BancVue License & Services Agreement ("MSA") executed between Us and You and which is incorporated herein by reference, and specifically supplement the addendum, license agreement and/or exhibit attached to the MSA which grants You a license to offer Kasasa® executed between Us and You and which is incorporated herein by reference (together with the MSA, the “Agreement”). Capitalized terms used in the T&C which are not defined in this Section or elsewhere in the T&C have the meanings ascribed to such terms in the Agreement.
AVAILABILITY OF KASASA MARKETING SERVICES.We offer a variety of services to assist You in marketing Kasasa; such variety of Marketing Services will be described in the applicable Order.
Statement of Work/Insertion Order. A request for Marketing Services must be agreed to by You in a written Order(s) which describe the Marketing Services to be supplied. Each Order may also set forth, as applicable, objectives to be accomplished, assumptions upon which the Order is based, the responsibilities of the parties, and a description of any Deliverables (defined below). If required, We will deliver an estimated schedule (including commencement date and duration), projected billable effort to provide the Marketing Services, and other applicable information. If an Order contains an estimated schedule, each party will make reasonable efforts to carry out its responsibilities according to that schedule. Changes and/or modifications to the Order(s) must be in writing and agreed to by both parties.
CUSTOMER MATERIALS.“Customer Materials” means any materials You provide: (a) for incorporation into a Marketing Service; (b) which will be modified or customized in the course of providing Marketing Services; or (c) which will otherwise enable Us to provide Marketing Services to You. Customer Materials to be provided by You will be identified by Us or in the applicable Order.
License to Use. You will provide prompt and timely delivery of any Customer Materials required by Us. You hereby grant Us a non-exclusive, royalty-free license to use, copy, modify and create derivative works of the Customer Materials solely for the purpose of providing Marketing Services to You.
Distribution Lists. If required by the applicable Marketing Service,, You will provide lists of necessary data for distribution of materials to current and/or former customers/members of You in a mutually agreeable format at least 10 business days before the launch of the applicable Marketing Service and such lists will contain only those current and/or former customers/members who have consented to receive distributed communications from You. Any lists for distribution to prospective customers/members will be acquired and provided by Us.
Confidentiality. Customer Materials may contain account-specific data and/or nonpublic personal information of Your customers/members. Such Customer Materials are expressly designated as Your Confidential Information and We and our Partners, who have agreed to maintain confidentiality at a level consistent with Us, will protect and secure such Confidential Information according to the confidentiality terms and obligations set forth in the Agreement
FEES.
Fees for Marketing Services. Fees for Marketing Services, specified in the applicable Order, are due upon signing such Order, unless otherwise specified. Any detail regarding fees for the Marketing Services rendered in an estimate of effort associated with, or a schedule for completion of the work to be performed under an Order, is a good-faith estimate only, based on information known to Us at the time the estimate is made. Such estimates are not fixed fees or time or rate guarantees.
Expenses/Taxes. Certain Marketing Services may include purchasing services from third parties or reimbursing Us for Our reasonable economy travel, meal and lodging expenses. These expenses will be outlined in the Order when applicable. We will bill You, and You agree to pay, for all such expenses when applicable. In addition, We will bill You for, and You agree to pay, sales tax where applicable.
WORK PRODUCT/DELIVERABLES.
Work Product Ownership. We own all right, title, and interest (including of the copyright) to any and all items We deliver to You as specified in any Order (“Deliverable”). With respect to any Deliverables, We hereby grant You the non-exclusive, worldwide, fully paid-up, royalty-free license to use copies of Deliverables solely in connection with Your use of Kasasa.
Work Product Process. We will design, build and distribute any Deliverables described in the applicable Marketing Services selected by You at least 30 days prior to any public launch of such Marketing Services. We will not hold the date of any such public launch or flight until an applicable Order is executed by You.
Work Product Timeline. Upon receipt of an executed Order, We will begin to generate artwork and content for any applicable Marketing Service, such artwork and content will require Your approval. Once We deliver final artwork and content, You have 5 days to accept or make modifications to such artwork and/or content. At the end of 5 days or when We receive Your approval, We will utilize the final artwork and content in the applicable Marketing Service.
Co-branded Deliverables. We will insert Your logo and applicable identifying information and trademarks, when necessary, into any applicable Deliverables in a form that is the same or similar to that used by You. We may continue to display Deliverables bearing Your logo, identifying information and trademarks used in connection with the Marketing Services for promotional purposes, and We may continue to use Your logo, identifying information and trademarks to accurately reference Your participation with the Marketing Services.
Customized Deliverables. We do not create customized content as a standard term of any Marketing Services. If You require additional customization work, You will pay an additional fee for additional customization, billed to You at a rate of $150.00 per hour.
WARRANTY. The following warranty is in lieu of any other warranty in the Agreement in regard to the Marketing Services: We warrant that We will perform Marketing Services in a timely and professional manner in accordance with its description. If We fail to do so, and You have notified Us in writing of such failure, We will re-perform the Marketing Services. If We are unable to do so, You may terminate the affected Marketing Service, and We will refund to You amounts You paid for the nonconforming Marketing Service (or portion thereof). Other than the warranty described above, Marketing Services are provided “as is”, and WE DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO MARKETING SERVICES.
INDEMNIFICATION. In addition to those terms and obligations regarding indemnification in the Agreement, You agree that if any portion of the Marketing Services are performed onsite, You will defend and indemnify Us, Our directors, employees and agents from and against any Losses incurred as a result of any third party claims (except to the extent they are based on a claim that the sole negligence or willful misconduct of Us, Our employees or agents) that any or all representatives of either party directly caused any death, bodily injury or damage to tangible personal property during performance of services while onsite at the location of, or a location determined by, You.
TERM; TERMINATION.
T&C. The T&C is effective on the date upon which Your initial Order is executed and continues for the life of the Agreement.
Orders. The term of each Order executed by You will be described in such Order. You may terminate an Order with written notice to Us at least 30 days prior to the planned public launch or flight date of the applicable Marketing Service, provided, however, You identify which Marketing Services, or portion thereof, are to be cancelled. You agree to pay (or We will deduct from any prepaid balance) for actual and reasonable costs and expenses We incurred for such canceled Marketing Services, including any non-recoverable expenses and third party fees. We will use commercially reasonable efforts to mitigate such costs and expenses.
ADDITIONAL TERMS AND OBLIGATIONS.
Notwithstanding anything stated to the contrary, You agree that We, and Our Partners (e.g., email service provider), may retain and freely use, collect, retain and publicly disclose aggregated, anonymous statistical and performance information related to the Marketing Services (e.g. 3% of list respond to an account opening incentive vs 2% to rates), provided that any such disclosure contains no account-specific or personally identifiable information, contains none of Your Confidential Information and does not identify You.
Email Services. If Your selected Marketing Services include email marketing services, You agree to the following:
In compliance with the United States CAN-SPAM Act of 2003 and the FTC CAN-SPAM Rule of 16 C.F.R. 316 (together, “CAN-SPAM”), each email sent as part of any Marketing Service will contain (i) Your logo and identify You as the sole sender, (i) legally sufficient identification that the message is an advertisement or solicitation, (ii) a CAN-SPAM-compliant opt-out mechanism, and (iii) a Your valid physical postal address;
Throughout the duration of each applicable Marketing Service, You will inform Us on a weekly basis of any new withdrawals of such consent (“Opt-out Notices”) received from any recipients; and
In order to promote CAN-SPAM, We will (i) disable or otherwise remove any email addresses identified in connection with any Opt-out Notices that We or Our Partners receive from the recipients from future promotional email communications sent by Us within 8 days of the receipt of any Opt-out Notice, and (ii) make available to You on a weekly basis, a list of Opt-out Notices and associated email addresses received by Us.
