Terms and Conditions
MASTER SERVICES AGREEMENT
The Provident Bank, a Massachusetts banking corporation with offices at 5 Market Street, Amesbury MA 01913 (the “Bank” or “BankProv”) requires that all visitors to the BankProv API Developer Platform (the “Site”) adhere to the following Master Services Agreement (the “Agreement”). By accessing the Site and any of its pages, including the BankProv API Developer documentation, or by using any of the developer tools available on the Site including the sandbox test environment and its related services, products, documentation, and software (collectively, the “Sandbox”), you indicate your acknowledgement and acceptance of this Agreement, and all other terms, policies, and guidelines applicable to your use.
1.1Services means those internal transfer, balance details, account details, transaction listing and/or other services provided by the Bank pursuant to Section 2.1 hereof. Customer may order Services from the Bank by executing a mutually agreed upon SOW.
1.2SOW means an order form or Statement of Work signed by the duly authorized representatives of both parties that sets forth and describes Services to be provided Customer hereunder, the fees to be paid, delivery schedules, timelines, specifications and any other terms agreed upon by the parties.
1.3Work Product means any work product, deliverables, programs, interfaces, modifications, configurations, reports, analyses or documentation developed or delivered in the performance of Services.
2.1Services. The Bank shall provide Customer certain Services, such as consulting or development services, as specified in a SOW. All changes to an SOW must be approved by both parties in writing. The Bank does not guarantee any estimates set forth in a SOW but will notify Customer as soon as practicable if an estimate will be exceeded.
2.2Work Product. Unless otherwise agreed in writing in the applicable SOW, the Bank shall own all right, title and interest in and to any Work Product and all materials compiled or developed by the Bank in the performance of this Agreement, including all related intellectual property rights therein. Subject to Customer’s payment in full for the Work Product, the Bank hereby grants to Customer a non-exclusive, royalty-free, non-transferable limited license to use the Work Product solely for Customer’s internal business purposes as further detailed in the applicable SOW. The Bank may utilize any and all methods, computer software, know-how or techniques related to programming and processing of data, developed by it while providing the Services and may incorporate the Work Product in future releases of any of its products or services. The Bank shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the features, functionality or operation of the Service.
2.3Staffing, Designated Contact and Cooperation. The Bank shall have sole discretion in staffing the Services and may assign the performance of any portion of the Services to any subcontractor; provided that the Bank shall be responsible for the performance of any such subcontractor. Customer shall designate at least one employee with knowledge of Customer’s business and the Bank’s technology and services as its primary contact to be available for communication with the Bank in providing the Services. Customer will cooperate with the Bank, will provide the Bank with accurate and complete information, will provide the Bank with such assistance and access as the Bank may reasonably request, and Customer will fulfill Customer’s responsibilities as set forth in this Agreement and the SOW.
3.1Fees. Customer shall pay the Bank the fees, charges and other amounts specified in a SOW within thirty (30) days of the date of invoice, unless a different payment schedule is set forth in the SOW. The Bank is expressly authorized by Customer to invoice in advance for the provision of Services unless otherwise set forth in the applicable SOW. Customer shall be responsible for taxes levied on any transaction under this Agreement, including all federal, state, and local taxes, levies and assessments, excluding any tax based on the Bank’s income. If the Services shall be provided on a time and materials (“T&M”) basis (as specified in the SOW), then any estimated total amount stated in the SOW is solely a good faith estimate for Customer’s budgeting and the Bank’s resource scheduling purposes and not a guarantee that the work will be completed for that amount and the actual amount may be higher or lower.
3.2Taxes. Charges for Services hereunder do not include any federal, state, local or foreign taxes, duties or levies of any nature (“Taxes”). Any Taxes required to be paid by Bank as a result of the Services rendered hereunder (other than Taxes based on the Bank’s income) shall be billed to and paid by Customer.
4.1Confidential Information. During the term of this Agreement, each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party's business and the industry in which it operates, is of a confidential or proprietary nature. A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under this Agreement. Each party accepts responsibility for the actions of its agents or employees and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The parties expressly agree that the Work Product, terms and pricing of this Agreement are the Confidential Information of Bank. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
4.2Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
5.LIMITED WARRANTY; INDEMNIFY
5.1Warranty and Remedy. The Bank warrants that Services will be provided with reasonable skill and care conforming to generally accepted industry standards and any specifications specified in the applicable SOW. Customer must report any deficiency in Services to Bank in writing within thirty (30) days of completion of such Services. For any breach of the above warranty, the Bank will, at its option and at no cost to Customer, provide remedial services necessary to enable the Services to conform to the warranty or, if such remedial services are unsuccessful, the Bank may refund amounts paid solely in respect of the defective Services. Customer will provide the Bank with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedies set out in this subsection are Customer’s sole remedies for breach of the above warranty.
5.2Customer will be responsible for the security, confidentiality and use of any wire transaction details, keys and data it provides to the Bank as part of the Services and the Bank shall have no responsibility to confirm the accuracy of any such information.
5.3No Other Warranty. THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE.
(A)Each party (“Provider”) shall defend the other party (“Recipient”) against any claim that any information, design, specification, instruction, software, data or material furnished by the Provider hereunder (“Material”) infringes a copyright or patent or misappropriates a trade secret of a third party, and will indemnify and hold harmless the Recipient from and against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with such a claim, provided that: (a) Recipient notifies Provider in writing within thirty (30) days of the claim; (b) Provider has sole control of the defense and all related settlement negotiations; and (c) Recipient provides Provider with the assistance, information and authority reasonably necessary to perform the above. Provider shall reimburse Recipient for its reasonable out-of-pocket expenses incurred in providing such assistance.
(B)Provider shall have no liability for any claim of infringement or misappropriation to the extent that (a) the Material is based on specifications provided by Recipient, (b) the combination, operation, or use of the Material with software or equipment which was not provided by Provider, to the extent that Provider’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (c) such claim is based upon Recipient’s use of a superseded or altered version of some or all of the Material if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered release of the Material which was provided to Recipient.
(C)In the event that some or all of the Material is held or is reasonably believed by Provider to infringe or misappropriate the intellectual property rights of a third party, Provider shall have the option, at its expense, to (a) modify the Material so it no longer infringes or misappropriates; (b) obtain for Recipient a license to continue using the Material; or (c) require return of the affected Material and all rights thereto from Recipient.
6.LIMITATION OF LIABILITY.
6.1Consequential Damage Waiver. Except as may arise out of either party’s breach of Section 4 (Confidentiality), neither party will be liable to the other or any third party for loss of profits, or special, indirect, incidental, consequential or exemplary damages, including costs, in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.
6.2Limitation of Liability. Except as may arise out of the Bank’s breach of Section 4 Confidentiality or the Bank’s indemnification obligations in Section 5.4, the total liability of the Bank to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract tort or otherwise, will not exceed the amounts paid by (and not otherwise refunded to) Customer to the Bank under any SOW for the Services which form the subject of the claim. The provisions of this Agreement allocate risks between the parties. The pricing set forth in each SOW reflects this allocation of risk and the limitation of liability specified herein.
7.1Term. This Agreement will commence on the Effective Date and will continue in effect until otherwise terminated in accordance with Section 7.2 below. The term of each SOW shall be set forth on the SOW. Bank reserves the right to change the rates, applicable charges and usage policies and to introduce new charges, for such SOW upon providing the Customer with written notice thereof (which notice may be provided by e-mail) at least 30 days prior to the then current renewal date of the SOW.
7.2Termination. Notwithstanding the foregoing, either party may terminate this Agreement or any SOW (i) immediately in the event of a material breach of this Agreement or any such SOW by the other party that is not cured within thirty (30) days of written notice from the other party, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of a SOW shall not be deemed a termination of this Agreement. In addition, the Bank may terminate this Agreement immediately if a legal or regulatory authority determines that the Bank is precluded from providing the Services to the Customer. Termination of this Agreement shall, however, terminate all outstanding SOWs. Either party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other party for any reason, if at such time there are no outstanding SOWs then currently in effect. The parties’ rights and obligations under Sections 2, 3, 4, 5, 6, 7 and 8 will survive termination or expiration of this Agreement.
8.1Entire Agreement and Controlling Documents. This Agreement, including any SOWs, contain the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns. Only a written instrument that refers to this Agreement or the applicable SOW and is duly signed by the authorized representatives of both parties may amend this Agreement or such SOW. Boilerplate terms and conditions contained in any purchase order issued by Customer shall be of no force or effect, even if the order is accepted by Bank. This Agreement shall apply to all Services ordered by Customer or delivered to Customer by Bank. Any conflict between the terms and conditions set forth in this Agreement and any SOW hall be resolved in favor of this Agreement unless such SOW expressly references the conflicting provision that it is intended to control and states that it is to control.
8.2Assignment. This Agreement shall be binding upon and for the benefit of Bank, Customer and their permitted successors and assigns. Either party may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as expressly stated in this Agreement, neither party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void.
8.3Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions.
8.4Headings; Counterparts. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be an original instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) shall be considered an original.
8.5Relationship of the Parties. The Bank and Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party's name or on its behalf.
8.6Force Majeure. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
8.7Delays. Customer acknowledges and agrees that if any phase of Bank’s scheduled Services as set forth in a SOW is delayed by more than 48 hours by any act or omission of Customer, including but not limited to Customer’s failure to make payments as set forth in Section 3, the scheduled completion of the Services or individual phases of the Services as set forth in the SOW may be delayed. Customer agrees to pay the Bank compensation for the extended work at Bank’s then standard rates for the required personnel. Customer will not be responsible for any extension period that is caused by circumstances within the Bank’s control.
8.8Notices. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service, in each case addressed to the receiving party at its address set forth on an SOW at the address first listed above for each party. Either party may change its address by giving written notice of such change to the other party.
8.9Waiver and Severability. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.