Customer Terms
Last Updated: September 7, 2023
These Customer Terms ("Agreement") govern Customer’s use of the Platform and receipt of Support and Professional Services and are effective as of the date Customer accepts or otherwise agrees to the terms of this Agreement (“Effective Date”). By accepting this Agreement by clicking a box indicating acceptance or otherwise executing a Service Order that incorporates or otherwise references these Customer Terms, Customer agrees to these terms. Conflicts between parts of the Agreement are governed by Section 12.12. (Order of Precedence). Capitalized terms are defined in context or in Section 13. (Definitions).
If Customer is a legal entity, the individual accepting this Agreement on behalf of Customer represents that they have the authority to bind Customer to this Agreement, and if that individual does not have that authority or does not agree with this Agreement, that individual must not accept this Agreement and Customer may not use the Platform.
1. Platform
1.1. License Grant. Subject to this Agreement during the Order Term, Argyle grants Customer a non-exclusive, non-transferable, non-sublicensable, non-assignable (subject to Section 12.1) license to access and use the Platform in accordance with this Agreement (including, for clarity, the applicable Service Order) and the Documentation for the purpose of (a) facilitating Consumers’ use of the Platform’s Consumer-facing features and functionalities in connection with Customer, including the delivery of their Consumer Data to Customer, and (b) taking delivery of and otherwise Processing Consumer Data in connection with its provision of products or services to those Consumers.
1.2. Affiliates; Authorized Contractors; End Users. Customer may permit its Affiliates, Authorized Contractors, and End Users to exercise its rights and perform its obligations under this Agreement on Customer’s behalf. Customer is responsible for End Users’ actions through the Platform, and otherwise for its End Users’, Affiliates’, and Authorized Contractors’ compliance with this Agreement. Customer will promptly notify Argyle on learning of any compromise of End User accounts or credentials.
1.3. Restrictions. Except as expressly authorized by this Agreement, Customer will not and will not permit anyone else to: (a) sell, sublicense, distribute or rent the Platform (in whole or part), enable use of the Platform by those that are neither End Users nor Consumers, or use the Platform to provide a hosted or managed service to others, (b) reverse engineer, decompile or seek to access the source code of the Platform, except to the extent these restrictions are prohibited by Laws and then only on advance notice to Argyle, (c) copy, modify, create derivative works of or remove Argyle’s branding, marks, or proprietary notices from the Platform, (d) conduct security or vulnerability tests of the Platform, or otherwise interfere with its operation, or (e) use the Platform to develop a product or service that competes with the Platform. Customer will (and will cause Affiliates, Authorized Contractors, and End Users to) use the Platform in accordance with Laws, obligations to third parties, and this Agreement.
1.4. Customer Applications; Third-Party Platforms.
a. Customer Applications. If the Service Order identifies a Customer Application(s), Section 1.1 includes the right to use the API, API Key(s), SDK, and Documentation internally as necessary to integrate and make the Platform interoperable with the Customer Application(s). Argyle will provide technical support with respect to the API, API Key(s), SDK, and Documentation to enable that integration and interoperability as reasonably requested by Customer and in accordance with Argyle’s then-current integration support policy.
b. Third-Party Platforms. Customer may choose to use the Platform through integrations between the Platform and Third-Party Platforms, including exchanging Customer Data and Consumer Data between the Platform and those Third-Party Platforms. Customer’s use of a Third-Party Platform is governed by its agreement with the relevant provider, not this Agreement, and Argyle is not responsible for Third-Party Platforms or how their providers Process Customer Data or Consumer Data. For clarity, Third-Party Platforms: (i) may be provided by Resellers; and (ii) are Customer’s (and not Argyle’s) Subprocessors (defined in the DPA).
1.5. Use By Consumers. Customer acknowledges: (a) that Consumers’ rights to use the Platform are under the Argyle Terms and not this Agreement; (b) Argyle conditions Consumers’ use of the Platform on their agreement to the Argyle Terms; and (c) Link must include Argyle’s branding and Consumer-contracting flow as approved by Argyle (i.e., no white-labeling of Link is permitted).
2. Data
2.1. Customer Data. Argyle will use Customer Data solely to provide and maintain the Platform, Support, and Professional Services. Use of Customer Data includes sharing Customer Data as Customer directs through the Platform, but Argyle will not otherwise disclose Customer Data to third parties except as permitted in this Agreement.
2.2. Consumer Data.
a. Connections.
(i) Consumers use the Consumer-facing functionalities of the Platform through Link, including selecting Data Locations, retrieving their Consumer Data from those Data Locations, identifying the parties (e.g., Customer) to which they wish to deliver that Consumer Data, and delivering that Consumer Data to those parties (each of those relationships, a “Connection”). Customer will receive a Consumer’s Consumer Data collected from a Data Location (including any reports containing that data generated through the functionalities of the Platform) only if that Consumer has made a Connection between that Data Location and Customer through Link.
(ii) If (1) a Consumer revokes a Connection to Customer through Link, the Consumer otherwise instructs Argyle to revoke that Connection, or (2) if Customer revokes that Connection through the Platform, or Customer otherwise requests that Argyle revoke that Connection, Argyle will revoke that Connection (including, for clarity, access to Consumer Data resulting from that Connection) and deletes the associated Consumer Data in accordance with the Argyle Terms.
(iii) When a Consumer is using the Platform to deliver their Consumer Data to Customer in connection with a product or service and that relationship between Customer and that Consumer with respect to that product or service ends (e.g., the Consumer abandons a loan application with Customer), Customer will promptly either revoke the affected Connections in the Platform or will request that Argyle revoke those Connections.
b. Product/Service Terms.
(i) Customer must: (1) ensure that its Product/Service Terms incorporate a complete and accurate Customer privacy notice for Customer’s Processing of Consumer Data (i.e., with respect to the products and services provided by Customer to Consumer using the Consumer Data delivered to Customer under this Agreement, including Processing by Customer’s Subprocessors (e.g., Third-Party Platforms)) and otherwise comply with Law; and (2) require that each Consumer affirmatively agrees to those Product/Service Terms before that Consumer (a) accesses the Platform as integrated into the Customer Application or Third-Party Platform or (b) otherwise uses the Platform in connection with Customer.
(ii) Customer will Process Consumer Data solely for the purpose of providing products or services to the applicable Consumer in accordance with: (1) Law; (2) the Product/Service Terms; (3) any other agreements in place between the Consumer and Customer; and for no other purpose (the “Agreed Purpose”). Without limiting the foregoing, Customer will not: (a) sell any Consumer Data; (b) share Consumer Data other than in accordance with Law; (c) use the Platform to request or take delivery from Consumers of more Consumer Data than is reasonably necessary and proportionate to achieve the purposes for which that Consumer Data is Processed by Customer; or (d) retain Consumer Data for longer than is reasonably necessary for the purpose for which Customer took delivery of that Consumer Data via the Platform.
2.3. Usage Data. Argyle may collect Usage Data and use it to operate, improve and support the Platform and for other lawful business purposes, including benchmarking and reports. However, Argyle will not disclose Usage Data externally unless it is (a) de-identified so that it does not identify Customer (including its Affiliates or Authorized Contractors), End Users, Consumers, or any other individual or entity and (b) aggregated with data across other customers.
2.4. Data Protection Addendum; Mutual Compliance with Law. The parties will comply with the Data Protection Addendum, available at argyle.com/legal/customers-and-developers/dpa (“DPA”), which is incorporated into this Agreement by this reference. Without limiting the generality of the preceding sentence, each party will implement and maintain the Security Measures set forth in the DPA (“Security Measures”) and each party will be independently and separately responsible for obtaining and maintaining all necessary notices and consents to Process Consumer Data, as set forth in the DPA. Without limiting the foregoing, each party will comply with all Laws when exercising their rights or performing their obligations under the Agreement, including Applicable Data Protection Law (as defined in the DPA) when Processing Personal Data in connection with the Agreement.
3. Support & Maintenance; Service Levels
3.1. Support. Argyle will provide support and maintenance for the Platform as set forth at argyle.com/legal/customers-and-developers/support-policy (“Support Policy”), which is incorporated into this Agreement by this reference.
3.2. Service Levels. Argyle will comply with the service levels set forth at argyle.com/legal/customers-and-developers/service-levels (“Service Levels”), which are incorporated into this Agreement by this reference.
4. Warranties
4.1. Mutual Warranties. Each party represents and warrants that:
a. it has the legal power and authority to enter into this Agreement.
b. it will use industry standard measures to avoid introducing Viruses into the Platform.
4.2. Additional Argyle Warranties. Argyle warrants that:
a. the Platform will perform materially as described in the Documentation and Argyle will not materially decrease the overall functionality of the Platform during the applicable Order Term (the “Performance Warranty”).
b. any Professional Services will be provided in a professional and workmanlike manner (the “Professional Services Warranty”).
4.3. Warranty Remedy. Argyle will use reasonable efforts to correct a verified breach of the Performance Warranty or Professional Services Warranty reported by Customer. If Argyle fails to do so within 30 days after Customer’s warranty report, then either party may terminate the Service Order as it relates to the Platform’s or Professional Services’ non-conformance, in which case Argyle will refund to Customer any pre-paid, unused fees for the terminated portion of the Order Term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Platform or 30 days after delivery of the relevant Professional Services. These procedures are Customer’s exclusive remedies and Argyle’s sole liability for breach of the Performance Warranty or Professional Services Warranty.
4.4. Disclaimers. Except as expressly set out in this Agreement, each party disclaims all warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title and noninfringement. Argyle’s warranties in this Section 4 do not apply to issues arising from Customer Applications, Third-Party Platforms, Data Locations, or misuse or unauthorized modifications of the Platform. These disclaimers apply to the full extent permitted by Law.
5. Fees
5.1. Payment.
a. Customer will pay the fees and other amounts described in the Service Order(s) and Statement(s) of Work ("Fees") via wire or ACH, as instructed by Argyle from time to time, or such other means as expressly set forth in the Service Order (e.g., credit card). Unless the Service Order or Statement of Work states otherwise, all amounts are due within ten (10) days after the Customer’s receipt of the invoice (the “Payment Period”). Late payments are subject to a charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All Fees are non-refundable except as expressly set out in this Agreement.
b. If required by the Service Order or Statement of Work or if Customer has not timely paid invoiced and undisputed amounts, on Argyle’s request, Customer will provide and maintain a valid payment method on file with Argyle, which Customer hereby authorizes Argyle to automatically charge for fees and other amounts due under this Agreement as those amounts become due. Collection of Customer’s credit card or other payment information and the processing of payment of fees is performed by a third-party payment processor (the “Payment Processor”) and is subject to the Payment Processor’s terms. Argyle’s current Payment Processor is Stripe. Please refer to https://stripe.com/connect-account/legal for terms applicable to Customer’s payments via Stripe. To the fullest extent permitted by applicable law, if Customer pays by credit card, Customer agrees that Argyle may impose, and Customer will pay, a surcharge to recover Argyle’s costs resulting from Customer's payment via credit card, including interchange or other fees imposed by card issuers, and fees imposed by the Payment Processor.
5.2. Taxes. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to its Service Order(s) or Statement(s) of Work, whether domestic or foreign (“Taxes”), other than Argyle’s income tax. Fees and expenses are exclusive of Taxes. If Argyle is required by a taxing authority to collect and remit Taxes, Argyle’s invoice to Customer will contain a line item(s) listing those Taxes applicable in connection with Customer relating to the Platform, and those Taxes will be considered part of the Fees.
5.3. Payment Disputes. If Customer disputes an invoice in good faith, it will notify Argyle within the Payment Period and the parties will seek to resolve the dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period but will timely pay all undisputed amounts. After the discussion period, either party may pursue any available remedies.
5.4. Purchases through Resellers. If Customer orders the Platform or Support through a Reseller, then the payment terms of the applicable Reseller Order or otherwise of Customer’s agreement with that Reseller (together, the “Reseller Customer Agreement”) will apply in lieu of Sections 5.1 through 5.3 of this Agreement. In that instance, Customer will pay all fees due for the Platform and Support directly to the Reseller in accordance with Customer’s Reseller Customer Agreement. If Customer breaches its payment obligations to the Reseller and fails to cure such breach within the time period specified in the Reseller Customer Agreement, the Reseller or Argyle may suspend the provision of the Platform or Support to Customer upon written notice.
6. Suspension
Argyle may suspend Customer’s access to the Platform and related services due to a Suspension Event, but where practicable will give Customer prior notice so that Customer may seek to resolve the issue and avoid suspension. Argyle is not required to give prior notice in exigent circumstances or for a suspension made to avoid material harm or violation of Law. Once the Suspension Event is resolved, Argyle will promptly restore Customer’s access to the Platform in accordance with this Agreement. “Suspension Event” means (a) Customer’s account is 30 days or more overdue, (b) Customer is in breach of Sections 1.3 or 2, 5.1.b, or (c) Customer’s use of the Platform risks material harm to the Platform or others.
7. Term and Termination
7.1. Agreement Term. This Agreement begins on the Effective Date and continues until terminated in accordance with Section 7.2 (the “Term”).
7.2. Termination.
a. Convenience.
(i) Service Orders. Either party may terminate an Online Order for convenience on notice to the other party.
(ii) Agreement. Either party may terminate this Agreement for convenience on 30 days notice to the other party. Despite the preceding sentence, if there are any Service Orders or Statements of Work in effect, this Agreement will not terminate until all such Service Orders and Statements of Work have expired or have been terminated in accordance with their terms.
b. Breach. Either party may terminate this Agreement (including all Service Orders) if the other party (a) fails to cure a material breach of this Agreement within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
7.3. Effect of Termination; Survival. Immediately on termination: (a) all amounts owed to Argyle under the Service Order(s) and Statement(s) of Work become due and payable; (b) the licenses and Argyle’s obligation to provide the Platform end; and (c) Customer (including its Affiliates, Authorized Contractors, and End Users) must discontinue use of the Platform. Except as necessary for a party to continue to exercise its surviving rights, and subject to Section 8, each party will return or destroy (or in the case of electronic materials, erase) all documents and other embodiments (in any form) that contain or constitute the other’s Confidential Information. Sections 2.2 .b(ii), 2.3, 2.4, 5, 7.3, 8, 9, 10, 11, 12.1, 12.2, 12.3, 12.5, 12.7, 12.9, 12.10, 12.11, 12.12, and each party’s accrued rights or liabilities, will survive expiration or termination.
8. Confidentiality
8.1. Use and Protection. As recipient, each party will (a) use Confidential Information only to perform its obligations and exercise its rights under this Agreement, (b) not disclose Confidential Information to third parties without the discloser’s prior approval, except as permitted in this Agreement and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.
8.2. Permitted Disclosures. The recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, as to each party, its Authorized Contractors, and subject to the DPA), provided it remains responsible for their compliance with this Section 8, and they are bound to confidentiality obligations no less protective than this Section 8.
8.3. Exclusions. These confidentiality obligations do not apply to information that the recipient can document (a) is or becomes public knowledge through no fault of the recipient, (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions or (d) it independently developed without using or referencing Confidential Information.
8.4. Return; Remedies. On the discloser’s request, the receiver will return or destroy (or erase, in the case of electronic materials) all copies of material that contain or embody the discloser’s Confidential Information, except that: (a) the receiver may retain materials to the limited extent necessary to exercise its rights and perform its obligations under this Agreement, or as required by Laws; and (b) the parties acknowledge that some residual Confidential Information may remain in system backup media (e.g., backup files, deletion logs, archival tapes) or other information systems of the receiver; all those materials may be retained until destroyed in accordance with the receiver’s regular business practices, but the receiver may not otherwise use them, and they remain subject to the obligations of the Agreement. Breach of this Section 8 may cause substantial harm for which monetary damages are an insufficient remedy. On breach of this Section 8, the discloser is entitled to seek appropriate equitable relief, including an injunction, in addition to other remedies.
8.5. Required Disclosures. The recipient may disclose Confidential Information to the extent required by Laws. If permitted by Law, the recipient will give the discloser reasonable advance notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to obtain confidential treatment for the Confidential Information.
8.6. Length of Confidential Information. The confidentiality obligations in this Section 8 will survive for 3 years except for Confidential Information that are trade secrets, the confidentiality obligations will survive for so long as that Confidential Information remains a trade secret.
9. Intellectual Property
9.1. Reserved Rights. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Argyle’s express rights in this Agreement, as between the parties, Customer retains all intellectual property and other rights in Customer Data and any other Confidential Information it provides to Argyle. Except for Customer’s express rights in this Agreement, as between the parties, Argyle and its licensors retain all intellectual property and other rights in the Platform, Professional Services deliverables, and related Argyle technology.
9.2. Feedback. If Customer gives Argyle feedback regarding improvement or operation of the Platform, Support, or Professional Services, Argyle may use the feedback without restriction or obligation. All feedback is provided “AS IS” and Argyle will not publicly identify Customer as the source of feedback, or otherwise identify Customer, its Affiliates or Authorized Contractors, End Users, or any Consumer, without Customer’s permission.
9.3. Consumer Data. Each party acknowledges and agrees that Consumer Data belongs to the Consumer which is the subject of that information. For clarity, nothing in this Agreement grants Customer any right to Process Consumer Data; Customer is solely responsible for obtaining rights to Process Consumer Data as contemplated in this Agreement (including the DPA).
10. Defense & Indemnification
10.1. By Argyle.
a. Defense. Argyle will defend Customer, its Affiliates, Authorized Contractors, End Users, and its and their employees, officers, directors, agents, and representatives (“Customer Indemnitees”) against: (i) any third-party claim that the Platform, when used by Customer as authorized in this Agreement, infringes, misappropriates, or otherwise violates that third party’s intellectual property rights (“Infringement Action”); and (ii) third-party claims arising from (1) Argyle’s breach of the Argyle Terms, DPA, or violation of Law, or (2) Argyle's gross negligence or willful misconduct; in each case except to the extent caused by a Customer’s Indemnitees breach of this Agreement, Customer’s Product/Service Terms, violation of Law, or negligence or willful misconduct.
b. Indemnification. Argyle will indemnify each of the Customer Indemnitees against all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 10.1.a; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of that proceeding (other than attorneys’ fees and costs incurred without Argyle’s consent after Argyle has accepted defense of that claim); and if any proceeding arising under Section 10.1.a is settled, all amounts to any third party agreed to by Argyle in settlement of any those claims.
c. Mitigation; Exceptions. In response to an Infringement Action, if required by settlement or injunction or as Argyle determines necessary to avoid material liability, Argyle may: (a) procure rights for Customer’s continued use of the Platform, (b) replace or modify the allegedly infringing portion of Platform to avoid infringement, without reducing the Platform’s overall functionality or (c) terminate the affected Service Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Order Term. Argyle’s obligations in Section 10.1.a.(i) do not apply to claims resulting from (i) modification or unauthorized use of the Platform, (ii) use of the Platform in combination with items not provided or authorized by Argyle, including Third-Party Platforms or (iii) Argyle Software other than the most recent release, if Argyle made available (at no additional charge) a newer release that would avoid infringement.
d. Exclusive Remedy. This Section 10.1 sets out the Customer’s exclusive remedy and Argyle’s sole liability regarding third-party claims of intellectual property infringement or misappropriation with respect to the Platform.
10.2. By Customer.
a. Defense. Subject to Section 10.1, Customer will defend the Argyle Indemnitees against any third-party claim arising from or relating to Customer’s use of the Platform or Consumer Data, breach of the Product/Service Terms, violation of Law, or gross negligence or willful misconduct; in each case except to the extent caused by an Argyle Indemnitee’s breach of this Agreement, the Argyle Terms, violation of Law, or gross negligence or willful misconduct.
b. Indemnity. Customer will indemnify Customer and each of the Argyle Indemnitees against all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 10.2.a; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of that proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of that claim); and if any proceeding arising under Section 10.2.a is settled, all amounts to any third party agreed to by Customer in settlement of any those claims.
10.3. Procedures. The indemnifying party’s obligations in this Section 10 are subject to receiving from the indemnified person or otherwise from the other party: (a) prompt notice of the claim (but delayed notice will only reduce the indemnifying party’s obligations to the extent it is prejudiced by the delay), (b) the exclusive right to control the claim’s investigation, defense and settlement and (c) reasonable cooperation at the indemnifying party’s expense. The indemnifying party may not settle a claim without the indemnified person’s prior approval if settlement would require the indemnified person to admit fault or take or refrain from taking any action (except regarding use of the Platform when Argyle is the indemnifying party). The indemnified person may participate in a claim with its own counsel at its own expense.
11. Limitations of Liability
11.1. General Cap. EACH PARTY’S ENTIRE (I.E., AGGREGATE, NOT PER-CLAIM) LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE GENERAL CAP.
11.2. No Consequential Damages. NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR IF THOSE DAMAGES WERE REASONABLY FORESEEABLE.
11.3. Exceptions and Enhanced Cap. SECTIONS 11.1 (GENERAL CAP) AND 11.2 (NO CONSEQUENTIAL DAMAGES) WILL NOT APPLY TO ENHANCED CLAIMS OR UNCAPPED CLAIMS (AS TO OBLIGATIONS ARISING UNDER SECTION 10 (Defense and Indemnification), AN EXCEPTION TO SECTION 11.2 (NO CONSEQUENTIAL DAMAGES) SOLELY TO THE EXTENT THOSE DAMAGES ARE PAID TO THIRD-PARTIES). FOR ALL ENHANCED CLAIMS, EACH PARTY’S ENTIRE (I.E., AGGREGATE, NOT PER-CLAIM) LIABILITY WILL NOT EXCEED THE ENHANCED CAP.
11.4. Nature of Claims. The liability limitations and damages waivers and exclusions in this Section 11 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose. Each provision of this Agreement that limits liability, disclaims warranties, or waives or excludes damages is to allocate the risk of this Agreement between the parties. This allocation is reflected in the pricing offered by Argyle to Customer and is an essential element of the basis of the bargain between the parties. Without limiting Section 12.11. (Severability; Waiver), each of these provisions is severable and independent of all other provisions of this Agreement.
12. General Terms
12.1. Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement, with notice to the other party, in connection with the assigning party’s merger, reorganization, acquisition, or other transfer of all or substantially all of its assets to which this Agreement relates or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
12.2. Governing Law; Dispute Resolution. The Agreement and disputes relating to it will be governed by and construed in accordance with the laws of the State of New York, without giving effect to provisions that would require the laws of another jurisdiction to apply. UCITA, the UCC, and the UN Convention on Contracts for the International Sale of Goods will not apply. Any unresolved dispute relating to or arising out of the Agreement will be resolved by arbitration, except that either party is free to seek equitable relief in a court having jurisdiction in the event of a breach or threatened breach of a party’s obligations with respect to Confidential Information or intellectual property rights. Except as otherwise agreed by the parties: (i) where the matters in controversy are less than the sum or value of $100,000, the arbitration will be conducted by a single arbitrator under the International Institute for Conflict Prevention and Resolution’s (“ICPR”) Fast Track Rules for Non-Administered Arbitration; and (ii) where the matters in controversy are greater than the sum or value of $100,000, the arbitration will be conducted by a panel of three (3) arbitrators under the ICPR’s Rules for Non-Administered Arbitration; (those rules, together, the “CPR Rules”) as those CPR Rules are then in effect, and those arbitrator(s) as selected using the screened procedure provided for in the applicable CPR Rules. The arbitration will be seated and take place in New York, New York. The arbitration panel (and not any court or agency) (a) will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, formation of, or defenses with respect to, the Agreement; and (b) will have no power to award non-monetary or equitable relief of any sort, or to award damages inconsistent with the Agreement, including any provision limiting a party’s liability. Judgment on any arbitration award may be entered in any court having jurisdiction. All aspects of the arbitration will be treated as confidential.
12.3. Trials and Betas. Argyle may offer optional Trials and Betas. Use of Trials and Betas is permitted only for Customer’s internal evaluation during the period designated by Argyle on the Service Order (or if not designated, 30 days). Either party may terminate Customer’s use of Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features never released. Despite anything to the contrary, Argyle offers no warranty, indemnity, Service Levels or Support for Trials and Betas and its liability for Trials and Betas will not exceed US$1,000.
12.4. Platform Modifications; Customer Terms Updates.
a. Platform Modifications. Argyle may make Modifications to the Platform from time to time. Argyle will provide Customer notice (including descriptions) of Modifications to the Platform as described in the Support Policy. If a Modification materially adversely affects Customer, Customer will notify Argyle within a reasonable period (not to exceed 30 days after the Modification occurs), and Argyle will use commercially reasonable efforts to cure that material adverse effect. If Argyle does not cure that material adverse effect within 30 days of its receipt of Customer’s notice, Customer may terminate the affected Service Order(s) on notice to Argyle, in which case Argyle will refund any prepaid, unused fees for the terminated portion of the Order Term(s). Customer acknowledges that Argyle cannot guarantee the continued availability of Data Locations or their continuing interoperation with the applicable Platform features, and, for clarity, Argyle's cessation of offering or supporting an integration with a Data Location is not a "Modification."
b. Customer Terms Updates. Argyle may update these Customer Terms (including, for clarity, any document referenced in these Customer Terms) from time to time. Argyle will give notice of material updates via its legal changelog, available at argyle.com/legal/changelog (“Legal Changelog”). Customer may subscribe to receive notifications of updates as described in the Legal Changelog. Except as otherwise set forth in the next sentence, those updates will apply (i) to all Service Orders executed after the date of the updated version, and (ii) prospectively to the renewal of Service Orders entered into before the date of the updated version as of the renewal date unless Customer elects not to renew as provided in the applicable Service Order, provided that the update was made at least ten (10) days before Customer’s right to not renew expired. On notice to Customer via the Legal Changelog, Argyle may modify the Support Policy, Service Levels, DPA, or Security Measures to (1) reflect new features or changing practices, (2) when an update is required as a result of changes in Law (including Applicable Data Protection Law (as defined in the DPA)), or (3) a merger, acquisition, or other similar transaction, but the updates may not be retroactive or materially decrease Argyle’s overall obligations during an Order Term.
12.5. Authorized Contractors. Subject to the DPA where applicable, each party may use Authorized Contractors to exercise its rights, perform its obligations, and otherwise act on its behalf in connection with this Agreement. As to Argyle, this may include Argyle’s procurement from Authorized Contractors data, software, content, technology, and other materials, and services that are used in providing, incorporated into, or made available via the Platform. For clarity, neither Consumers nor Data Locations are either party’s Authorized Contractors. Neither (a) Data Locations, (b) Argyle’s Affiliates, Authorized Contractors, or Consumers, or (c) Argyle’s or their partners, principals, members, employees, and agents (the persons referred to in the preceding Sections 12.5(b)-(c) are, together with Argyle, the “Argyle Indemnitees”) will have any liability or obligations to Customer, Customer’s Affiliates or Authorized Contractors, End Users, (together, “Customer Parties”) or any other person, arising out of this Agreement. Customer agrees to: (i) bring any claim or other legal proceeding of any nature arising from or related to Argyle’s breach of this Agreement against Argyle and not against any other Argyle Indemnitees; (ii) ensure that other Customer Parties do not assert any claim arising from or related to this Agreement against Argyle or the Argyle Indemnitees; and (iii) accept responsibility and liability if such a person pursues such a claim. Sections 10.2 and 12.5 are intended for the benefit of the Argyle Indemnitees.
12.6. Compliance with Applicable Law. Each party warrants to the other party that it will comply with all applicable Laws when exercising its rights or performing its obligations under this Agreement. Each party acknowledges and agrees that Consumer Data will be transmitted or made available in a mechanical manner, and that neither Argyle nor Customer will alter the substance of the Consumer Data. Each party will be acting only as a service provider and/or a conduit, and not as a consumer-reporting agency, in connection with the Consumer Data Processed under this Agreement. Argyle delivers Consumer Data as authorized by the Consumers. Each party acknowledges that neither party is a reseller of data but simply provides the service of transferring data as requested and authorized by the Consumer from a Data Location to the party (e.g., Customer) directed and authorized to receive the data by that Consumer. During the Term, if Customer is or becomes either a “consumer reporting agency” or a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”), or if Customer has reason to believe Argyle’s provision of the Platform would constitute a “consumer report” under the FCRA, (a) Customer will promptly notify Argyle in writing; (b) the parties will discuss in good faith any additional requirements imposed by applicable laws; and (c) if the parties are unable to agree on whether or how to comply with applicable laws, either party may terminate this Agreement on notice to the other party.
12.7. Notices. Except as otherwise set forth in this Agreement, notices to be given or submitted in connection with the Agreement must be in writing and delivered by hand, registered mail, or overnight delivery to the recipient at the address set forth on the applicable Service Order (or a later address as may be provided in accordance with this Section 12.7), and will be deemed given on the day they are received. As to notices to Argyle, Customer will provide copy of that notice (which will not be deemed notice) to [email protected]. Despite the foregoing, administrative notices that do not purport to alter legal or commercial terms and operational notices may also be sent via email and are deemed given on recipient’s confirmation of receipt, and operational notices may be given via the Platform or as otherwise set forth in this Agreement.
12.8. Publicity. Except as provided below, neither party may use the other’s name, trademarks, or logo, or refer to the other party (directly or indirectly) in any public disclosure, without the other party’s prior consent. Except as otherwise set forth in a Service Order, Argyle may publicly list Customer as a customer of Argyle and use Customer’s name, trademarks, service marks, trade names, and logos for marketing or promotional purposes and in other communications with existing or potential Argyle customers, resellers, or investors.
12.9. Force Majeure. Neither party will be liable for any delay or failure to perform as required by this Agreement (except for payment obligations) as a result of a condition beyond its reasonable control, so long as it uses reasonable efforts to mitigate the condition.
12.10. Entire Agreement; Interpretation. This Agreement (including all Service Orders, Statements of Work, and exhibits, attachments, and other documents incorporated by reference hereto and thereto) constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, proposals, statements, sales materials, presentations, or non-disclosure or other agreements, whether oral or written. No oral or written information or advice given by Argyle, its agents, or its employees will create a warranty or in any way increase the scope of the warranties or obligations in this Agreement. The parties agree that any term or condition stated in Customer’s vendor registration form portal, method, or in any purchase order document or similar document will be construed solely as evidence of Argyle’s or Customer’s, internal business processes and the terms and conditions contained therein will be void and have no effect with regard to this Agreement, even if accepted by Argyle or executed by the parties after the Effective Date. Each party acknowledges that this Agreement was fully negotiated by the parties and, therefore, no provision of this Agreement will be interpreted against any party because that party or its legal representative drafted that provision. Except with as otherwise expressly set forth herein, the parties do not intend to confer a third-party beneficiary right of action upon any third party.
12.11. Severability; Waiver. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to render that provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect. No failure or delay by either party in exercising any right or enforcing any provision under this Agreement will constitute a waiver of that right or provision, or any other provision. Titles and headings of sections of this Agreement are for convenience only and will not affect the construction of any provision of this Agreement.
12.12. Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (a) the applicable Service Order(s) (excluding provisions of Reseller Orders purporting to modify Argyle’s obligations under the Agreement unless Argyle has separately and expressly agreed with Customer to comply with those provisions), (b) the DPA, (c) the terms set forth in the body of these Customer Terms, (d) any other terms incorporated by reference herein or any other exhibits or attachments hereto, and (e) the applicable Documentation. For clarity: (i) any “Additional Terms” set forth on a Service Order apply solely with respect to that Service Order; and (ii) although Customer may order the Platform or Support through a Reseller, Argyle is not party to the agreement between the Reseller and Customer. For clarity, Argyle will have no obligation the Platform or Support resold by a Reseller in excess of that Reseller’s express authorization to resell as set forth in the Agreement between Argyle and that Reseller.
12.13. Messaging Services. The Platform may include functionality that enables Customer to send text messages or emails via the Platform to Consumers’ mobile devices or email accounts, as applicable (“Messaging Services”). Customer agrees that the use of Messaging Services are subject to the Messaging Policy available at argyle.com/legal/customers-and-developers/messaging-policy, which is incorporated into this Agreement by this reference. In addition, Customer agrees that to the extent text message and email functionality is made available, Customer's use of such functionality will be limited to sending non-marketing text messages or emails via the Platform to Consumers’ mobile devices or email accounts for the sole purpose of initiating the Consumer’s use of Link and who have given Customer express right to send SMS or email messages for that purpose.
13. Definitions
13.1. “Affiliate” means an entity controlled, controlling or under common control with a party, where control means at least 50% ownership or power to direct an entity’s management.
13.2. “API” means Argyle’s proprietary application programming interface accessible using the API Key(s) and through which Consumer Data may be delivered to Customer via the Platform (e.g., through the Customer Application or Console).
13.3. “API Key(s)” means the unique key(s) for the API made available by Argyle to Customer. An API Key may be a production API Key or a sandbox API Key.
13.4. “Argyle” means the party identified as “Argyle” on the Service Order.
13.5. “Argyle Software” means any proprietary apps or software that Argyle distributes to Customer as part of the Platform.
13.6. “Argyle Terms” means, together Argyle’s standard terms applicable to Consumers’ use of the Platform (including Link, available at argyle.com/legal/consumers, including (a) Argyle's Consumer Terms available at argule.com/legal/consumers/end-user-terms, and (b) Argyle’s privacy notice, available at argyle.com/legal/consumers/privacy-notice, (or successor URLs, and each of which as may be updated by Argyle from time to time).
13.7. “Authorized Contractor” means, as to a party, its Affiliates, contractors, agents, and others through which that party exercises its rights or performs its obligations under this Agreement, or that otherwise act on that behalf in connection with this Agreement and, as to Customer, only if that individual or entity is performing services to Customer under a separate written agreement with Customer and who(se): (a) has a need to use the Platform, but solely in performance of its obligations to Customer and (b) is not a competitor of Argyle; and (c) use of the Platform is subject to and consistent with this Agreement.
13.8. “Confidential Information” means, means, with respect to a disclosing party, all non-public information, data, and material disclosed in any form to the other party by or on behalf of the disclosing party that is marked or described as, contains content that would reasonably be considered to be, or is provided under circumstances reasonably indicating it is, confidential or proprietary. Customer’s Confidential Information includes Customer Data. Argyle’s Confidential Information includes the Agreement, the Platform, and non-public information and materials related to them, including technical or performance information about the Platform. For clarity, Consumer Data is neither party’s Confidential Information.
13.9. “Console” means Argyle’s web-based user interface (a) that End Users can use to initiate Consumer interaction with the Platform and (b) take delivery of Consumer Data as authorized by this Agreement. For clarity, Console is a means of using of the Platform without integrating the Platform with a Customer Application.
13.10. “Consumer” means an individual using the consumer-facing features and functionalities of the Platform via Link, including for the purpose of delivering their Consumer Data to Customer to enable Customer’s provision of products or services to that individual.
13.11. “Consumer Data” means any data or information relating to a Consumer retrieved by a Consumer from a Data Location using the Platform and delivered to Customer. For clarity, Consumer Data is neither party’s Confidential Information.
13.12. “Customer” means the party identified as ‘Customer’ on a Service Order.
13.13. “Customer Application” means a software and/or software-as-a-service application developed by or on behalf of Customer.
13.14. “Customer Data” means (a) non-public account administrative data, including billing information, account profile setup information, and similar administrative information, and (b) data or information relating to Consumers uploaded by End Users to the Platform; in each case as uploaded by End Users to the Platform (whether through the Customer Application or Console). Customer Data does not include Consumer Data or Usage Data.
13.15. “Data Location” means a third-party payroll, human resources, gig, or other platform with which the applicable Consumer has an account.
13.16. “Documentation” means Argyle’s standard usage documentation for the Platform available at docs.argyle.com.
13.17. “End User” means Customer's, its Affiliates', and Authorized Contractors', individual employees, contractors, agents, or others acting on Customer’s behalf, using the Platform through Customer. For clarity, individuals are Consumers and not End Users when using the Platform via Link.
13.18. “Enhanced Cap” means three (3) times the General Cap.
13.19. “Enhanced Claims” means a party’s breach of the DPA.
13.20. “General Cap” means amounts paid or payable by Customer under this Agreement in the 12 months immediately preceding the first incident giving rise to liability for which relief is sought.
13.21. “Laws” means all laws, regulations, rules, court orders or other binding requirements of a government authority that apply to a party.
13.22. “Link” means the front-end user interface widget Consumers use to interact with the Platform.
13.23. “Modification” means a material (a) change to the Platform or (b) release of a new version of the Platform.
13.24. “Order Effective Date” means, as to a Service Order, the “Order Effective Date” set forth on that Service Order.
13.25. “Order Initial Term” means, as to a Service Order, the Order Initial Term set forth on that Service Order.
13.26. “Order Renewal Term” means, as to a Service Order, the Order Renewal Term(s), of any, as set forth on that Service Order.
13.27. “Order Term” means, as to a Service Order, the Order Initial Term together with the Order Renewal Terms, if any, set forth on that Service Order or, if the Service Order is (a) an Online Order, the period set forth in Section 7.1, or (b) a Reseller Order, the applicable period set forth thereon.
13.28. “Platform” means Argyle’s software-as-a-service platform as ordered under a Service Order. For clarity, the Platform includes the API, API Keys, Console, and Link, but does not include Professional Services or resulting deliverables, Customer Applications, or Third-Party Platforms.
13.29. “Processing” (and “Process(ed)”) is defined in the DPA.
13.30. “Product/Service Terms” means Customer’s standard terms and privacy notice applicable to Consumers’ use of the Customer Application under which Customer obtains and maintains the right to process Consumer Data delivered to Customer via the Customer Application, or those other terms and privacy notices under which Customer otherwise obtains and maintains the right to Process Consumer Data delivered to Customer as contemplated in this Agreement.
13.31. “Professional Services” means training, migration, or other professional services that Argyle furnishes to Customer related to the Platform, as described in the applicable Statement of Work.
13.32. “Reseller” means a third-party authorized by Argyle to resell or otherwise distribute the Platform under a separate agreement between Argyle and that third-party.
13.33. “SDK” means Argyle’s proprietary software development kit made available to Customer and designed to enable the integration of Link into the Customer Application(s).
13.34. “Service Order” means an order for Customer’s access and use of the Platform, Support, Professional Services, or related services that is (a) (i) executed by the parties and incorporating or otherwise referencing these Customer Terms, or (ii) is an ordering screen setting forth commercial terms with respect to Customer’s use of the Platform and presenting Customer the ability to accept this Agreement by clicking a box indicating acceptance of this Agreement before proceeding to a step in which Customer enters its payment information (“Online Order”) or (b) executed by Customer and a Reseller and incorporating or otherwise referencing these Customer Terms (each a “Reseller Order”).
13.35. “Statement of Work” means a statement of work for Professional Services that is executed by the parties and references this Agreement.
13.36. “Support” means support for and maintenance of the Platform as described in Section 3.1 (Support).
13.37. “Third-Party Platform” means any product, add-on, or platform not provided by Argyle that Customer uses with the Platform, including Argyle-authorized Reseller or distributor platforms with which the Platform interoperates or is otherwise accessible.
13.38. “Trials and Betas” mean use of the Platform or Platform features or functionalities on a free, pilot, trial, beta or early-access basis.
13.39. “Uncapped Claims” means (a) the indemnifying party’s obligations under Section 10 (Indemnification), (b) either party’s willful infringement or misappropriation of the other party’s intellectual property rights, (c) breaches of Section 8 (Confidentiality) (excluding breaches related to Customer Data), and (d) liabilities that cannot be limited by law.
13.40. “Usage Data” means Argyle’s technical logs, data and learnings about Customer’s use of the Platform, but excluding Customer Data and Consumer Data.
13.41. “Virus” means viruses, malicious code or similar harmful materials.