Master Subscription Agreement
This Master Subscription Agreement (the “Agreement”) is a legal agreement between DigiFi, Inc. (“Provider,” “us,” “we,” or “our”) and you, either individually, or on behalf of your employer or any other entity which you represent (“Subscriber”, “you” or “your”). Provider and Subscriber are sometimes referred to in this Agreement individually as a “party” and collectively as the “parties.” By accepting this Agreement, either by accessing or using the Service, you accept and expressly acknowledge and agree to be bound by this Agreement. Your access to and use of the Service is conditioned on your acceptance of and compliance with this Agreement. If you do not agree to be bound by this Agreement, do not access or use any part of the Service.
General: Provider offers web-based applications, tools and services for lending (the “Service”). Your access to the Service is governed by the plan you select which specifies the products, services, features, number of seats, allowable usage and fees associated with your plan (the “Plan”). Subject to your payment of the applicable Fees and the terms and conditions of this Agreement, Provider hereby grants to you a non-exclusive, non-transferable, non-sublicensable, revocable, and limited license to access and use the Service during the Subscription Term of this Agreement. The foregoing license may be limited with respect to the products, services, features, number of seats, or the allowable usage of the Service as governed by your Plan.
Eligibility: This is a contract between you and Provider. You may use the Service only if you can form a binding contract with Provider, and only in compliance with this Agreement and all applicable local, state, federal, and international laws, rules and regulations. Any use or access of the Service by anyone under 18 is strictly prohibited and in violation of this Agreement. If you are accessing or using the Service on behalf of, or for the benefit of, any entity, company or organization with which you are associated (“Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement.
Accounts: As part of the registration process, you will identify a username and password to create an account in order to use the Service. Once you have registered your account and subject to the terms of your Plan, you may enable access to other users within your Organization (together with your account, each a “User Account”). You agree and acknowledge that each User Account cannot be shared or used by more than one (1) individual. You are responsible for maintaining the confidentiality of your User Account and responsible for the activity that occurs on your User Account. Provider will not be liable for any losses caused by any unauthorized use of your User Account. Provider reserves the right in its sole discretion to refuse registration to the Service.
Modifications: You acknowledge that Provider may modify the features, functionality and other elements of the Service during the Subscription Term.
Professional Services: If available as part of your Plan, you may request and we may provide you with additional implementation, configuration, customization, development, training and support services (“Professional Services”). Professional Services may be outlined in one or more mutually agreed-upon and jointly executed Statement of Work, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of the Professional Services to be provided. Provider shall not be obligated to perform any Professional Services until both parties have mutually agreed upon and executed a Statement of Work with respect to such Professional Services. Provider and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Professional Services in a professional manner. Subscriber agrees to provide, at no cost to Provider, adequate assistance and other resources reasonably requested by Provider to enable the performance of the Professional Services. Provider will not be liable for any deficiency in the performance of Professional Services to the extent such deficiency results from any acts or omissions of Subscriber, including, but not limited to, Subscriber’s failure to provide assistance to Provider as required hereunder. Provider is an independent contractor and will maintain complete control of and responsibility for its staffing, methods and operations in providing Professional Services.
2. Fees & Payment Terms
Fees: You agree to pay Provider the applicable fees described in your Plan. Fees include your monthly subscription fee (“Subscription Fee”) and your Professional Services fee, if applicable (“Professional Services Fee”) (collectively, the “Fees”). The Professional Services Fee will be calculated by multiplying (a) the number of hours worked, in minimum increments of one hour, during the invoice period, times (b) the Professional Services Rate (as defined in your Plan). Provider reserves the right to change the Fees and to institute new Fees upon prior notice to you. Prices are in United States dollars. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties in your jurisdiction.
Payment: The Subscription Fee are due in full upon commencement of each Subscription Term. The Professional Services Fee is invoiced in arrears on a monthly basis and due by the date specified in the applicable invoice. You are responsible for providing valid and current payment information and you agree to promptly update your account information, including payment information, with any changes that may occur. If you fail to pay the Fees we may suspend or terminate access to and use of the Service by you, we may cease providing Professional Services and we reserve the right to terminate this Agreement at our sole discretion. Beginning thirty (30) days following the due date, unpaid amounts are subject to a finance charge of one and a half percent (1.5%) per month, or the maximum permitted by law, whichever is lower, plus reasonable expenses of collection. Amounts already paid are neither fully or partially refundable.
Payment Agent: Payments are billed and processed by a payment agent designated by Provider (“Payment Agent”). You hereby authorize the Payment Agent to bill your payment instrument in accordance with the terms of your Plan and you further agree to pay any Fees so incurred.
Plan Upgrades: If you choose to upgrade your Plan during the Subscription Term, any incremental Subscription Fees associated with such upgrade will be immediately charged in accordance with the remaining Subscription Term. In any future Subscription Term, your Subscription Fee will reflect any such upgrades.
Plan Downgrades: You may not downgrade your Plan during any Subscription Term. To downgrade your Plan for a subsequent Subscription Term, you must downgrade your Plan prior to the end of your then current Subscription Term. Downgrading your Plan may cause loss of products, services, features, number of seats or allowable usage of the Service.
Dispute Resolution: If you believe that we have invoiced you incorrectly, you must contact Provider no later than thirty (30) days after the date of the first invoice in which the error or problem appeared. Upon receipt of such notice, we will review the circumstances and upon confirmation, will issue an adjustment or credit, as the circumstances warrant. We will have no obligation to issue any such adjustments or credits for notices received later than thirty (30) days after the closing date on the first invoice in which the error or problem appeared, and all invoices will then be deemed accurate and accepted. Inquiries should be directed to Provider’s accounting department at email@example.com
3. Term & Termination
Term: Subject to earlier termination as provided elsewhere, this Agreement is for a term of one (1) month and will be automatically renewed for additional periods of one (1) month (each, a “Subscription Term”) unless either party provides notice of termination prior to the end of the then-current Subscription Term.
Termination for Cause: Either party may terminate this Agreement at any time upon written notice to the other party if (a) the other party materially breaches this Agreement and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; (b) the other party is (i) dissolved or liquidated or takes any corporate action for such purpose, (ii) becomes insolvent or is generally unable to pay its debts as they become due, (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law, which in the case of an involuntary proceeding is not dismissed with forty-five (45) days, (iv) makes or seeks to make a general assignment for the benefit of its creditors, or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property; or (c) the other party is unable to perform its obligations under this Agreement due to a Force Majeure Event.
Effect of Termination: In the event of the termination of this Agreement: (a) Subscriber will no longer have the right to use the Service, and any licenses or access granted to Subscriber shall automatically cease as of the date of termination; (b) Subscriber will remain responsible for payment for Fees incurred prior to the date of termination; and (c) Provider will have no obligation to maintain or produce Subscriber Data under this Agreement, and may, in Provider’s sole discretion, delete or destroy all copies of Subscriber Data. Notwithstanding the foregoing or anything else in this Agreement, the terms of this Agreement that by their terms are perpetual or are otherwise intended to survive this Agreement will survive the termination of this Agreement.
4. Free Trials
If you register for a free trial of the Service, we will make the Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the Service; (b) the start date of any subscription to the Service purchased by you; or (c) termination of the trial by us in our sole discretion. Trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY SUBSCRIBER DATA YOU ENTER INTO THE SERVICE DURING YOUR FREE TRIAL MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SERVICE BEFORE THE END OF THE TRIAL PERIOD.
5. Restrictions & Responsibilities
License Restrictions: You will not, directly or indirectly: (a) copy, reproduce, download, distribute, post, republish, display, modify, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, structure, ideas, know-how or algorithms relevant to the Service; (b) translate, or create derivative or other works based on the Service; (c) use the Service for the benefit of any third party or rent, lease, lend, sell, sublicense, assign, distribute, publish or otherwise make available the Service to any third party; (d) interfere with or disrupt the integrity or performance of the Service; (e) remove, alter, obscure, combine, supplement or otherwise change any proprietary notices or labels relating to the Service; (f) send, store, access, post, transmit, link to, or otherwise distribute any spam, unlawful, infringing, obscene or libelous materials, or malicious code; (g) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable laws; or (h) use the Service for purposes of: (i) benchmarking or competitive analysis of the Service or (ii) developing, using or providing a competing software product or service.
Equipment: You will be responsible for obtaining and maintaining, at your own expense, any and all equipment and ancillary services needed to connect to, access or otherwise use the Service including internet connections, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, the “Equipment”). You will also be responsible for maintaining the security of your User Account on the Service and for all uses of your User Account with or without your knowledge or consent. You understand that communications may traverse an unencrypted public internet connection and that use of the internet provides the opportunity for unauthorized third parties to illegally gain access to your data. Accordingly, Provider does not guarantee the privacy, security or authenticity of any information transmitted over the internet. You are further responsible for purchasing or licensing third party software and services required to use the Service and for inter-operability of the Service with your other software and systems.
Compliance with Laws: You represent, covenant, and warrant that you will use the Service only in compliance with all applicable laws, rules and regulations. You are solely responsible for ensuring compliance with all applicable laws, rules and regulations, including, but not limited to, laws, rules and regulations related to lending, when using the Service.
Non-Competition: You represent, covenant, and warrant that you are not a competitor of Provider with respect to the Service.
Representations & Warranties: Each party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
Availability: Provider will use reasonable efforts consistent with prevailing industry standards to make the Service available to you. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Provider or by third-party providers, or internet service provider failures or delays, or because of a Force Majeure Event, but we will use commercially reasonable efforts to provide advance notice of any scheduled service disruption.
Data Security: Provider will maintain, monitor and enforce a comprehensive written data security program, which program includes administrative, technical and physical safeguards and written policies and procedures reasonably designed to (a) ensure the security and confidentiality of Subscriber Data; (b) protect against any anticipated threats or hazards to the security or integrity of Subscriber Data; and (c) protect against unauthorized access to or use of Subscriber Data. We will as promptly as commercially reasonably practicable remediate any and all security incidents.
7. Confidentiality & Ownership
Confidentiality: Each party will protect the other party’s information of a confidential, sensitive, or private or proprietary nature ("Confidential Information") from unauthorized use, access or disclosure. Each party may use the other party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees, service providers, vendors and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law, rule or regulation.
Ownership: As between the parties, Provider shall own and retain all right, title and interest in and to the Service and Provider’s Confidential Information, including all intellectual property rights. Subscriber may not duplicate, copy, or reuse any portion of the Service without Provider’s prior written permission. No rights are granted to Subscriber hereunder other than as expressly set forth herein. As between the parties, Subscriber shall own all right, title and interest in and to any data, information or other materials submitted by Subscriber to the Service (“Subscriber Data”) and Subscriber’s Confidential Information. Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and copyright of all Subscriber Data. For the purposes of operating, providing, supporting, improving, or developing the Service, Subscriber grants to Provider the free, non-exclusive, worldwide right to use the Subscriber Data and Subscriber’s Confidential Information without attribution. Subject to the confidentiality obligations of this Agreement, Subscriber agrees that Provider may use Subscriber Data to compile, use and disclose anonymous, aggregated statistics, provided that no such information will directly identify and cannot reasonably be used to identify Subscriber or Subscriber's User Accounts. Provider shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber.
8. Use Of Names, Logos And Trademarks
Either party may identify the other as a customer or vendor, as applicable, in customer or vendor lists, advertisements, press releases and on their respective websites, including company name, logo, industry group and the general nature of the Service. Neither party may disclose the specific financial arrangements contemplated by this Agreement.
9. Disclaimer Of Warranties
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH NO OTHER WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR DOES PROVIDER WARRANT THE ACCURACY, SATISFACTORY QUALITY, COMPLETENESS, NON-INFRINGEMENT OR OTHER WARRANTY ARISING OUT OF THE COURSE OF ORDINARY PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE REGARDING OR RELATING TO MATTERS COVERED UNDER THIS AGREEMENT, INCLUDING WITH RESPECT TO THE SERVICE AND ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SERVICE.
YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE. YOU FURTHER ACKNOWLEDGE THAT NEITHER THE SERVICE, NOR ANY INFORMATION CONTAINED THEREIN, IS INTENDED AS LEGAL, REGULATORY, COMPLIANCE, TAX OR ACCOUNTING ADVICE OF ANY NATURE. YOU ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS, INCLUDING, BUT NOT LIMITED TO, LAWS, RULES AND REGULATIONS RELATED TO LENDING, WHEN USING THE SERVICE. UNDER NO CIRCUMSTANCES SHOULD THE CONTENT OF THE SERVICE BE CONSTRUED AS PROVIDING LEGAL, REGULATORY, COMPLIANCE, TAX OR ACCOUNTING ADVICE OR ANY ADVICE OF ANY KIND TO ANY ORGANIZATION, PERSON OR ENTITY. THIS PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
Provider Indemnification Obligations: Provider will indemnify, defend and hold harmless Subscriber, its affiliates and its and their representatives, contractors, suppliers and licensors (collectively, the “Subscriber Parties”) from and against any and all losses as incurred, arising out of or in connection with any third-party claims arising from or relating to Provider’s breach of its obligations under this Agreement.
Your Indemnification Obligations: You will indemnify, defend and hold harmless Provider, its affiliates and its and their representatives, contractors, suppliers and licensors (collectively, the “Provider Parties”) from and against any and all losses as incurred, arising out of or in connection with any third-party claims arising from or relating to (a) your use of the Service; or (b) your breach of your obligations under this Agreement.
Indemnification Procedure: The party to be indemnified (“Indemnified Party”) will give the indemnifying party (“Indemnifying Party”) prompt notice of any claim (but the failure to give such notice will not relieve the Indemnifying Party of any of its obligations except to the extent the Indemnifying Party is materially prejudiced thereby), will allow the Indemnifying Party control of the defense of any such claim made against it (so long as any settlement (a) does not, without the Indemnified Party’s prior written approval, (i) involve the admission of any wrongdoing by any Indemnified Party, (ii) restrict any Indemnified Party’s future actions, or (iii) require any Indemnified Party to take any action, including the payment of money, and (b) includes a full release of all of the Indemnified Party), and will give the Indemnifying Party reasonable assistance, at the Indemnifying Party’s expense, requested by the Indemnifying Party in writing in connection therewith. Each applicable Indemnified Party will have the right to participate in the defense of any such claim at its own expense, and such participation by such Indemnified Party will not relieve the Indemnifying Party of its indemnification obligations.
11. Limitation Of Liability
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOREOVER, SUBJECT TO THE FOREGOING SENTENCE, AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE OF ALL FEES PAID BY YOU TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIMS OR DAMAGES THAT YOU MAY HAVE AGAINST PROVIDER SHALL ONLY BE ENFORCEABLE AGAINST PROVIDER AND NOT ANY OTHER ENTITY, NOR ANY OFFICERS, DIRECTORS, REPRESENTATIVES OR AGENTS OF PROVIDER OR ANY OTHER ENTITY.
12. Force Majeure
Neither party will have liability under this Agreement if it is prevented from, or delayed in, performing its obligations under this Agreement, or from carrying on its business, by a Force Majeure Event. The party whose performance is prevented, hindered or delayed by a Force Majeure Event will promptly notify the other party of such an event describing in reasonable detail the nature of the Force Majeure Event and its expected duration. As used herein, a “Force Majeure Event” means an act of god, act of governmental body or military authority, fire, explosion, flood, epidemic, pandemic, riot or civil disturbance, war, sabotage, insurrections, blockades, embargoes, terrorism, viruses, cyber-attacks, floods, fire, storms, delays by suppliers or material shortages or other similar events that are beyond the reasonable control of the affected party.
Assignment: This Agreement will inure to the benefit of the parties and their successors and permitted assigns. This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent, provided, however, that either party may assign this Agreement, in whole or in part, without the other party’s prior written consent, to (a) any of its affiliates or (b) any entity that acquires all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale or otherwise. Any and all assignments not made in accordance with this section will be void. Without limiting any of the foregoing and in addition thereto, Provider may from time to time, in its discretion subcontract certain obligations under this Agreement to third parties, and, in such event, will remain responsible for the performance of such third parties under this Agreement.
Amendment: Provider reserves the right to alter the terms of this Agreement at any time, in which case the new Agreement will supersede prior versions. The most recent Agreement available on Provider's website is the version currently in force. Any use of the Service after alteration of the Agreement will constitute your acceptance of such changes. Your sole remedy should you not agree with the altered Agreement shall be to cease use of the Service.
Governing Law: This Agreement will be governed by and construed in accordance with the laws of the United States and the internal law of the State of New York, without regard to the conflicts of law principles thereof, and any action brought in relation to this Agreement will be brought in a Federal or State court in New York County, New York State. Each party waives any right to trial by jury with respect to any dispute, suit, action or proceeding arising out of or relating to this Agreement or otherwise relating to the relationship of the parties, whether in contract, tort or otherwise.
Export Compliance: The Service may be subject to export controls and economic sanctions laws and regulations of the United States and other jurisdictions. Subscriber agrees to comply with all such laws and regulations as they relate to the Service. Subscriber represents that they are not named on any U.S. government restricted-party list, will not access or use the Service in a U.S.-embargoed country or region and will not permit the Service to be used for any prohibited end use.
Dispute Resolution: Each of the parties will make a good faith effort to negotiate and mediate any claim, dispute or controversy (a "Dispute") arising out of this Agreement before the filing of an action in any court. If the Dispute is not resolved within thirty (30) days, the parties agree that the Dispute will be submitted to binding arbitration and each party will pay its own attorneys' fees and costs. Claims for nonpayment of fees and claims for injunctive relief are exceptions, can be brought in a court, and the judge will have the power to award attorneys' fees and costs. Both Subscriber and Provider waive any right to bring any Dispute on a class, private attorney general, representative, or similar basis.
Waiver: No failure or delay by either party in exercising any right, power or remedy under this Agreement will operate as a waiver of any such right, power or remedy. No waiver of any provision of this Agreement will be effective unless in writing and signed by both parties. Any waiver by any party of any provision of this Agreement will not be construed as a waiver of any other provision of this Agreement, nor will such waiver operate or be construed as a waiver of such provision respecting any future event or circumstance.
Severability: If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
Notices. All notices to Subscriber will be by email to the email address provided in the User Account. All notices to Provider will be by email to firstname.lastname@example.org
Independent Contractors. The parties are independent contractors, and nothing contained in this Agreement will be construed to constitute the parties as partners, joint ventures, co-owners, employer/employee, or otherwise as participants in an agency or joint or common undertaking.
Third-Party Service Providers: In the ordinary course of its business, Provider may use third-party service providers, vendors and contractors (“Service Providers”) to support the provision of the Service. Provider reserves the right to engage and substitute Service Providers as it deems appropriate to provide the Service, but shall remain responsible for the acts or omissions of such Service Providers undertaken in connection with this Agreement.
Entire Agreement. This Agreement constitutes the complete agreement and understanding between the parties and supersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the subject matter hereof.
Last Modified: March 1, 2022