Partner Terms and Conditions
FamilyMint Services Agreement
PLEASE READ THIS SERVICES AGREEMENT CAREFULLY BEFORE REGISTERING AS A FAMILYMINT CUSTOMER (“Customer”). YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOURSELF AND/OR THE ENTITY THAT YOU PURPORT TO REPRESENT.
The effective date of this Agreement (the “Effective Date”) is the date on which Customer accepts the following terms and conditions by checking the “I agree” box on the Sign-Up form.
FamilyMint may change the Agreement from time to time at its sole discretion by posting notice of the change on the FamilyMint website (located at http://www.familymint.com) (the “Site”), provided that if FamilyMint makes any material changes to this Agreement, FamilyMint will also notify Customer by sending Customer an e-mail to the last e-mail address Customer provided to FamilyMint in accordance with Section 13. Any changes to this Agreement will be effective immediately for Customers who enter into this Agreement after the posting of notice of such changes on the Site and will be effective thirty (30) days after posting of notice of such changes on the Site for Customers who entered into this Agreement prior to the posting of notice of such changes on the Site (“Existing Customers”). Notwithstanding the foregoing, any material changes shall be effective for Existing Customers upon the earlier of thirty (30) calendar days following posting of notice of such changes on the Site or thirty (30) days after dispatch of an e-mail notice of such changes to Existing Customers. FamilyMint may require Existing Customers to provide consent to the updated Agreement in a specified manner before further use of the Co-Branded Website is permitted. If Customer does not agree to any change after receiving a notice of such change, Customer shall stop using the Co-Branded Website and terminate this Agreement as described below. Otherwise, Customer’s continued use of the Co-Branded Website constitutes Customer’s acceptance of the changes.
1. Nature of Agreement. FamilyMint operates a website at www.familymint.com which hosts an application that helps parents guide their children’s spending habits and helps children develop vital money management skills (the “Website”). FamilyMint and Customer have decided to co-brand a portion of the Website, which will be available to Customer’s customers, members and/or end users (collectively, Customer’s “Users”).
2. Co-Branded Website; Services.
2.1 SCOPE OF SERVICES
(a) FamilyMint will create a co-branded version of the Website for Customer (“Co-Branded Website”) using Customer-provided trademarks, and FamilyMint will host the Co-Branded Website on FamilyMint’s servers, or the servers of a third party hosting services provider (the “Servers”), during the term of this Agreement. Customer will provide Marks and ad spots for co-branding the Co-Branded Website.
(b) FamilyMint may, in its sole discretion, add, delete or modify the functionality and/or versions available through the Co-Branded Website.
(c) The Co-Branded Website will offer FamilyMint Premium to Users who receive an invitation from Customer to sign up for Co-Branded Website.
(d) Customer Service – Users will use existing FamilyMint forums or will contact FamilyMint directly. There will be no additional cost to Customer for this ongoing support
As applicable, the Co-Branded Website and Services are collectively referred to as “Deliverables.”
2.3 FamilyMint is permitted to use subcontractors in performing its obligations under this Agreement, provided that FamilyMint remains liable and responsible for each such subcontractor’s compliance with and/or breach of this Agreement.
2.4 Customer acknowledges and agrees that FamilyMint has the right to use the Servers on which the Co-Branded Website is kept for any applications as FamilyMint, in its sole discretion, may elect, including, without limitation, FamilyMint’s right to use the Servers to provide concurrent services to third parties.
2.6 The parties agree and acknowledge that FamilyMint may seek, obtain and use sponsorships and/or advertisements from third parties participating as goal sponsors (“Goal Sponsors”) on the Co-Branded Website. Goal Sponsors means various companies and businesses, excluding any and all credit unions, banks, financial institutions, or any entities offering financial services or personal financial management software, including but not limited to savings, investment and credit products, that will offer discounts and/or products to Users with savings goals related to the Goal Sponsors’ services and/or products as incentives for using the Co-Branded Website. FamilyMint will not use Customer designated advertising space to promote Goal Sponsors. FamilyMint is entitled to retain all amounts and consideration generated by such sponsorship and advertisements from Goal Sponsors.
2.7 Each party shall bear all of its own costs and expenses associated with the exercise of its rights and performance of its obligations under this Agreement, including, but not limited to, all equipment, telephone lines, hardware, software, and other materials necessary for the performance of its obligations and exercise of its rights under this Agreement.
3. Access to Co-Branded Website.
3.1 Subject to the terms of this Agreement, FamilyMint grants to Customer and its Users a non-exclusive, non-transferable license to access and use the Co-Branded Website solely for the purposes set forth within this Agreement. This includes the right for Customer and its Users to view, print, display, download, and store information contained in and/or generated by the Co-Branded Website for non-commercial purposes. All rights not expressly granted by FamilyMint to Customer and its Users are retained by FamilyMint, and neither Customer nor its Users may access or use the Co-Branded Website in any manner or for any purpose not expressly authorized by this Agreement or on the Co-Branded Website.
3.2 Unauthorized use of the Co-Branded Website is expressly prohibited. Customer shall not copy, license, sell, transfer, make available, distribute, or assign this license or the Co-Branded Website to any third party. Customer also shall not “frame” or “mirror” the Co-Branded Website on any other server or Internet-based device, without FamilyMint’s prior written consent. Except as expressly provided in the Agreement, the Co-Branded Website may be used by Customer and Customer’s Users only, and may not be used by, or for the benefit of, any other third party.
3.3 Customer may create one or more personal, non-transferable passwords to access the Co-Branded Website. Customer is and will remain responsible for maintaining the confidentiality of that password(s), and for all activities conducted on the Co-Branded Website that make use of that password(s), including any use that Customer may subsequently contend was not unauthorized by Customer. Customer’s access to and/or use of the Co-Branded Website cannot be shared or used by any one entity. Customer shall notify FamilyMint immediately of any unauthorized use of Customer’s password(s) that is known or suspected by Customer. FamilyMint will not be responsible for any acts or damages caused by any unauthorized use of Customer’s password(s).
4. Ownership and Licenses.
4.1 Except as provided in Section 4.2, FamilyMint owns and shall retain all rights, title and interests, including all intellectual property rights, in and to its Marks, the Deliverables, Co-Branded Website, and any and all other materials created by FamilyMint in connection with, or pursuant to, this Agreement, including, without limitation, all copyrightable works of original authorship (including but not limited to computer programs, technical specifications, manuals, and business plans), ideas, inventions (whether patentable or not), know-how, processes, compilations of information, trademarks, the manner in which the Co-Branded Website receives, stores, formats, displays and organizes content and permits users to view, print, display, download, manipulate, analyze and reformat content, and all modifications, adaptations and derivative works of any of the foregoing, whether created by FamilyMint, Customer and/or the parties jointly (collectively, “Proprietary Materials”). No Proprietary Materials created by FamilyMint in connection with, or pursuant to, this Agreement are or shall be considered “works made for hire” as that term is used in connection with the U.S. Copyright Act. To the extent that Customer owns any rights in such Proprietary Materials, Customer hereby irrevocably assigns to FamilyMint all rights, title and interest, including all intellectual property rights, in such Proprietary Materials. Customer agrees to provide reasonable assistance to FamilyMint, at FamilyMint’s cost, in connection with FamilyMint’s registration or recordation of its intellectual property rights in Proprietary Materials.
4.2 Customer owns and shall retain all rights, title and interests, including all intellectual property rights, in and to all Marks, and all modifications and adaptations of Marks, whether created by FamilyMint, Customer and/or the parties jointly.
4.3 During the term of this Agreement, each party may reproduce and use the other party’s approved Marks in connection with the performance of its obligations and exercise of its rights under this Agreement, as approved in writing by the other party. Each party acknowledges and agrees that its reproduction and use of the Marks of the other party are under the sole control and supervision of the other party. Each party’s reproduction and use of the Marks, and all goodwill established thereby and/or associated therewith, shall inure exclusively to the benefit of the other party, and the party using such Marks acquires no goodwill or other legal rights or interests in the Marks other than the right to use the Marks in connection with its activities under this Agreement. All rights in the Marks not expressly granted by a party under this Agreement are reserved by such a party, and a party may not use the Marks in any manner not expressly authorized in this Agreement. Each party is expressly prohibited from challenging or contesting in any way the validity of the Marks, their registration with the U.S. Patent and Trademark Office (if any), or their ownership by the other party.
5. Disclaimer of Warranties. THE CO-BRANDED WEBSITE IS PROVIDED TO CUSTOMER UNDER THIS AGREEMENT “AS IS”, WITHOUT ANY WARRANTY OR GUARANTY OF ANY KIND OR NATURE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FAMILYMINT DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR USE.
6.1 During this Agreement, each party may have access to information that is considered confidential by the other. This information may include, but is not limited to, Proprietary Materials, User Data, technology, know-how, procedures, processes, protocols, specifications, strategic plans, designs, systems, software object code and source code, documentation, sales and marketing plans, results of testing, customer information, financial information, product information, proposed business arrangements, methods of operation and compilations of data (“Confidential Information”). Confidential Information must be marked or identified as “confidential” by the disclosing party, unless the information should reasonably be understood by the receiving party to be confidential or proprietary under the circumstances.
6.2 Each party shall use the other’s Confidential Information only for the purposes of this Agreement. Each party shall maintain the confidentiality of the other party’s Confidential Information in the same manner in which it protects its own Confidential Information of like kind, but in no event shall either party take less than reasonable precautions to prevent the unauthorized disclosure or use of the other party’s Confidential Information. Neither party shall export, disseminate or otherwise transfer, in writing, orally and/or electronically, the other party’s Confidential Information outside of the United States.
6.3 Each party is permitted to disclose the other party’s Confidential Information to its employees, contractors and other third parties on a need to know basis only, provided that such employees, contractors and/or third parties have written or legal confidentiality obligations to that party no less stringent than those contained in this Agreement. Each party shall be and remain fully liable and responsible for its employees’, contractors’ and/or other third parties’ unauthorized disclosure or use of the other party’s Confidential Information.
6.4 Each party is permitted to disclose the other party’s Confidential Information as legally required in response to a court order, subpoena, administrative proceeding and/or similar legal process; provided that it gives the other party reasonable notice of the request, and an opportunity to defend and/or attempt to limit or prevent the disclosure of its Confidential Information.
6.5 The confidentiality provisions of this Agreement do not apply to information that is or becomes generally available or known to the public through no act or omission of the receiving party; was received lawfully from a third party through no breach of any obligation of confidentiality owed to the disclosing party; or created by a party independently of its access to or use of the other party’s Confidential Information.
6.6 Upon termination of this Agreement, each party shall return the other party’s Confidential Information and shall not use the other party’s Confidential Information for its own, or any third party’s, benefit. The provisions of this Section shall survive termination of this Agreement for so long as the Confidential Information remains confidential.
7. Term and Termination.
7.1 This Agreement will continue to apply until terminated by either Customer or FamilyMint as set forth below (the “Term”). This Agreement may be terminated at any time by Customer upon thirty (30) days’ advance written notice to FamilyMint. FamilyMint may at any time terminate this Agreement, or Customer’s access to Co-Branded Website, effective on written notice to Customer, if (a) Customer has breached any provision of this Agreement (or has acted in a manner that, in FamilyMint’s reasonable judgment, shows that Customer does not intend to, or is unable to, comply with this Agreement); (b) FamilyMint is required to do so by law (for example, where the provision of access to the Co-Branded Website is, or becomes, unlawful); (c) the provision of access to the Co-Branded Website or one or more User Accounts is, in FamilyMint’s reasonable judgment, no longer commercially viable; (d) FamilyMint has elected to discontinue the Co-branded Website (or any part thereof).
7.2 Subject to the terms of this Agreement, all provisions of this Agreement relating to ownership, indemnification, limitations of liability and confidentiality shall survive expiration or termination of this Agreement.
8. Conduct of Business. Customer will (a) conduct business in a manner that reflects favorably on the FamilyMint Property, goodwill, and reputation of FamilyMint; (b) conduct business in full compliance with all applicable laws and regulations; (c) not engage in deceptive, misleading, or unethical practices; and (d) not represent that it is providing services on behalf of, or affiliated with, FamilyMint.
9. Fees. Each month during the Term, Customer agrees to pay any Fee for access to or use of the Co-Branded Website in accordance with the billing terms in effect at the time such Fee is due and payable. Customer may be asked to provide FamilyMint with valid credit card information as a condition to entering into this Agreement or arrange another mutually acceptable means for payment of such Fees. Unless the parties have agreed to an alternate payment arrangement, FamilyMint will automatically bill Customer’s credit card every month. The Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer is responsible for payment of all such taxes, levies or duties. All Fees are non-refundable. If timely payment is not received or cannot be charged to Customer’s credit card for any reason, FamilyMint has the right to either suspend or terminate Customer’s access to the Co-Branded Website. If FamilyMint receives a cancellation notice from Customer, Customer will be obligated to pay the balance due on Customer’s account. Customer agrees that FamilyMint may charge such unpaid fees to Customer’s credit card or otherwise bill Customer for such unpaid fees.
10.1 FamilyMint shall defend, at its sole expense, any third party claim, demand or suit (“Claim”) against Customer that arises from and/or alleges that its Marks and/or any Deliverable infringes a third party’s patent, copyright, trademark, trade secret or other intellectual property right and/or violates a third party’s contract or other rights; and shall indemnify and hold Customer harmless from and against any and all losses, liabilities, damages, fines, penalties, costs, expenses and/or fees (including reasonable attorneys’ fees) awarded or assessed against Customer in connection with such Claim, or reached through a negotiated settlement of such Claim.
10.2 Except for the Claims that FamilyMint is responsible for under Section 10.1, Customer shall defend, at its sole expense, any Claim against FamilyMint that arises from and/or alleges that any Customer Mark infringes a third party’s copyright, trademark or other intellectual property right and/or violates a third party’s contract or other rights; and shall indemnify and hold FamilyMint harmless from and against any and all losses, liabilities, damages, fines, penalties, costs, expenses and/or fees (including reasonable attorneys’ fees) awarded or assessed against FamilyMint in connection with such Claim, or reached through a negotiated settlement of such Claim.
10.3 In order to receive indemnification under this Section, the party seeking indemnification must promptly notify the other party in writing of the assertion of the Claim; permit the other party to exercise sole control over the defense and/or settlement of the Claim; and cooperate with the other party, at the other party’s expense, in the defense and/or settlement of the Claim. No Claim may be settled by either party without the prior express written consent of the other party, which shall not be unreasonably withheld. This Section sets forth each party’s sole rights and obligations in connection with the Claims described herein.
11. Limitation of Liability. Except as expressly provided herein, in no event shall either party be liable to the other party in connection with this Agreement, regardless of the form of action or theory of recovery, for any: (a) indirect, special, exemplary, consequential, incidental or punitive damages, even if that party has been advised of the possibility of such damages; (b) lost profits, lost revenues, lost business expectancy, business interruption losses and/or benefit of the bargain damages; and/or (c) direct damages in excess of the total of all fees paid and payable to FamilyMint under this Agreement. Notwithstanding the foregoing, the limitations set forth in this Section shall not apply to: (i) a party’s breach of its confidentiality obligations under this Agreement; (ii) a party’s infringement, misappropriation or violation of the other party’s intellectual property rights; and/or (iii) a party’s indemnification obligations under this Agreement. Any claim arising out of this Agreement must be initiated within one (1) year of the date the party knew, or reasonably should have known, of the existence of such claim against the other party.
12. Non-Exclusive Relationship. This is a nonexclusive agreement. FamilyMint may provide similar services to any third party, subject to its compliance with the terms of this Agreement.
13.1 This Agreement and any addenda thereto contain the entire understanding of the parties with respect to the subject matter addressed herein and supersede, replace and merge all prior understandings, promises, representations and agreements, whether written or oral, relating thereto. This Agreement may not be modified except by a writing signed by both parties. Except as expressly provided herein, the remedies accorded the parties under this Agreement are cumulative and in addition to those provided by law, in equity or elsewhere in this Agreement.
13.2 The relationship between Customer and FamilyMint is that of independent contractor. Nothing in this Agreement shall be construed as creating a relationship between Customer and FamilyMint of joint venturers, partners, employer-employee, or agent. Neither party has the authority to create any obligations for the other, or to bind the other to any representation or document.
13.3 Any waiver of a party’s right or remedy related to this Agreement must be in writing, signed by that party to be effective. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy will effect the other provisions of this Agreement.
13.4 Neither party shall be responsible or liable for any delay or failure in performing its obligations under this Agreement if such delay or failure is the direct result of causes outside of that party’s reasonable control, including, without limitation, power outages, accidents, strikes, fires, war or acts of God; provided that such party uses best efforts to resume performance of its obligations as soon as practically possible.
13.5 This Agreement shall be governed by the laws of the State of Michigan (exclusive of its choice of law rules), and the federal laws of the U.S. The parties agree that any litigation arising between the parties in relation to this Agreement shall be initiated and maintained in the Circuit Court of the County of Oakland, Michigan, or the U.S. District Court for the Eastern District of Michigan, Southern Division, and the parties hereby irrevocably submit to the exclusive jurisdiction and venue of such courts.
13.6 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be enforced to the fullest extent that it is valid and enforceable under applicable law. All other provisions of this Agreement shall remain in full force and effect.
13.7 Notice. For purposes of this Agreement, any notices will be sent in writing to the following respective addresses: For FamilyMint: 671 Wilwood Rd., Rochester Hills, MI 48309; For Customer: the address provided to FamilyMint when Customer accepts this Agreement, which may be updated by Customer from time to time.
13.8 Neither party may assign this Agreement or any Agreement, in whole or in part, without the other party’s prior express written consent, which shall not be unreasonably withheld or delayed. Any attempted assignment without such consent shall be void. Notwithstanding the foregoing, each party may assign this Agreement, in whole, but not in part, without the other party’s consent, as reasonably necessary in connection with a merger, acquisition or sale of substantially all of that party’s assets, provided the assignee agrees in writing to be bound by all of the terms of this Agreement. This Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.