First Access Terms of Service Agreement

Published: March 14, 2018

This First Access Terms of Service Agreement (including all exhibits, schedules, appendices and other documents setting forth obligations of the parties, this “Agreement”) is and shall remain in effect between First Access, Inc., a Delaware corporation (“First Access”), and the Client Institution (the “Client Institution”) listed on any Order Form of any Subscription Agreement (as defined below) so long as any Subscription Agreement is in effect between the parties. This Agreement supersedes all agreements between the parties prior to the Agreement Date of any Subscription Agreement, with respect to the subject matter hereof and may be amended or modified in any respect only by an agreement signed by the parties or as otherwise provided herein. Unless otherwise defined herein, terms used herein have the meanings assigned them in Part 1 below, “Definitions”.

 

TABLE OF CONTENTS

The following describes the types of information we may collect from your institution, your users, and your customers.

1. Definitions

2. Services & Payments

3. First Access Responsibilities

4. Client Institution Responsibilities

5. Legal Framework

Important Notices

This Agreement provides for the basic relationship between the parties hereto regardless of the level of service and the specifications for such service agreed to by First Access and the Client Institution. The level of service in effect at any time will be clearly defined in one or more Subscription Agreements.

Each Appendix hereto (as well as all Subscription Agreements in effect at any time) is an integral part of this Agreement. Any conflict between the Agreement and any Appendix or Subscription Agreement shall be resolved in favor of the appropriate Appendix or Subscription Agreement. Please note that some of the Subscription Agreements may specify when and how they may be amended at the discretion of First Access. 

 

Agreement: Part 1 - Definitions

Terms used in this Agreement shall have the meanings set forth below:

            “Agreement” means this First Access Terms of Service Agreement, which includes all exhibits, schedules and appendices hereto and thereto and any other document delivered in connection herewith or therewith setting forth the obligations of the parties, as the same may be amended, restated or modified from time to time in accordance with the terms hereof.

            “Agreement Date” has the meaning set forth on any Order Form of any Subscription Agreement.

            “Client Institution” has the meaning set forth on any Order Form of any Subscription Agreement.

            “Confidential Data” means business, technical or financial information disclosed by one party hereunder to the other, which information relates to the business of the disclosing party (including, (i) with respect to First Access, non-public information regarding features, functionality and performance of the Services and (ii) with respect to the Client Institution, non-public information regarding its Customers, loan portfolio and credit practices). For purposes hereof, Raw Data and Identifiable Information shall always be treated as Confidential Data and Derived Data shall be excluded from the definition of Confidential Data.

            “Contract Year” means, with respect to a Service, a period commencing on the Purchase Date of such Service or a subsequent annual anniversary thereof and expiring one year later.

            “Customer” means any customer or potential customer of the Client Institution.

            “Derived Data” means data which cannot be traced to an identifiable Customer or to the Client Institution, that is derived by First Access (i) from Raw Data by applying mathematical models, aggregation or transformations of any kind to such data or (ii) by collecting data on the Client Institution’s use of the Platform. First Access shall be the exclusive owner of Derived Data.  

            “Equipment” means, for any Service, all equipment and ancillary services needed to connect to, access or otherwise use such Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, mobile devices, web servers and the like.

            “First Access” means First Access, Inc., a Delaware corporation.

            “Force Majeure” means an event or circumstance beyond the reasonable control of First Access and that cannot be prevented with the exercise of reasonable diligence and observance of standard practices, including, without limitation, the following events in particular: acts of government, meteorological disturbances, lack or suspension of power supply, lightning or fire, decisions by a national or international administrative authority or by any other competent authority, war, public disorder and the inevitable risks that may stem from the technology and from the complexity of its implementation.

            “Identifiable Information” means information that can be used to distinguish or trace the identity of an individual or institution (including a User, a Customer or the Client Institution) by direct or indirect means, either when used alone or when combined with other personal or identifying information that is linked or linkable to a specific individual or institution.

            “Order Form” means the document setting forth the Services to be provided in any Subscription Agreement.

Payment Date” means, for any Service, any date on which payment for such Service is due, as defined in the Subscription Agreement relating to such Service.

Platform” means the web-based application, mobile application, API or other medium through which First Access provides, and through which the Client Institution may access, the Services.

            “Project Lead” means the person at the Client Institution who is responsible for managing the Services, ensuring timelines are met and authorizing configuration decisions.

Purchase Date” means the date on which the Client Institution purchases any Service by executing an Order Form attached to any Subscription Agreement.                

            “Raw Data” means all data provided to First Access by the Client Institution, including Raw Platform Data, database backups, direct database queries, extracted datasets in the form of spreadsheets, comma separated value documents and other data transferred directly from the Client Institution via other mediums.

            “Raw Platform Data” means data provided by the Client Institution to the Platform in the form such data was provided.

            “Related Parties” of any party means such party’s subsidiaries, affiliates, officers, directors, agents, managers, employees, contractors, partners and licensors.

            “Subscription Agreement” means a Subscription Agreement that is executed by the parties hereto from time to time. A Subscription Agreement may describe a Service, rates and payment terms for such Service, how such Service is implemented or delivered and/or various terms and conditions related to such Service. A Subscription Agreement applicable to a particular Service is not applicable to another Service unless specified in the appropriate Subscription Agreement. Once a Subscription Agreement has been executed or terminated, First Access will transmit to the Client Institution a complete list of Subscription Agreements which are in effect.

            “Service” means a service made available by First Access to the Client Institution pursuant to a Subscription Agreement.  “Services” means, at any time, all Services being validly provided hereunder.

Service Documents” means all manuals and materials delivered (electronically or physically) or made available by First Access to the Client Institution from time to time.

            “Software” means any software, documentation or data directly or indirectly utilized by First Access to perform or deliver the Services.

            “Subscription Fee” means, for any Service, the subscription fee for such Service, as defined in the Subscription Agreement relating to such Service.

            “Taxes” means any taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever. “Taxes” do not include any general income tax imposed upon First Access by any governmental authority.

            “Third-Party Billing Agent” means a company specified by First Access which will automatically debit a specified bank account of the Client Institution for all fees due from the Client Institution hereunder and remit such funds to First Access.

User” means each loan officer, supervisor, credit committee member and any other agent which the Client Institution designates from time to time to First Access as a person who has been granted access to the Services and the Platform.

 

Agreement: Part 2 - Services and Payment

1.      Services   The applicable Services provided hereunder are outlined in one or more Subscription Agreements agreed to between the Client Institution and First Access.

2.     Future Functionality   The Client Institution acknowledges that purchase of any Service is not contingent on the delivery by First Access of any future functionality or features, regardless of any oral or written public or private comments made by First Access or persons actually or claiming to represent First Access.

3.     Term and Termination

a.      Initial Term and Renewal   The term of each Service shall be specified in the applicable Subscription Agreement. Except as otherwise provided herein or in any Subscription Agreement relating to a Service, this Agreement, with respect to any Service, shall be in effect for one year following the Purchase Date for such Service and shall be automatically renewed for consecutive Contract Years thereafter unless either party notifies the other, no later than 30 days prior to the end of any such Contract Year, of its intention to terminate the subscription for any Service at the close of such Contract Year (a “Termination Notice”).

b.     Effect of Termination   Upon termination of any Service, the Client Institution will pay in full for such Service up to and including the last day of the relevant Contract Year. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability. Upon request by the Client Institution, within 30 days following the effective date of termination, First Access will make available the Raw Platform Data, consisting of data entered into the Platform by the Client Institution. After such 30-day period, First Access will have no obligation to provide the Client Institution access to any Raw Platform Data or to the Platform.

4.     Fees and Payment

a.     Fees   The Client Institution will pay all fees and expenses as specified in each applicable Subscription Agreement.

  1. Late Fees   Unpaid amounts are subject to a late fee of 2% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, and may result in immediate termination of the Services. Failure to make timely payment for one Service may result in suspension of other Services until payment is received. In the case of any such termination by First Access, the Client Institution shall be liable for all fees through the end of the Contract Year.

  2. Third-Party Billing   First Access may require the Client Institution to register with its designated Third-Party Billing Agent. If so required for any Service, on each Payment Date for such Service, the Third-Party Billing Agent will debit a designated account of the Client Institution for the applicable fees and expenses, if any, and remit such amount to an account specified by First Access. If the Client Institution takes any action to prevent the Third-Party Billing Agent from debiting the Client Institution’s account for amounts due (including by failing to maintain sufficient funds in such account), the Client Institution shall immediately remit all amounts due to First Access. Failure to do so may result in suspension of all Services to the Client Institution.

  3. Price Guarantee   The Subscription Fee set forth for any Service in a Subscription Agreement will be in effect for a period of one year following the Purchase Date for such Service. In connection with the automatic annual renewal of this Agreement as set forth above with respect to such Service, First Access shall, not later than 60 days prior to such annual renewal, notify the Client Institution of all changes in the fees and other amounts payable for such Service for the forthcoming Contract Year, which terms shall be deemed accepted by the Client Institution unless it delivers a Termination Notice to First Access as specified above

  4. Refunds   There shall be no refunds of amounts paid to First Access hereunder.

  5. Taxes   Fees and other amounts payable hereunder do not include any Taxes. The Client Institution is responsible for paying all Taxes associated with the delivery of the Services hereunder.

 

Agreement: Part 3 - First Access Responsibilities

1.      First Access Performance Standard.   First Access shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions and shall perform the Services in a professional and workmanlike manner. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, whether by First Access or by third-party providers, or because of other causes beyond the reasonable control of First Access, but First Access shall use reasonable efforts to provide advance electronic written notice of any scheduled service disruption, and to schedule any such disruptions outside normal working hours for the Client Institution. Notwithstanding the foregoing, First Access does not warrant that the Services will be uninterrupted or error-free, nor does it make any warranty as to the results that may be obtained from use of the Services. Except as expressly set forth in this Agreement, the Services are provided “as is” and First Access disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.

2.     Technical Support   First Access will provide the Client Institution with technical support in accordance with First Access standard practice and as specified in the Subscription Agreement for the particular Services purchased. The Client Institution will be responsible for contacting First Access should any problems or technical issues arise at any time while using or attempting to use the Services. Reporting of technical issues shall be the sole responsibility of the Client Institution and First Access shall have no obligations to remedy or provide service credits for unreported technical issues.

3.     First Access Representations and Warranties   First Access hereby makes the following representations and warranties to the Client Institution, each of which shall be true and correct as long as this Agreement is in effect:

a.     It has full right, power and authority to enter into this Agreement.

b.    Its entry into and performance under this Agreement does not and will not violate its constituent documents or any contract to which it is a party, or any order or judgment of any court by which it is bound.

c.     It is duly organized, validly existing and has the necessary authorizations, regulatory, corporate and otherwise, to enter into this Agreement and to fulfil its obligations under this Agreement.

d.    It will maintain the proper licenses and authorizations and remain in good standing with each appropriate regulatory agency during the term of this Agreement.

e.     It is in compliance with all applicable international, federal, state and local laws, rules and regulations in the performance of its obligations under this Agreement. Without limiting the foregoing, in connection with this Agreement, First Access and its directors, officers and employees are in compliance with all applicable anti-bribery measures. In particular, First Access has not, directly or indirectly, offered, given, promised to give or authorized the giving of any money, loan, gift, donation or other thing of value to induce a government official to do or to omit from doing any act in violation of his or her lawful duty, in order to obtain any improper advantage or to induce a government official to use his or her influence improperly to affect or influence any act or decision.

f.      It has not engaged in any dealings or transactions, directly or indirectly, (i) in contravention of any applicable anti-money laundering or anti-terrorism law or (ii) with persons appearing on the U.S. or U.N or any other relevant country’s list of restricted or prohibited persons.

g.     It owns or has the legal right to use all of the intellectual property which it will use to perform its duties hereunder and has valid licenses for all third-party software used in the development of the such intellectual property. There is no current or threatened claim, lien or action, including infringement claims or an alleged violation of a third party's intellectual property rights that could interfere with the provision of the Services by First Access.

h.     It has taken all actions reasonably necessary, in accordance with standards prevalent in the “Software as a Service” industry, to ensure that the Software does not now and will not in the future contain any computer virus, Trojan horse, malware, or other such code designed to damage, disrupt or impede the orderly operations of the Client Institution’s computer system or network and First Access has, in accordance with standards prevalent in the “Software as a Service” industry, tested and will continue to test as reasonably necessary, the Software to detect and eliminate any such disabling viruses or devices.

i.      There are no clauses or provisions in any of the agreements between First Access and any third party that could reasonably be expected to interfere with the provision of the Services by First Access or create obligations on the Client Institution other than as set forth in this Agreement.

4.     Indemnity   First Access will indemnify, defend and hold harmless the Client Institution and its Related Parties from and against all claims, losses, actions and demands (including all attorneys' fees, costs, debts, expenses, liabilities, damages and judgments arising from or related thereto) made by any third party related to or arising out of any breach by First Access of the warranty set forth in paragraph 3(g) above relating to intellectual property.  Notwithstanding the foregoing, the liability of First Access under the previous sentence with respect to any Contract Year shall not exceed the Subscription Fees actually paid hereunder during such Contract Year, except where such liability arises from the gross negligence, willful misconduct or bad faith of First Access or its employees, agents or consultants.

5.     Confidentiality

a.     First Access agrees that it will (a) take reasonable precautions in conformity with industry practices in effect at any time to protect Confidential Data of the Client Institution, and (b) not use or divulge to any third person any such Confidential Data, except in performance of the Services or as otherwise permitted herein. The foregoing shall not apply with respect to any information after five years following the disclosure thereof or any information that First Access can document (i) is or becomes generally available to the public, (ii) was legally in its possession or known by it prior to receipt from the Client Institution, (iii) was legally disclosed to it without restriction by a third party, (iv) was independently developed without use of any Confidential Data or (v) is required to be disclosed by law.

b.    Without limiting the generality of the foregoing, First Access will not disclose to any third party (other than its employees, consultants and affiliates with a need to know such Confidential Data in connection with the provision of the Services) any Raw Data which identifies a Customer and will at all times comply with all privacy laws of the locality in which the Client Institution is physically located. First Access shall be free to utilize Derived Data such as loan origination and platform usage data in its sole discretion.

6.     Responsibilities Regarding Data and Information

a.     Data Security   To help protect the security of information transmitted by the Client Institution in connection with the Service, First Access uses SSL/TLS to encrypt such information. In addition, First Access takes steps to protect the information it collects against unauthorized access. First Access utilizes commercially reasonable security, though no system can perfectly guard against risks of intentional intrusion or inadvertent disclosure of information. Performance of the Services by First Access requires that information be transmitted over a medium that is not controlled by First Access. The Client Institution expressly assumes the risk of any unauthorized disclosures, intentional intrusion or any delay, failure, interruption or corruption of data or other information transmitted in connection with the use of the Services. For more details, please see the First Access Data Security & Privacy Policy. Any conflict between the Data Security & Privacy Policy and this Agreement shall be resolved in favor of this Agreement.

b.    Data Storage   The Client Institution’s information collected through the Service may be stored and processed on secured servers in the United States, the United Kingdom or any other country in which First Access or its technology providers maintain facilities. If the Client Institution is located in a jurisdiction with laws governing data collection and use that may differ from U.S. law, the Client Institution should be aware that information may be transferred to a jurisdiction that does not have the same data protection laws. The Client Institution consents to such transfer of information. If the Client Institution notifies First Access that such transfer of information will be problematic under the laws of its jurisdiction, First Access will take reasonable steps to work with the Client Institution to avoid the problems arising from such transfer. Following termination of this Agreement, First Access may retain the Client Institution’s information for up to two years, for backup, archival or audit purposes.

c.    Access to Information   First Access may access, preserve and disclose account information, including records regarding the Client Institution’s use of the Services and records of content submitted or accessed, if requested to do so by a User or if First Access has a good faith belief that such access, preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to any claim that any content violates third-party rights; (iv) respond to the Client Institution’s requests for customer service; or (v) protect the rights, property or personal safety of First Access, its customers or the public. If First Access is requested or required (by subpoena, court order, administrative order or otherwise) to disclose any of the Client Institution’s account information, First Access shall provide the Client Institution with prompt written notice, unless notice is prohibited by law, of such request or requirement so that the Client Institution may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, First Access may disclose only that portion of the Client Institution’s account required to be disclosed.

 

Agreement: Part 4 - Client Institution Responsibilities

1.      Utilization of Services   The Client Institution will utilize the Services in accordance with this Agreement and the Service Documents. The Client Institution is solely responsible for obtaining and maintaining any and all Equipment.  The Client Institution will also be responsible for maintaining the security of the Equipment, the Client Institution’s account, passwords (including but not limited to administrative and User passwords) and files, and for all uses of the Client Institution’s account or the Equipment with or without the Client Institution’s knowledge or consent.

2.     Registration; Authorized Users   On or before the Purchase Date for any Service, and from time to time thereafter, the Client Institution shall register the identity of Users for such Service. First Access reserves the right to set password requirements for all Users. The Client Institution shall be responsible for assigning rights to access the Platform to each User and managing the rights of Users, including assigning administrative rights and removing the right of any User to access the Platform when such User ceases working for the Client Institution. Notwithstanding the foregoing, First Access may in its sole discretion terminate or limit any User’s rights when First Access determines that such User’s activities are inconsistent with the purposes of this Agreement.

3.     Prohibitions   The Client Institution will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, the Platform or the Software; (b) modify, translate or create derivative works based on the Services, the Platform or the Software (except to the extent expressly permitted by First Access or authorized within the Services); or (c) use the Services, the Platform or the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party.

4.     Appointment of Project Lead   Prior to the Purchase Date for any Service, the Client Institution will appoint and introduce to First Access a representative (the “Project Lead”) who will be responsible for (i) liaising with First Access with respect to such Service and (ii) providing First Access all information required to configure the Platform for such Service. The Subscription Agreement setting forth each Service specifies Platform configurations available as part of such Service.

5.     Cooperation   The Client Institution will cooperate reasonably and in good faith with First Access by, without limitation: (a) assigning an internal Project Lead to manage communications with First Access and ensure requests for information, materials and feedback are delivered by the Client Institution in a timely manner; (b) advising First Access from time to time as necessary which Users have final sign-off authority on changes in the Platform and delivery of the Services; (c) allocating sufficient resources to implement use of the Services at the Client Institution; and (d) preparing for and actively participating in scheduled meetings.

6.     Fraud Prevention   The Client Institution is solely responsible for (a) the accuracy of any data provided to First Access regarding any Customer and (b) determining whether Users are utilizing the Services or information on the Platform for fraudulent purposes or for any purposes other than to process and assess bona fide Customers. The Client Institution understands that any usage of the Services that is not in accordance with this Agreement or the Service Documents may adversely affect the effectiveness of the Services, and shall report all misuses of the Services to First Access as soon as possible.

7.     Client Institution Representations and Warranties   The Client Institution hereby makes the following representations and warranties to First Access, each of which shall be true and correct as long as this Agreement is in effect:

a.     It has full right, power and authority to enter into this Agreement.

b.    Its entry into and performance under this Agreement does not and will not violate its constituent documents or any contract to which it is a party, or any order or judgment of any court by which it is bound.

c.     It is duly organized and validly existing and has the necessary authorizations, regulatory, corporate and otherwise, to enter into this Agreement and to fulfil its obligations under this Agreement.

d.    It will maintain all proper licenses and authorizations and remain in good standing with the appropriate regulatory agency.

e.     It is in compliance with all applicable international, federal, state and local laws and rules and regulations in the performance of its obligations under this Agreement. Without limiting the foregoing, in connection with this Agreement, it and its members, trustees, directors, officers and employees are in compliance with all applicable anti-bribery measures. In particular, the Client Institution has not, directly or indirectly, offered, given, promised to give or authorized the giving of any money, loan, gift, donation or other thing of value to induce a government official to do or to omit from doing any act in violation of his or her lawful duty, in order to obtain any improper advantage, or to induce a government official to use his or her influence improperly to affect or influence any act or decision.

f.      It has not engaged in any dealings or transactions, directly or indirectly, (i) in contravention of any applicable anti-money laundering or anti-terrorism law or (ii) with persons appearing on the U.S. or U.N or any other relevant country’s list of restricted or prohibited persons.

8.     Compliance with Law    The Client Institution shall comply with all laws, rules and regulations (including laws relating to utilization of personal information and data security) applicable to it in connection with its use of the Services and its activity on the Platform and the handling and use of any information accessed or utilized by it.

9.     Indemnity   The Client Institution will indemnify, defend and hold harmless First Access and its Related Parties from and against all claims, losses, actions and demands (including all reasonable attorneys' fees, costs, debts, expenses, liabilities, damages and judgments arising from or related thereto) made by any third party related to or arising out of : (i) the Services; (ii) use of or access to the Services; and (iii) the Client Institution’s violation of this Agreement or the rights of another, including, without limitation, any intellectual property rights or rights of privacy or publicity.

10.   Confidentiality          

a.     The Client Institution agrees that it will (a) take reasonable precautions to protect Confidential Data of First Access and (b) not use or divulge to any third person any such Confidential Data, except as otherwise permitted herein. The foregoing shall not apply with respect to any information after five years following the disclosure thereof or any information that the Client Institution can document (i) is or becomes generally available to the public, (ii) was legally in its possession or known by it prior to receipt from First Access, (iii) was legally disclosed to it without restriction by a third party, (iv) was independently developed without use of any Confidential Data or (v) is required to be disclosed by law.

b.    Without limiting the generality of the foregoing, the Client Institution shall not disclose to any third party (other than Customers (to the extent required by applicable law), employees, consultants and affiliates with a need to know such Confidential Data in connection with the use of the Services) any Third-Party Data disclosed by First Access that identifies a Customer.

c.     The Client Institution recognizes that outputs of the Platform are configured to the specifications of the Client Institution and that use by a third party may damage the reputation of First Access. 

d.    The Client Institution recognizes that in providing the Services, First Access is relying on its own intellectual property, hardware and software and that neither the Client Institution nor any other party shall have any entitlement to review the process by which First Access builds the Platform or provides the Services or to utilize any such intellectual property, hardware or software for any purpose not specifically contemplated by this Agreement.

 

Agreement: Part 5 - Legal Framework

1.      Force Majeure    The Client Institution acknowledges and understands that instances of Force Majeure may prevent First Access from performing all or part of the Services and that First Access will not be considered to have breached its obligations under such circumstances. If any Service is affected by Force Majeure, First Access will use its reasonable best efforts to inform the Client Institution without delay of the extent and duration of its inability to fulfill its obligations or of the delay in executing its obligations. First Access cannot under any circumstances be held responsible for any kind of consequence of any instance of Force Majeure.

2.     Publicity   Each party may use the name and logo of the other party in commercially reasonable marketing, advertising and/or publicity releases, and describe work completed under this Agreement, without revealing any of the other party’s confidential information, so long as the relationship between the parties is accurately portrayed.

3.     Limitation of Liability

a.     Claims    To the maximum extent permitted by applicable law, in no event shall First Access or its Related Parties be liable for any direct, indirect, punitive, incidental, special, consequential or exemplary damages, including, without limitation, damages for loss of profits, goodwill, use, data or other intangible losses, that result from the use of, or inability to use, the Services. Under no circumstances will First Access be responsible for any damage, loss or injury resulting from hacking or tampering by a third party or other unauthorized access or use of the Services by the Client Institution. This paragraph applies whether the alleged liability is based on contract, tort, negligence, strict liability or any other basis, even if First Access has been advised of the possibility of such damage. The foregoing shall apply to the fullest extent permitted by law in the applicable jurisdiction.

b.    First Access Responsibility   To the maximum extent permitted by applicable law, First Access assumes no liability or responsibility for any (i) errors, mistakes or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from access to or use of the Service; (iii) any unauthorized access to or use of First Access secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Services; (v) any bugs, viruses, Trojan horses or the like that may be transmitted to or through the Services by any third party, (vi) any error or omission in any content or for any loss or damage incurred as a result of the use of any content (including third party content) posted, emailed, transmitted or otherwise made available through the Services; or (vii) user-provided content or the defamatory, offensive or illegal conduct of any third party.

4.     Dispute Resolution   For any dispute with First Access, the Client Institution shall first contact First Access at info@firstaccessmarket.com and attempt to resolve the dispute informally. The parties cannot resolve a dispute after attempting to do so informally, any claim, dispute or controversy arising from, in connection with or relating to this Agreement or the breach or alleged breach thereof, shall be resolved by binding arbitration by the American Arbitration Association ("AAA") under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA. The arbitration will be conducted in New York, New York, unless the parties agree otherwise. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation or violation of that party's data security, intellectual property rights or other proprietary rights. All claims must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless First Access agrees otherwise, the arbitrator may not consolidate more than one person's claims. By entering into this Agreement, each party waives the right to a trial by jury or to participate in a class action.

5.     Miscellaneous

a.     If any provision of this Agreement is found to be unenforceable or invalid, 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.

b.    This Agreement is not assignable, transferable or sub-licensable (i) by First Access except upon 60 days’ prior written notice to the Client Institution and (ii) by the Client Institution except with prior written consent from First Access.

c.     This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements, communications and other understandings relating to the subject matter hereof; all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

d.    No agency, partnership, joint venture or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

e.     All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

f.      This Agreement shall be governed by the laws of the State of New York, United States of America, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The Client Institution agrees to submit to the personal jurisdiction of the federal and state courts located in New York, New York for any action for which First Access retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of its copyrights, trademarks, trade secrets, patents or other intellectual property or proprietary rights, as set forth in the arbitration provision above.