READ THESE MASTER TERMS OF SERVICE (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION OR OTHERWISE USING THE SERVICES. BY ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT OR OTHER DOCUMENT THAT INCORPORATES THIS AGREEMENT (THE “ORDER”), BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY OTHERWISE USING THE SERVICES, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
The parties agree as follows:
1. DEFINITIONS. “You” and “your”refers to (i) the individual or entity that has ordered Services from Provider by executing an Order that accompanies and incorporates this Agreement; or (ii)any other individual or entity that accesses or uses the Services. “Services”means the services Customer has subscribed to within an Order or has otherwise been authorized to use or access. “User” means an individual who is authorized by you to use the Services and to whom you have, or Provider at your request has, supplied User Credentials. “Provider” means the entity with which you enter into an Order for the Services.
2. USE OF SERVICES.
2.1 Use. Subject to the terms and conditions of this Agreement, You and your Users shall have the nonexclusive, non-assignable, limited right to access and use the Services you have purchased through an Order or otherwise, solely for your internal business operations. Your accounting advisors are authorized to use the Services solely on your behalf, and such accounting advisors shall be considered Users. You may allow Users to use the services for this purpose and you are responsible for your Users’ compliance with the Agreement. Other terms and conditions of, or incorporated into, the Order, if any, modify this Agreement only to the extent explicitly detailed therein. Upon the termination or expiration of the Agreement or the Services thereunder, your right to access or use the Services shall terminate.
2.2 Registration. To access and use the Services, you must have an active subscription for theServices (a “Subscription”). Upon the establishment of a Subscription, the Provider will generate and provide to you a manager username and password (“Manager Credentials”). By logging in to the Services with such Manager Credentials, you can create and administer one or more user accounts for its Users, each with a unique username and password (“User Credentials”). Manager Credentials and UserCredentials are jointly referred to as “Credentials”. The Credentials are used to authenticate the User and thereby allow access to the Services, including any of your data stored as part of the Services. You are solely responsible for controlling User access, including adding and deleting Users, and maintaining the confidentiality of the Credentials and may not transfer or share theCredentials with any third parties. You acknowledge and agree that Provider and its licensors and suppliers may rely on the Credentials as the sole test to control whether users accessing and using the Services on your behalf are authorized to do so. You are fully liable for any act or omission of any users that access or use the Services with the Credentials.
2.3 UseRestrictions. You may not:
- remove or modify any program markings or any notice of Provider’s or its licensors’ proprietary rights;
- without written consent of Provider, make the Services, or any materials relating thereto, available in any manner to any. third party for use in the third party’s business operations;
- modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services;
- access or use the Services in order to build or support, or assist a third party in building or supporting, products or services. competitive to the Services;
- license, sell, rent, lease, transfer, assign, distribute, display, host, disclose, permit timesharing or service bureau use, or. otherwise commercially exploit or make the Services, or related materials, available to any third party other than as. expressly permitted under the terms of the Agreement;
- except as expressly provided herein, copy, reproduce, distribute, republish, download, display, post or transmit the Services, or any portion thereof, in any form orby any means; or
- attempt to gain unauthorized access to the Services or related systems or networks.
2.4 Protection against Unauthorized Use. You will use your best efforts to prevent any unauthorized use of the Services and will immediately notify Provider in writing of any unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained he Services directly or indirectly through you, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by Provider to prevent or terminate unauthorized use of the Services.
3. TERM; TERMINATION.
3.1 Term. Subject to the termination provisions set forth below, Services provided under this Agreement shall be provided for the initial period defined in the Order and shall renew automatically for additional periods of duration equal to the initial period upon your payment for such additional period in accordance with the payment terms set forth in Section 10.
3.2 Termination. You agree that Provider may terminate or suspend your account and access to theServices in the event of any of the following: (a) breach or violation of thisAgreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by You, (d) extended periods of inactivity; or (f) failure to pay any fees owed for the Services. Termination includes removal of access to all offerings within the Services and deletion of Customer Data and may also bar you from further use of the Services.
3.3 Effect of Termination. Upon expiration or termination of the Agreement, all rights to access or use the Services terminate. All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall survive the termination or expiration of this Agreement.
4. USER OBLIGATIONS AND WARRANTIES.
4.1. You understand and agree not to use the Services to:
- Upload, transmit or otherwise make available any content that is unlawful, libelous, abusive, obscene, discriminatory, or otherwise objectionable.
- Commit an illegal act, including but not limited to conspiring to violate laws.
- Upload, transmit or otherwise make available any content which includes information that you do not have the right to. disclose or make available under any law or under contractual or fiduciary relationships (such as insider information, or. proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure. agreements).
- Upload, transmit or otherwise make available any content that infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights.
- Upload, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
- Use any high volume automatic, electronic or manual process to access, search or harvest information from the Services(including without limitation robots, spiders or scripts).
- Use any robot, spider, other automatic device, or manual process to extract, screen scrape, monitor, mine, or copy any static or dynamic web page on the Services or the content contained on any such web page for commercial use
- Interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services.
- Mirror or frame the Services or any portion thereof, place pop-up windows over its pages, or otherwise affect the display of. its pages.
- Monitor their availability, performance or functionality, or for any other benchmarking or competitive purposes.
4.2 Compliance. You will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Services (e.g.privacy and security laws and regulations, CAN-SPAM ACT, copyright laws, international communications, and the transmission of technical or personal data). You agree to provide any notices and obtain any consents related to your use of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information.
4.3 Account Information and Use. You are solely responsible for all activity occurring under your account and will abide by all applicable local, state, national, and foreign laws, treaties and regulations in connection with your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. You will: (a) notify Provider immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (b) not impersonate another Provider user or provide false identity information to gain access to or use the Service; and (c) be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use all data submitted by you in the course of receiving the Services.
4.4 Information Provided to Provider. You represent and warrant that you own and control all of the rights to the information and materials that you store, post or transmit through the Services, or you otherwise has the right to use such information and materials; and the use of the information and materials you supply does not violate this Agreement, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for Provider or for third parties.
4.5 Technical Requirements. You must have the required equipment, software, and Internet access to be able to use the Services. Acquiring, installing, maintaining and operating equipment and Internet access is solely your responsibility. Provider neither represents nor warrants that the Services will be accessible through all web browser releases or all versions of computing devices.
5. INTELLECTUAL PROPERTY OWNERSHIP AND RIGHTS. Provider, and its licensors and providers, own all right, title and interest, including all related intellectual property rights in and to the Services, Provider’s (and its providers’) logos and trademarks, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services. You retain all ownership and intellectual property rights in and to your data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data.
6.1 Provider Indemnity. Provider or its licensors or providers will defend you against any claims, actions, suits, demands, obligations, and proceedings (“Claims”) made or brought against you by a third party alleging that the use of the Services in accordance with thisAgreement infringes or misappropriates such third party’s intellectual property rights, and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, any such Claim. If Provider receives information about an infringement or misappropriation claim related to the Services, Provider may in its discretion (i) modify the affected Services so that they no longer infringe or misappropriate, (ii) obtain a license for your continued use of the affected Services in accordance with this Agreement, or (iii) terminate your rights to the affected Services and refund to you any unused prepaid fees covering the remainder of the term of the terminated subscriptions. This Section 6.1 states Provider’s sole liability to you, and your exclusive remedy against Provider, for a claim of infringement or misappropriation.
6.2 Indemnity by You. You will, at your expense, defend, indemnify, and hold harmless Provider and their affiliates, and its and their, respective employees, officers, directors, suppliers, providers, licensors and agents (“Provider Indemnitees”) from and against any and all Claims of any kind threatened, asserted, or filed against Provider Indemnitees, and any and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees, witness fees, and court costs) incurred in connection with such Claims, arising out of or relating to (a) breach by you or a User of this Agreement; (b) any actual or alleged infringement or violation of any copyright, trademark, trade secret, or other proprietary right of a third party; (c) any act or omission to act by you or anyone acting on your behalf; or (d) your data.
6.3 Procedure. The indemnifying party’s obligations in Section 6.1 and 6.2 are subject to the party seeking to be indemnified: (a) providing the other party reasonably prompt notice in writing of any such Claim; (b) providing the other party information, assistance, and authority, at the indemnifying party’s expense, to help the indemnifying party to defend such Claims; and (c) giving the other party sole control of the defense and settlement of the Claim. The indemnified party will not have any right, without the other party’s written consent, to settle any such Claim if such settlement arises from or is part of any criminal action, suit, or proceeding or contains a stipulation to or admission or acknowledgment of, any liability, infringement, blame, or wrongdoing (whether in contract, tort, or otherwise) on the part of the indemnified party or otherwise requires the indemnified party to take or refrain from taking any material action (such as the payment of fees).
7. DISCLAIMER OF WARRANTIES. USER UNDERSTANDS AND AGREES THAT THE SERVICES ARE PROVIDED ON AN “ASIS” AND “AS AVAILABLE” BASIS. PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING,BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT (a) THE SERVICES WILL MEET USER’S REQUIREMENTS, (b) THE SERVICES WILL BE UNINTERRUPTED,TIMELY, SECURE, OR ERROR-FREE, OR (c) THE RESULTS THAT MAY BE OBTAINED FROM USEOF THE SERVICES WILL BE ACCURATE OR RELIABLE. YOU ACKNOWLEDGE THAT PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8. LIMITATION OF LIABILITY.
8.1 Limitation of Remedy. TO THE EXTENT PERMITTED BY LAW, PROVIDER AND ITS SUPPLIERS AND PROVIDERS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO USER FOR CONSEQUENTIAL,INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVENIF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
8.2 Maximum Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL PROVIDER’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT(INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (A) AMOUNTS PAID TO PROVIDER BY YOU FOR THE SERVICES IN THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM AND (B) US$100.
8.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ISTO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY PROVIDER TO USER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
9. CONFIDENTIALITY; PRIVACY; SECURITY.
9.1 Confidentiality. Each party may disclose to the other party certain Trade Secrets and Confidential Information of such party or of such party's associated companies, distributors, licensors, suppliers, or customers. For purposes of this Agreement, “Trade Secrets” means information that is a trade secret under law; “Confidential Information” means information, other than Trade Secrets, that is of value to its owner and is treated as confidential; “Proprietary Information” means Trade Secrets and ConfidentialInformation; the “Disclosing Party” refers to the party disclosing ProprietaryInformation hereunder, whether such disclosure is directly from DisclosingParty or through Disclosing Party’s employees or agents; and “Recipient” refers to the party receiving any Proprietary Information hereunder, whether such disclosure is received directly or through Recipient's employees, providers or agents. Subject to Section 9.2, Recipient agrees to hold the ProprietaryInformation disclosed by Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer theProprietary Information disclosed by Disclosing Party to any third party, or utilize the Proprietary Information disclosed by Disclosing Party for any purpose whatsoever other than as expressly contemplated by this Agreement. You acknowledge that the Services and related materials are the ProprietaryInformation of Provider or its licensors and other providers. Provider acknowledges Customer Data is your Proprietary Information. The obligations in this Section shall continue for so long as such information constitutes ProprietaryInformation. The foregoing obligations shall not apply if and to the extent that: (i) Recipient establishes that the information communicated was publicly known at the time of Recipient's receipt or has become publicly known other than by a breach of this Agreement; or (ii) Recipient is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Proprietary Information, provided however, that, Recipient shall first notify Disclosing Party prior to disclosure, if allowed by law, in order to give Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of this Agreement and shall disclose only that part of the Proprietary Information which Recipient is required to disclose.
9.3 Customer Data. “Customer Data” means information, data and other content that is provided to Provider by you or a User by or through the Services, but does not include any data collected, downloaded or otherwise received, directly or indirectly from any other user of the Services. You hereby grant to Provider a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate Customer Data to the extent reasonably required for the performance of Provider’s obligations and the exercise of Provider’s rights under this Agreement. You warrant to Provider that you have the right to provide such Customer Data to Provider in accordance with this Agreement. Additionally, you agree that anonymized data and information derived by Provider from Provider’s performance of the Services or input by you may be used by Provider for any lawful purpose, provided that such data and information shall not identify an individual person or you.
10. FEES AND PAYMENT
10.1 Fees. For the Services provided under this Agreement, you will pay Provider the fees in the amounts set forth on the applicable Order. Unless otherwise set forth on the applicable Order, applicable fees will be invoiced to you monthly in advance and payable (i) immediately upon invoice if your payment method is on file with Provider, or (ii) if no payment method has been provided to Provider, within fifteen (15) days of invoice. Fees are non-cancelable and non-refundable. Provider may adjust the fees upon at least thirty (30) days prior written notice. All fees paid and expenses reimbursed under thisAgreement will be in United States currency.
10.2 Taxes. The fees and expenses due to Provider as set forth in this Agreement are net amounts to be received by Provider, exclusive of all sales, use, withholding, excise, value added, ad valorem taxes or duties incurred by you or imposed onProvider in the performance of this Agreement or otherwise due as a result of this Agreement. This section will not apply to taxes based solely on Provider’s income.
10.3 Late Fees; Offset. You will pay a late fee of 1.5% per month (not to exceed the maximum allowed under state law) on all balances not paid when due. Fees and expenses due from you under this Agreement may not be withheld or offset by you against other amounts for any reason.
11. EXPORT. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export control laws govern your use of the Services (including technical data), and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs or materials resulting from the Services will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
12. GENERAL. Provider may audit your use of the Services. You agree to cooperate with Provider’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree that Provider shall not be responsible for any of your costs incurred in cooperating with the audit. Provider will be and act as an independent contractor (and not as your agent or representative) in the performance of thisAgreement and no joint venture, partnership, or agency relationship between the parties. Provider may utilize subcontractors or other third parties to perform its duties under this Agreement. You may not assign the Agreement or give or transfer the Services or an interest in them to another individual or entity. All notices, authorizations, and requests in connection with this Agreement will be deemed given: (a) three days after they are deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested; (b) one day after they are sent by air express courier, charges prepaid; or (c) on the day of transmittal if sent by facsimile or by email, in each case to such address as the party to receive the notice or request so designates by written notice to the other. Provider will not be liable for, or be considered to be in breach of or default under thisAgreement on account of, any delay or failure to perform as required by thisAgreement as a result of any cause or condition beyond Provider’s reasonable control. This Agreement is governed by and construed in accordance with the laws of the State of Georgia without regard to conflict of laws principles. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. This Agreement will be construed as though all parties had drafted it. This Agreement (including information and other agreements incorporated into this Agreement by reference) is the final and complete expression of the agreement between these parties regarding the Services. ThisAgreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. Provider will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement that is proffered by you in any receipt, acceptance, confirmation, correspondence, or otherwise.