This Fincent Subscription Agreement (these “terms” or this “agreement”)is made between you (either an individual or, if you are using Fincent on behalf of an entity, that entity) and Fincent.com, Inc. It governs your access to and use of Fincent’s services, products, software, and websites (the “Services”).
If your Order Form contains additional terms and conditions, then those terms and conditions govern to the extent they conflict with any of these terms. If you are agreeing to these terms on behalf of an entity, you represent hat you have the authority to bind that organization, otherwise you must not sign up for the Services.
Please read this agreement carefully. It requires the use of binding individual arbitration to resolve disputes rather than jury trials or class actions (for information about how to opt-out, see Section 11.8 (30-day opt-out period) below).
1.1. We provide bookkeeping services
Fincent’s bookkeeping services are a solution for bookkeeping and financial organization. Fincent’s bookkeeping services and any related communications with us are not a substitute for and do not include legal, tax, financial, real estate, healthcare, or accounting advice. Fincent is not a public accounting firm. For more about what the Services do and do not include, and how you can use them, please see our Acceptable Use Policy.
1.2. Quickbooks Online™
1.3. Third-party services and Login Credentials
Our Services can automatically transfer data from other websites and services, like your bank account. If you provide us with login credentials (for example, an account name or number, password, answers to security questions (collectively, the “Login Credentials”)), you both (a) give us permission, and a limited power of attorney, to use them to login to these other websites and services and access, transfer, reformat, and manipulate your account on your behalf; and (b) represent to us that you have the authority to give us this permission. We will maintain Login Credentials in encrypted form, and we will only use them as described in this agreement.
1.4. Unauthorized uses of the Services
You will only use the Services in accordance with the terms of the AcceptableUse Policy outlined below. We may suspend or terminate provision of theServices, in whole or in part, where we believe it is being used in a manner that breaches this agreement (including the Acceptable Use Policy) or creates risk of personal injury, property damage, or legal liability for Fincent, you or any third party, or may cause Fincent to lose the services of one of our third-party service providers. You represent and warrant that any information you provide to us about your (or, if you are acting on behalf of another, that person’s) business, products, or services is accurate and complete.
1.5. Customer Support and Modifications to the Services
Fincent will use commercially reasonable efforts to provide you with technical support services relating to the Services via its technical support website, email, or telephone. Fincent is constantly changing and improving our services, and may update features, alter, add or remove functionality of theServices at our discretion. Fincent may also, from time to time, schedule downtime for maintenance and upgrades to the Services.
1.6. Facilities and data transfer
All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Fincent stores and processes its own information of a similar type. As part of providing the Services, we transfer, store and processCustomer Data in the United States. By using the Services, you consent to this transfer, processing and storage of Customer Data.
2. Non-Disclosure and Confidentiality
Each party shall keep any Confidential Information of the other party as strictly confidential and shall not disclose it to third parties without the prior written consent of the disclosing party. Each party shall use at least the same standard of care in the protection of the other party’s ConfidentialInformation as it uses to protect its own Confidential Information. The foregoing confidentiality obligations shall not apply to any ConfidentialInformation which the receiving party can show, through documentation reasonably acceptable to the disclosing party: (a) is in the public domain at the time of disclosure or later becomes part of the public domain through no fault of the receiving party; (b) was known to the receiving party prior to disclosure by the disclosing party as proven by the contemporaneous, ordinary and customary written records of the receiving party; (c) is at any time independently developed by the receiving party as proven by its contemporaneous, ordinary and customary written records without reference or use of Confidential Information of the disclosing party; (d) which disclosure without a binder of secrecy is expressly authorized in writing by the disclosing party..
2.2. Disclosure of Confidential Information
Regardless of any other provision in this agreement, the recipient or its Affiliates may disclose the other party’s Confidential Information (a) in accordance with a Legal Process, subject to Section 3.2.2 (Legal Process notification); (b) with the other party’s written consent; or (c) in connection with enforcing our rights under our agreements with you.
2.2.2. Legal Process notification
The recipient will use commercially reasonable efforts to notify the other party before disclosing that party’s Confidential Information in accordance with Legal Process. Notice is not required before disclosure if the recipient is informed that (a) it is legally prohibited from giving notice or(b) the Legal Process relates to exceptional circumstances involving danger of death or serious physical injury.
The recipient and its Affiliates will comply with the other party’s reasonable requests to oppose disclosure of its Confidential Information.
Fincent will collect payment for the fees automatically via ACH. Fees are exclusive of taxes, which you’re responsible for if applicable. You hereby authorize Fincent or its payment processor to initiate entries to your business bank checking accounts on file with Fincent (using your business address on file) in order to pay amounts that you owe to Fincent (including for any RenewalTerms as those payments come due), and, if necessary, to initiate adjustments for any transactions credited or debited in error. Fincent may immediately suspend provision of the Services if your account is past due. Except to the extent expressly set forth in this Section 4 (Payment), all payments are non-refundable and non-creditable.
4. Term and Termination
4.1. Initial term
This agreement is effective on the date you sign an Order Form or you otherwise agree to these terms (for example, by clicking through an online agreement) (the “Effective Date”). Your initial subscription term will begin at the subscription start date and continue, unless terminated earlier, for the term specified on your Order Form (the “Initial Term”).
4.2. Automatic renewal
Upon the end of the Initial Term and any Renewal Term, your subscription will automatically renew for the same duration as the Initial Term unless you give us notice (via support@Fincent.com) at least (a) seven (7) days for monthly or quarterly subscriptions; or (b) thirty (30) days for annual subscriptions, in each case, prior to the end of the then-current Initial Term or Renewal Term, as applicable.
4.3. Termination by us
We may terminate your subscription at any time by providing notice of termination to you via the email address we have on file. In the event we terminate your subscription for any reason other than your violation of Section1.4 (Unauthorized uses of the Services) or your material breach of this agreement, we will give you a refund of prepaid fees for unelapsed months of the Services.
4.4. Effect of termination or expiration of subscription
In the event your subscription ends, we will try to transfer to you the“master administrator” status for the Intuit Quickbooks Online account that was maintained for you by Fincent, so that you can elect to maintain that subscription with Intuit or export your data.
Sections 3, 5.4, 6, and 8 – 12 (inclusive) will survive the termination or expiration of this agreement.
5. Intellectual Property
As between the parties, you retain all intellectual property rights in your data, and we retain all intellectual property rights in the Services. You grant us a limited license to use your data to provide, protect, and improve the Services. We may retain anonymized, de-identified, and aggregated data that is protected by organizational and technical safeguards in order to perform research and development. If you provide us with feedback or suggestions about the Services (“Feedback”), then we may use that information without obligation to you, and you hereby irrevocably assign to us all right, title, and interest in that Feedback.
6. Using Fincent Services on Behalf of Others
If you are using the Services on behalf of another individual or entity, you represent and warrant that you have all the authorizations and rights necessary and sufficient to do so.
7. Warranty Disclaimer
THE SERVICES ARE PROVIDED “AS IS”, EXCEPT AS EXPLICITLY SET FOR THEREIN, AND TO THE EXTENT ALLOWED BY LAW, THERE ARE NO OTHER WARRANTIES,EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES. FINCENT DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. THE FINCENT ENTITIES DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
8. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY ORTO ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF USE, LOSS OR ALTERATION OF DATA, DELAYS, LOST PROFITS OR SAVINGS, ARISING OUT OF PERFORMANCE OR BREACH OF THE AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT THE LIABILITY OF FINCENT ON ANY CLAIM OF ANY KIND,WHETHER BASED ON CONTRACT OR TORT (INCLUDING BUT NOT LIMITED TO, STRICT LIABILITY, PRODUCT LIABILITY OR NEGLIGENCE) OR RESULTING FROM THESE TERMS OR SERVICES FURNISHED HEREUNDER SHALL NOT EXCEED THE FEES PAID TO FINCENT BY YOUFOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM OR ONE HUNDRED US DOLLARS, WHICHEVER IS GREATER.
You shall indemnify and defend Fincent from and against all damages, losses, liabilities, claims, demands, actions, suits, judgements, settlements, costs and expenses, including all attorneys’ fees, that arise from or relate to: (a) your use of and our provision of the Services (except to the extent arising directly from our wilful misconduct or gross negligence), (b) your violation of the agreement, (c) any content, information or materials provided by you, or (d) infringement by you, or any third party using your account or identity in the Services, of any intellectual property or other right of any person or entity. Fincent reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defences.
10. Disputes; Class-Action Waiver
10.1. Judicial forum for disputes
Except as set forth in Section 11.5 (Arbitration), you and Fincent agree that any and all claims relating to these terms or the Services may only be brought in the federal or state courts of San Francisco County, California, subject to the mandatory arbitration provisions below. Both you and Fincent consent to venue and personal jurisdiction in such courts.
10.2. Notice of disputes
If you have a dispute with Fincent, you will promptly send written notice to: Fincent, Inc., 1190 Miraloma Way, Suite P Sunnyvale CA 94085
10.3. Governing law
This agreement and all claims (including procedural issues) between the parties are governed by the laws of California, excluding California’s conflict of laws rules.
10.4. Informal resolution
Before filing a claim, you and we each agree to try to resolve the dispute by contacting the other party through the notice procedures in Section11.2 (Notice of disputes). If a dispute is not resolved within thirty days of notice, you and we may bring a formal proceeding.
You and Fincent agree to resolve any and all claims relating to this agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Francisco (CA), or any other location both parties agree to in writing.
10.6. Exception to arbitration
Either party may bring a lawsuit in the federal or state courts of SanFrancisco County, California solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above.
10.7. No Class Actions
You may only resolve disputes related to or arising from the Services with the Fincent Entities on an individual basis and will not bring a claim in a class, consolidated, or representative action.
10.8. 30-day opt-out period
If you don’t wish to be bound by these arbitration provisions (including its waiver of class and representative claims), you must notify us by emailing arbitration-opt-out@Fincent.com no later than 30 days after the first acceptance date of any version of this agreement containing an arbitration provision (unless a longer period is required by applicable law). An opt-out notice does not revoke any previous arbitration agreement between us.
10.9. Future changes to this dispute resolution agreement
If Fincent makes any changes to this Section 11 (or successor section and not including Section 11.2 (Notice of Disputes)), you may reject any such change by notifying us via the procedure set forth in Section 11.8 (30-day opt-out period) within 30 days of the change. It is not necessary to submit a rejection of a future change to this Section 11 if you have properly opted out of arbitration in compliance with the requirements of Section 11.8 (30-day opt-out period).
11.1. Updates to this agreement
Fincent may make nonmaterial changes to these terms at any time without notice, but we will provide advance notice of any material changes to them.Other than changes made under Section 11.9 (Future changes to this dispute resolution agreement), the changes to the terms will not apply retroactively and will become effective 30 days after we give you notice or the stated effective date of the new terms, whichever is later. If a new version of these terms has a material negative impact on you, then you may object to the change by notifying us (via email@example.com) within 30 days after we provide you with notice of the changes. If you so notify us, then you will remain governed by the terms in effect immediately before the change until the end of your then-current Initial Term or Renewal Term, as applicable. After that, you will be governed by the changed terms. Notwithstanding anything to the contrary in the foregoing, any changes to the terms related to new features or made for legal reasons will become effective immediately upon notice.
If any provision of the agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent for any reason including by reason of any applicable law, the remainder of the agreement shall be valid and enforceable to the fullest extent permitted by applicable law. Any invalid or unenforceable provision of the agreement shall be replaced with a provision, which is valid and enforceable and most nearly reflects the original intent of the invalid and unenforceable provision.
You may not assign or transfer, by operation of law or otherwise, any of its rights under the agreement to any third party without Fincent’s prior written consent; any attempted assignment or transfer in violation of the foregoing will be void.
11.4. Electronic notices
We will communicate with you via email or the Services’ user interface.It is your responsibility to keep your Services account e-mail address up-to-date so that you are able to receive electronic communications from us.
11.5. Entire agreement; amendments
This agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This agreement may be amended by Fincent from time to time at its discretion.
11.6. Order of precedence; headings
In the event of a conflict between this agreement and any Order Form, the terms of the Order Form shall govern. Headings are for information purposes only.
11.7. Third-party beneficiaries
Fincent’s Affiliates and Fincent’s and its Affiliates’ suppliers and distributors are intended third party beneficiaries of Sections 8 – 10(inclusive). Except as expressly set forth in the foregoing, there are no third party beneficiaries to these terms.
“Affiliate” means any entity that directly or indirectlyControls, is Controlled by, or is under common Control with a party.
“Confidential Information” means information that one party (orAffiliate) discloses to the other party under the agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Customer Data is your Confidential Information. ConfidentialInformation does not include information that is independently developed by the recipient, is shared with the recipient by a third party without confidentiality obligations, or becomes public through no fault of therecipient.
“Control” means control of greater than 50% of the voting rights or equity interests of a party.
“Customer Data” means data submitted, stored, sent or received via the Services by you, at your direction, or as part of the Services for you.
“Delegates” means employees, Affiliates, agents, and professional advisors.
“including” means including, without limitation.
“Legal Process” means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
“Order Form” means the ordering document or website page for theServices.
“Fincent”, “we”, and “us” means Fincent Inc.
Acceptable Use Policy
You agree not to misuse the Services (as defined in the Fincent Subscription Agreement) or help anyone else to do so. For example, you must not do (or even try to do) any of the following in connection with the Services:
The Scope of the Fincent Bookkeeping Services
The Fincent bookkeeping services (including any communications you may have with Fincent personnel in connection with those services) are not a substitute for and do not include legal, tax, financial, real estate, healthcare or accounting advice, and Fincent is not a public accounting firm. The Fincent bookkeeping services do not include, and you will not purport to rely on them for: (i) audit, examination, verification, investigation, certification, presentation, or review, of financial transactions or accounting records; (ii) advice relating to accounting procedure and to the recording, presentation, or certification of financial information or data; (iii) preparation or certification of reports on audits or examinations of books or records of account, balance sheets, and other financial, accounting and related schedules, exhibits, statements, or reports that are to be used for publication, for the purpose of obtaining credit, for filing with a court of law or with any governmental agency, or for any other purpose; (iv) legal advice regarding any of your business practices, including with respect to their appropriateness or legality; or (v) tax advice or tax return preparation (although we will provide bookkeeping assistance to your tax preparer of choice). You should seek the services of a duly licensed professional in connection with any of the foregoing. In particular, only a certified public accountant can attest (e.g. as part of an audit) as to whether the results of the Fincent bookkeeping services are compliant with GAAP, IFRS or any other accounting standards or rules, and Fincent makes no representation or warranty with respect thereto.