This Fincent Subscription Agreement (these “terms” or this “agreement”)is made between you (either an individual or, if you are using Fincent onbehalf of an entity, that entity) and Fincent.com, Inc. It governs your accessto and use of Fincent’s services, products, software, and websites (the “Services”).
If your Order Form contains additional terms and conditions, then thoseterms and conditions govern to the extent they conflict with any of theseterms. If you are agreeing to these terms on behalf of an entity, you representthat you have the authority to bind that organization, otherwise you must notsign up for the Services.
Please read this agreement carefully. It requires the use of bindingindividual arbitration to resolve disputes rather than jury trials or classactions (for information about how to opt-out, see Section 11.8 (30-day opt-outperiod) below).
1.1. We provide bookkeeping services
Fincent’s bookkeeping services are a solution for bookkeeping andfinancial organization. Fincent’s bookkeeping services and any relatedcommunications with us are not a substitute for and do not include legal, tax,financial, real estate, healthcare, or accounting advice. Fincent is not apublic 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 andservices, like your bank account. If you provide us with login credentials (forexample, an account name or number, password, answers to security questions(collectively, the “Login Credentials”)), you both (a) give uspermission, and a limited power of attorney, to use them to login to theseother websites and services and access, transfer, reformat, and manipulate youraccount on your behalf; and (b) represent to us that you have the authority togive 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 thatbreaches this agreement (including the Acceptable Use Policy) or creates riskof personal injury, property damage, or legal liability for Fincent, you or anythird party, or may cause Fincent to lose the services of one of ourthird-party service providers. You represent and warrant that any informationyou provide to us about your (or, if you are acting on behalf of another, thatperson’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 withtechnical support services relating to the Services via its technical supportwebsite, email, or telephone. Fincent is constantly changing and improving ourservices, and may update features, alter, add or remove functionality of theServices at our discretion. Fincent may also, from time to time, scheduledowntime for maintenance and upgrades to the Services.
1.6. Facilities and data transfer
All facilities used to store and process Customer Data will adhere toreasonable security standards no less protective than the security standards atfacilities where Fincent stores and processes its own information of a similartype. As part of providing the Services, we transfer, store and processCustomer Data in the United States. By using the Services, you consent to thistransfer, processing and storage of Customer Data.
2. Non-Disclosure and Confidentiality
Each party shall keep any Confidential Information of the other party asstrictly confidential and shall not disclose it to third parties without theprior written consent of the disclosing party. Each party shall use at leastthe same standard of care in the protection of the other party’s ConfidentialInformation as it uses to protect its own Confidential Information. Theforegoing confidentiality obligations shall not apply to any ConfidentialInformation which the receiving party can show, through documentationreasonably acceptable to the disclosing party: (a) is in the public domain atthe time of disclosure or later becomes part of the public domain through nofault of the receiving party; (b) was known to the receiving party prior todisclosure by the disclosing party as proven by the contemporaneous, ordinaryand customary written records of the receiving party; (c) is at any timeindependently developed by the receiving party as proven by itscontemporaneous, ordinary and customary written records without reference oruse of Confidential Information of the disclosing party; (d) which disclosurewithout a binder of secrecy is expressly authorized in writing by thedisclosing party..
2.2. Disclosure of Confidential Information
Regardless of any other provision in this agreement, the recipient orits Affiliates may disclose the other party’s Confidential Information (a) inaccordance with a Legal Process, subject to Section 3.2.2 (Legal Processnotification); (b) with the other party’s written consent; or (c) in connectionwith enforcing our rights under our agreements with you.
2.2.2. Legal Process notification
The recipient will use commercially reasonable efforts to notify theother party before disclosing that party’s Confidential Information inaccordance with Legal Process. Notice is not required before disclosure if therecipient is informed that (a) it is legally prohibited from giving notice or(b) the Legal Process relates to exceptional circumstances involving danger ofdeath or serious physical injury.
The recipient and its Affiliates will comply with the other party’sreasonable requests to oppose disclosure of its Confidential Information.
Fincent will collect payment for the fees automatically via ACH. Feesare exclusive of taxes, which you’re responsible for if applicable. You herebyauthorize Fincent or its payment processor to initiate entries to your businessbank checking accounts on file with Fincent (using your business address onfile) in order to pay amounts that you owe to Fincent (including for any RenewalTerms as those payments come due), and, if necessary, to initiate adjustmentsfor any transactions credited or debited in error. Fincent may immediatelysuspend provision of the Services if your account is past due. Except to theextent expressly set forth in this Section 4 (Payment), all payments arenon-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 youotherwise agree to these terms (for example, by clicking through an onlineagreement) (the “Effective Date”). Your initial subscription term willbegin 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 subscriptionwill automatically renew for the same duration as the Initial Term unless yougive us notice (via support@Fincent.com) at least (a) seven (7) days formonthly or quarterly subscriptions; or (b) thirty (30) days for annualsubscriptions, in each case, prior to the end of the then-current Initial Termor Renewal Term, as applicable.
4.3. Termination by us
We may terminate your subscription at any time by providing notice oftermination to you via the email address we have on file. In the event weterminate your subscription for any reason other than your violation of Section1.4 (Unauthorized uses of the Services) or your material breach of thisagreement, we will give you a refund of prepaid fees for unelapsed months ofthe 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 wasmaintained for you by Fincent, so that you can elect to maintain thatsubscription with Intuit or export your data.
Sections 3, 5.4, 6, and 8 – 12 (inclusive) will survive the terminationor expiration of this agreement.
5. Intellectual Property
As between the parties, you retain all intellectual property rights inyour data, and we retain all intellectual property rights in the Services. Yougrant us a limited license to use your data to provide, protect, and improvethe Services. We may retain anonymized, de-identified, and aggregated data thatis protected by organizational and technical safeguards in order to performresearch and development. If you provide us with feedback or suggestions aboutthe Services (“Feedback”), then we may use that information withoutobligation 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 rightsnecessary and sufficient to do so.
7. Warranty Disclaimer
THE SERVICES ARE PROVIDED “AS IS”, EXCEPT AS EXPLICITLY SET FORTHHEREIN, AND TO THE EXTENT ALLOWED BY LAW, THERE ARE NO OTHER WARRANTIES,EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OFMERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSEWITH RESPECT TO THE SERVICES. FINCENT DOES NOT WARRANT THAT THE SERVICES AREERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. THE FINCENT ENTITIES DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THATYOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGALOBLIGATIONS 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 ORPUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF USE, LOSS OR ALTERATIONOF DATA, DELAYS, LOST PROFITS OR SAVINGS, ARISING OUT OF PERFORMANCE OR BREACHOF THE AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICES, EVEN IF SUCHPARTY 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, STRICTLIABILITY, PRODUCT LIABILITY OR NEGLIGENCE) OR RESULTING FROM THESE TERMS ORSERVICES FURNISHED HEREUNDER SHALL NOT EXCEED THE FEES PAID TO FINCENT BY YOUFOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM OR ONEHUNDRED 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 relateto: (a) your use of and our provision of the Services (except to the extentarising directly from our wilful misconduct or gross negligence), (b) yourviolation of the agreement, (c) any content, information or materials providedby you, or (d) infringement by you, or any third party using your account oridentity in the Services, of any intellectual property or other right of anyperson or entity. Fincent reserves the right to assume the exclusive defenceand control of any matter otherwise subject to indemnification by you, in whichevent 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 agreethat any and all claims relating to these terms or the Services may only bebrought in the federal or state courts of San Francisco County, California,subject to the mandatory arbitration provisions below. Both you and Fincentconsent to venue and personal jurisdiction in such courts.
10.2. Notice of disputes
If you have a dispute with Fincent, you willpromptly send written notice to: Fincent, Inc., 1190 Miraloma Way Suite PSunnyvale CA 94085
10.3. Governing law
This agreement and all claims (including procedural issues) between theparties are governed by the laws of California, excluding California’s conflictof laws rules.
10.4. Informal resolution
Before filing a claim, you and we each agree to try to resolve thedispute by contacting the other party through the notice procedures in Section11.2 (Notice of disputes). If a dispute is not resolved within thirty days ofnotice, you and we may bring a formal proceeding.
You and Fincent agree to resolve any and all claims relating to thisagreement or the Services through final and binding arbitration, except as setforth below. The American Arbitration Association (AAA) will administer the arbitration under its CommercialArbitration Rules. The arbitration will be held in San Francisco (CA), or anyother 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 unauthorizeduse or abuse of the Services or infringement of Intellectual Property Rightswithout 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 Serviceswith the Fincent Entities on an individual basis and will not bring a claim ina class, consolidated, or representative action.
10.8. 30-day opt-out period
If you don’t wish to be bound by these arbitration provisions (includingits waiver of class and representative claims), you must notify us by emailing arbitration-opt-out@Fincent.com nolater than 30 days after the first acceptance date of any version of thisagreement containing an arbitration provision (unless a longer period isrequired by applicable law). An opt-out notice does not revoke any previousarbitration agreement between us.
10.9. Future changes to this dispute resolution agreement
If Fincent makes any changes to this Section 11 (or successor sectionand not including Section 11.2 (Notice of Disputes)), you may reject any such changeby notifying us via the procedure set forth in Section 11.8 (30-day opt-outperiod) within 30 days of the change. It is not necessary to submit a rejectionof a future change to this Section 11 if you have properly opted out ofarbitration in compliance with the requirements of Section 11.8 (30-day opt-outperiod).
11.1. Updates to this agreement
Fincent may make nonmaterial changes to these terms at any time withoutnotice, but we will provide advance notice of any material changes to them.Other than changes made under Section 11.9 (Future changes to this disputeresolution agreement), the changes to the terms will not apply retroactivelyand will become effective 30 days after we give you notice or the statedeffective date of the new terms, whichever is later. If a new version of theseterms has a material negative impact on you, then you may object to the changeby notifying us (via firstname.lastname@example.org) within 30 days after we provideyou with notice of the changes. If you so notify us, then you will remaingoverned by the terms in effect immediately before the change until the end ofyour then-current Initial Term or Renewal Term, as applicable. After that, youwill be governed by the changed terms. Notwithstanding anything to the contraryin the foregoing, any changes to the terms related to new features or made forlegal reasons will become effective immediately upon notice.
If any provision of the agreement or theapplication thereof to any person or circumstance shall be invalid orunenforceable to any extent for any reason including by reason of anyapplicable law, the remainder of the agreement shall be valid and enforceableto the fullest extent permitted by applicable law. Any invalid or unenforceableprovision of the agreement shall be replaced with a provision, which is validand enforceable and most nearly reflects the original intent of the invalid andunenforceable provision.
You may not assign or transfer, by operation of lawor otherwise, any of its rights under the agreement to any third party withoutFincent’s prior written consent; any attempted assignment or transfer inviolation 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 addressup-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 partiesregarding the subject hereof and supersedes all prior or contemporaneousagreements, understandings, and communication, whether written or oral. Thisagreement 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 purposesonly.
11.7. Third-party beneficiaries
Fincent’s Affiliates and Fincent’s and its Affiliates’ suppliers anddistributors are intended third party beneficiaries of Sections 8 – 10(inclusive). Except as expressly set forth in the foregoing, there are no thirdparty 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 markedas confidential or would normally be considered confidential information underthe circumstances. Customer Data is your Confidential Information. ConfidentialInformation does not include information that is independently developed by therecipient, is shared with the recipient by a third party withoutconfidentiality obligations, or becomes public through no fault of therecipient.
“Control” means control of greater than 50% of the voting rightsor equity interests of a party.
“Customer Data” means data submitted, stored, sent or receivedvia the Services by you, at your direction, or as part of the Services for you.
“Delegates” means employees, Affiliates, agents, and professionaladvisors.
“including” means including, without limitation.
“Legal Process” means an information disclosure request madeunder 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 inthe Fincent Subscription Agreement) or help anyone else to do so. Forexample, you must not do (or even try to do) any of the following in connectionwith the Services:
The Scope of the Fincent Bookkeeping Services
The Fincent bookkeeping services (including anycommunications you may have with Fincent personnel in connection with thoseservices) are not a substitute for and do not include legal, tax, financial,real estate, healthcare or accounting advice, and Fincent is not a publicaccounting firm. The Fincent bookkeeping services do not include, and you willnot purport to rely on them for: (i) audit, examination, verification,investigation, certification, presentation, or review, of financialtransactions or accounting records; (ii) advice relating to accountingprocedure and to the recording, presentation, or certification of financialinformation or data; (iii) preparation or certification of reports on audits orexaminations of books or records of account, balance sheets, and otherfinancial, accounting and related schedules, exhibits, statements, or reportsthat are to be used for publication, for the purpose of obtaining credit, forfiling with a court of law or with any governmental agency, or for any otherpurpose; (iv) legal advice regarding any of your business practices, includingwith respect to their appropriateness or legality; or (v) tax advice or taxreturn preparation (although we will provide bookkeeping assistance to your taxpreparer of choice). You should seek the services of a duly licensedprofessional in connection with any of the foregoing. In particular, only acertified public accountant can attest (e.g. as part of an audit) as to whetherthe results of the Fincent bookkeeping services are compliant with GAAP, IFRSor any other accounting standards or rules, and Fincent makes no representationor warranty with respect thereto.