This Subscription Agreement is entered on the date of acceptance (the “Effective Date”) and is made and entered into by and between Plum Logic, LLC, d/b/a Bookkeeper360.com, (“Bookkeeper360”) and the registered member (“Member”).
In this Subscription Agreement the following terms are defined as follows:
“Cloud Based” is the practice of using a network of remote servers hosted on the Internet to store, manage, and process data, rather than a local server or a personal computer.
“Data” means all data, information and materials provided by Member to Bookkeeper360 for use in connection with Bookkeeper360’s Services, including, without limitation, data input, data files, and any other content provided by Member.
“Fees” are fees paid for Services provided hereunder set forth in the Fee Schedule on Bookkeeper360’s Platform.
“License” refers to Member’s worldwide license to use Bookkeeper360’s Platform and access Bookkeeper360’s Services to store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, and distribute any of Member’s Data entered into or produced through the use of Bookkeeper360’s Services.
“Platform” refers to the specific Bookkeeper360 digital Cloud Based platform (which includes Bookkeeper360’s website, http://www.bookkeper360.com, its sub-domains and associated web-based and mobile applications), that is hosted by Bookkeeper360 or its service provider and made available to Member.
“Pricing Plan” refers to the pricing schedule accepted by the Member via the Bookkeeper360 Platform.
“Services” are Bookkeeper360’s Cloud Based bookkeeping, advisory, human resources, payroll and merchant products, support and services through Bookkeeper360’s Platform and any technology development and consulting services provided by Bookkeeper360 to Member.
“User” means any individual who is authorized to use the Services from the Member and is supplied a user identification and password, including employees, accountants, auditors, and any other authorized Member representatives.
“User Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by Bookkeeper360 to Member regarding the use or operation of Bookkeeper360 Services.
Delivery of Services and License
Upon the Effective Date, Bookkeeper360’s Services become available to Member and Member receives a License to use Bookkeeper360’s Platform. The Services are set forth in the Schedule of products and services offered by Bookkeeper360 on the Platform.
- Bookkeeper360 provides technical and business support and appropriate staff for the purchased Services during normal business hours (9am to 5pm EST) on Monday through Friday.
- Bookkeeper360 makes the Platform available 24 hours a day, 7 days a week, except for any unavailability of the Platform caused by circumstances beyond Bookkeeper360’s reasonable control, including but not limited to acts of God, acts of government, civil unrest, acts of terrorism, strikes or other labor problems (other than one involving Bookkeeper360 employees), Internet service provider failure or delay, non-Bookkeeper360 applications, or denial of service attack.
- Bookkeeper360 is responsible for the performance of its personnel (including employees and contractors) and their compliance with Bookkeeper360’s obligations under this Subscription Agreement.
Member Terms & Conditions
Member agrees to the Member Terms & Conditions provided on the Platform as may be updated from time to time which sets forth the terms & conditions of Member’s membership and License. The parties specifically agree that the Member Terms & Conditions are made a part of this Subscription Agreement.
Minimum Computer Hardware/Software Requirements
The Platform is Cloud Based and will perform on most current personal computer, tablet, and mobile devices. The minimum connectivity and system requirements shall be provided to Member upon written request and may be updated from time to time.
Data and Documentation
- Member is responsible for the collection, organization, editing and inputting of all Data necessary to create all files, including but not limited to, master and historical data files through the Platform.
- Member will timely provide the following documents for applicable Services:
- Online banking access to checking, savings, credit card and PayPal accounts;
- Cash disbursement reports and bank statements;
- Prior year’s tax return for Tax Preparation Members, if applicable;
- Detailed list of company assets and liabilities; and
- Other documents necessary for Bookkeeper360 to provide Bookkeeper360’s Services.
- Member agrees that all required documents will be uploaded on a periodic basis, but in no event greater than monthly, to enable Bookkeeper360 to provide Member with a current, meaningful, and useful financial statement. Member’s failure to timely upload documents and information may delay and/or impede Bookkeeper360’s ability to perform the Services. Member’s payment obligations to Bookkeeper360 will not be amended, modified, or excused in any manner whatsoever (including refund, discount, or other financial accommodation) by Member’s failure to comply with its obligations hereunder or by any delay in the performance of the Services by Bookkeeper360.
- If Bookkeeper360 is performing a conversion to Xero on Member’s behalf, Member must comply with all communicated instructions and requests provided by Bookkeeper360.
Warranties and Limitation of Liability
- BOOKKEEPER360 REPRESENTS AND WARRANTS THAT THE SERVICES WILL BE PROVIDED IN A PROFESSIONAL MANNER CONSISTENT WITH GENERAL INDUSTRY STANDARDS AND THAT THE SERVICES WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE USER DOCUMENTATION PROVIDED BY BOOKKEEPER360. BOOKKEEPER360 DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT BOOKKEEPER360 WILL CORRECT ALL SERVICE ERRORS. MEMBER ACKNOWLEDGES THAT BOOKKEEPER360 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. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY BOOKKEEPER360 (EXPRESS OR IMPLIED) WITH RESPECT TO THIS SUBSCRIPTION AGREEMENT. NEITHER BOOKKEEPER360 NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE, OR ERROR-FREE. NEITHER BOOKKEEPER360 NOR ANY OF ITS SERVICE PROVIDERS SHALL BE RESPONSIBLE OR LIABLE FOR ANY UNAUTHORIZED ALTERATION, THEFT, OR DESTRUCTION OF MEMBER’S OR ANY USER’S DATA, DATA FILES, OR PROGRAMS. MEMBER’S EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY SHALL BE GOVERNED AND LIMITED BY THIS SUBSCRIPTION AGREEMENT.
- BOOKKEEPER360 AND ANY LICENSOR OR OTHER SUPPLIER OF BOOKKEEPER360 SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA, OR USE OF ANY SERVICE, INCURRED BY MEMBER, AS A MEMBER, OR ANY THIRD PARTY IN CONNECTION WITH THIS SUBSCRIPTION AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MEMBER’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS SUBSCRIPTION AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE MEMBER UNDER THIS SUBSCRIPTION AGREEMENT TO BOOKKEEPER360 DURING THE THREE (3) MONTHS PRECEDING THE DATE THAT THE CLAIM AROSE.
- If a third party makes a claim against Bookkeeper360 that Member’s Data or User’s Data or use of the License causes financial damage or injury to such third party, or infringes any patent, copyright or trademark, or misappropriates any trade secret, Member shall defend Bookkeeper360 and its directors, officers and employees against the claim at Member’s expense and Member shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Bookkeeper360, to the extent arising from the claim.
- As conditions for indemnification, a party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide the other party’s out-of-pocket expenses, assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.
Discontinuation of Services
- This Subscription Agreement shall continue for the time period set forth in the Fee Schedule or the Pricing Plan which Member accepts when Member purchases a Subscription (the “Term”). At the end of the Term, the term of Member’s License for Bookkeeper360’s Services will automatically renew for an additional Term. The pricing during any Renewal Term will be the same as the previous Term unless Bookkeeper360 provides written notice to Member of a price increase at least fifteen (15) days prior to the end of the Term or any Renewal Term, in which case the price increase will be effective upon renewal. This Subscription Agreement may be terminated by either Bookkeeper360 or Member on thirty (30) days written notice sent via emails, facsimile, or regular mail. Upon termination, any prepaid retainer or other fees will not be refundable.
- If Member purchase Services on retainer, Member will have the rights to Services set forth in the Fee Schedule and in Bookkeeper360’s Member Terms and Conditions for a period of one (1) year. Retainers are non-refundable. At the end of that one-year Term, all fees shall be deemed earned regardless of how many Services Member uses during that Term. If Member chooses to continue receiving Services on retainer, Member must execute new agreement with Bookkeeper360 and pay a new retainer.
- In the event that this Subscription Agreement is terminated by either Bookkeeper360 or Member, the parties agree that under no circumstances will Bookkeeper360 be required to provide transition services to Member beyond the value of any remaining retainer or other sums paid to or held by Bookkeeper360 unless Member enters into a separate written engagement letter with Bookkeeper360 for such transition services.
- Bookkeeper360 reserves the right to suspend Services if Member fails to pay any amounts due to Bookkeeper360 under this Subscription Agreement when due and owing, but only after Bookkeeper notifies Member of such failure in writing and such failure continues for five (5) days. Suspension of Services shall not release Member of Member’s payment obligations hereunder. Member agrees that Bookkeeper360 shall not be liable to Member or to any third party for any liabilities, claims or expenses arising from or relating to suspension of Services resulting from Member’s nonpayment.
- Bookkeeper360 reserves the right to suspend or terminate Services if Bookkeeper reasonably concludes that (i) Member’s or a User’s use of the Services is causing immediate and ongoing harm to Bookkeeper360 or others; or (ii) Member becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event of suspension or termination of Services due to such circumstances, Bookkeeper shall immediately notify Member of the discontinuance of Services and the parties shall promptly attempt to resolve the harm. In such case, Bookkeeper360 shall not be liable to Member or to any third party for any liabilities, claims or expenses arising from or relating to such discontinuance of Services.
- Upon discontinuation of Bookkeeper360’s Services, all Fees paid by Member are not refundable and Bookkeeper360 is released from any liability for use of any of Member’s logins to operational software accessing Member’s financial records and accounts provided to Bookkeeper360 by Member in connection with Member’s use of Bookkeeper360’s Services.
- Member is responsible to terminate, deactivate, or change credentials of all Member’s logins to Bookkeeper360’s Platform and any access to third party services and systems upon discontinuation of Bookkeeper360’s Services or the termination or discontinuance of any User.
- If information provided to Bookkeeper360 in connection with Bookkeeper360’s Services appears unusual or out of the ordinary, Bookkeeper360 may, but is not required to, call such situation to Member’s attention. Bookkeeper360 is not responsible for the discovery of any errors, irregularities, or fraud committed by Member or others with whom Member conducts business. Although Bookkeeper360 will exercise reasonable care in the preparation of all materials, the information, and Data Bookkeeper360 compiles is based upon the Data and information submitted by Member and Bookkeeper360 does not guarantee the accuracy of such information. Bookkeeper360 shall not be responsible for any errors or oversights in Member’s reporting through Bookkeeper360’s Services. Reports and information compiled by Bookkeeper360 are prepared exclusively for Member’s use and not for the use of any third party.
- Bookkeeper360 does not assume any responsibility for actions of Member or any User and Member does not assume any responsibility for actions of Bookkeeper360.
- Member is responsible for ensuring that any of Member’s Users using the Services have the requisite training from Bookkeeper360 to properly use the Services.
Fees and Payment
- Member agrees to pay all Fees due hereunder pursuant to the Fee Schedule provided on Bookkeeper360’s Platform. All payment of Fees is due and payable upon receipt of by Member of an invoice.
- If Member executes an annual retainer, all fees are due and payable in advance upon receipt by Member of an invoice. For all other Services, a minimum deposit of the first month’s Fees and any related set up fees or expenses shall be paid to Bookkeeper360 upon Effective Date to commence Services on Member’s behalf. Thereafter, Services will be billed on a monthly basis to Member’s credit card, debit card, wire instructions, or electronic check profile provided to Bookkeeper360 by you. If Member needs to edit or to modify Member’s payment method, Member should contact firstname.lastname@example.org or call (800) 478-5082.
- All rendered Services received by Member are considered completed and delivered after 45 days of payment from Member and may not be disputed unless Bookkeepe360 receives written notice from Member disputing delivery of Bookkeeper360’s Services within 45 days after such payment.
- The parties agree that any unresolved controversy or claim arising out of this Subscription Agreement or related Services shall be settled by arbitration administered by the American Arbitration Association, in accordance with the applicable Commercial Arbitration Rules, at its offices in New York, New York. The arbitrator’s award will be final, and judgment may be entered upon it by any court having jurisdiction within the State of New York.
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law principles.
- Waiver: Rights Cumulative. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter. The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
- Notices. Any notices required to be given under this Agreement by either Party to the other shall be in writing and shall be transmitted either by (i) email, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) overnight mail (with all fees paid), addressed to the Party to be notified at the address set forth above or to such other address (or person) as such Party shall specify by like notice hereunder.
- Entire Agreement; Modifications. This Agreement, together, with any document names, exhibits, schedules, or other documents referenced herein, supersedes any and all agreements, either oral or written, between the parties with respect to the rendering of Services and contains all of the representations, warranties, covenants, and agreements between the parties with respect to the rendering of those Services. Each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not contained in this Agreement, and that no other agreement, statement, or promise not contained in this Agreement will be valid or binding. Any modification of this Agreement will be effective only if it is in a writing signed by an authorized representative of the Party to be charged.
- Partial Invalidity; Severability. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The Parties agree that if any of the paragraphs set forth herein are deemed to be invalid or unenforceable by an arbitrator or a court of law, such provisions shall be modified to make them enforceable to the fullest extent permitted by law and all other provisions of this Agreement shall remain valid and enforceable.
- Attorneys’ Fees. In any action or arbitration brought by Bookkeeper360 to enforce the obligations of the other party hereto, Bookkeeper360 shall be entitled to collect Bookkeeper360’s reasonable attorneys’ fee, costs and expenses in such action or arbitration.
You acknowledge that you have read this Subscription Agreement, understand it and agree to be bound by its terms and conditions upon your acceptance of the Services.