This Subscription Agreement (the “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” or “you”). Bookkeeper360 and Member may be individually referred to in this Agreement as “party” and collectively the “parties.”
THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE PLATFORM AND/OR THE SERVICES. BY ACCESSING THE PLATFORM OR USING THE SERVICES, YOU ARE ACCEPTING THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS THE PLATFORM AND/OR USE THE SERVICES.
You acknowledge and agree that the Services (as defined below) and any related communications with us are not a substitute for and do not include legal, tax, financial, real estate, healthcare, or accounting advice. Bookkeeper360 is not a public accounting firm.
In this Agreement the following capitalized terms have the following meaning:
“Account” means a user account of a Member on the Platform.
“Aggregate Data” means data that may include Member Data but does not identify Member.
“Cloud Based” means 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.
“Member Data” means all data, information and materials provided by Member or Member’s licensors to Bookkeeper360 for use in connection with the Services, including, without limitation, data input, data files, and any other content provided by Member.
“Fees” mean the fees paid by Member for Services provided hereunder set forth in the Fee Schedule on the Platform.
“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 and software), that is hosted by Bookkeeper360 or its service provider and made available to Member.
“Pricing Plan” means the pricing schedule accepted by the Member via the Platform.
“Services” mean Bookkeeper360’s Cloud Based bookkeeping, back-office, advisory, human resources, payroll and merchant products, support and services through the Platform, technology development and consulting services, and other services provided by Bookkeeper360 to Member.
“User” means any individual who is authorized to use the Services by 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 the Services.
II. License and Restrictions
Subject to the terms and conditions of this Agreement, upon the Effective Date Bookkeeper360 grants to Member, and Member agrees to pay the Fees for, a limited, revocable, non-exclusive, non-transferable, non-assignable license to use the Platform solely for Member’s internal use (the “License”).
You shall not, and shall not permit anyone to:
- copy or republish the Platform;
- make the Platform available to any person other than a User authorized by you;
- use or access the Platform to provide service bureau, timesharing or other computer hosting services to third parties;
- modify or create derivative works based upon the Platform, the Services or User Documentation;
- remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the Services or presented in the User Documentation;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software used to provide the Platform and/or the Services, except and only to the extent such activity is expressly permitted by applicable law; or,
- access the Platform or use the User Documentation in order to build a similar or competitive product.
You shall not claim any right, title, or interest in or to the Bookkeeper360 trade name, logo or trademark, or other identifying symbols, and shall not use the same except with the express written permission of Bookkeeper360.
You, your affiliates or agents shall not directly or indirectly offer employment to, or otherwise interfere with the employment relationship of, our employees or solicit our employees to leave our employment without the express written permission of a legally authorized representative of Bookkeeper360.
You shall not solicit any of our other Members or Users to use products and/or services that are competitive with the Services.
You acknowledge that all (a) patents, utility models, copyrights, database rights and rights in trademarks, trade names, designs, knowhow, and invention disclosures (whether registered or unregistered); (b) applications, reissues, confirmations, renewals, extensions, divisions or continuations for any of these rights; and (c) all other intellectual property rights and similar forms of worldwide protection (“Intellectual Property Rights”) in and to the Services and/or the Platform and their content are owned by Bookkeeper360 or Bookkeeper360’s licensors. Neither this Agreement (nor your access to the Platform) transfers to you or any third party any rights, title or interest in or to such Intellectual Property Rights, except for the limited access rights expressly set forth above. Bookkeeper360 and its licensors and/or suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.
III. Member Obligations
(i) Responsibility for Platform Use. You acknowledge and agree that you shall be responsible for all uses of the Platform, all information used or Member Data displayed on the Platform, all reporting from the Platform and all acts or omissions that occur on the Platform in connection with your Account.
(ii) Account Information and Responsibility. You agree to provide contact information and other information with respect to your Account, including but not limited to your company name, address, telephone number, fax number and e-mail address. You also agree to update such information to keep it true, accurate, current and complete. You are responsible for maintaining the confidentiality of your Account information, including your password, and for all activity that occurs under your Account. You agree to notify Bookkeeper360 immediately of any unauthorized use of your Account or password, or any other breach of security. You may be held liable for losses incurred by Bookkeeper360 or any other user of the Platform and/or the Services due to someone else using your password or Account. You may not use anyone else’s password or account at any time. You may not attempt to gain unauthorized access to the Platform. Should you attempt to do so, assist others in making such attempts, or distributing instructions, software or tools for that purpose, then your Account will be terminated without any refund of Fees. You agree to provide us with accurate, current and complete information about yourself and your billing information as prompted by the Account registration process. You may update any of your Account information, designate a different credit card to be billed, or change the applicable expiration date on your currently designated credit card, by clicking on the account button and selecting the appropriate link.
(iii) User Access. You shall only permit your Users to access and use the Platform and/or the Services on your behalf and in accordance with this Agreement. You shall remain responsible and liable to Bookkeeper360 for any act or omission of a User that would constitute a breach of this Agreement if such act or omission were by you.
(iv) Prohibited Uses. You may not use any automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy, probe, test or monitor any portion of the Platform, or in any way reproduce or circumvent the navigational structure or presentation of the Platform, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Platform. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Platform or any of the systems or networks comprising or connected to the Platform.
(v) Bookkeeper360 Right to Terminate. You agree that Bookkeeper360 may, at any time, in its sole discretion and without prior notice to you, terminate your access to the Platform and/or the Services and your Account for any reason, including without limitation:
- Any attempt to gain unauthorized access to the Platform or assistance to others’ attempting to do so;
- Any attempt to overcome security measures protecting the Platform;
- Discontinuance or material modification of the Platform or any Services offered;
- Violations of this Agreement;
- Suspected or actual copyright infringement;
- Unexpected operational difficulties; and
- Requests by law enforcement or other government agencies.
You agree that Bookkeeper360 will not be liable to you or to any third party for termination of your access to the Service.
(vi) Your Compliance Obligations. You agree that you are solely responsible for complying with all laws, taxes, and tariffs applicable to your business operations (collectively “Compliance Obligations”), and will hold harmless, protect and defend Bookkeeper360 from any claim, suit, or penalty relating to Compliance Obligations.
(vii) System Requirements. You are responsible, at your cost, to meet the minimum system requirements for use of the Platform and/or the Services, including to obtain access to the Internet using software and hardware that meets Bookkeeper360’s security and performance requirements.
(viii) Provision of Materials. You are responsible for the collection, organization, editing, inputting, and provision to Bookkeeper360 of all Member Data specified in an engagement letter and/or a statement of work or requested by Bookkeeper360 in writing (including e-mail and/or web or mobile forms) for purposes of providing the Services. You agree that all required Member Data will be uploaded on a periodic basis, but in no event less frequently than monthly, to enable Bookkeeper360 to provide you with current, meaningful, and useful Services. Your failure to timely upload documents and information may delay and/or impede Bookkeeper360’s ability to perform the Services and you agree that Bookkeeper360 shall have no liability whatsoever for any such delay or impediment. Your obligation to pay the Fees to Bookkeeper360 will not be amended, modified, or excused in any manner whatsoever (including refund, discount, or other financial accommodation) by your failure to comply with your obligations in this Agreement or by any delay in the performance of the Services by Bookkeeper360.
(x) User Training. Moreover, 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.
IV. Member Data
4.1. Member Data Ownership. Member retains exclusive ownership of the Member Data.
4.2. License. Member grants Bookkeeper360 a non-exclusive license to use, process, store, display, reproduce, and aggregate Member Data. Member is solely responsible for the content of Member Data and represents and warrants that it owns or has obtained the rights to all of the intellectual property rights subsisting in the Member Data, and Member has the right to provide Bookkeeper360 the license granted herein to use such Member Data in accordance with this Agreement. Member agrees that it will not include in Member Data any data, including personal information, which is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties. Member agrees that Bookkeeper360 may use Aggregate Data for any purpose and disclose Aggregate Data to third parties.
4.3. No Liability. Member acknowledges and agrees that Bookkeeper360 shall have no liability whatsoever, regardless of the legal theory or basis of liability, for Member Data or any Services results or outcomes based on, arising out of, or relating to Member Data. Moreover, Bookkeeper360 is not responsible for the accuracy of, or liable for the inaccuracy of, any third-party sources of data included in Member Data.
4.4. Security of Member Data. Bookkeeper360 maintains administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Member Data. Those safeguards include, but are not limited to, measures for preventing access, use, modification or disclosure of Member Data by our personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as required by law, or (c) you expressly permit in writing.
V. Bookkeeper360 Support
Unless otherwise agreed in writing, Bookkeeper360 provides technical and business support and appropriate staff for the purchased Services during normal business hours (9 AM to 6 PM EST) from Monday through Friday. Bookkeeper360 makes the Platform available 24 hours a day, 7 days a week, except for any planned downtime, or 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 Agreement.
VI. Warranties and Disclaimers
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 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 DATA, DATA FILES, OR PROGRAMS. MEMBER’S EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY SHALL BE GOVERNED AND LIMITED BY THIS AGREEMENT.
WE EXPRESSLY DISCLAIM ANY AND ALL CONDITIONS, REPRESENTATIONS, OTHER WARRANTIES OR OTHER TERMS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
If information provided to Bookkeeper360 in connection with the 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 Member Data 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 the Services. Reports and information compiled by Bookkeeper360 are prepared exclusively for Member’s use and not for the use of any third party.
VII. Limitation of Liability
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 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. BOOKKEEPER360’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE MEMBER UNDER THIS AGREEMENT TO BOOKKEEPER360 DURING THE THREE (3) MONTHS PRECEDING THE DATE THAT THE CLAIM AROSE.
Member shall defend and indemnify Bookkeeper360 from any damages awarded against Bookkeeper360 by a court of competent jurisdiction, or paid in settlement, in connection with a third-party claim, suit or proceeding that (i) Member’s use of the Services in violation of this Agreement; or (ii) Bookkeeper360’s use of Member Data, as permitted under this Agreement, infringes or violates the third party’s intellectual property or other rights.
The defense and indemnification obligations of a party under this section are subject to: (i) the indemnifying party being given prompt written notice of the claim; (ii) the indemnifying party being given immediate and complete control over the defense (and settlement) of the claim; and (iii) the indemnified party providing cooperation and assistance, at the indemnifying party’s expense, in the defense or settlement of the claim and not taking any action that prejudices the indemnifying party's defense of, or response to, the claim.
IX. Term and Termination
The term of this Agreement shall be the time period set forth in the engagement letter or the Pricing Plan which Member accepts when Member purchases a Subscription (the “Term”). At the end of the Term, the term of the License will automatically renew for an additional Term (each such additional term a “Renewal 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 Agreement may be terminated by either Bookkeeper360 or Member on thirty (30) days written notice sent via email, 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 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 a new agreement with Bookkeeper360 and pay a new retainer.
In the event that this 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 Fees due to Bookkeeper360 under this Agreement when due and owing. 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 the Services, all Fees paid by Member are non-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 the Services.
Member is responsible for terminating, deactivating, or changing credentials of all Member’s Users to the Platform and any access to third party services and systems upon discontinuation of the Services or the termination or discontinuance of any User.
X. Fees and Payment
Member agrees to pay all Fees due hereunder pursuant to the Fee Schedule provided on Bookkeeper360’s Platform. All payments of Fees are due and payable on the due date designated on the 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.
If Member fails to notify Bookkeeper360 within 24 hours of a scheduled meeting, Bookkeeper360 reserves the right to bill the member for the meeting time.
All rendered Services received by Member are considered completed and delivered after 45 days of payment from Member and may not be disputed unless Bookkeeper360 receives written notice from Member disputing delivery of Bookkeeper360’s Services within 45 days after such payment.
XI. Dispute Resolution
The parties agree that any unresolved issue, controversy or claim arising out of or relating to this Agreement or related Services shall be settled by arbitration administered by the American Arbitration Association, in accordance with the applicable Commercial Arbitration Rules in New York County, New York. The arbitrator’s award will be final, and judgment may be entered upon it by any court having jurisdiction thereof. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York County, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York County, New York for such purpose.
12.1. 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.
12.2. 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.
12.3. 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.
12.4. 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.
12.5. 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.
12.6. Attorneys’ Fees. In any action or arbitration brought by Bookkeeper360 to enforce the obligations of Member, 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 Agreement, understand it and agree to be bound by its terms and conditions upon your acceptance of the Services.