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, dba Bookkeeper360.com, (“BOOKKEEPER360” or “we”) and the registered member (“MEMBER” or “you”).
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 you to BOOKKEEPER360 for use in connection with our Services, including, without limitation, data input, data files, and any other content provided by you.
“Fees” are fees paid for Services provided hereunder set forth in the Fee Schedule on our Platform.
“License” refers to your worldwide license to use our Platform and access our Services to store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute any of your Data entered into or produced through the use of our Services.
“Platform” refers to the specific BOOKKEEPER360 digital Cloud Based platform (which includes our 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 you.
“Services” are our Cloud Based human resources, bookkeeping, payroll and merchant products, support and services through our Platform and any technology development and consulting services provided by us to you.
“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 you regarding the use or operation of BOOKKEEPER360 Services.
Delivery of Services and License
Upon the Effective Date, our Services become available to you and you receive a License to use our Platform. Our Services are set forth in the Schedule of products and services offered by BOOKKEEPER360 on our 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 our personnel (including employees and contractors) and their compliance with our obligations under this Subscription Agreement.
Member Terms & Conditions
You agree to the Member Terms & Conditions provided on our Platform as some may be updated from time to time which sets forth the terms & conditions of your membership and License and is made a part of this Subscription Agreement.
Minimum Computer Hardware/Software Requirements
Our 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 you upon written request, as some may be updated from time to time.
Data and Documentation
- You are 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.
- You 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 us to provide our Services.
- You agree that all required documents will be uploaded on a periodic basis, such as monthly, to enable BOOKKEEPER360 to provide you with a current, meaningful and useful financial statement.
- If we are performing a conversion to Xero on your behalf you must comply with all communicated instructions and requests provided by BOOKKEEPER360.
Warranties and Limitation of Liability
- BOOKKEEPER360 represents and warrants that we will provide the Services in a professional manner consistent with general industry standards and that the Services will perform substantially in accordance with User Documentation provided to you. For any breach of a warranty, your exclusive remedy shall be as provided in this Subscription Agreement.
- BOOKKEEPER360 WARRANTS THAT THE SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS 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 WE WILL CORRECT ALL SERVICE ERRORS. CUSTOMER 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, NOR SHALL BOOKKEEPER360 OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF MEMBER’S OR ANY USER’S DATA, DATA FILES OR PROGRAMS.
- 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 YOU, 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. YOUR 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 DURING THE 3 MONTHS PRECEDING THE DATE THAT THE CLAIM AROSE.
- If a third party makes a claim against you that the Services infringe any patent, copyright or trademark, or misappropriates any trade secret, or that BOOKKEEPER360’s negligence or willful misconduct has caused financial damage or injury to you, we shall defend you and your directors, officers and employees against the claim at our expense and we 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 us, to the extent arising from the claim. BOOKKEEPER360 shall have no liability for any claim based on (a) your Data, (b) modification of the Services not authorized by us, or (c) use of the Services other than in accordance with the User Documentation provided by us to you pursuant to this Subscription Agreement. BOOKKEEPER360 may, at its sole option and expense, procure for you the right to continue use of the Services, modify the Services in a manner that does not materially impair the functionality, or terminate the Term and repay to you any amount paid by you with respect to the Term owing to the termination date.
- If a third party makes a claim against BOOKKEEPER360 that your Data or your 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, you shall defend BOOKKEEPER360 and its directors, officers and employees against the claim at your expense and you 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 you accept when you purchase a Subscription (the “Term”). At the end of the Term, the term of your License for our Services may be renewed by the parties, or will automatically renew for additional one month terms, unless you provide BOOKKEEPER360 with written notice that you are discontinuing our Services as provided above. The pricing during any renewal Term will be the same as the previous Term unless BOOKKEEPER360 provides written notice to you of a price increase at least fifteen (15) days prior to the end of a Term, in which case the price increase will be effective upon renewal.
- If you purchase Services on retainer, you will have the rights to Services set forth in your Fee Schedule and in our 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 you use during that Term. If you choose to continue receiving Services on retainer, you will need to execute new agreements and pay a new retainer.
- You may request discontinuation of Services and terminate this Subscription Agreement upon thirty (30) days written notice via email, facsimile or mail to BOOKKEEPER360, provided however, that any prepaid retainer fees are non-refundable.
- BOOKKEEPER360 reserves the right to suspend Services if you fail to pay in a timely manner any amounts due to BOOKKEEPER360 under this Subscription Agreement, but only after we notify you of such failure and such failure continues for five (5) days. Suspension of Services shall not release you of your payment obligations hereunder. You agree that BOOKKEEPER360 shall not be liable to you or to any third party for any liabilities, claims or expenses arising from or relating to suspension of Services resulting from your nonpayment.
- BOOKKEEPER360 reserves the right to suspend or terminate Services if we reasonably conclude that (i) you or a USER’s use of the Services is causing immediate and ongoing harm to BOOKKEEPER360 or others; or (ii) you become 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, we shall immediately notify you of the discontinuance of Services and the parties shall promptly attempt to resolve the harm. In such case, BOOKKEEPER360 shall not be liable to you or to any third party for any liabilities, claims or expenses arising from or relating to such discontinuance of Services.
- Upon discontinuation of our Services, all Fees paid by you are not refundable and we are released from any liability for use of any of your logins to operational software accessing your financial records and accounts provided to us by you in connection with your use of our Services.
- You are responsible to terminate, deactivate or change credentials of all your logins to our Platform and any access to third party services and systems upon discontinuation of our Services.
- Our Services do not include business management. BOOKKEEPER360 will not review the payment of any of your invoices or bills. If information provided to us in connection with our Services appear unusual or out of the ordinary; BOOKKEEPER360 will call it to your attention, but we do not take any responsibility in the discovery of any errors, irregularities, or fraud committed by you. While BOOKKEEPER360 will exercise reasonable care in the preparation of all materials, the information and Data we compile is based on the Data and information submitted by you and we do not guarantee the accuracy of such information. BOOKKEEPER360 shall not be responsible for any errors or oversights in your reporting through our Services. Reports and information compiled are prepared exclusively for your use and not for the use of any third party.
- BOOKKEEPER360 does not assume any responsibility for actions of you or USERS and you do not assume any responsibility for actions of BOOKKEEPER360.
- You are responsible for ensuring that any of your USERs using the Services has the requisite training from BOOKKEEPER360 to properly use the Services.
Fees and Payment
- You agree to timely pay all Fees due hereunder pursuant to the Fee Schedule provided on our Platform. All payment of Fees is due and payable upon receipt of by you of an invoice.
- If you sign up for an annual retainer, all fees are due and payable in advance upon receipt by you 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 your behalf. Thereafter, Services will be billed on a monthly basis to your credit card, debit card, wire instructions or electronic check profile provided to us by you. If you need to edit or modify your payment method please contact firstname.lastname@example.org or call (800) 478-5082.
- All rendered Services received by you are considered completed and delivered after 45 days of payment from you and may not be disputed, unless we receive written notice from you disputing delivery of our 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.
- This Subscription Agreement shall be governed by the laws of the State of New York, excluding its conflict of law principles.
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.