Terms & Conditions
The terms and conditions (this “Agreement”) set forth herein constitute the full and complete agreement between you and CPA Department (“Company”). By using Company hosted accounting cloud services (the “Services”), you agree (i) you have read and understand this Agreement; (ii) you are bound by this Agreement; (iii) this Agreement is valid and enforceable against you; and (iv) to the extent you are using the Services on behalf of a business entity as the Account Owner, you have the power and authority to bind that business entity to this Agreement. We use the term “you” to refer to you as an individual and to any business entity for which you are acting as an agent or representative. The terms contained herein supersede and replace any other agreement or negotiation between you and Company, whether oral, written or otherwise, including any statements made to you by any representative of Company at any time with the sole exception of agreements physically signed by an authorized officer of Company and delivered by hand, mail, or email.
- TERMS & DEFINITIONS
(a) “Account” means, with respect to a Customer, the details of the Services currently purchased by such Customer for its benefit and/or the benefit of one or more particular Subscriber(s).
(b) “Account Owner” means the Person deemed to have complete control over the Account.
(c) “Affiliate” means, as applied to any Person, any other Person Controlled by, Controlling, or under common Control with that Person.
(d) “Available” means, as to a Service ordered by a Customer, that such Service is accessible and available for use by or on behalf of such Customer, notwithstanding any inaccessibility or unavailability caused by (i) Suspension, (ii) nonpayment, (iii) scheduled downtime, (iv) de minimis service interruptions, (v) interruptions outside of Company’ reasonable control, or (vi) a Customer’s or Subscriber’s own connectivity issues.
(e) “Billing Period” means, with respect to an Account, a one-month period beginning on the date on which Company first makes Services Available and recurring monthly until Customer Cancellation.
(f) “Control” means either the direct or indirect (i) control of more than 50% of the shares or other equity interests of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election or appointment of the corresponding managing authority), or (ii) power to manage, direct or cause the direction of the management and policies of such entity.
(g) “Customer Cancellation” means, with respect to an Account, the cancellation by a Customer of all of its and its Subscribers’ use of the Services.
(h) “Customer” means the Person obligated to make payments to Company or its Affiliate with respect to Services purchased for use by one or more Subscribers.
(i) “Discounts” means a discount to the Service Fees that is (i) set forth in a Quotation, (ii) applicable only to the particular Service identified in the Quotation, and (iii) effective only for the period specified in the Quotation.
(j) “Hosted Data” means the data Customer or its Subscribers store on the Company application servers.
(k) “Person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality).
(l) “Processor” means an entity that processes personal data for a customer or business without having ownership of the data.
(m) “QuickBooks® Products” means Intuit’s QuickBooks® Enterprise Solutions desktop software product and all other QuickBooks® Desktop products for Windows sold by Intuit in connection with the Services, any replacement product provided by Intuit, and all add-on products, services and features provided by Intuit, including updates, upgrades, enhancements, plug-ins, and other related components, as Intuit may release from time to time.
(n) “Quotation” means, with respect to a Customer, a writing executed by such Customer and an authorized representative of Company setting forth the description of the Services purchased, the Service Fees, and any additional terms and conditions applicable to the Services, as amended by the parties from time to time.
(o) “Service Fees” means the fees corresponding to a particular Service set forth in a Quotation, as discounted by any Discounts.
(p) “Sub-processor” means any subcontracted third party provider engaged by the Processor or service provider who processes customer personal data on behalf of the Processor or service provider.
(q) “Subscriber” means the Person designated by a Customer and permitted to use one or more Services.
(r) “Suspension” or “Suspend” means the denial of access to Services, which shall include the disabling of Customer’s and its Subscribers’ access to Services or any access to information or data stored on the servers.
(s) “Third Party Leased Software” means any and all third party software that you license through Company pursuant to a Quotation or the Web Portal, such as Microsoft Office and Windows Desktop.
(t) “Web Portal” means the Company web portal through which Customers can manage their Account, add and discontinue Services, and review billing details.
- ACCOUNT OWNER TERMS. If you are an Account Owner, the following terms apply to you and you agree that:
A. Only the Account Owner has the power to cancel the Account, change the name of the business, and move sub-accounts
B. There can only be one Account Owner at one time. Account Owners may be transitioned by contacting Company and completing the Company Account Owner Change Request Form.
C. To the extent you are using the Services on behalf of a business entity and that entity is the Customer, you have the power and authority to bind the Customer to this Agreement, including with respect to payment obligations under Section 3.
D. It is your obligation to update the person named in the Account Owner role. You agree to keep the person named in the Account Owner role up to date in the MyAccount portal, including without limitation if the prior Account Owner becomes deceased or is no longer part of your organization.
- FEES AND BILLING. If you are the Customer, the following terms apply to you and you agree that:
A. Service Fees. In exchange for Company making Services Available, Service Fees applicable to those Services shall accrue during the Billing Period. You agree that the Service Fees are in exchange for making the Services Available and you shall pay the Service Fees even if the Services were not used during the Billing Period.
B. Service Adjustments. Service Fees will be prorated (“Prorated Fees”) for new Services purchased and made Available during a Billing Period. No amounts will be refunded with respect to cancellations or reductions of Services during a Billing Period.
C. Billing. Company will charge you on the first day of each Billing Period for (i) Prorated Fees for Services added during the prior Billing Period, and (ii) Service Fees for Services purchased and active on your Accounts as of the first day of the Billing Period. You agree to pay such amounts on the first day of each billing period. Unpaid amounts shall accrue interest at the lesser rate of 2% per month or the highest rate permitted by law. Payment of Service Fees must be made by credit card (American Express, Visa, MasterCard, and Discover) or bank transfer (bank transfer is available only upon approval, additional fees may apply) or other method made available at Company’ sole discretion. In the event you choose to pay by credit card or bank transfer, prior to activation of your Account and at any applicable time thereafter you authorize Company to charge the credit card provided by you or transfer funds from the bank account provided by you for the amount of the Prorated Fees and Service Fees. All payments shall be made in United States Dollars. If the amounts payable for any Account you own or manage are past due in any Billing Period, in addition to Company’ other remedies hereunder and in law and equity, you grant Company the right to contact all Subscribers associated with your Accounts for direct billing.
D. Discounts. Company may from time to time offer Discounts to Customers. These Discounts are conditioned upon Customer’s and its Subscribers’ compliance with the terms of this Agreement. Upon a Customer’s or a Subscriber’s breach of any of the terms herein, Company may, in its sole discretion and without notice, revoke any Discounts offered to such Customer.
E. Fee Adjustments. The Service Fees shall be subject to price increases and decreases at any time by Company in its sole discretion, provided that in each such case Company shall notify the Account Owner of such adjustment no less than 30 days in advance of such adjustment.
- ACCEPTABLE USE
Company strictly enforces compliance with its acceptable use terms under this Section 4. You agree to use the Services in full compliance with the terms set forth below. Failure to so comply shall be deemed a material breach of this Agreement. In connection with your use of the Services, you agree that:
A. you will not and will cause your Subscribers not to violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government;
B. you will not and will cause your Subscribers not to take any action which encourages or consists of any threat of harm of any kind to any person or property;
C. you will not and will cause your Subscribers not to gain or attempt to gain any unauthorized access to any Services, accounts or Hosted Data of any Customer, Subscriber or other Person or disclose or use any such information without authorization;
D. you will not and will cause your Subscribers not to install, nor run, nor attempt to install or run any executable software not authorized in writing by Company on any Company hosting system or application servers;
E. you will not and will cause your Subscribers not to make any inappropriate, illegal or otherwise prohibited communication to any newsgroup, mailing list, chat facility, or other internet forum;
F. you will not and will cause your Subscribers not to transmit any unsolicited commercial or bulk email, will not engage in any activity known or considered to be “spamming,” “phishing,” “mail bombing” or similar activities and you will not carry out any “denial of service” attacks on any other website or internet service;
G. you will not and will cause your Subscribers not to engage in any activity of any kind that causes harm to minors or to perform any activity which is likely to cause such harm;
H. you will not and will cause your Subscribers not to infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software;
I. you will not and will cause your Subscribers not to remove or alter any copyright, trademark or other intellectual property notices with respect to the Services (including for the purpose of disguising or changing any indications of the ownership or source of the Services);
J. your sole remedy for any problems or dissatisfaction with the Company Services or services offered by Company Affiliates is to uninstall and to stop using the Services. You agree that Company has no obligation or liability arising from third party applications or any content that you access via the Services, and that any relationship with such third-party applications are governed by separate agreements with those third parties. You agree to comply with any applicable third party terms and obligations when utilizing the Services, regardless of whether payment for these services is made directly to Company or to an affiliate third party provider;
L. you will not and will cause your Subscribers not to use the Service to import or copy any local files that you do not have the legal right to import or copy in this way;
M. you will not and will cause your Subscribers not to reverse-engineer, decompile, disassemble, modify or create derivative works of the Services or any part thereof except to the extent permitted by applicable law;
N. you will not and will cause your Subscribers not to circumvent any technology used by Company or its licensors to protect the Services or Third Party Software;
O. you will not and will cause your Subscribers not to sell, rent, sublicense or lease any part of the Services;
P. you will not and will cause your Subscribers not to circumvent any territorial restrictions applied by Company or its licensors;
Q. you will not and will cause your Subscribers not to attempt to harvest, collect or use addresses, phone numbers, email addresses or other contact information, except as you are expressly authorized to use by your clients;
R. you will not and will cause your Subscribers not to solicit private information (including social security numbers, credit card numbers and passwords);
S. you will not and will cause your Subscribers not to use any crawling, robot, spider, scraper, or automated means while utilizing the Services;
T. you will not and will cause your Subscribers not to do anything that is illegal, infringing, fraudulent, malicious or could expose Company, its Affiliates or its other Customers to harm or liability of any type;
U. you will not and will cause your Subscribers not to post or copy malicious content such as malware, Trojan horses, or viruses, or otherwise interfere with any of Company’ Customers’ or Subscribers’ access to the Services;
V. you will not and will cause your Subscribers not to undertake any action which is harmful or potentially harmful to Company or its infrastructure;
W. you will not and will cause your Subscribers not to attempt, encourage or facilitate any of the above.
- THIRD PARTY SOFTWARE LICENSE AGREEMENTS
A. Compliance. You agree to comply with all software and end user license agreements for Third Party Leased Software.
B. Information Provided to Company. You represent and warrant that you are the legal owner of all license information and personally identifiable information that you have provided or will provide to Company. You grant Company the right to share with the licensors of Third Party Leased Software your license information, including without limitation all license-related keys and numbers for all Third Party Leased Software and all related services provided by the software licensor.
- OWNERSHIP AND LICENSE OF INTELLECTUAL PROPERTY
A. Ownership. The Services make use of intellectual property of Company including, but not limited to, Company tools and technologies for infrastructure configuration, system virtualization, and customer service. You understand and agree that all right, title and interest Company has in the Services, and all intellectual property rights therein, shall remain the sole property of Company and that, other than as set forth below in Section 7(B), you have no right, title or interest therein. You agree to receive written authorization from Company before performing any security analysis of the Services or any component thereof. You agree that you do not have the right to create any derivative works of the Services hereunder, and hereby assign any such derivative works you create to Company.
B. License Grant. Subject to your compliance with the terms of this Agreement, Company hereby grants you a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to use those Services, which are active on your Account, during the Billing Period in the United States solely for your internal business purposes.
- PRIVACY AND CONFIDENTIALITY
- Company backs up Hosted Data. If you wish to retain these files, it is your responsibility to transfer them off of the Company application servers.
- TERM AND TERMINATION
A. Agreement Term. The term of this Agreement shall run coterminous with the Billing Period (the “Term”).
B. Company Termination Right. Company may terminate this Agreement or any Service (i) on ninety (90) days’ written notice to you with or without cause, (ii) on written notice to you in the event that Company elects, in its sole discretion, to cease doing business in the United States and/or Canada, (iii) on written notice to you in the event that Company loses access to any license necessary to provide a Service, or (iv) with or without notice for cause, if (a) any payment for the Services is more than fifteen (15) days overdue, or (b) you or your Subscribers commit any material breach of any term of this Agreement, including without limitation any failure to timely pay fees.
C. Customer Termination Right. The Account Owner may terminate its applicable Account by calling the Company at 1-844-613-5014.
(a) Suspension on Breach. In addition to any of its other rights and remedies in law or in equity, in the event of you or your Subscribers’ breach of any term of this Agreement, including without limitation, any failure to timely pay fees, Company may with or without notice Suspend your Account in its sole and absolute discretion, including without limitation as necessary to protect itself or its customers.
(b) Continued Payments. Service Fees will continue to accrue on suspended Accounts and you continue to remain responsible for the payment of any such charges during the period of Suspension.
(c) Account Reactivation. Suspended Accounts may be reactivated subject to a $50.00 reactivation fee in addition to payment of all outstanding balances which shall be paid by Customer prior to reactivation of the Account. In addition, Account reactivation can require several business days. All past due and unpaid balances are subject to collection through third party collection agencies. In the event of such collection action, Customer shall be liable for costs of collection including but not limited to attorney’s fees, court costs, and collection agency fees.
(a) Data Retention. Company will retain Hosted Data for at least ninety (90) days following the effective date of termination. Company has no obligation to retain Hosted Data after such period and shall retain such Hosted Data only in its sole discretion or as required by applicable laws or regulations. Restoration of terminated Hosted Data may be provided subject to a terminated data restore fee of not less than $150.00.
(b) License Termination. Upon termination of this Agreement, all licenses and rights granted to you hereunder immediately terminate and you shall and shall cause your Subscribers to cease all use of the Services, except that you may continue to access your Account to view your account details and purchased Services.
- RIGHTS UPON ISSUANCE OF CIVIL OR CRIMINAL PROCESS
If Company is served with civil or criminal process relating to an Account or the Hosted Data on the Company servers relating to such Account, Company shall have the right to take whatever action it deems reasonably necessary to comply with such civil or criminal process, including, without limitation, suspending access to the Hosted Data. In the event that Company incurs attorneys’ fees and costs in connection with any such civil or criminal process, you will be responsible for reimbursing Company for all attorneys’ fees and costs.
- WARRANTIES; LIMITATION OF LIABILITY
Company makes every reasonable effort to maintain operation of the Services. Notwithstanding the foregoing, because many events and circumstances are beyond the control of Company, Company does not in any way warrant or otherwise guarantee the availability of the Company system, servers or Services and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether or not due to the negligence of Company. Company may, at its sole discretion, limit or deny access to its cloud infrastructure, if, in the judgment of Company, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the Company servers.ALL SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NON-INFRINGEMENT.Information obtained by you from the internet may be inaccurate, offensive or in some cases even illegal. With the exception of the content found on Company websites, Company has no control over information contained on the internet. Company, therefore, accepts no responsibility or liability for any information which you may receive from the internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the internet as well as the reputation of the individuals with whom you may deal. COMPANY PROVIDES NO WARRANTY FOR ANY GOODS OR SERVICES WHICH YOU OBTAIN OVER THE INTERNET, NOR THE COMPATIBILITY OF ANY SUCH SERVICES WITH THE COMPANY SYSTEM.YOU SPECIFICALLY HEREBY WAIVE ANY CLAIM FOR DAMAGES OF ANY KIND THAT YOU MAY HAVE AGAINST COMPANY OR ITS AFFILIATES IN CONNECTION WITH YOUR USE OF THE SERVICES, WHETHER SUCH DAMAGES ARE DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL, INCLUDING LOSS OF PROFITS OR LOSS OF BUSINESS. NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU BY ANY ACTS OR OMISSIONS OF COMPANY OR ITS AFFILIATES RELATING TO OR IN CONNECTION WITH THIS AGREEMENT SHALL BE A SERVICE CREDIT EQUAL TO THE FEE PAID BY YOU TO COMPANY AS PRO-RATED FOR THE PERIOD CORRESPONDING TO ANY TIME THE RESPECT SERVICE AT ISSUE WAS NOT AVAILABLE.
You agree to fully defend (with counsel acceptable to Company), indemnify and hold harmless Company, its Affiliates, and their officers, directors, agents, resellers, and employees, in their official and personal capacities, of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including reasonable attorneys’ fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of, in connection with or relating to any actual or alleged (i) breach of this Agreement by you or your Subscribers, (ii) your or your Subscriber’s negligence, willful misconduct or illegal acts, (iii) any violation or misappropriation of any Person’s intellectual property or other proprietary rights based on your use of the Services, other than in strict accordance with this Agreement, (iv) your failure to maintain the confidentiality of your Hosted Data or Account information, and (v) introduction of malicious content such as malware, Trojan horses, or viruses in the Company Services. You agree that you will keep confidential all Account information provided to you by or on behalf of Company, including usernames and passwords, and you assume all responsibility for any loss, theft or other destruction of any such data caused by or attributable to your actions or inactions.
- FORCE MAJEURE / WITHDRAWAL FROM BUSINESS
Except for payment obligations hereunder, either party to this Agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, outbreaks, epidemics and pandemics, and governmental shut-downs or other restrictions or requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
This Agreement and the rights hereunder are not assignable or transferable without the prior written consent of the other party, except that Company may freely assign any or all of its rights hereunder to any Affiliate or successor-in-interest of Company. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
- CHOICE OF LAW
This Agreement shall be interpreted under the laws of the State of Virginia, without regard to any conflict of laws provisions, without regard to its conflict of law rules which refer to or apply the law of another jurisdiction. Subject to the provisions of Section 17, the parties agree that any disputes arising out of or relating under this Agreement shall be commenced in the state or federal courts in the State of Virginia, and both parties consent to jurisdiction and venue in such courts.
- DISPUTE RESOLUTION
Any claim, dispute or controversy with respect to, in connection with or arising out of this Agreement shall be subject to and decided by arbitration in the City of Nashua, State of New Hampshire, by a panel of three arbitrators. Each Party shall designate one disinterested arbitrator and the two arbitrators so designated shall select a third arbitrator. The persons selected as arbitrators need not be professional arbitrators and persons such as lawyers, accountants, brokers and bankers shall be acceptable, but each shall have substantial experience with respect to information technology and development. The arbitration proceeding shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association then and there pertaining. Any party may initiate arbitration proceedings hereunder by providing written notice (“Demand for Arbitration”) to the other party to such claim, dispute or controversy. A Demand for Arbitration shall be made within a reasonable time after the claim, dispute or controversy has arisen; provided, however, that no Demand for Arbitration may be made after the date when institution of such claim, dispute or controversy would be barred by the applicable statutes of limitations. Arbitration proceedings shall be commenced within thirty (30) days of such notice or as soon thereafter as practicable, and the arbitrators shall be required to render a written determination within thirty (30) days after the commencement of such arbitration proceedings. The written award of a majority of the arbitrators shall be final and binding upon the parties and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof, including the federal district courts located in the City of Nashua, State of New Hampshire. All costs of any such arbitration shall be borne equally by the parties.This Section shall not be construed to prohibit either party from seeking preliminary or permanent injunctive relief in the state or federal courts in the State of New Hampshire in accordance with the provisions of Section 16. Notwithstanding the foregoing, the arbitrator hearing the dispute to which the injunction pertains will have the power to modify or dissolve any such injunction, or to order additional injunctive relief, in connection with the final arbitration award. The parties, their representatives, other participants, and the mediator and arbitrator shall hold the existence, content, and result of any mediation and arbitration in confidence except to the extent necessary to enforce a final settlement agreement or to obtain and secure enforcement of or a judgment on an arbitration decision and award.
- NO AGENCY
Nothing contained herein shall be interpreted as creating an agency, partnership or joint venture between Company and you.
Company may without advance notice amend this Agreement from time to time and will do so by posting the new Agreement on the Company website in place of the old. Each and every such amendment shall be become effective immediately for users of Company Services including but not limited to all pre-existing and future accounts. It is your responsibility to periodically check the Company website for updates of this Agreement.
Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.All provisions of this Agreement that by their nature are intended to survive any termination or expiration of this Agreement shall so survive, including, without limitation, Sections 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22.If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. Any rights not otherwise expressly granted by this Agreement are reserved by Company