Please read carefully this Terms of Service Agreement (the “Agreement”), which is made and entered into between you and Tabulate, Inc., a Delaware corporation (the “Company”). This Agreement contains the terms and conditions upon which the Company will provide to you certain bookkeeping, payroll and/or other services, whether through our website, software platform or otherwise (collectively, “Service”). “Service” shall mean and include, without limitation, any service or software tool, or packages or bundles of services and software tools, offered or provided from time to time by the Company, with or without fees or charges, and any websites, applications or other platforms from which same are provided, accessed or used.
You are required to indicate your acceptance of the terms and conditions contained in this Agreement in order to access and/or use any Service. Your use or continued use of this site, any Services or software, or your registration for any Services or software made available by the Company, constitutes your agreement to be legally bound by this Agreement.
This Agreement is applicable to all persons who are provided with, use or access any Service, whether in their individual capacity or as a representative of a business organization. The terms “you” and “your” shall mean and refer to each person, entity and/or organization utilizing, accessing or being provided any Service, software or website of the Company (collectively, “Users”). If you are agreeing to these terms on behalf of a business organization, you represent and warrant that you have authority to bind that business organization to this Agreement, and your agreement to these terms and condition will be treated as the agreement of the business organization. In that event, “you” and “your” refer to that business organization.
Except as otherwise provided by the Company, the term with respect to any Service for which registration is required shall begin upon confirmation that your subscription to such Service has been accepted by the Company and shall continue indefinitely until canceled by you or the Company, or otherwise terminated as provided herein. Except as otherwise provided by the Company, cancellations of a Service shall be effective as of the last day of the month immediately following the month in which the cancellation notice is given.
All applicable fees, rates, charges, and payment and other terms with respect to each Service to which you subscribe, whether recurring, non-recurring, conditional and/or based on a rate schedule, shall be indicated at or about the time you subscribe for or otherwise agree to such Service. You agree to pay all Service fees and charges when due, together with all applicable state, federal and local taxes, surcharges, and other similar charges relating to the Service to which you have subscribed. You agree that the Company may update, change or modify fees, rates, terms, and/or charges applicable to any Service, including without limitation any Service provided on a non-paid basis, at any time with or without notice. Unless otherwise provided by the Company, fees, and charges for a monthly Service shall be due on the first day of the month in which Service is being provided.
As a condition to using a particular Services, you may be required to register with the Company by selecting the Service you wish to subscribe to, providing requisite information regarding you, your business and your designated users of the Service, establishing an account and selecting user names and passwords (“User IDs”), and agreeing to all terms and conditions applicable to such Service. In such event, you must provide the Company with accurate, complete, and current registration information. “Registration” means the process by which a person, entity, or organization provides information to the Company as may be required to potentially become a subscriber of a Service. Failure to do so shall constitute a breach of this Agreement and may in the Company’s sole discretion result in the suspension or termination of your access to and use of the Service. The Company reserves the right to decline registration of any person, entity or organization, and to cancel, suspend or terminate any User ID or registered account in its sole discretion. You are solely responsible for the activity that occurs in connection with your account and shall be responsible for maintaining the confidentiality of your passwords and other User ID information and managing your authorized users and their respective rights and levels of access to your account information and Service. You shall not at any time access or use any subscriber’s account without such subscriber’s express permission. Natural persons must be of legal age to subscribe to any Service. You agree to immediately notify Company in writing of any unauthorized use of your account, or other account-related security breaches of which you become aware.
All users having access to any Service or Account Data under any Service account must be registered as a user with such Service. The Company reserves the right to decline or reject access to any Service with respect to any person. Without limiting and in addition to any other rights of the Company, the Company reserves the right at any time to in its sole discretion to temporarily or permanently suspend your access to or use of any or all of the Services, or any module or component thereof, without notice, as it deems necessary or advisable in its sole and absolute discretion to: (i) prevent or mitigate actual or potential damage, harm or interruption to the Company’s services, service platform, data, business, reputation or other tangible or intangible property or assets, or to those of its customers or other parties, whether actual, threatened or perceived; (ii) comply with any applicable law, rule, regulation, court order, or other governmental request or order; (iii) maintain the operation, integrity or security of the Services or the protection of any information; or (iv) prevent or limit the Company from any type of loss or liability of any kind, type or nature. The Company shall not be liable or responsible to you or any other person or entity as a result of any termination or suspension of access to or use of any Service.
The Company acknowledges that the registered subscriber to a Service shall retain its right to any and all information, records, documents, files and other data (“Account Data”) that such subscriber and its authorized representatives and agents provide to such account. You hereby grant to the Company a non-exclusive, world-wide, sub-licensable, royalty free, fully paid-up, perpetual and irrevocable license to use, modify, and create derivative works relating to or utilized or derived from Account Data in connection with the Company’s performance of any Services, records compliance, other business purposes, and/or the provision, development and enhancement of any Service. You shall have sole responsibility for the accuracy, completeness and all other aspects of all of your Account Data. You acknowledge that the Company shall have no responsibility or liability whatsoever relating to the content, nature, quality or reliability of any Account Data or the use or misuse of any Account Data by you or your agents, representatives or other parties. You must maintain copies of all Account Data input into the Service. The Company cannot guarantee that there will not be any loss of Account Data and expressly excludes liability for any such loss of data irrespective of the cause. With respect to any website, software or Service of the Company, you agree not to enter, upload or transmit any Account Data or other data: (i) that you do not have the lawful right to copy, transmit, distribute, and display (including any information that would violate any confidentiality or fiduciary obligations that you might have); (ii) for which you are not authorized; (iii) that infringes upon or otherwise violates any intellectual property or other proprietary rights of any party; (iv) that is defamatory, obscene, or offensive; (v) that violates, or encourages any conduct that would violate, any applicable law, rule or regulation or would give rise to civil or criminal liability; or (vi) that contains any viruses, Trojan horses, spyware, malware, worms, time bombs, bots, or other disabling devices or other harmful component intended to damage, interfere with, intercept, divert or take any system, data or information.
Account Information from Third Parties
Pursuant to your use of any Service, you expressly authorize and direct the Company to retrieve, access, integrate with or link to certain information maintained online or otherwise by third-party financial institutions, service providers or other parties with whom you have a relationship, maintain accounts, or engage in financial transactions (“Outside Information”). You shall fully cooperate with the Company in connection therewith, including without limitation, by providing applicable usernames, passwords, PINs and other information and credentials necessary to access such accounts, and you hereby authorize the Company to access, retrieve and use Outside Information for the purposes contemplated by this Agreement. By using a Service, you expressly authorize the Company to access, store and use Outside Information maintained by identified third parties and further acknowledge and agree that the Company is acting as your agent when the Company accesses and retrieves account information from third parties. You acknowledge and agree that the foregoing does not in any way mean or imply that the Company sponsors or endorses any such third party or service, or that any such third party or service sponsors or endorses the Company. You represent and warrant that neither the Company’s access nor retrieval of Outside Information nor your use of any Service will violate any agreement or terms to which you are subject, including without limitation, those with respect to any third party site or service. The Company reserves the right to pass on any charges related to the provision of Outside Information and/or integrations with third party applications, on a case-by-case basis at the Company’s sole discretion.
Intellectual Property Rights
Notwithstanding any other provision of this Agreement or any other agreement between the Company and you, the Company shall retain all right, title and interest in and to each and every Service, website and software of the Company, including without limitation, any and all copyrights, trademarks, service marks, trade secrets, inventions, patents, designs and other intellectual property and all rights in connection therewith or relating thereto, whether registered or unregistered, and including any application for registration for any of the foregoing (“Intellectual Property Rights”). If and to the extent that you offer or provide, whether verbal or in writing, irrespective of the media, any ideas, thoughts, criticisms, suggested improvements or other feedback related to any Service (“Feedback”), you acknowledge and agree that the Company may use and utilize any and all Feedback in any manner it shall in its sole discretion determine, including without limitation to modify or improve any Service or to create or develop new Services, software or tools, and that you will not have any rights of any kind or nature whatsoever with respect thereto nor will you be due any compensation of any kind or nature. You hereby grant the Company a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same.
You agree that the Company’s websites, software and each Service contain content that is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You must abide by all copyright notices, information, and restrictions contained in any content made available in connection with the Company’s websites or through its software or any Service. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any content or other proprietary rights not owned by you without express permission. You and others may have the ability to post content such as blog comments through the Company’s websites. No information you consider confidential should be posted. Such posted content represents the opinions of the authors, is not endorsed by the Company, and is provided for informational and entertainment purposes only. The Company assumes no responsibility or liability for any blogs, opinions or other commentary posted on its websites, Services, or any website linked to its websites, and makes no express or implied warranty or guarantee regarding the accuracy, completeness, copyright compliance, legality, or any other aspect of such content. You agree that Company may reveal your identity and any other information about you to any law enforcement agent or official in the event of legal investigation or action arising from any postings, information entries or other activities conducted by you in connection with the Company’s websites or Services and you hereby irrevocably release the Company from all liability in connection therewith. The Company reserves the right to remove without liability any content from its websites or Services at any time, for any reason, or for no reason at all.
The Company’s websites, software and any Service you are provided are for your internal business use only and may not be used for any purpose other than lawful purposes that are expressly permitted by this Agreement. Without limiting the generality of the foregoing prohibitions, you expressly agree that you will not, and will not permit or acquiesce in any other person or entity to, with respect to the websites, software or any Service: (i) permit any party to access or use any Service other than persons authorized under this Agreement; (ii) infringe any intellectual property or other rights of another; (iii) post or provide any content, including without limitation creating or using any User ID, that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, tortious, obscene or offensive; (iv) conduct email spamming or other such form of unsolicited or unauthorized communications; (v) use, copy, modify, adapt, alter or translate any software underlying any Service without proper authorization, or otherwise create or attempt to create derivative works of any part of any Service; (vi) sublicense, lease, rent, loan, distribute, or otherwise transfer any Service or website content to any third party; (vii) reverse engineer, decipher, decompile, disassemble, or otherwise derive or attempt to derive the source code or underlying ideas, concepts, algorithms, structure or organization of any software underlying any Service or any part thereof; (viii) use any automatic, electronic or manual process to access, search or harvest information from any Service, software or website (including without limitation robots, spiders or scripts); (ix) bypass any measures used by the Company prevent or restrict access to any Service or accounts, computer systems or networks utilized by any Service; (x) interfere in any way with the proper functioning of any Service or interfere with or disrupt any servers or networks connected to any Service, or breach any requirements, procedures, policies or regulations of networks utilized by any Service; (xi) attempt to gain access to secured portions of any Service, software or websites to which you do not possess access rights; (xii) enter, upload or in any way transmit any form of virus, worm, Trojan horse, or other malicious code; (xiii) use any robot, spider, other automatic device, or manual process to extract, screen scrape, monitor, mine, or otherwise copy any pages or information on any Service or the content contained therein for purposes other than expressly permitted in this Agreement; (xiv) use or access any software or Service in order to build a competitive product or service; or (xv) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity. You shall abide by all applicable local, state, Federal and international laws, rules and regulations in connection with your use of any Service, software or website. The Company reserves the right to cooperate with local, state, and Federal authorities in investigations of improper or unlawful activities and this may require the disclosure of your personal information. The Company may also report to other organizations about improper or unlawful user activities and this reporting may include disclosure of personal information relating to those persons conducting such improper or unlawful activities. You agree that a breach or violation of the section will cause the Company irrevocable damage for which adequate remedy at law will not be available and, accordingly, the Company shall be entitled to obtain immediate temporary and/or permanent injunctive relief in order to or attempt to prevent or mitigate damages or losses from actual, threatened or potential breaches or violations of this Section by you or any other person or entity. Such rights shall not limit in any manner their respective rights to seek other and/or additional remedies, at law or in equity.
Third Party Links
The Company’s website, software or any Service may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Company’s websites, software or any Service. When you access third party websites, you do so at your own risk. These other websites are not under Company’s control, and you acknowledge that Company is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not mean that the Company endorses or has a relationship with the owners or operators of the linked site. You should independently verify all content that you access through the Company’s websites or any Service. By using the Company’s websites, software or any Service, you agree that the Company shall not be responsible for any person’s reliance on any content or the consequences of any action that you or any other person takes or fails to take based on any content or otherwise as a result of your use of any Service, software or website. Your use of or reliance on any content is at your own risk.
Third Party Applications
If you enable third-party applications for use in conjunction with the Services, you acknowledge and agree that the Company may without any authorization or consent allow such third-party applications to access your Account Data as required for the interoperation of such third-party applications with the Services. In no event will the Company be responsible for any disclosure, modification or deletion of your Account Data in connection with any such access by third-party applications or the providers thereof.
Billing and Payment
You agree that all fees, taxes and charges owed or payable by you shall be paid by automatic debit to your bank account or by credit card, and you shall provide to the Company and at all times ensure that the Company has accurate and complete bank and/or credit card information and authorizations as necessary to enable the Company to automatically collect all sums as and when due by you on a recurring basis directly from your bank or credit card account. The Company shall not be responsible for any payment or other refunds of any kind to you. You must notify the Company in writing of any billing or payment discrepancies within sixty (60) days from the applicable due date in order to be eligible to receive an adjustment or credit. Without limiting any of the foregoing, you agree that you will be responsible for all fees, charges, duties, taxes and assessments arising out of Services that you subscribe for and any products you purchase from the Company or through this site.
Termination of Service
You or the Company may at any time terminate any Service pursuant to notice to the other (unless otherwise mutually agreed or specifically set forth with respect to a particular Service), which termination shall be effective as of the last day of the month immediately following the month in which such notice is given. The Company reserves the right, with or without notice, to terminate any Service, or at its sole discretion to temporarily or permanently suspend performance of any Service or to suspend access to any Service, in the event that you shall be delinquent in payment of any sums due or shall otherwise be in breach or default under this Agreement.
Limitation of Liability
In no event shall the Company, nor any of its directors, officers, stockholders, employees, agents, affiliates or representatives be liable to you or any other person or entity for any special, indirect, incidental, punitive, exemplary or consequential damages (including without limitation for loss of use, profit or data, or for business interruption) arising out of or in connection with the company’s website, any services, software, products or tools offered or provided by the Company, any performance or non-performance under this agreement, or for any other reason whatsoever, regardless of the form of action, whether under contract, tort, strict liability, negligence or any other legal of equity theory or otherwise, and whether or not such damages are foreseen or you have been advised of the possibility of such damages. In no event shall the Company be liable for the provision or costs of substitute products or services.
In no event shall the Company be liable to you for any direct or compensatory damages in excess of the fees paid by you during the six-month period preceding the event giving rise to such liability, but in no event in excess of five-hundred U.S. dollars (in the aggregate). If and to the extent that applicable laws do not allow the exclusion or limitation of certain types of damages, then the extent of liability will be the minimum permitted under such applicable law. You acknowledge that the provisions under this heading “limitation of liability” reflects a fair allocation of risk and form an essential basis of the bargain between you and the Company.
The information, software, products, services and content made available by the Company on or through its websites, software, Service or otherwise are provided to you “as is” and without warranty of any kind or nature and are subject to change at any time without prior notice. The Company makes no representations or warranties as to the accuracy, usefulness or completeness of any content, information, services, products or software contained on or available through its websites, software, any Services, or otherwise. The Company hereby disclaims all warranties, responsibilities, conditions and/or liabilities with regard to any information, software, products, services and content available on or accessible through the Company’s websites, software, any Services, or otherwise, including, without limitation, any and all implied warranties and conditions of merchantability, fitness for a particular purpose, title, non-infringement, security, reliability, completeness, accuracy, quality, or integration. The Company makes no representations or warranties whatsoever that (a) its websites, any Service, software, or products will meet your requirements; (b) its websites or any Service, software or products will be uninterrupted, timely, secure, error-free, or operate in combination with or integrate with any other hardware, software, system or data; (c) the content, information or results that may be obtained from the use of the Company’s websites, any Service, software, or products will be accurate, reliable or suitable to your needs; or (d) any errors or omissions in any software, Service, products or websites will be corrected; (e) any content or software available at or through any Service or software is free of viruses or other harmful components; or (f) any Service or software will be secure or available at any particular time or location. To the extent that any applicable law does not allow the Company to disclaim or limit any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.
You hereby agree to indemnify and hold harmless the Company and its directors, officers, stockholders, employees, agents, affiliates, customers and representatives from and against all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies (including reasonable attorneys’ fees and costs) arising from or in connection with: (i) your use or misuse of, or access to, any Service, software, content or website of the Company; (ii) your breach or violation of this Agreement, including without limitation the breach of any representation, warranty, covenant or obligation thereunder; and/or (iii) infringement by you, or any third party using the your account, of any intellectual property or other right of any person or entity. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with the Company in asserting any available defenses. The indemnification obligations set forth in this Agreement shall survive the termination or expiration of this Agreement.
All provisions of this Agreement which by their nature should reasonably survive the termination shall survive such termination for any reason. Without limiting the foregoing, the provisions of this Agreement under the following headings shall survive termination of this Agreement: Access; Account Data; Intellectual Property Rights; Content; Prohibited Conduct; Limitation of Liability; Warranty Disclaimers; Indemnification; Survival; Governing Law and Venue; Notices; Proprietary Rights and Trademarks; and General.
The Company shall not be liable, penalized or deemed delinquent for and to the extent of any delay or failure to perform its obligations hereunder resulting from any cause beyond its reasonable control, including without limitation acts of God, war, weather, fire, explosions, floods, strikes, work stoppages, slowdowns or other industrial disputes, accidents, riots or civil disturbances, acts of government, inability to obtain any license or consent necessary in respect of any third-party software, delays by suppliers or material shortages, design defects, flaws or errors in third-party equipment or software, and dangerous conditions that pose a threat to personnel.
Any notices or other communications in connection with you, your account or this Agreement shall be deemed validly given as of the date sent to you if sent by email to any email address set forth in your account or otherwise provided by you to the Company through the Company’s website. It is solely your responsibility to update your account information with the Company.
Governing Law and Venue
This Terms of Service shall be shall be governed by the laws of the State of Delaware without regard to the conflict of law provisions of any jurisdiction. Exclusive venue with regard to any dispute arising hereunder shall lie in the Federal, state or local courts having jurisdiction and residing in the State of Texas. A printed version of the Terms of Service and of any notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Personal and Noncommercial Use Limitation
The websites, software and Services of the Company are for your internal business use only. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell for any commercial purposes any portion of any website, software or Service of the Company or otherwise access or use of any such website, Software or Service other than for your internal business.
Proprietary Rights and Trademarks
The term “Tabulate,” the Tabulate logo and our other logos and our product and service names are the exclusive trademarks of, and are owned by, the Company. You may not use or display any of our trademarks in any manner without our prior written permission. Any third party trademarks or service marks displayed on the site from time to time are the property of their respective owners.