The Fine Print

BMCA TERMS OF SERVICE

Last Modified: 1/1/2024

Welcome to the online service of Benchmark Cloud Accounting, Inc. (“BMCA,” “we,” or “us”). These terms of service (these “Terms”) explain the terms by which Users (defined below) may use our online and/or mobile services, web site, and software provided on or in connection with the service and platform (collectively, the “Services”). By accessing or using the Services, or by signing an order form with BMCA (an “Service Order”) specific to you or your organization, you signify that you have read, understood, and agree to be bound by these Terms and the Service Order which is hereby incorporated by reference (collectively, the “Agreement”), whether or not you are a registered user of our Services. BMCA reserves the right to modify these Terms and will provide notice of material changes as described below. These Terms apply to all visitors and users of the Services, including Authorized Users of a Customer signing a Service Order, and to all others who access the Services (collectively, “Users”).

Please read these terms carefully to ensure that you understand each provision. These terms contain a mandatory individual arbitration provision in Section 11.2 and a jury trial waiver provision in Section 11.2 that require, the exclusive use of final and binding arbitration on an to resolve disputes between CUSTOMER and us, including any claims that arose or were asserted before you agreed to these terms. To the fullest extent permitted by applicable law, you expressly waive your right to seek relief in a court of law and to have a jury trial on your claims, as well as your right to participate as a plaintiff or class member in any class, collective, private attorney general, or representative action or proceeding.

If you subscribe to, or access or use the Services, create an organization, invite users to that organization, or use or allow use of that organization after being notified of a change to these Terms, you acknowledge your understanding of the then-current Agreement and agree to the Agreement on behalf of Customer. Please make sure you have the necessary authority to enter into the Agreement on behalf of Customer before proceeding.

1. General Provisions

1.1 Eligibility

This is a contract between you and BMCA. You must read and agree to these Terms before using the Services. If you do not agree, you may not use the Services. You may use the Services only if you can form a legally binding contract with us, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations (“Applicable Law”).

1. 2 Customers, Authorized Users, and Customer Content

“Customer” or “you” is either you, if you are an individual entering into the Agreement on your own behalf, or the organization that you represent in agreeing to the Agreement. If your organization is being set up by someone who is not formally affiliated with a business entity or other organization, Customer is the individual creating the organization. If you signed up for a plan using your corporate email domain or are otherwise entering into a plan on behalf of a business entity or other organization, the business entity or other organization on whose behalf you signed up is the Customer. By signing up on behalf of your business entity or other organization, you represent and warrant that you have all right, power, and authority to bind such entity or organization to the Agreement.

Individuals authorized by Customer to access the Services (each an “Authorized User”) may provide content that consists of images, comments, questions, information, documents, spreadsheets, and any other content submitted, posted, or otherwise made available by Customer and its Authorized Users through the Services (“Customer Content”), and Customer will have the sole right and responsibility for managing your use of it. Customer will be solely responsible for all of the acts and omissions of its Authorized Users in relation to the Services and the Agreement.

Customer will (i) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Content; and (ii) obtain all rights, permissions or consents from Authorized Users and other Customer personnel that are necessary to grant the rights and licenses in the Agreement and for the lawful use and transmission of Customer Content and the operation of the Services.

1.3 Accounts

(a) Your User Account. Your account on the Services (your “User Account”) gives you access to certain services and functionalities that we may, in our sole discretion, establish and maintain as part of the Services from time to time. You acknowledge that, notwithstanding anything to the contrary herein, you do not own your User Account, nor do you possess any rights to data stored by or on behalf of BMCA on the servers running the Services. We may maintain different types of User Accounts for different types of Users.

(a) Connecting Via Third-Party Services. By connecting to the Services via a third-party service, you give us permission to access and use your information from that service, as permitted by that service, and to store your log-in credentials and/or access tokens for that service.

(c) Account Security. You may never use another User’s User Account without such User’s permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, you will keep your User Account password(s) and/or any other authentication credentials secure, and you will not share your password(s) and/or any other authentication credentials with anyone else. We encourage you to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers, and symbols) to protect your User Account. Any Authorized User with administrator-level access to Customer’s User Account can modify your User Account settings, access, and billing information. We will not be liable for, and expressly disclaim liability for, any losses caused by any unauthorized use of your User Account and/or any changes to your User Account, including, without limitation, changes made by any Authorized User with administrator-level access to your User Account. You will notify us immediately of any breach of security or unauthorized use of your User Account.

(d) Account Settings. You may control certain aspects of your User Account and any associated User profile, and of the way you interact with the Services, by changing the settings in your settings page. By providing us with your email address, you consent to our using that email address to send you Service-related notices, including any notices required by Applicable Law, in lieu of communication by postal mail. We may also use that email address to send you other messages, including, without limitation, marketing and advertising messages, such as messages notifying you of changes to features of the Services and special offers (collectively, “Marketing Emails”). If you do not want to receive Marketing Emails, you may opt out of receiving them or change your preferences by contacting the Services support team at services@benchmark-accounting.com or by clicking on the “unsubscribe” link within a Marketing Email. Opting out will not prevent you from receiving Service-related

1.4 Changes, Suspension, and Termination.

You may de-activate your User Account at any time. We may, with or without prior notice, change the Services, stop providing the Services or features of the Services to you or to Users generally, or create usage limits for the Services. We may, with or without prior notice, permanently terminate or temporarily suspend your access to your User Account and/or the Services without liability, with or without cause, and for any or no reason, including if, in our sole determination, you violate any provision of these Terms. Upon their termination for any reason or no reason, you continue to be bound by these Terms.

1.5 Your Interactions with Other Users.

You are solely responsible for your interactions, including SHARING OF INFORMATION, with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. We EXPRESSLY DISCLAIM ALL LIABILITY ARISING FROM your interactions with other Users, AND for any User’s action or inaction, INCLUDING RELATING TO USER CONTENT (as defined below).

1.6 Beta Products

Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products are made available on an “as is,” and “as available” basis and, to the extent permitted under applicable law, without any warranties or contractual commitments we make for other Services.

1.7 Feedback

Customer and its Authorized Users may choose to, or we may invite them to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and Customer hereby assigns all right, title, and interest in and to the Feedback without any additional compensation by us, whether to Customer, the Authorized User, or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of the submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our personnel, or obtained from sources other than Customer or its Authorized Users.

2. Services Usage and Restrictions

2.1 Our License to Customer

(a) Ownership of the Services, Documentation, and BMCA Data: We own and will continue to own our Services and Documentation (as defined below) including all related intellectual property and other proprietary rights related thereto. Further, Customer acknowledges and agrees that we may collect data relating to Customer’s and its Authorized Users’ usage of the Services, (“Usage Data”) and collect, analyze, and use data derived from Customer Content that has been aggregated and/or anonymized such that it does not identify Customer or any identifiable individual person (“Derivative Data” and, collectively with Usage Data, “BMCA Data”). All BMCA Data will be owned solely and exclusively by us and, for purposes of clarity, you agree that we may use the BMCA Data in perpetuity for any purpose permitted by applicable law.

We may, from time to time, make available certain third-party products and services, including but not limited to open-source software (“Third-Party Products”) for use in connection with the Services. Such Third-Party Products may be made available under separate or additional terms and conditions, including but not limited to open source licenses, which we will make available to you as necessary.

(b) Licenses to the Services and Documentation

During the Term (as defined below), we grant the Customer a non-exclusive, non-transferable license to access and use, and to permit Authorized Users to access and use the Services, in accordance with the Agreement, for the Customer’s own internal business purposes.

To the extent that we may make downloadable software components available, via app stores or other channels, as part of the Services, during the Term, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services. Minor updates, bug fixes, and the like to such downloadable software components will be included under this license for the duration of the Term.

From time to time we may make available product documentation for the Services (the “Documentation”) via a method of our choosing (e.g., via the Services). During the Term, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the Documentation to support Customer’s and its Authorized Users’ use of the Services.

All rights and licenses granted herein are subject to you and your Authorized Users’ full compliance with all of the terms and conditions of the Agreement. All rights in the Services and Documentation not expressly granted herein are expressly reserved by us.

2.2 Customer’s Licenses to Us

(a) Ownership of Customer Content

As between us on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer Content.

(b)License to Customer Content: Subject to the terms and conditions of the Agreement, Customer (for itself and all of its Authorized Users) represents and warrants that it has all rights necessary to grant (including any necessary consents and authorizations from individual persons identified in the Customer Content and licenses from third-parties whose content is included in the Customer Content), to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, worldwide, non-exclusive, license to access, use, host, store, reproduce, modify, publish, list information regarding, translate, process, copy, distribute, perform, export, display, and make derivative works of all Customer Content, and the names, voice, and/or likeness contained in the Customer Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed,(i) to provide, improve, enhance, develop, maintain and offer products or services; (ii) to prevent or address service, security, support or technical issues; (iii) as required by law; and (iv) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Content from its Authorized Users or any third parties as may be necessary to grant this license.

Notwithstanding the foregoing, Customer agrees that we may collect, analyze, use and disclose, during or after the Term (as defined below), data derived from Customer Content, which is anonymized and/or aggregated in a manner, that makes the identification of Customer or any Authorized User or third party impossible, for any business purpose, including without limitation, to operate, analyze, improve, and market the Services and our other products and services and share such anonymized data with our affiliates and business partners. Customer further agrees that we will have the perpetual right to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of such derived data.

To the extent permitted under applicable law, we take no responsibility and assume no liability for any Customer Content that Customer or any Authorized User or third-party submits, posts, or otherwise makes available through the Services. As between Customer and us, Customer shall be fully responsible for the Customer Content and the consequences of submitting, posting, or otherwise making it available via the Services, and Customer acknowledges and agrees that we are acting only as a passive conduit for Customer’s and its Authorized Users’ online distribution of such Customer Content.

2.3 Responsibilities for Customer Content: We are not responsible for the content of any Customer Content or the way Customer or its Authorized Users choose to use the Services to store or process any Customer Content. Customer represents and agrees that Customer is solely responsible for (i) providing notices and obtaining consents as legally required from its Authorized Users for the collection, use, processing and transfer of Customer Content in connection with the Services; and (ii) ensuring compliance with all laws in all jurisdictions that may apply to Customer Content provided hereunder, including but not limited to all applicable international, federal, state, provincial and local laws, rules, and regulations relating to data privacy and security. Unless otherwise agreed to in writing, Customer may not submit any Customer Content that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws including, but not limited to, the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), the Children’s Online Privacy Protection Act (COPPA), or the GDPR or any other data which is considered to be sensitive or which could give rise to notification obligations under data breach notification laws. We do not make any representations as to the adequacy of the Services to process your Customer Content or to satisfy any legal or compliance requirements which may apply to your Customer Content, other than as described herein.

2.4 Use of the Services

Customer must comply with the Agreement and ensure that its Authorized Users comply with the Agreement. We may review conduct for compliance purposes, but we have no obligation to do so. If we believe there is a violation of the Agreement that can be remedied by Customer’s removal of certain Customer Content, we will, in most cases, ask Customer to take direct action rather than intervene. However, to the extent legally permissible, we reserve the right to take further appropriate action, when we deem it reasonably appropriate if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.

2.5 Acceptable Use

(a) Technical Restrictions: You agree not to engage in any of the following prohibited activities: (i) disassembling, reverse engineering, decoding, or decompiling any part of the Services; (ii) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (iii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the servers hosting the Services than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iv) transmitting spam, chain letters, or other unsolicited email; (v) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (vi) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vii) uploading invalid data, viruses, worms, or other software agents through the Services; (viii) collecting or harvesting any personally identifiable information, including account names, from the Services; (ix) using the Services for any commercial solicitation purposes; (x) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (xi) interfering with the proper working of the Services; (xii) using or displaying the Services in competition with us, to develop competing products or services, for benchmarking or competitive analysis of the Services, or otherwise to our detriment or disadvantage; (xiii) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; (xiv) identify or refer to us or to the Services in a manner that could reasonably imply a relationship that involves endorsement, affiliation, or sponsorship between you (or a third party) and us without our prior express written consent; or (xv) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.

(b) Customer Content Restrictions: You are solely responsible for the content of any Customer Content you submit through the Services. You agree not to submit any Customer Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; or (ix) to the extent applicable, violates any school or other applicable policy, including those related to cheating or ethics.

You agree that any Customer Content that you submit does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. To the extent legally permissible, we reserve the right, but are not obligated, to reject and/or remove any Customer Content that we believe, in our sole discretion, violates any of these provisions. You understand that publishing your Customer Content on the Services is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.

3. Payment Obligations

3.1 Fees:

You will pay BMCA the fees (“Fees”) set forth in an applicable Service Order and/or our pricing terms located at https://www.benchmark-accounting.com/packaging (the “Pricing and Payment Terms”) for the Services as consideration for the Services provided by BMCA in accordance with these Terms, with the first such payment due immediately as of the start of your Subscription. The Pricing and Payment Terms are hereby incorporated by reference herein. The Fees will be scaled based on expense volume of Customer’s account as is further laid out in the Pricing and Payment Terms. We may add new products and/or services for additional Fees, add or amend Fees for existing products and/or services, and/or discontinue offering any Subscriptions at any time, in our sole discretion; provided, however, that if we have agreed to a specific Subscription Term and a corresponding Subscription Fee, then that Subscription will remain in force for that Subscription Fee during that Subscription Term. Any change to the Pricing and Payment Terms will become effective in the billing cycle following our provision of notice of such change. Except as may be expressly stated in these Terms or in the Pricing and Payment Terms, all Fees must be paid in advance, payment obligations are non-cancelable once incurred (subject to any cancellation rights set forth in these Terms), and Fees paid are non-refundable. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, and withholding taxes, assessable by any jurisdiction (collectively, but, for clarity, excluding taxes based on our net income, “Taxes”). You will be responsible for paying all Taxes associated with your purchases and/or Subscriptions in connection with the Service.

3.2 Late Payments and Disputes.

You will incur a monthly finance charge of one and a half percent (1.5%) for any balance that is overdue by thirty (30) days; access to BMCA services shall be suspended if past due amounts are over forty-five (45) days past due. You shall be responsible for any reasonable and documented costs incurred by BMCA in the collection of unpaid invoices that are more than ninety (90) days past due, including, but not limited to, collection and filing costs and reasonable attorney’s fees. If you dispute any portion of an invoice, you agree to pay the undisputed portion of the invoice and to submit a written dispute within ten (10) business days of the invoice date. Your dispute must include written documentation to support the dispute. Upon receipt of a written dispute from you, the parties will attempt to resolve the dispute through good faith negotiation. If the parties fail to resolve such dispute within sixty (60) days after delivery of such notice, then either party may seek arbitration in accordance with the procedures set forth in Section 11.2. Your failure to submit a written dispute of charges within such time shall be deemed final acceptance of all charges.

3.3 Definitions

(a) “Subscription” means a particular portion of the Service that is available on an automatically renewing subscription basis, and your access thereto, as applicable.

(b) “Subscription Fee” means the recurring amount due as consideration for a Subscription; a Subscription Fee is one type of Fee.

(c) “Third-Party Fees” means the portion of the Fee (including any Subscription Fee) retained by one (1)or more third parties, including Payment Processor, that we may engage from time to time, in our sole discretion.

(d) “Payment Processor” means the third-party payment processor, currently Stripe, Inc., which we engage to process payments Users make in connection with the Service.

3.4 Your Payment Method

(a) General. To use non-free aspects of the Service, you must provide us with at least one (1)current, valid payment card that is accepted by us and Payment Processor (each such card, a “Payment Method”). By providing a Payment Method, you authorize each of BMCA and Payment Processor to charge that Payment Method the applicable Fees and Taxes, including, if applicable, on a recurring basis until you cancel your Subscription (including any notice period specified in Section 5(c) (Cancellation Procedures)). Fees and Taxes will be charged to your Payment Method on the specific payment date indicated in your User Account. In some cases, your payment date may change, for example, if your Payment Method has not successfully settled, if you changed your Subscription plan, or if your Subscription began on a date not contained in a subsequent month. The length of your billing cycle will depend on the type of Subscription in which you are enrolled, if applicable. Fees are fully earned upon payment. We may authorize your Payment Method in anticipation of Service-related charges through various methods, including authorizing it up to one (1) month of service as soon as you register for the Service.

(b) Third-Party Payment Processor. We or Payment Processor will attempt to verify your Payment Method(s), and may do so by processing an authorization hold, which is standard practice. To the extent Payment Processor processes payments made by you, you will be subject to terms and conditions governing the use of Payment Processor’s service. Please review such terms and conditions as well as Payment Processor’s privacy notice (each of which is available on Payment Processor’s website). You acknowledge and understand that Payment Processor may collect and retain Third-Party Fees whenever you pay Fees (including Subscription Fees). Payment must be received by Payment Processor before our acceptance of an order. We do not view or store your full credit card or other Payment Method information. For all payments, Payment Processor will collect your Payment Method details and charge your chosen Payment Method in connection with an order. If any of your account, order, or Payment Method information changes, you will promptly update such information, so that we or Payment Processor may complete your transaction(s) and/or contact you, as needed.

(c) Payment Representations and Warranties. You represent and warrant that: (i)the account, order, and Payment Method information you supply to us and/or to Payment Processor, as applicable, is true, accurate, correct, and complete; (ii) you are duly authorized to use the Payment Method(s); (iii) you will pay any and all charges incurred by users of your Payment Method in connection with the Service, including any applicable Fees (at the prices in effect when such charges are incurred) and Taxes; (iv) charges incurred by you will be honored by your Payment Method company; (v) you will not allow or enable anyone else to use your Subscription (including, without limitation, by sharing your password(s) or any other authentication credentials with anyone else, or by attempting to transfer your Subscription to anyone else); and (vi) you will report to us any unauthorized or prohibited access to or use of your Subscription and/or password(s) or other authentication credentials.

(d) Disclaimer. We disclaim any and all liability with respect to, and you understand and acknowledge that we are not responsible for: (i) any security or privacy breaches related to your credit card or other Payment Method, (ii) any fees that may be charged to you by your bank in connection with the collection of Fees, and/or (iii) any unauthorized use of your credit card, debit card, or other Payment Method by a third party.

3.5 Subscription Plans

(a) Automatic Renewals. Subscriptions are available on an automatically renewing subscription basis and entail payment of Subscription Fees. Your subscription will automatically renew at the end of each subscription term identified in your subscription order for subsequent terms equal in length to that initial subscription term (each such period, a “Subscription Term”) unless and until you cancel the applicable subscription in accordance with the cancellation procedures identified in section 5(c) (including any notice period specified in Section 3.5(c) (Cancellation Procedures)).

(b) Automatic Billing and Policies.  When you enroll in a Subscription, you expressly acknowledge and agree that: (i)each of BMCA and Payment Processor is authorized to charge you, at the beginning of each Subscription Term, the Subscription Fee for the applicable Subscription, any applicable Taxes, and any other charges you may incur in connection with such Subscription, subject to adjustment in accordance with these Terms; and (ii) your Subscription is continuous until the earlier of: (A) your cancellation of such Subscription (including any notice period specified in Section 5(c) (Cancellation Procedures)) and (B) the suspension, discontinuation, or termination of your access to such Subscription or to the Service in accordance with these Terms. You understand and acknowledge that the amounts billed may vary due to changes to the Subscription Fee in accordance with the Pricing and Payment Terms, and/or changes in applicable Taxes, and you authorize each of BMCA and Payment Processor to charge your Payment Method the changed amounts.

(c) Cancellation Procedures. To cancel any Subscription, you must notify us at least three (3) days before the start of the next Subscription Term by using the appropriate functionalities of the Service or by contacting us at billing@benchmark-accounting.com You will continue to have access to the Subscription through the end of the then-current Subscription Term. You understand that unless and until you notify us of your intent to cancel, your subscription and the corresponding subscription fee will automatically renew, and you authorize each of [company] and payment processor (without notice to you, unless required by applicable law) to charge you the applicable subscription fee and any applicable taxes, using any of your payment methods.

(d) Cancellation; Refunds. You may de-activate your User Account or any Subscription at any time, in your sole discretion, and we may, subject to Section 3.1 (Fees), suspend or terminate your Subscription, your User Account, or the Service at any time, in our sole discretion. However, you understand and acknowledge that, unless required by applicable law, you will not be entitled to receive any refund or credit for any such cancellation, suspension, or termination, nor for any unused time on your subscription, any pre-payments made in connection with your subscription, any license or subscription fees for any portion of the service, any content or data associated with your user account, or anything else, and that any such refunds or credits may be granted at our sole option and in our sole discretion. If you believe you have been improperly charged and would like to request a refund, please contact us at billing@benchmarkcloudaccounting.com.

4.Term and Termination

4.1 Agreement Term

As further described below, a paid plan has a term of one (1) year that may expire or be terminated pursuant to the Service Order (collectively, the “Initial Term”). The Initial Term shall automatically renew for successive twelve (12) month terms (the “Renewal Terms” together with the Initial Term, the “Term”) unless either party provides written notice to the other party of their intention not to renew the Service Order at least sixty (60) days prior to the expiration of the then-current Term. The Agreement remains effective until all Service Orders under the Agreement have expired or been terminated or the Agreement itself terminates. Termination of the Agreement will terminate all Service Orders.

4.2 Termination for Cause

We or Customer may terminate the Agreement on notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of the Agreement caused by its Authorized Users. We may terminate the Agreement immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.

4.3 Term Pricing Evaluation

The volume of transactions and complexity of the business will be evaluated at the end of 3 months and at years' end and every subsequent term there-after to ensure proper service level and fee structure is in place. If there is a change to the fee structure BMCA will give at least ninety (90) days written notice prior to the end of the current term and ensure approval by Customer.

4.4 Effect of Termination

Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the Term after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the Term after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.

5. Privacy; Data Security

 

5.1 Privacy.

We care about your privacy. By using the Services, you acknowledge that we may collect, use, and disclose your personal information and aggregated and/or anonymized data as set forth in our Privacy Notice, and that your personal information may be transferred to, and/or processed in, the United States.

5.2 Security.

We care about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or to use your data for improper purposes. You acknowledge that you provide your data at your own risk.

6. Representations; Disclaimer of Warranties

Customer represents and warrants that it has validly entered into the Agreement and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of the Agreement. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

7. Limitation of Liability

IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE SECTION 3 ABOVE.

IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.

The limitations under this Section 7 apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this Section 7 allocate the risks under the Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into the Agreement and the pricing for the Services.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

8. Indemnification

Customer agrees to defend, indemnify and hold harmless us and our affiliates, licensors, and suppliers, and our and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Customer’s and any Authorized User’s use of and access to the Services, including any Customer Content or other content transmitted or received by Customer or any Authorized User; (ii) your violation of any term of the Agreement, including without limitation any breach of Customer’s representations and warranties above; (iii) Customer’s or any Authorized User’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) Customer’s or any Authorized User’s violation of any applicable law, rule or regulation; (v) Customer Content or any content that is submitted via Customer’s or any Authorized User’s account, including without limitation misleading, false, or inaccurate information; (vi) Customer’s or any Authorized User’s gross negligence, fraud, or willful misconduct; or (vii) any other party’s access and use of the Services with Customer’s or any Authorized User’s unique username, password or other appropriate security code (provided that such access and use was not our fault).

9. Confidentiality

The Services may include non-public, proprietary, or confidential information of BMCA and/or of other Users (“Confidential Information”). Confidential Information includes any information that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, including non-public business, product, technology, and marketing information. Customer will and will ensure that its Authorized Users will: (a) protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as you would use protect your own highly sensitive confidential information, but in no event with less than a reasonable degree of care; (b) not use any Confidential Information for any purpose other than to exercise your rights, or to perform your obligations, under the Agreement; and (c) not disclose any Confidential Information to any person or entity, except your service providers or financial or legal advisors who/that (i) need to know the Confidential Information and (ii) are bound by non-use and non-disclosure restrictions at least as restrictive as those set forth in this Section.

10. Non-Solicitation

During the Term of these Terms and for twelve (12) months thereafter, neither party will, without the other party’s prior written consent, either directly or indirectly, on its own behalf or in the service or on behalf of others, hire or engage is any solicitation of known employees or contractors who were engaged by the other party at any time during the one (1) year period prior to termination or expiration of these Terms (“Restricted Personnel”). The parties acknowledge that the hiring or engagement of any Restricted Personnel is likely to cause irreparable damage to BMCA or Customer, as applicable, that would be difficult or impossible to ascertain or prove. Accordingly, the parties agree that any breach of this Section will obligate the soliciting party to pay the other party on demand, as liquidated damages, an amount equal to the Restricted Personnel’s annual salary. Each party agrees that this Section does not provide for unreasonably large liquidated damages.

11. Governing Law, Arbitration, and Class Action/Jury Trial Waiver

11.1 Governing Law.

You agree that: (a) the Services will be deemed solely based in the State of New York; and (b) the Services will be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York. These Terms will be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law governing these Terms, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (as it may be amended, “FAA”) governs the interpretation and enforcement of the Arbitration provision below and preempts all state laws (and laws of other jurisdictions) to the fullest extent permitted by Applicable Law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration provision, then that issue will be resolved under and governed by the law of the U.S. state where you live (if applicable) or the jurisdiction mutually agreed upon in writing by you and us. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

11.2 Arbitration

Read this Section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you may seek relief from us. For any dispute with us, you agree to first contact us at services@benchmark-accounting.com and attempt to resolve the dispute informally. If we have not been able to resolve a dispute within sixty (60) days of your first contact, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to the Agreement, or the breach or alleged breach thereof by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in New York, New York unless we agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (a) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (b) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (c) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.

11.5 Venue; Waiver of Jury Trial; Fees

The state and federal courts located in New York, New York will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.

12 Miscellaneous

12.1 Publicity

During the Term, the parties agree to allow for the mutual use of the other party’s name, trademarks, or other identifying information in a good faith manner consistent with industry standards and strictly in connection with the marketing and promotion of such party’s business and activities. Furthermore, each party acknowledges and agrees that it will not, and ensures that its affiliates will not, at any time make, publish, or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the other party or its affiliates or their respective businesses, or any of their respective employees, officers, and existing and prospective customers, suppliers, investors and other associated third parties.

12.2 Third Party Products, Links, and Information

The Services may contain links to third-party sites, materials, and/or services (collectively, “Third-Party Services”) that are not owned or controlled by us, and certain functionalities of the Services may require your use of third-party services. If you use a third-party service in connection with the Services, you are subject to and agree to, and must comply with, the third party’s terms and conditions made available via, or agreed in connection with, its services. We do not endorse or assume any responsibility for any third-party services. If you access a third-party service from the Services or share your user content on or through any third-party service, you do so at your own risk, and you understand that these terms and our privacy notice do not apply to your use of any third-party service. You expressly relieve us from any and all liability arising from your access to and/or use of any third-party service. Additionally, your dealings with, or participation in promotions of, advertisers found on the Services, including as relates to payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You understand and acknowledge that we will not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

12.3 Force Majeure

Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

12.4 Relationship of the Parties; No Third-Party Beneficiaries

The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to the Agreement; a person who is not a party to the Agreement may not enforce any of its terms under any applicable law.

12.5 Email Communications

Except as otherwise set forth herein, all notices under the Agreement will be by email, although we may instead choose to provide notice to Customer through the Services. Notices to us must be sent to services@benchmark-accounting.com. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.

12.6 Entire Agreement; Amendment or Modifications

The provisions of these Terms contain the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings relating to such subject matter. The preparation of these Terms has been a joint effort of the parties, and the resulting documents shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than the other. Except as otherwise provided herein, these Terms may not be modified, altered, waived or amended, except by written agreement executed by both parties.

12.7 Waivers

No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

12.8 Severability

The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.

12.9 Conflicting Terms.

These Terms incorporate by reference the Service Order. These Terms will govern your relationship with BMCA however, to the extent any terms in these Terms conflict with terms in the Service Order, the terms in the Service Order will control.

12.10 Assignment

Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign the Agreement in its entirety, without consent of Customer, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this Section is void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.11 Survival

Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive, including but not limited to Sections 2.1(a), 2.1(a)(a), 4.4, and 6 through 12.

12.12 Contacting Us

Please also feel free to contact us if you have any questions about the Terms or any other part of the Agreement. You may contact us at services@benchmark-accounting.com.

If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.