TERMS OF SERVICE

 

Effective Date: November 21, 2016

Last updated: November 21, 2016

 

Thank you for selecting MSPCFO to provide certain reports and other information. These Terms of Service and other documents mentioned below are referred to as the “Agreement”, which collectively govern your access to and use of the Service, including any trial period, if applicable.

 

This Agreement is a legally binding document. You acknowledge and agree that by electronically signing up for the Service, you are agreeing to be bound by all of the provisions of this Agreement. You further acknowledge that you have the authority to bind the person or entity set forth on the Subscription Order Form. If you do not wish to create a legally binding agreement, please do not accept this Agreement and do not access and use the Service.

 

Capitalized terms used in this Agreement without otherwise being defined have the set forth below:

 

“MSPCFO”, “we” and/or “us” means MSPCFO, LLC, a Delaware limited liability company, and all of its subsidiaries and/or Affiliates.

 

“you” and/or “your” means the person or entity subscribing for the Service pursuant to the terms of this Agreement.

 

“Client Software” means ticketing, time entry, bookkeeping and/or accounting software used by you in your business, and such other software as MSPCFO determines to support through the Service.

 

“Affiliate” means any person or legal entity which controls, is controlled by, or is under common control with, another person or legal entity. A person or entity is deemed to “control” another if it owns directly or indirectly at least fifty percent (50%) of (i) the shares entitled to vote at a general election of directors of such other entity, or (ii) the voting interest in such other entity if such entity does not have either shares or directors.

 

“API” means an application program interface.

 

“Authorized User(s)” means you, if you are an individual subscriber, or you and your officers, directors, partners, members, employees, independent contractors, agents and/or representatives, if you are an entity subscriber.

 

“Confidential Information” shall mean the terms of this Agreement, the Reports, the Data, and any and all information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, business plans, products, services, customers, markets, software, source code, object code, documentation, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, business methods, strategies, marketing or finances, disclosed by the disclosing party (“Provider”) (whether in writing, orally, or in any form or medium) to the receiving party (“Recipient”) which Provider designates as confidential, whether orally or in writing, and, if such information is disclosed orally, it is reduced in writing and delivered to the receiving party within thirty (30) days after the original disclosure. Confidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving party through a third party without violation of any confidential agreements or any applicable law at the time of disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; (ii) prior to the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of Recipient; (iii) is approved for release by Provider in writing; (iv) is developed by the Recipient without the use of any Confidential Information received from Provider, or (v) is required by law to be disclosed; provided that the Recipient gives reasonable notice to the Provider to contest such order or requirement or seek a protective order and the Recipient has taken all commercially reasonable efforts to limit the scope of such disclosure and to protect the confidential nature of the information disclosed.

 

“Data” means any and all Data related to your business submitted by you to us through the Service.

“Report” means all reports, statements, compilations, summaries, analyses, charts, business plans, alerts, documents, and all other materials that are generated by us through the Service.

 

“Service” means the MSPCFO service provided by MSPCFO from time to time and hosted at www.mspcfo.com.

“Subscription Order Form” means the subscription order form electronically executed by you to which these Terms and Conditions apply.

 

“Terms of Service” means these Terms of Service, as amended from time to time.

 

  1. The MSPCFO Service.

The specific level of the Service (Silver, Gold, Platinum, e.g.) for which you have subscribed is set forth on the Subscription Order Form. The Company agrees to provide you with the Service during the Term of this Agreement, and in connection therewith, we hereby grant you with a personal, limited, revocable, non-exclusive, non-transferable right to access and use the Service within the United States of America pursuant to the terms of this Agreement. Your right to use the Service is limited to use for your internal business purposes only.

 

In order to access and use the Service, you must maintain Client Software that is compatible with our then-current technology platform and API configuration. 

 

You acknowledge and agree that you are solely responsible for (i) configuring your Client Software to interact with the Service through our API, (ii) entering all Data required in connection with your use of the Service into your Client Software, (iii) the accuracy and completeness of your Data; (iv) the design, implementation, and maintenance of appropriate internal controls for the entry, collection, preparation, calculation, and presentation of your Data; and (v) the storage and retention of your Data. You acknowledge that the Reports generated through the Service will be based on the Data you input, and MSPCFO shall have no liability for the accuracy or completeness thereof.

 

While MSPCFO maintains industry standard security measures to protect our and your information, you acknowledge and agree that the entry of your Data into our servers and system is at your own risk, and we shall have no liability for any unauthorized access to your Data.

 

As between you and MSPCFO, MSPCFO retains all right, title, and interest in and to the Service, and any derivative works thereof, including, but not limited to, all patent, copyright, trade secret, trademark and other intellectual property rights associated therewith. Without limiting the generality of the foregoing, you agree that you will not, directly or indirectly, (a) modify, port, translate, or create derivative works of the Service; (b) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Service by any means; (c) sell, lease, license, sublicense, copy, market or distribute the Service; (d) remove any proprietary notices, labels or marks from the Service; or (e) disclose to a third party any of the Reports or other content generated through your use of the Service, except to advisors to you that are bound by your confidentiality agreements, which may be reviewed by MSPCFO, upon request. In no event shall anything in this Agreement or in our conduct or course of dealing convey any license, by implication, estoppel or otherwise, under any patent, copyright, trademark or other intellectual property right not explicitly licensed. All rights not expressly granted to you under this Agreement are reserved by MSPCFO.

 

        2.  Agreement; Modifications.

This Agreement is comprised of the Subscription Order Form, the Terms of Service, the Support Policy and our Privacy Policy. We reserve the right at any time, and from time to time, to enhance, modify or discontinue, temporarily or permanently, any part of the Service and/or such documents, with or without notice, provided that if any such change results in a material diminution in the Service to you, you may terminated the Agreement immediately. Continued use of the Service following any such modification constitutes your acceptance of the modification. We will notify you of significant revisions to the Terms of Service, and if you do not agree you will have the right to terminate service immediately, without penalty, and in that event you will be entitled to a prorated refund for any remaining term of service that is prepaid.

         3.  Authorized Users.

Each Authorized User shall have a unique user name and password for which you are responsible for establishing. You agree to keep the user names and passwords provided by us confidential, and not to disclose them to anyone else, publish them, or allow anyone other than Authorized Users to use them. You shall require Authorized Users to comply with your obligations under this Agreement. For purposes of this Agreement, any actions or omissions by Authorized Users shall be considered your acts and omissions. You shall be solely responsible for Content submitted to the Service by your Authorized Users or any other person or entity gaining access to the Service via your user names and passwords. You agree to notify is immediately upon learning of any unauthorized use of your account by sending an email to security@mspcfo.com.

 

If you allow an Affiliate to use the Service, you are responsible for your Affiliate’s compliance with this Agreement. If an Affiliate creates and electronically signs a separate Subscription Order Form, your Affiliate will be directly responsible for its obligations.

        4.  Payment and Taxes.

You agree to provide MSPCFO with a valid credit card for automatic payment of the monthly subscription fee, which will be charged monthly or annually in advance, as applicable, depending on the Term selected in the Subscription Order Form. You will pay interest on late payments at the rate of one and one-half percent per month on unpaid, undisputed amounts or the maximum interest rate permitted by applicable law, whichever is lower. Your payment is non-refundable and you may not cancel a Subscription Order Form except as expressly stated in this Agreement. Our fees exclude, and you agree to pay, all applicable taxes and similar charges, including sale and use taxes. Notwithstanding the foregoing, nothing in this Agreement requires you to pay taxes based on our net income.

 

You acknowledge that MSPCFO may increase fees set forth on the Subscription Order Form for each renewal Term. In the event of any increase, you shall have the right to terminate this Agreement within ten (10) days of notification of such increase by emailing support@mspcfo.com.

        5.  Data.

You are solely responsible for your own Data, and by submitting any Data you are representing and warrantying to MFPCFO that you own or possess all necessary licenses, rights and consents to publish the Data you submit, while you will continue to possess ownership rights over your Data, by submitting Data to us, you hereby grant to us a perpetual, irrevocable, fully-paid, unlimited worldwide license to use such Data in order to the provide the Service to you. We reserve the right, in our discretion, to retain archive copies of Data that are deleted or removed from the Service, unless specifically instructed otherwise by you. Additionally, you give MSPCFO the right to use your Data to compile (including creating statistical and other models), annotate and otherwise analyze the Data to develop, train, enhance and improve its Service and make new offerings to the Service or other products and services based on aggregated Data such as benchmarking services that do not disclose any Content identifiable to you. To the extent any Data is compiled or used by us in in such manner, all intellectual property rights in such enhanced Data, enhanced Service or new products and/or services shall be owned by us for distribution to third parties in connection with the Service.

         6.  Term.

Unless otherwise set forth in the Subscription Order Form or other written agreement between you and MSPCFO, the “Term” of this Agreement shall begin on the date you electronically sign the Subscription Order Form and end on the one-year anniversary thereof. Thereafter, the Term shall automatically be renewed for additional one-year periods unless you give us notice of your intent not to renew at least ninety (90) days prior to the expiration of the Term. Notwithstanding the foregoing, you may terminate this Agreement by notifying us at any time. In the event of any such early termination, you shall not be entitled to any refund of any subscription fees paid prior to the effective date of termination. Upon termination of this Agreement, all licenses granted to you terminate as well, and you and your Authorized Users’ access to the Service shall cease.

         7.  Confidential Information; Privacy.

Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth in this Agreement, and shall use reasonable efforts not to disclose such Confidential Information to any third party during the Term of this Agreement and for a period of one (1) year thereafter. Without limiting the foregoing, either party shall use at least the same degree of care that it uses to prevent the disclosure of its own Confidential Information of like importance and similar nature to prevent the disclosure of Confidential Information. Either party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In any event, each party receiving Confidential Information shall (i) disclose such Confidential Information to (A) only those authorized employees and directors of such party whose duties justify their need to know such information and who have been clearly informed of their obligation to maintain the confidential and/or proprietary status of such Confidential Information; or (B) only those third parties required for the performance of the receiving party’s obligations under this Agreement pursuant to a written confidentiality agreement as least as extensive and restrictive as the confidentiality provisions of this Agreement; and (ii) use such Confidential Information only for the purposes set forth in this Agreement.

 

You further acknowledge and agree that the Reports generated through the Services are Confidential Information of MSPCFO and are solely for your internal review and use. Neither the Reports nor the contents thereof shall be filed, disclosed, or otherwise used by you in connection with, or as part of, any public filings or corporate disclosures including, but not limited to, any public filings or disclosures made: (i) to the Securities and Exchange Commission; (ii) as part of any public or private offerings of any stock or other interest in Client; (iii) to any investors in, lenders to, secured parties of, or beneficiaries of any guarantees conveyed by Client; or (iv) to any other persons or entities.

 

Notwithstanding anything to the contrary in this Agreement, neither party shall disclose the existence or terms of this Agreement to any third party without the express prior written consent of the other party; provided however that either party may disclose the terms of this Agreement (i) as required by applicable law, (ii) to its attorneys, bankers and accountants or (iii) any potential investor or acquirer of a substantial part of such party’s business or assets, whether by merger, sale of assets, sale of stock or otherwise, or as otherwise may be required by law or regulatory process.

 

Upon expiration or termination of this Agreement, each party shall return all Confidential Information received from the other party upon request.

           8.  Warranties.

You acknowledge that this Agreement provides for ongoing services. Accordingly, in lieu of a warranty, we are agreeing to provide you with service pursuant to the Service Level Agreement. The Service is provided on an “AS IS” and “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. MSPCFO SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

           9.  Limitation of Liability.

IN NO EVENT WILL MSPCFO, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES AND/OR APPLICATION, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT MSPCFO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MSPCFO’S CUMULATIVE LIABILITY TO YOU (WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, NEGLIGENCE OR MISCONDUCT) FOR ALL CLAIMS REGARDLESS OF TYPE, EXCEED THE FEES PAID TO MSPCFO IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

           10.  Indemnification.

You shall indemnify and hold harmless MSPCFO and its current and former officers, directors, employees, members, shareholders, successors, and assigns from and against any and all causes of action, claims, demands, liabilities, obligations, actions, proceedings, damages, losses, costs, and expenses (including reasonable attorneys’ fees), arising out of, or concerning: (a) your use of the Service; (b) your disclosure of any Reports or the contents thereof, in whole or in part, to any third parties; (c) the use of, or reliance on, any Reports or the contents thereof, in whole or in part, by any third parties; or (d) any actual or purported claims asserted by any third parties including, but not limited to: (1) any of your corporate parents, subsidiaries, affiliates, members, shareholders, officers, directors, or employees; (2) any of your accountants, consultants, advisors, or other representatives or agents; (3) any purchasers of any membership units, shares, or other quity interest in, or assets of, you; (4) any investors in, lenders to, secured parties of, or beneficiaries of any guarantees provided by, you; (5) any customers, clients, suppliers, vendors, or trading partners of you; or (6) any other third parties arising out of, or concerning this Agreement, the Service, or any Reports.

 

MSPCFO shall, at its own expense, defend or, at its option, settle, any claim or action brought against you by a third party, during the Term, to the extent it is based on a claim that the Service directly infringes any United States patent, copyright or trademark, or misappropriates a trade secret, of such third party. We will indemnify you against any losses, damages, and expenses that are attributable to such claim or action and are assessed against you in a final judgment. We shall have the foregoing obligations only if you provide us with: (a) a prompt written request to undertake the defense in such claim or action; (b) sole control and authority over the defense and settlement thereof; and (c) all available information, assistance, and authority reasonably necessary to settle and/or defend any such claim or action. We shall not be responsible for any attorneys’ fees or other expenses or costs that you incur before receipt of Company’s request for indemnification or defense. No settlement that imposes any financial liability greater that the Limitation of Liability described in Section 9 above or includes an admission of wrongdoing by you shall be made without your prior written consent.

          11.  General Provisions.

MSPCFO shall have the right to assign this Agreement, and its obligations hereunder in the event that it enters into a merger, consolidation, or sale of all, or substantially all, of its assets. Except as set forth herein, neither party may assign this Agreement, or its rights or obligations hereunder, without the prior written consent of the other.

 

MSPCFO and you shall at all times and for all purposes be deemed to be independent contractors and neither party, nor either party’s employees, subcontractors or agents, shall have the right or power to bind the other party. This Agreement shall not create or be deemed to create a joint venture, partnership or other similar association between MSPCFO and you or any of either party’s employees, subcontractors or agents.

 

This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the State of New York, without regard to its principles on conflicts of law. The Parties hereto irrevocably and unconditionally submit to the exclusive jurisdiction of any court sitting in the Borough of Manhattan, City of New York, New York, over any suit, action or proceeding arising out of or relating to this Agreement. The Parties hereto irrevocably and unconditionally waive any objection to the laying of venue of any such suit, action or proceeding brought in any such court and claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect the other provisions of this Agreement, which shall remain in full force and effect.

 

Except as set forth herein, the Agreement contains the entire agreement between MSPCFO you with respect to the matters addressed herein, and supersedes all other and prior agreements between the parties with respect to such matters, all of which are hereby terminated and cancelled.

 

The parties may sign this Agreement electronically and in counterparts, each of which is deemed to be an original and all of which taken together comprise a single document. Neither party will be liable for failures or delays in performance due to causes beyond its reasonable control.

 

You agree that, where we are required to provide you with notice under this Agreement, acceptable and sufficient forms of notice include, but are not necessarily limited to, the following:

  • e-mail to the most recent e-mail address that you have provided to us, regardless of the current status of that e-mail address; or

  • written communication delivered by first class U.S. mail to the most recent physical address that you have provided to us, if applicable.

 

You accept sole responsibility for providing us with notice of changes to your e-mail address and/or your physical address.

 

Except as otherwise set forth above, you may give notice to us at any time by letter delivered by first class postage prepaid U.S. mail or overnight courier to the following address: MSP CFO, 54 West Branch Road, Weston CT 06883