EcomBalance Terms of Service

Please Read Carefully. 

Updated:  June 3, 2024

These terms of service (“Terms”) are between Hirsch Gillivan Ventures LLC d/b/a Ecombalance and Accountsbalance (“Company,” “we,” “our,” and “us”) and you (“you” and “your”) and govern your access to and use of our websites, monthly bookkeeping and other bookkeeping related services, and any web applications, platforms, portals, downloads, content, products, services, materials and/or any resources or sites that Company may have now and/or in the future (collectively, the “Services”). By accessing and/or using our Services, you also agree to the Company Privacy Notice (“Privacy Notice”), located at LINK, and consent to any personal information we may obtain about you being collected, stored and/or otherwise processed in accordance with our Privacy Notice and these Terms.  

By clicking the “I agree” checkbox or by accessing and/or using the Services, you acknowledge and agree that you have read, understand and agree to be bound by all of the terms and conditions set forth in these Terms, as well as all other applicable rules or policies, terms and conditions or agreements that are or may be established by Company from time to time, and the foregoing shall be incorporated herein by reference. If an individual agrees to these Terms on behalf of a legal entity, such individual represents that the individual has the legal authority to bind such entity.  If you do not agree to these Terms, do not use the Services.

ARBITRATION NOTICE:  EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND COMPANY WILL BE RESOLVED BY INDIVIDUAL MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING. YOU ALSO WAIVE YOUR RIGHT TO RECEIVE A TRIAL BY JURY. 

1. OVERVIEW

Company provides online bookkeeping Services to various businesses (including without limitation eCommerce companies, software-as-service companies, marketing agencies, coaches, course owners, service providers and nonprofit businesses).  Services may include monthly bookkeeping using Quickbooks Online , Xero or similar software services; monthly financial statements; Amazon, Shopify and Ebay bookkeeping; catch-up and clean-up services; and related products and/or services. You understand that nothing in the Services constitutes financial, legal, tax or investment advice. You are advised and encouraged to consult with an independent attorney, certified public accountant, tax advisor and/or financial professional at any time you deem it necessary or desirable while using the Services.   Company may also provide information, recordings, chats, videos, resources and other materials on its website. If you are accessing and/or using the Services, you agree to access and/or use such Services only in accordance with the applicable terms and conditions contained in these Terms and as further described herein.  

2. CHANGES TO TERMS

Company may, at any time, for any reason, make changes to the Services and/or modify these Terms in its sole and absolute discretion. If we make changes and/or modifications that affect your use of and/or access to the Services, we will post notice of the change and/or modification on this Terms page and change the ‘Updated’ date set forth above. You agree that your continued use of the Services following changes and/or modifications will constitute your acceptance of such changes and/or modifications.  We may also provide you with additional forms of notice as appropriate under the circumstances.  If you do not agree to the changes, you shall not use the Services offered after the effective date of the changes and/or modifications.  Please revisit these Terms regularly to ensure that you stay informed of any changes and/or modifications.  Company also reserves the right to post, from time to time, additional rules of usage that apply to specific parts of the Services, which may be posted in the relevant portion of the Services. Your continued use of the Services constitutes your agreement to such additional rules. 

3. PRIVACY NOTICE

For information regarding collection, use, and disclosure of your information, please review our Privacy Notice.  You agree to our Privacy Notice and consent to any personal information we may obtain about you being collected, stored, and/or otherwise processed in accordance with the Privacy Notice and these Terms. 

4. USE OF THE SERVICES   

Right to Use.  These Terms permit you to use the Services only for your internal business purposes.  By using the Services and accepting these Terms: (i) Company grants you a limited, nonexclusive, non-transferable, non-sublicensable, revocable right to access and/or use the Services and information provided therein in accordance with the terms and conditions set forth herein and any additional terms, conditions and policies set forth by Company; and (ii) you agree not to reproduce, modify, distribute, create derivative works from, publicly display, publicly perform, republish, download, transmit, store, license, sell and/or re-sell any content and/or information obtained from and/or accessed through the Services without the express written permission of Company. Notwithstanding the foregoing subsection (ii), your computer may temporarily store copies of information required for you to access and view the information and you may store files that are automatically cached by your browser for display enhancement purposes.  If you use or provide any other person with access to any part of the Services in breach of these Terms, your right to use the Services will stop immediately. Neither these Terms nor your use of the Services convey and/or grant to you any rights: (a) in or related to the Services except for as expressly set forth herein; or (b) to use Company’s names, logos, product and service names, trademarks, or services marks or those of Company’s licensors.

Access to Services.  Company retains the right, in its sole discretion, to deny service and/or access to and/or use of the Services to anyone at any time and for any reason. While we use reasonable efforts to keep the Services accessible, the Services may be unavailable from time to time. You understand and agree that there may be interruptions to the Services due to circumstances within our control and outside of our control.  You acknowledge and agree that the use of the Services is at your own risk, including without limitation the risk that you might be exposed to content that is inaccurate and/or objectionable. Please note that the Services may contain access to third-party content and other interactions over which we have no control. We assume no responsibility for, nor do we endorse, screen, or approve third-party content, offerings, or other materials made available to you within the Services. The Services may be modified, updated, suspended and/or discontinued at any time as determined by Company in its sole and absolute discretion and without notice and/or liability. 

Eligibility.  To access and/or use the Services, you must be the authorized representative, owner and/or operator of a business and at least eighteen (18) years of age.  Company does not provide personal bookkeeping services. By accessing and/or using the Services, you represent and warrant that you meet these eligibility requirements.  The ‘Children’s Online Privacy Protection Act’ requires that companies obtain verifiable parental consent before they knowingly collect personal information online from children under the age of thirteen (13). We do not knowingly collect or solicit information from children under the age of thirteen (13). If we learn we have collected personal information from a child under the age of thirteen (13), we will delete the information. If you think someone under the age of thirteen (13) has provided us with personal information, please contact us at [email protected] or [email protected]. 

Creating an Account.  You will need to register for an account in order to access and use certain components of the Services. You agree to provide true, accurate, and current information in connection with your access to and/or use of such Services and your account. You may be asked to provide certain information to access certain portions of the Services or to receive certain resources made available by Company.  You must ensure that any user IDs and other access credentials are kept strictly confidential and not shared with any unauthorized person. From time to time, we may restrict access to all or part of the Services as we may determine in our sole discretion.  You will comply with all applicable laws, rules, and/or regulations when accessing and/or using the Services. You are responsible for making necessary arrangements to use the Services, such as securing a device and/or internet access. You are responsible for ensuring that all persons who access the Services through your device and/or internet connection are aware of these Terms and comply with these Terms. You agree to notify Company immediately of any unauthorized access to or use of the Services or any other breach of security.

Data Security; Unauthorized Access.  You acknowledge and agree that Company utilizes third-party service providers to host and provide the Services and store your User Content, and the protection of such data will be in accordance with such third party’s safeguards for the protection and the security and confidentiality of data.  You are responsible for properly configuring and using the Services and taking appropriate steps to maintain security, protection, and backup of all of your User Content.  Company is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss, or failure to store any of your User Content and data or other information that you submit and/or use in connection with the Services (including as a result of your errors, acts, or omissions).  For avoidance of doubt, you acknowledge and agree that you are responsible for taking appropriate steps to maintain security, protection and backup of your User Content and other data, information and/or materials, and that Company is not liable for any loss or destruction of any data, information and/or materials provided to Company.

Communications.  You agree to receive certain communications in connection with the Services. When you use the Services, you are communicating with us electronically, and you consent to receive communications from us electronically.  We will communicate with you by e-mail and/or by posting notices on the Services. You acknowledge and agree that all agreements, notices, disclosures and/or other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Certain electronic communications from Company may include promotional and advertising material and information about Company, unless or until you elect to opt-out of receiving such communications by clicking the unsubscribe link and/or by notifying us at [email protected] or [email protected] that you no longer desire to receive promotional communications from us.

Your Conduct and Responsibilities.  Company grants you the rights set forth herein, subject to the following conditions:

  1. You represent and warrant to Company that (i) all information provided to Company by you is true, complete, and accurate in all respects, and (ii) you are authorized to submit information to Company;
  2. You shall not modify, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Services; 
  3. You may not access all or any part of the Services in order to build a product or service which competes with the Services;
  4. You shall not copy or imitate part or all of the design, layout, or look-and-feel of the Services or individual sections of it, in any form or media;
  5. You are only authorized to view, use, copy for your records and download small portions of the content on the Services for your informational, non-commercial use; provided that you leave all copyright and other proprietary notices intact; 
  6. You are responsible for the accuracy and quality of the information and content that you submit and will not violate the intellectual property rights of anyone;
  7. You agree to act in accordance with all applicable laws, rules and regulations;
  8. You shall not imply that content provided by you is in any way sponsored and/or endorsed by Company;
  9. You agree not to intentionally hold Company and/or its officers, directors, employees, contractors and/or third-party service providers up to public scorn, ridicule, or defamation;
  10. You will use commercially reasonable efforts to prevent unauthorized access to and/or use of the Services, and notify Company promptly of any such unauthorized access and/or use; 
  11. You will not attempt to do any of the following: access data not intended for you, monitor the Services for data gathering purposes and/or interfere with the Services in relation to any user in any manner;
  12. You will not attack the Services via a denial-of-service attack or a distributed denial-of-service attack; and/or
  13. You shall not use the Services for any unlawful purpose and/or to violate any federal, state, international law, code of conduct and/or other guidelines which may be applicable to the Services provided.

Cooperation.  You and your representatives will behave in a professional and workmanlike manner, will promptly and fully cooperate with Company, and will promptly make competent, qualified personnel available to assist and answer questions of Company, as necessary and appropriate and as reasonably requested by Company. You agree to designate a member of your team that is responsible for communicating with Company, and will provide that individual with authority to provide us with information, make decisions, approve work, etc. You agree to make available to Company, free of charge, all information, facilities and services reasonably required by Company to enable it to perform the Services (including without limitation business formation information; view-only access to banking records; view-only access to credit card information; view-only access to marketplace information; loan information; historical financial information; costs of all products (so that Company is able calculate cost of goods sold or COGS); tax returns (including any adjustments made by your accountant); receipts; and any other relevant information or materials). If you provide Company more than view-only access to any accounts, you accept full responsibility for any account changes, damages or losses.  Further, if you discontinue the Services, it is your responsibility to remove Company’s access to your information. Company does not work with businesses that use or accept crypto, and you must immediately disclose to Company any such use. You agree to provide Company with easy-to-use data and to work with only accounts, processors, banks, marketplaces and others that provide information in an accurate, clean, easy to understand format. Company bases its Services on this information, and will not use information that is not clear and understandable. You agree not to intermingle business and personal transactions or to charge personal expenses to the business. You are responsible for reviewing each month’s books in a timely manner (no later than thirty (30) days after submission by Company), and shall advise Company of any inaccuracies within such timeframe. Company shall bear no liability or otherwise be responsible for delays and/or errors in the provision of the Services or any portion thereof caused by your failure to timely provide accurate, understandable and complete information as requested by Company.  

Additional Responsibilities.  You shall be solely responsible for keeping receipts for the time period recommended by the Internal Revenue Service or other tax authority or government tax agency.  You understand that Company does not need receipts to perform the Services and will not collect, manage or store receipts for you. You are responsible for locking past year’s data or any data outside of the monthly bookkeeping scope of work.  Company may lock the books at the end of each year before commencing Services or starting the new year.  Company is not responsible if your bookkeeping data is altered, changed or lost during the course of normal bookkeeping and Company will not revert your data to its original form once Services have commenced. You are responsible for backing up all of your data. Company shall not be held responsible for the production of inaccurate financial statements, records and billings, or any other financial reports if the User Content and other materials submitted by you are inaccurate.

For eCommerce businesses, you acknowledge and agree that the tools Company uses to connect with marketplaces and processors import all sales and COGS data in accordance with accrual basis accounting.  Company does not offer a service to accrue expenses and other accounts, as it is unnecessary for most businesses.  If you are not an eCommerce business, bookkeeping is conducted on a cash basis. You understand and agree that Company does not offer full accrual bookkeeping and cannot honor requests to accrue other accounts outside of eCommerce sales and COGS that connect to our tools.

Confidentiality.  During your access to and/or use of the Services, you may have access to certain information of Company that is not generally known to others including any and all information relating to Company and its business, such as, its business, legal, and operational practices, financial, technical, design, performance characteristics, commercial, marketing, competitive advantage or other information concerning its business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, algorithms, techniques, formulas, processes, know-how, systems, ideas, inventions (whether or not patentable or copyrighted), feedback, procedures and techniques that have been or may hereafter be provided or shown to you, regardless of the form of the communication (collectively, “Confidential Information”). You will use best efforts to protect and prevent any access to Confidential Information.

except AS EXPRESSLY SET FORTH HEREIN, The commercial use, reproduction, transmission or distribution of any information or other material available through the Services without the prior written consent of COMPANY is strictly prohibited. 

Company will exercise commercially reasonable efforts to maintain the confidentiality of the business and/or financial information that you upload into Company’s client portal; however, Company shall not be subject to any obligations of confidentiality regarding any other information and/or materials submitted through the Services (such as ratings and/or reviews, testimonials, etc.) except as otherwise specified in these Terms and/or the Privacy Notice and/or as set forth in any additional terms and conditions relating to specific products and/or services utilized by Company in conjunction with the Services, and/or as otherwise required by law. Company may take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.  We have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services.  YOU AGREE TO INDEMNIFY AND HOLD HARMLESS COMPANY AND ITS LICENSORS AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY COMPANY DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER COMPANY OR LAW ENFORCEMENT AUTHORITIES.

5. FEES 

Fees.  Company offers different types of Service plans and packages, and fees will vary depending upon the nature and complexity of your business. Company will provide you with a custom quote for all Services.  Fees for monthly bookkeeping Services generally consist of (i) an upfront fee covering set-up, catch-up, clean-up and integration, and (ii) a monthly fee payable in advance on a monthly basis (or such monthly fee may be paid annually in advance at a 10% discount).  

If Company is completing catch up and/or clean-up work for any prior years, you agree to purchase monthly bookkeeping Services for at least one (1) year. If you wish to terminate monthly bookkeeping Services prior to the end of such one-year period, Company will charge you an early termination fee equal to 60% of the monthly fees due through the end of the one-year period. 

You agree to avoid requiring Company to repeat work. By way of example, if Company asks you to categorize 50 transactions and you do so, but later request that Company recategorize the 50 transactions differently, Company reserves the right to impose an additional charge for the extra work.

A2X, Link My Books (LMB), or another marketplace aggregator software is required for all Company clients, including all eCommerce marketplaces they sell on. Company will include the cost of the software into your monthly quote. If you add new marketplaces and/or increase the A2X/LMB plan that is needed, Company reserves the right to increase fees accordingly. If you wish to pay for the software yourself, Company still requires such software and you must keep the account active.

Company reserves the right to change any fees or charges (or to begin charging fees for any free Services) at any time (including, but not limited to, if your business significantly grows, or if you add accounts, add marketplaces, or make other changes to your business). All fees due and payable to Company must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law.  Refunds shall be at the sole discretion of Company, and Company does not provide refunds for months already billed.  In the event that fees are not paid within two weeks after the due date, Company may, in addition to other available remedies, suspend your access to all or part of the Services.  

Taxes; Expenses.  Company’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes“), and you are responsible for paying all Taxes (if any) associated with the fees hereunder. 

Company will not cover the cost of all accounting tools.  Many accounting tools will be factored into your quote or must be paid separately by you, and Company will be transparent regarding all costs.  Company does not cover the cost of Quickbooks Online or Xero. You agree to pay any additional expenses that may be incurred in connection with the Services. Company does not travel in connection with the provision of the Services.

Payment Method.  You must  provide payment information (credit card, debit card, PayPal, ACH or other payment account agreed upon by the parties) to Company.  Company offers a 1% discount on ACH payments. You authorize Company and/or its third-party payment processor(s) to automatically charge the payment account for the charges. If your payment account is closed, the account information is changed, or a charge is rejected by your payment account, you shall immediately update the payment account or supply a new payment account, as appropriate. You agree to pay a $25 NSF fee on any rejected payments and will cover all expenses related to any chargebacks. 

Third-Party Payment Processor(s).  Company may use one or more third-party payment processor(s) to execute payment transactions (including without limitation Stripe, PayPal and/or Plaid).  Company may choose, in its sole discretion, to implement different third-party payment processor(s) at any time.  By using our Services and agreeing to these Terms, you also agree to be bound by each applicable third-party payment processor’s terms of service.  Any authorization you provide to make automatic payments using the Service will remain in effect until cancelled.  You are responsible for all transactions processed through the Services and/or the third-party payment processor(s). 

  

6. ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information provided through the Services that contains typographical errors, inaccuracies, and/or omissions that may relate to services and/or product descriptions, pricing, promotions, offers, and availability.  We reserve the right to: (i) revoke any stated offer; (ii) correct any errors, inaccuracies, and/or omissions; and/or (iii) make changes to prices, content, offers, services and/or product descriptions, specifications, and/or other information without obligation to issue any notice of such changes.  We also reserve the right to limit quantities and or capacity (including after an order has been submitted and/or acknowledged) and to revise, suspend, and/or terminate an event and/or promotion at any time without notice (including after an order or registration has been submitted and/or acknowledged).  Company shall not be liable for any promotions, discounts and/or coupons on Third-Party Services (as defined in Section 13 below). 

7. OWNERSHIP

Services and Data.  Excluding your User Content, Third-Party Services and content linked to or posted on the Services, the Services and their entire contents including but not limited to the Company name, logos, graphics and other information and material we provide through the Services are the property of and owned by Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary right laws. Any redistribution or reproduction of part or all of the contents of the Services, including but not limited to the tools, text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, trade dress, logos, and slogans is prohibited. As between the parties, Company and/or its licensors are the owner of and retain all right, title and interest in: (i) all content and information provided by Company; and (ii) any data or metadata created, aggregated, or generated by access to and/or use of the Services, including but not limited to data or insights collected from the Services and/or in connection with your use of the Services. Subject to the limited rights expressly granted hereunder, Company and/or its third-party licensors reserve all right, title and interest in and to the Services and related information, including without limitation all related worldwide intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.  Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws. The Company name and logo are trademarks and/or service marks of Company (the “Marks”) and we retain all right, title, and interest in and to the Marks. 

User Content.  During the course of your access to and/or use of the Services, you and your representatives will be responsible for creating, entering, and/or providing access to Company of all content and information required by Company in connection with the performance of the Services, including without limitation financial information, articles of organization, tax returns, bank records, credit card statements, and other information, materials and/or content (collectively, “User Content”). You and/or your licensors shall have exclusive title and ownership rights, including all intellectual property rights, throughout the world in all of your User Content. In connection with your use of the Services, you hereby grant Company a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable (through multiple tiers), perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify, and otherwise use your User Content in connection with the provision of the Services in any form, medium or technology now known or later developed. This license includes the right for us to make your User Content available and sublicense rights to our third-party service providers who partner with us in the delivery of the Services, including the right to move your User Content to another platform. 

Company and our third-party service providers will be able to see your User Content that you provide in connection with the Services and you hereby irrevocably grant such parties the right to access and/or use your User Content in accordance with these Terms or in connection with providing the Services. You acknowledge and agree that you are solely responsible for the accuracy and completeness of the User Content provided to Company.  Company does not audit or verify the accuracy of such information nor shall it be responsible for non-standard reports, preparing income tax returns, providing financial advice and/or investment advice.  You assume all risks associated with your User Content, including Company’s reliance on its quality, accuracy, and/or reliability.  You also represent that you own, and/or have the necessary permissions to use and authorize use of your User Content as described in these Terms.  Company may preserve your User Content and may also disclose your User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any of your User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Company, its users and/or the public. Notwithstanding anything herein to the contrary, Company is not obligated to take any action not required by law.  The technical processing and transmission of your User Content may involve transmissions over various networks and changes to conform to technical requirements of connecting networks or devices. 

 

User Content Restrictions.  User Content shall not contain any unauthorized content which includes but is not limited to:

  1. content determined by Company, in its sole discretion, to be illegal, or to violate any federal, state, or local law or regulation or the rights of any other person or entity;
  2. harmful, inaccurate, abusive, or otherwise inappropriate content;
  3. information or materials that are not relevant to the Services, as determined by Company in its sole discretion;
  4. content and/or communications that publicize other people’s private information without their permission;
  5. information about illegal activities or physical harm;  
  6. content of third parties or content that violates the intellectual property rights of anyone; and/or
  7. content or any communications that contain viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept, or appropriate any system, data, or personal information.

We are not obligated, but reserve the right to reject, in whole or part, your User Content if it violates these Terms and the user content restrictions described herein or any other applicable user content restrictions, as updated from time to time.

Feedback.  Please keep in mind that we do not seek any unsolicited ideas and/or materials for the Services. If you provide us with any feedback, suggestions, improvements, reviews, enhancements, recommendations relating to the Services (“Feedback”), then you further grant to Company a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate any such Feedback.  Company has no obligations to review any Feedback and may use and redistribute Feedback for any purpose without restriction in its sole and absolute discretion. 

8. PROHIBITED USE AND CONDITIONS

We prohibit crawling, scraping, caching and/or otherwise accessing any content on the Services via automated means (except with Company’s express written consent).  You may not use the Services in any manner that could damage, disable, overburden, and/or impair the Services and/or interfere with any other party’s use and/or enjoyment of the Services.  You may not obtain and/or attempt to obtain any materials and/or information through any means not intentionally made available and/or provided for through the Services.  You may not interfere with the proper working of the Services, including without limitation by placing an unreasonable load on the Services’ infrastructure.   

9. TERMINATION
Services are generally offered on a month-to-month basis, and may be terminated at any time upon thirty (30) days’ notice to Company, and such notice shall not be waived by Company. You shall remain responsible for Services rendered up to and including the last day of the notice period.  By way of example, if cancellation of Services occurs via written notice on March 5th, Services shall be renewed on April 1st and will continue until April 30th.  The cancellation will then take effect on May 1st, and you will not be billed for Services beyond this date. Notwithstanding the foregoing, (a) because Company spends significant time reviewing your business and accounts during integration, any termination during integration is subject to a cancellation fee equal to 50% of the upfront fee or $499 (whichever is greater), and (b) in the event that you paid for Services annually in advance, you shall not be entitled to a refund. The following actions shall not constitute valid notification of termination under these Terms: (a) removing the payment method associated with the Services, (b) failing to respond to communication attempts, (c) neglecting to engage with or fulfill Company requests, (d) revoking our access to any or all relevant accounts, (e) expressing an intent to give notice at a future date, or (f) suggesting a potential cessation of Services at a future time. Only a written email explicitly stating the intention to terminate Services with a minimum notice period of thirty (30) days shall be deemed as valid notice of termination in accordance with the terms of these Terms.  Company reserves the right, in its sole and absolute discretion, to terminate or suspend your access to the Services, without liability, without cause and/or without notice. Without limiting any other remedies, Company, without notice, may suspend or terminate your access to the Services, without liability, (i) if Company suspects, in its sole discretion, that you have violated the terms and conditions set forth herein, any of Company’s policies referenced herein, the Privacy Notice, or any other applicable policies and/or terms; (ii) if you engage in improper or fraudulent activity in connection with Company and/or the Services; and/or (iii) for any other reason.  In the event you share the access granted with any person or entity, and/or misuse the Services by any means actionable under a federal, state, and/or local statute, code, regulation, law, and/or civil action, Company will consider your access as having been acquired by fraud and/or misrepresentation and will terminate your access immediately.  In such event, Company retains the right to seek civil and/or criminal redress, the entire cost of which shall be borne solely by you. 

10. INDEMNIFICATION

You shall release, indemnify, defend and hold harmless Company, its officers, directors, agents, employees, contractors, subcontractors, suppliers, service providers and representatives from and against any and all claims, demands, proceedings, losses, costs, damages, awards, fees, expenses, or liabilities of any nature including reasonable attorneys’ fees (“Claims”) arising out of and/or relating to (i) User Content submitted by you in connection with the Services; (ii) any use of the Services in violation of these Terms; (iii) your violation of any law and/or the rights of a third party; (iv) your use of the Services; (v) any breach of these Terms by you or your representatives; and/or (vi) fraud you commit and/or your intentional misconduct and/or negligence.  You shall give prompt notice to Company in writing upon your receipt of notice of any Claim against you that might give rise to a Claim against Company.  You will allow us to participate in the defense, and will not settle any Claim without our prior written consent. We reserve the right, at our own expense, to assume the exclusive defense of any matter otherwise subject to indemnification by you. In that event, you will have no further obligation to defend us in that matter.

11. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, AND ANY CONTENT, ARE PROVIDED BY COMPANY TO YOU ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND COMPLETENESS, AND FROM COURSE OF DEALING, USAGE AND/OR TRADE PRACTICE, ALL OF WHICH COMPANY EXPRESSLY DISCLAIMS.  WITHOUT LIMITING THE FOREGOING, COMPANY AND/OR ITS LICENSORS MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS AND/OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE AND/OR ERROR-FREE; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE ACCESS TO AND/OR USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE AND/OR RELIABLE; AND/OR (C) COMPANY WILL NOT BE LIABLE AND/OR OTHERWISE RESPONSIBLE FOR ANY FAILURE OR DELAY IN UPDATING THE SERVICES AND/OR ANY CONTENT.  NO ADVICE AND/OR INFORMATION, WHETHER ORAL AND/OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH YOUR ACCESS TO AND/OR USE OF THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.  COMPANY MAKES NO PROMISES WITH RESPECT TO, AND EXPRESSLY DISCLAIMS ALL LIABILITY FOR: (i) CONTENT PROVIDED BY ANY THIRD PARTY, (ii) ANY THIRD-PARTY WEBSITE, THIRD-PARTY SERVICES LISTED ON OR ACCESSIBLE TO YOU THROUGH THE SERVICES, INCLUDING ANY THIRD-PARTY SERVICES INTEGRATED INTO THE SERVICES, (iii) THE QUALITY OR CONDUCT OF ANY THIRD PARTY YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE SERVICES, AND/OR (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES.

12. LIMITATION OF LIABILITY

YOUR USE OF THE SERVICES IS AT YOUR OWN RISK.  IN NO EVENT SHALL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, SERVICE PROVIDERS, SUPPLIERS AND/OR OTHER REPRESENTATIVES BE LIABLE TO YOU AND/OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA AND/OR PROFITS, WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, AND/OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.  THE FOREGOING SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY COMPANY, ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS.  BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES, IN SUCH STATES, COMPANY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, IN THE EVENT YOU ARE DISSATISFIED WITH THE SERVICES, RELATED SERVICES AND/OR HAVE ANY OTHER GRIEVANCE, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE THE RIGHT TO DISCONTINUE ACCESS TO AND/OR USE OF THE SERVICES.

COMPANY’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR DIRECT DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SERVICES IS LIMITED TO THE FEES ACTUALLY PAID BY YOU TO COMPANY IN THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. 

If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction in which any other statute or common law principles of similar effect applies, you waive the application of such statute or common law with respect to the claims, demands and damages (actual and consequential) released under this Section.

13. THIRD-PARTY CONTENT, LINKED SITES, THIRD-PARTY SERVICES

Third Party Content.  Company may provide access to content provided by third parties, including, without limitation, information, dialogue, opinions, stories, advice, statistical data, text, software, music, sound, photographs, graphics, video, messages, and other materials, whether publicly or privately posted to or otherwise transmitted through the Services (“Third-Party Content”). The third party from whom or which any such Third-Party Content originates is solely responsible for it and Company assumes no responsibility to verify, has no control or influence over, makes no representations regarding, and does not guarantee the accuracy, integrity, or quality of any Third-Party Content. Accordingly, Company does not control or endorse such Third-Party Content and has no liability of any kind to you or any third party for any Third-Party Content. Statements of opinion and commentary in Third-Party Content are those of the third party and not necessarily those of Company.

Linked Sites.  The Services may provide links to various other independent third-party websites (“Linked Sites”) that may be of interest to you and are for your convenience only.  Company does not control or endorse such Linked Sites and is not responsible for their content nor is it responsible for the accuracy or reliability of any information, data, opinions, advice and/or statements contained within such Linked Sites.  You will need to make your own independent judgment regarding your interaction with these Linked Sites at your own risk.  We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each Linked Site that you visit.  Company reserves the right to terminate any link and/or linking program at any time in its sole and absolute discretion. We disclaim all warranties, express and implied, as to the accuracy, validity, and legality and/or otherwise of any materials and/or information contained on such Linked Sites.

Third-Party Services.  There may be third-party products, services, software, and/or social networks (collectively “Third-Party Services”) integrated into the Services. Please be aware that Company is not affiliated with any Third-Party Services or the companies or providers that own or control such Third-Party Services. You agree to release Company and such third-party providers from any liability related to your use of any Third-Party Services or any costs or charges related to such Third-Party Services. In order to use any Third-Party Services, you may be required to agree to that company’s terms and conditions and/or privacy policy. You agree to comply with the foregoing when using the Services. Where you decide to use such Third-Party Services, Company is not a party to any contracts created between you and the provider of such Third-Party Services. Company is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with any Third-Party Services.

14. NO PROFESSIONAL ADVICE 

YOU ACKNOWLEDGE AND AGREE THAT NOTHING IN THE SERVICES CONSTITUTES FINANCIAL, LEGAL, TAX OR INVESTMENT ADVICE. YOU ARE ADVISED AND ENCOURAGED TO CONSULT WITH AN INDEPENDENT ATTORNEY, CERTIFIED PUBLIC ACCOUNTANT, TAX ADVISOR AND/OR OTHER FINANCIAL PROFESSIONAL AT ANY TIME YOU DEEM IT NECESSARY OR DESIRABLE WHILE USING THE SERVICES.  

15. COPYRIGHT AND TRADEMARK POLICY 

We reserve the right to reject any material that we believe in good faith to be copyrighted material that has been illegally distributed by you and/or other third parties and discontinue service to repeat offenders. Should you believe anything in the Services infringes on any copyright that you own or the copyright of others, you may notify the copyright agent (“Copyright Agent”) at Company, Attn: Copyright Agent, 771 Fairfax Street, Denver, CO  80220, or at [email protected] or [email protected].  We will respond to clear notices of copyright infringement when you provide the following information: (i) signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) description of the copyrighted work that is claimed to be infringed upon; (iii) description of where the material that is claimed to be infringed upon is located in the Services; (iv) information reasonably sufficient to permit contact (i.e., an address, telephone number, and an e-mail address at which the complaining party may be contacted); (v) statement that the complaining party has a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) statement by the complaining party, made under penalty of perjury, that complaining party is authorized to act on behalf of the intellectual property owner of the right that is allegedly infringed. 

The Copyright Agent will not remove content from the Services in response to phone or email notifications regarding allegedly infringing content, since a valid ‘DMCA’ notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf.  Please submit such notifications by mail only and as further described by this Section. The Copyright Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring in the Services.  All other inquiries directed to the Copyright Agent will not be responded to. 

16. DISPUTE RESOLUTION, ARBITRATION, AND CLASS ACTION WAIVER 

Disputes.  We want to address your concerns without filing a formal legal case.  Before filing a claim against Company, you agree to try to resolve the dispute informally by contacting us at [email protected] or [email protected] and describing the nature and basis for the dispute as well as the relief sought.  We will try to resolve the dispute by contacting you via email, but if we cannot resolve the dispute within thirty (30) days of submission, you and Company agree to resolve any claims related to these Terms including your use of the Services and the scope of this provision, regardless of whether such claims are based in contract, tort, statute, fraud, unfair competition, or some other legal theory, through individual final and binding arbitration, except as set forth under the ‘Exceptions to Agreement to Arbitrate’ section below, or if another mechanism is outlined in our Privacy Notice for privacy related disputes. In arbitration you are still entitled to a fair hearing, but your rights will be determined by a neutral arbitrator (and not a judge or jury). Arbitrator decisions are as enforceable as any court order, and are subject only to very limited review by a court. Each party is giving up the right to sue in court and to have a trial before a judge or jury.

Arbitration Procedures.  Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below, all claims shall be settled by individual binding arbitration in accordance with the American Arbitration Association (AAA)’s Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes in effect at the time the proceedings begin and as modified by these Terms.  Those rules and information about how to start arbitration are available at www.adr.org or by calling 1-800-778-7879. The arbitrator is bound by these Terms. The arbitration will be conducted through the submission of documents, by phone, or in person in Denver, Colorado or at another mutually agreed location. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. The arbitrator’s award will be final and specifically enforceable under applicable law, and judgment may be entered upon it in any court with jurisdiction. The arbitration costs, including arbitrator compensation, will be shared between you and us according to the AAA’s Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes.

Individual Basis; Waiver of Right to Jury or Class Action.  Any such controversy and/or claim shall be arbitrated on an individual basis and not in a class, consolidated, or representative action.  By agreeing to these Terms, you are waiving the right to participate in a class action. Further, unless the parties mutually agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this waiver is found to be illegal or unenforceable, then the parties agree that any dispute will be resolved exclusively in a state or federal court located in Denver, Colorado, and that the parties both submit to the personal jurisdiction of such courts. If a claim proceeds in court rather than through arbitration, the parties waive any right to a jury trial.

Exceptions to Agreement to Arbitrate.  The agreement of the parties to arbitrate as described herein does not: (i) prevent either party from litigating any dispute in small claims court (either you and/or Company may assert claims, if they qualify, in small claims court in Denver, Colorado); (ii) apply to disputes arising out of or related to infringement or other misuse of our, our licensors’ or third-party provider’s intellectual property rights, and Company may bring a lawsuit to stop unauthorized use and/or abuse of the Services, or related to infringement (for example, Company’s trademark, trade secret, copyright and/or patent rights) without first engaging in arbitration and/or the informal dispute-resolution process described herein; or (iii) prevent either party from bringing a dispute to the attention of any federal, state, or local government agencies. 

Judicial Forum for Disputes.  In the event that the agreement to arbitrate is found not to apply to you and/or your claim, you and Company agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts in Denver, Colorado.  Both you and Company consent to the foregoing venue and jurisdiction.

17.  GEOGRAPHIC RESTRICTIONS

Company in located in the United States. Access to the Services may not be legal by certain persons or in certain countries. If your business is outside of the United States, you acknowledge and agree that bookkeeping processes in your jurisdiction may be different than those in the United States. You agree to consult with a local tax professional and to provide Company with all relevant information. If you access the Services from outside the United States, you do so on your own initiative, at your own risk, and are responsible for compliance with local laws.

18. MOBILE DEVICES.

To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply.

19.  CALIFORNIA USERS

Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Company must be sent to our agent for notice to [email protected] or [email protected]. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. 

20. NON-SOLICITATION

You shall not, while you are receiving Services and for a period of one (1) year thereafter, either directly or indirectly, recruit or otherwise solicit or induce, or enter into or participate in any plan or arrangement to cause, any person who is an employee of, or otherwise performing services for, Company, to terminate his or her employment or other relationship with Company, either for your own benefit or for the benefit of any other person, firm, corporation or organization.  In the event you violate this provision, you agree that you will pay Company liquidated damages in the amount of 100% of the individual’s annual compensation (including annual base salary plus bonuses as of the last date of employment).  You agree that this amount is not a penalty, but a reasonable estimate of the presumed actual damages that Company would sustain as a result of a breach of this provision. 

21. Assignment

You may not assign or transfer any of your rights or obligations under these Terms without our prior consent; any attempted assignment or transfer without complying with the foregoing will be void. We may freely assign or transfer these Terms. These Terms shall inure to the benefit of and is binding upon the parties and their respective legal representatives, successors, and assigns. 

22. MISCELLANEOUS
If any provision and/or term of these Terms shall become or be declared illegal, invalid, or unenforceable for any reason whatsoever, such term and/or provision shall be divisible from the other terms and conditions and shall be deemed to be deleted from them.  These Terms shall be governed in all respects by the laws of the State of Colorado, without reference to its choice of law rules. If an applicable law is in conflict with any part of these Terms, these Terms will be deemed modified to conform to the law and the other provisions will not be affected by any such modification.  No waiver by either you and/or Company of any breach and/or default and/or failure to exercise any right allowed under these Terms is a waiver of any preceding and/or subsequent breach and/or default and/or a waiver and/or forfeiture of any similar and/or future rights under these Terms. These Terms, the Privacy Notice and all documents and policies referenced herein supersede all prior terms, agreements, discussions, and writings regarding the Services and constitutes the entire agreement between you and us regarding the Services.

23. CONTACT

If you would like to request additional information regarding these Terms or for any questions, please contact us at [email protected] or [email protected]. 

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