End User terms These Softledger, Inc. End User Terms (“Agreement”) are entered into by and between Softledger, Inc. (“Softledger”) and the entity or person accessing the Service (“You”). This Agreement consists of the terms and conditions set forth below. If you are accessing or using the Softledger Service on behalf of your company, you represent that you are an authorized representative with the authority to accept this Agreement and bind your company and its Affiliates to the terms of this Agreement, and all references to “You” and “Your” herein refer to your company and its Affiliates.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Your initial access to the Service through any online provisioning, registration, third party partner, or order process or (b) the effective date of any Order. Softledger may modify this Agreement from time to time. Purchase from Reseller: If You purchase the Service from a reseller, distributor, integration partner, or other authorized partner of Softledger (“Reseller”), Your use of the Service will be governed by this Agreement. By indicating your acceptance of this Agreement or accessing or using the Service, you are agreeing to be bound by the terms and conditions of this Agreement.
Softledger offers a unique real-time accounting platform and APIs that enables growing companies to operate more efficiently and make smarter decisions. You maintain sole control over the types and content of all Customer Content you submit to the Service.
- The Service
- Permitted Use
During the Subscription Term, You may access and use the Service only for your internal business or personal purposes in accordance with this Agreement, including any usage limits in an Order.
Only Your Users may access or use the Service. Each of Your Users must keep its login credentials confidential and not share them with anyone else. You are responsible for Your Users’ compliance with this Agreement and actions taken through their accounts. You will promptly notify Softledger if it becomes aware of any compromise of Your Users’ login credentials.
- Customer Affiliates
Your Affiliates may use the Service as Your Users. Alternatively, an Affiliate of Yours may enter its own Order(s) as mutually agreed with Softledger, and this creates a separate agreement between the Affiliate and Softledger that incorporates this Agreement with the Affiliate treated as customer of Softledger. Neither You nor any of Your Affiliates has any rights under each other’s agreement with Softledger, and breach or termination of any such agreement is not breach nor termination under any other.
- Registration Using Corporate Email
If You created an account using an email address belonging to your employer or other entity, you represent and warrant that you have authority to create an account on behalf of such entity and further acknowledge that Softledger may share your email address with and control of your account may be taken over by such entity.
- Age Requirement for Users
The Service is not intended for, and may not be used by, anyone under the age of 16. You are responsible for ensuring that all of Your Users are at least 16 years old.
You will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell or sublicense the Service to a third party, (b) use the Service on behalf of, or to provide any product or service to, third parties, (c) use the Service to develop a similar or competing product or service, (d) scrape, data mine, reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to or unauthorized data from the Service, except to the extent expressly permitted by Law (and then only with prior notice to Softledger), (e) determine the composition of the Services or gain unauthorized access to the Services or their related systems or networks, (f) modify or create derivative works of the Service or copy any element of the Service, (g) remove or obscure any proprietary notices in the Service or otherwise misrepresent the source of ownership of the Service, (h) publish benchmarks or performance information about the Service, (i) interfere with the Service’s operation, circumvent its access restrictions or conduct any security or vulnerability test of the Service, (j) transmit any viruses or other harmful materials to the Service, (k) allow Your Users to share Your User seats, (l) engage in any fraudulent, misleading, illegal or unethical activities related to the Service, (m) interfere with or disrupt the integrity or performance of the Services, (n) copy, frame, or mirror part or content of the Services, or (o) use the Service to store or transmit material which contains illegal content.
- Customer Content
- Data Use
Customer grants Softledger the non-exclusive, worldwide right to use, copy, store, transmit and display Customer Content and to modify and create derivative works of Customer Content (for reformatting or other technical purposes), but only as necessary to provide the Services under this Agreement.
- Data Export
Upon request by You made within 30 days after the effective date of expiration or earlier termination of the applicable Subscription Term, Softledger will make available to You for download a file of Your Content in comma separated value (.csv) format along with attachments in their native format. If no such request is made by you within such 30-day period, Softledger shall have no obligation to maintain or provide to You any of Your Content and shall thereafter, unless legally prohibited, delete all of Your Content in Our systems or otherwise in Our possession or under Our control. If You elect to proactively delete its account at any time, all Your Content will be deleted permanently and cannot be retrieved.
- Customer Obligations
You are responsible for Your Content, including its content and accuracy, and agrees to comply with applicable laws in using the Service. You represent and warrant that You have made all disclosures and have all rights, consents, and permissions necessary to use Your Content with the Service and grant Softledger the necessary rights to provide the Services. Customer is responsible for all Users’ compliance with this Agreement and will take all necessary actions to prevent unauthorized access to or use the Services, and notify Softledger promptly of any such unauthorized access or use.
- Prohibited Uses
You acknowledge that the Service is not intended to meet any legal obligations, including HIPAA requirements, and that Softledger is not a Business Associate as defined under HIPAA.
- Suspension of Service
Softledger may suspend Your or a Your User’s access to and use of the Service and related services if you breach any of the following: (i) Age Requirement for Users, (ii) Restrictions, or (iii) Customer Obligations, if Your account is 10 days or more overdue or if Your or Your User’s actions risk harm to other customers or the security, availability, or integrity of the Service. Where practicable, Softledger will use reasonable efforts to provide Customer with prior notice of the suspension. Once You resolve the issue requiring suspension, Softledger will promptly restore Your or Your User’s access to the Service in accordance with this Agreement.
- Warranties and Disclaimers
- Limited Warranty
Softledger warrants to Customer that:
- the Service will perform materially as described in the Documentation and Softledger will not materially decrease the overall functionality of the Service during a Subscription Term (the “Performance Warranty”) and
- Softledger will perform any Technical Services in a professional and workmanlike manner (the “Technical Services Warranty”).
- Warranty Remedy
If Softledger breaches Section 5a (Limited Warranty) and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, then Softledger will use reasonable efforts to correct the non-conformity. If Softledger cannot do so within 60 days of Customer’s warranty claim, either party may terminate the affected Order as relates to the non-conforming Service or Technical Services. Softledger may then, in its discretion, refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Technical Services (for the Technical Services Warranty). These procedures are Customer’s exclusive remedy and Softledger’s entire liability for breach of the warranties in Section 5a. These warranties do not apply to (a) issues caused by misuse or unauthorized modifications, (b) issues in or caused by Third-Party Platforms or other third-party systems or (c) Trials and Betas or other free or evaluation use.
Except as expressly provided in Section 5a (Limited Warranty), the Service, Support, Technical Services and all related Softledger services are provided “AS IS”. Softledger and its suppliers make no other warranties OF ANY KIND, whether express, implied, statutory or otherwise, IN fact or in law, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. Without limiting its express obligations in Section 3 (Support), Softledger does not warrant that Customer’s use of the Service will be uninterrupted or error-free or that the Service will meet Customer’s requirements, operate in combination with third-party services used by Customer, or that the services will operate uninterrupted or be error free, or that softledger will maintain Customer Content without loss. Softledger is not liable for delays, failures or problems inherent in use of the Internet and electronic communications or other systems outside softledger’s control. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period. ANY BETA OR TRIAL SERVICES ARE PROVIDED WITHOUT “AS-IS” AND WITHOUT WARRANTY OF ANY KIND.
- Term and Termination
This Agreement starts on the Effective Date and continues until the expiration or termination of any Customer subscription.
- Termination for Cause
Either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
- Effect of Termination
Upon expiration or termination of this Agreement or an Order, Your access to the Services will cease.
All sections that by their nature should reasonably survive any termination or expiration of this Agreement shall remain in full force and effect. Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Softledger’s use rights in this Agreement, between the parties Customer retains all intellectual property and other rights in Customer Content and Customer Materials provided to Softledger. Except for Customer’s use rights in this Agreement, Softledger and its licensors retain all intellectual property and other rights in the Service, any Technical Services deliverables and related Softledger technology, templates, formats and dashboards, including any modifications or improvements to these items made by Softledger. Softledger may generate and use Usage Data to operate, improve, analyze and support the Service and for other lawful business purposes. If Customer provides Softledger with feedback or suggestions regarding the Service or other Softledger offerings, Softledger may use the feedback or suggestions without restriction or obligation.
- Proprietary Rights
- Reservation of Rights in Services
Subject to the limited usage rights expressly granted hereunder, the parties expressly agree that We reserve all rights, title and interest in and to the Services, including without limitation all related intellectual property rights and/or derivatives based on such Services. No rights are granted to You hereunder, by license or otherwise, other than as expressly set forth herein.
- Your Applications and Code
If You, a third party acting on Your behalf, or any of Your Users creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You, such third party acting on Your behalf, or Your Users under this Agreement in or to such applications or program code, including any intellectual property rights therein.
- Your Content
Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Content, including any intellectual property rights therein.
We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Your Users, relating to the use and/or operation of the Services.
- Limitations of Liability
- Consequential Damages Waiver
The disclaimer in this Section 9a (Consequential Damages Waiver) will not apply to the extent prohibited by Laws. Except for Excluded Claims, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, revenues, goodwill, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance.
- Liability Cap
Except for Excluded Claims, each party’s (and its suppliers’) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Softledger during the prior 12 months under this Agreement.
- Excluded Claim
“Excluded Claims” means: (a) Customer’s breach of Sections 1f (Restrictions) or 3 (Customer Obligations), (b) either party’s breach of Section 11 (Confidentiality) (but excluding claims relating to Customer Content), (c) amounts payable to third parties under Customer’s obligations in Section 10b (Indemnification by Customer), (d) either party’s willful misconduct or (e) Softledger’s performance of the Service that results in death, personal injury or damage to tangible property.
- Nature of Claims and Failure of Essential Purpose
The waivers and limitations in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
- Indemnification by Softledger
Softledger will defend Customer from and against any third-party claim to the extent alleging that the Service, when used by Customer as authorized in this Agreement, infringes a third party’s patent, copyright, trademark or trade secret, and will indemnify and hold harmless Customer against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by Softledger resulting from the claim.
- Indemnification by Customer
Customer will defend Softledger from and against any third-party claim to the extent resulting from Customer Content, Customer Materials or Customer’s breach or alleged breach of Section 5 (Customer Obligations), and will indemnify and hold harmless Softledger against any damages or costs awarded against Softledger (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.
The indemnifying party’s obligations in this Section 14 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when Softledger is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
- Mitigation and Exceptions
In response to an actual or potential infringement claim, if required by settlement or injunction or as Softledger determines necessary to avoid material liability, Softledger may at its option: (a) procure rights for Customer’s continued use of the Service, (b) replace or modify the allegedly infringing portion of the Service to avoid infringement without reducing the Service’s overall functionality or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. Softledger’s obligations in this Section 10 do not apply (1) to the extent infringement results from Customer’s modification of the Service or use of the Service in combination with items not specified in the Documentation or provided by Softledger (including Third-Party Platforms), (2) to infringement resulting from Software other than the most recent release provided by Softledger, (3) to unauthorized use of the Service, (4) if Customer settles or makes any admissions about a claim without Softledger’s prior consent, (5) if Customer continues to use the Service (or any element thereof) after being notified of allegedly infringing activity or informed of modifications that would have avoided the alleged infringement or (6) to Trials and Betas or other free or evaluation use. This Section 10 sets out Customer’s exclusive remedy and Softledger’s entire liability regarding infringement of third-party intellectual property rights.
“Confidential Information” means information disclosed to the receiving party whether orally or in writing under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Softledger’s Confidential Information includes the terms and conditions of this Agreement and all Orders, the Services, as well as ideas, trade secrets, business, marketing plans, financial information, technology and technical information, product plans and designs, roadmaps, and business processes, and any technical or performance information about the Service. Customer’s Confidential Information includes Customer Content.
As receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 2b (Data Use), and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Softledger, the subcontractors referenced in Section 15j), provided it remains responsible for their compliance with this Section 11 and they are bound to confidentiality obligations no less protective than this Section 11.
These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes known to the receiving party, without confidentiality restrictions, prior to its disclosure by the disclosing party, (ii) is or becomes generally available to the public through no fault of the receiving party, (c) it rightfully knew or possessed prior to receipt under this Agreement, (d) it rightfully received from a third party without breach of confidentiality obligations or (e) it independently developed without using the disclosing party’s Confidential Information.
Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 11.
- Required Disclosures
Nothing in this Agreement prohibits either party from making disclosures, including of Customer Content and other Confidential Information, if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
- Trials and Betas
If Customer receives access to or requests the Service or Service features on a free or trial basis or as an alpha, beta, early access, or free of charge offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during (i) the period designated by Softledger, (ii) if not designated, 30 days, (iii) the start date of any order signed by You incorporating the Trials or Betas (each referred to as the “Trial Period”). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Any or all additional terms and conditions applicable to the conduct of the Trials or Betas may appear on the Trial or Betas registration web page and are incorporated into this Agreement by reference and are legally binding on all parties hereto. Trials and Betas may be inoperable, incomplete or include features that Softledger may never release, and their features and performance information are Softledger’s Confidential Information. Notwithstanding anything else in this Agreement, Softledger provides Trials and Betas “AS IS” with no warranty, indemnity or support and its liability for Trials and Betas will not exceed US$50. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING THE TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADES TO SUCH SERVICES, OR EXPORT SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by Laws. However, Softledger may include Customer and its trademarks in Softledger’s customer lists and promotional materials but will cease this use at Customer’s written request.
- Modifications to Agreement
Softledger may modify this Agreement (which may include changes to Service pricing and plans) from time to time by giving notice to Customer by email or through the Service. Unless a shorter period is specified by Softledger (e.g., due to changes in applicable law or exigent circumstances), modifications become effective upon renewal of Customer’s current Subscription Term or entry into a new Order. If Softledger specifies that the modifications to the Agreement will take effect prior to Customer’s next renewal or Order and Customer notifies Softledger of its objection to the modifications within 30 days after the date of such notice, Softledger (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a refund of any pre-paid Service fees allocable to the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Service, and, in any event, continued use of the Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
- General Terms
Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department (email@example.com).
- Governing Law, Jurisdiction and Venue
This Agreement is governed by the laws of the State of New York and the United States without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in New York, New York and both parties submit to the personal jurisdiction of those courts.
- Attorneys’ Fees and Costs
The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such action.
Except as set out in this Agreement, any notice or consent under this Agreement must be in writing and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested) or (c) one day after dispatch if by a commercial overnight delivery service. If to Softledger, notice must be provided to 202 Bicknell Ave, Santa Monica, CA 90405, Attention: Legal Department. If to Customer, Softledger may provide notice to the address Customer provided at registration. Either party may update its address with notice to the other party. Softledger may also send operational notices to Customer by email or through the Service.
- Entire Agreement
This Agreement (which includes all Orders, the Policies and the DPA) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
Softledger may modify these End User Terms upon advance notice to Customer.
- Waivers and Severability
Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in effect.
- Force Majeure
Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.
Softledger may use subcontractors and permit them to exercise Softledger’s rights, but Softledger remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
- Independent Contractors
The parties are independent contractors, not agents, partners or joint venturers.
- Export Compliance
The Services, other technology Softledger makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation. Customer agrees to comply with all relevant U.S. and foreign export and import Laws in using the Service and that it will not submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations.
- Open Source
The Software may incorporate third-party open source software (“OSS”), as listed in the Documentation or by Softledger upon request. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
- Government End-Users
Elements of the Service are commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.
- Reseller Orders
This Section applies to any access to the Service purchased through a Reseller. (a) Commercial Terms. Instead of paying Softledger, You will pay applicable amounts to the Reseller as agreed between You and the Reseller. The Reseller is responsible for the accuracy of such Order. Softledger may suspend or terminate Your rights to use the Service if it does not receive the corresponding payment from the Reseller. If You are entitled to a refund under this Agreement, Softledger will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to You, unless otherwise specified. (b) Relationship with Softledger. Softledger is not party to (or responsible under) any separate agreement between Customer and Reseller and is not responsible for the Reseller’s acts, omissions, products, or services.