Terms and Conditions
READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE FINSTACKK
SERVICE. These Terms of Service (the “Agreement”) are entered into by and between
FinPal Services Inc dba FinStackk (“FinStackk,” “we”, “us” or “our”), and you and your
Affiliates (“Customer”, “you” or “your”). “Affiliate” means any company that controls, is
controlled by, or is under common control with a party, directly or indirectly, with control
meaning an ownership interest of at least 20%. This Agreement states the terms and
conditions that govern your access to and use of the FinStackk Website (“Site”), and the
FinStackk services, and web-based software services, services offered via communications
with FinStackk over email, managed services, functionality, and content (together with the
Site and the App, referred to collectively as the “FinStackk Services”), a detailed description
of which is available in the “Description of Products & Services” available at finstackk.com.
ARBITRATION NOTICE: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION
AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT
AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO
DISPUTES YOU MAY HAVE WITH FINSTACKK.
Acceptance and Modification of Terms of Service
By (1) checking a box indicating your acceptance, (2) ordering, (3) onboarding and signup, or
(4) accessing or using the FinStackk Services, you agree to be bound by this Agreement and
all other policies, procedures, and rules that we may publish, as well as any additional terms
and conditions which we and you may agree to in writing on a valid Order Form.
We may refuse to offer the FinStackk Services to any entity, and use of the FinStackk
Services is not authorized in any jurisdiction that does not give effect to all provisions of the
Terms of Service. If you do not agree with the Terms of Service, or you are not legally able
to enter into a contract, you are not authorized to use the FinStackk Services. If you are
accessing and using the FinStackk Services on behalf of a company (such as your employer)
or other legal entity, you represent and warrant that you have the authority to bind that
company or other legal entity to these terms. In that case, “you”, “your” and “Customer” will
refer to that company or other legal entity.
We reserve the right to modify or replace any provision in the Agreement, or change,
suspend, or discontinue the FinStackk Services at any time. It is your responsibility to check
the Terms of Service periodically for changes, and your continued use of the FinStackk
Services following any changes to the Terms of Service constitutes acceptance of those
changes to the Agreement. If any term of this Agreement becomes invalid or unenforceable,
the other terms remain in effect. Except for the payment of monies, neither party is liable for
events beyond its reasonable control, including, without limitation force majeure events.
Registration
You will need to register and create an account with FinStackk to access the FinStackk Services. You will need to create a username, password and provide certain information as prompted by the registration form, including your name and a valid email address. You agree to provide full, complete, and accurate information when registering or creating an account, and to update that information promptly if it should change. You are responsible for verifying the accuracy of any information that you use from the FinStackk Services for your legal, tax and compliance obligations. We reserve the right to suspend or terminate your account if any information provided proves to be inaccurate, false, or otherwise in violation of this Agreement. You are responsible for ensuring each authorized user is informed and accepts this Agreement. You may not create more than one account without prior written approval from us. You will not transfer your account to any other party without our prior written consent. You agree that the username and password for each authorized user is FinStackk’s Confidential Information; you agree not to disclose or transfer your username or password to any third-party. You are responsible for any use of your account, whether authorized or not. You agree to immediately notify FinStackk if there is any unauthorized use of your account
FinStackk Services
We bundle finance functions, including bookkeeping, accounting, bill pay and invoicing and
financial reporting, into a single platform. The FinStackk Services are not a substitute for and
do not include legal, tax, human resources, real estate, healthcare, investment, or financial
advice. For more about what the Services do and do not include, and how you can use them,
please visit our website at finstackk.com.
A Customer can subscribe to the FinStackk Services by contacting FinStackk and subscribing
to the services. The FinStackk Services can be subscribed to on a one time, monthly,
quarterly, and annual basis. In the event of a conflict between the Order and the Agreement,
the Agreement shall prevail, unless otherwise specified in the Order and accepted by
FinStackk.
Subject to Customer’s compliance with this Agreement, including payment of all Fees,
Customer shall be provided non-exclusive access to the FinStackk Services specified in the
Order Form.
Customer’s Responsibility for Use of Services
Customer is solely responsible for the accuracy and completeness of any data provided by or
behalf of Customer or accessed by the FinStackk Services from Third-Party Services on
Customer’s behalf (“Customer Data”) and all results derived by the FinStackk Services from
the Customer Data (“Results”). Customer is responsible for ensuring that it complies with all
applicable laws with respect to any use of the FinStackk Services, including, but not limited
to, ensuring the completeness and accuracy of any financial reporting, invoicing, and billing,
or tax data.
We rely upon the accuracy and completeness of the Customer Data provided in rendering
professional services to you. We are not responsible for verifying the accuracy or
completeness of the Customer Data or the Results. FinStackk is also not responsible for the
acts, omissions, or solvency of any broker, agent, or independent contractor or other advisor
or professional associated with your use of the FinStackk Services and the Customer Data
submitted to FinStackk.
In addition, Customer is responsible for retaining copies of all Customer Data and the Results
for any legal or other compliance purpose.
What is Not Included in the FinStackk Services
The FinStackk Services are not designed, and should not be relied upon, as a substitute for
your own business judgment nor are they meant to mitigate the necessity of your personal
review of any Customer Data provided to the FinStackk Services or Results generated from
(such as financial reports) the FinStackk Services. The FinStackk Services are designed to
supplement your own finance functions. In addition, the FinStackk Services are not designed
to discover fraud, irregularities, or misrepresentations made in Customer Data provided to us
or the Results generated from such Customer Data.
The FinStackk Services do not include auditing services or providing audited or reviewed or
compiled financial statements. We do not provide legal services to Customers. Information
discussed with us should not be construed as legal advice, and the FinStackk Services do not
form an attorney-client relationship between FinStackk and any Customer.
Mobile Application
We may also provide a mobile application that you can use to access the FinStackk Services. Each authorized user of your account may download one copy of the App to its mobile device solely for purposes of accessing the FinStackk Services. The App may be available for download from one or more platforms, such as the Apple App Store or Google Play (“App Stores”). Your download, installation, access to or use of the App is also bound by the terms and conditions and privacy policies of the applicable App Store (“App Store Terms”). If there is any conflict between this Agreement and the App Store Terms, then this Agreement will prevail. This App is independent of and is not associated, affiliated, sponsored, endorsed or in any way linked to any App Store. You and we acknowledge that this Agreement is entered into between you and us only, and not with any App Store, and we, not the App Store, are solely responsible for the App and the content thereof to the extent specified in this Agreement.
Third-Party Services and Login Credentials
The FinStackk Services enable Customers to automatically transfer data from third-party websites and services, like your bank account (“Third-Party Services”) into the FinStackk Services. If you provide us with login credentials (for example, an account name or number, password, answers to security questions (collectively, the “Login Credentials”)), you both (a) give us permission, and a limited power of attorney, to use them to login to these Third-Party Services and access, transfer, reformat, and manipulate your account on your behalf; and (b) represent to us that you have the authority to give us this permission and that our use of the Login Credentials does not violate the terms and conditions of the Third-Party Services. We will maintain Login Credentials in encrypted form, and we will only use them as described in this Agreement.
Unauthorized Uses of the FinStackk Service
You will only use the FinStackk Services in accordance with applicable laws, rules, regulations and orders and the FinStackk Acceptable Use Policy. We may suspend or terminate provisions of the FinStackk Services, in whole or in part, where we believe it is being used in a manner that breaches this Agreement (including the Acceptable Use Policy) or creates risk of personal injury, property damage, or legal liability for FinStackk, you or any third-party, or may cause FinStackk to lose the services of one of our third-party service providers. You represent and warrant that any information you provide to us about your (or, if you are acting on behalf of another, that person’s) business, products, or services is accurate and complete.
Modifications to the FinStackk Services
We are constantly changing and improving the FinStackk Services. Any updates or upgrades to the FinStackk Services that we may offer to you under your Order will be subject to this Agreement. We may add or remove functionality or features, and we may suspend or stop part of the FinStackk Services altogether
Customer Equipment
Customer is solely responsible for the operation and maintenance of the Customer Systems and for having and paying for all equipment and internet access and mobile or wireless service necessary to access and use the Service. FinStackk disclaims all warranties, express or implied, and shall have no liabilities to Customer, arising from or related to the operation or maintenance of the Customer Systems or any incompatibilities, faults, defects, or damageattributable thereto. For the purposes of this Agreement, “Customer Systems” means any server systems, mobile devices, personal computers, or other equipment owned, operated, or managed by Customer on which the FinStackk Service is accessed.
Data Security and Transfer & Privacy
Any personally identifiable information (“PII”) that you provide through the App and
FinStackk Services will be processed and shared in accordance with our privacy policy at
finstackk.com (“Privacy Policy”), which is incorporated herein by reference. If you are
providing PII of other persons, you represent and warrant that you have complied with all
applicable laws to provide such PII to FinStackk to provide the FinStackk Services, including
providing all required notices and obtaining all necessary consents. To the extent required by
law, the parties will execute such additional agreements as may be necessary to enable
FinStackk to process PII under applicable law.
FinStackk stores both Customer Data and PII. We use reasonable efforts to ensure that all
third-party facilities used to store and process Customer Data and PII adhere to reasonable
security standards no less protective than the security standards at facilities where FinStackk
stores and processes its own information of a similar type. As part of providing the Services,
we may transfer, store and process Customer Data, including PII, in the United States. By
using the Services, you consent to this transfer, processing, and storage of Customer Data,
including PII, in the United States, which may have less protections for PII than your
jurisdiction of residence.
We cannot guarantee 100% security of any system or any transmission over the Internet. You
are responsible for the security of the Customer Systems used to access the FinStackk
Services and for maintaining the confidentiality of you and your authorized users’ login
credentials to the FinStackk Services and will immediately notify us of any suspected
unauthorized use of your account, or other account related security breach. You will not use
another user’s login credentials without the other user’s express permission.
In addition, the FinStackk Services may link to other websites, and other websites may link to
the FinStackk Services. Third-party sites and services are not under our control, and you
agree that FinStackk shall not be responsible or liable, directly, or indirectly, for any damage
or loss in connection with the use of or reliance on any such content, products, or services
available from any such third-party.
You agree to provide FinStackk with remote access, when necessary, to your accounting and
bank feed systems, as may be required by the FinStackk Services. You are solely responsible
for the adequacy of its security measures for remote access users. You represent and warrant
that your use of the FinStackk Services will not violate any agreement or terms to which you
are subject.
Data Backup and Recovery
FinStackk will perform regular backups of Customer Data stored on the FinStackk Services. The frequency of backups will be determined by FinStackk in its sole discretion. In the event of a system failure or data loss, FinStackk will use all commercially reasonable efforts to restore the lost or damaged data from the latest backup. However, FinStackk does not guarantee that all lost or damaged data can be recovered. Customer acknowledges and agrees that it is responsible for maintaining a copy of its data outside of the FinStackk Services and that it will not hold FinStackk liable for any loss or damage to Customer Data.
Ownership and Use of Customer Data
All data provided by the customer or accessed by the FinStackk Services from third-party services on the customer's behalf ("Customer Data"), and all results derived by the FinStackk Services from the Customer Data, remain the sole and exclusive property of the customer. FinStackk will not use, disclose, sell, or transfer Customer Data for any purpose other than providing the FinStackk Services to the customer, unless expressly authorized by the customer in writing. The customer acknowledges and agrees that FinStackk may use Customer Data to improve and enhance the FinStackk Services and for other aggregated statistical analysis, technical support, development, diagnostic, corrective, and other business purposes. FinStackk will not disclose Customer Data or any specific confidential information of the customer except in aggregate or other de-identified form, and as required to fulfill our legal obligations, exercise, or defend legal claims, enforce this Agreement, or comply with applicable law or legal process.
Acceptable Use Policy
Customer and its authorized employees, Affiliates, and contractors may only access and use the FinStackk Services in compliance with the Agreement and Order Form, and applicable law. You may not (i) sell, resell, rent, or lease the FinStackk Services or use it in a third-party service capacity; (ii) use the FinStackk Services to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party privacy, publicity or other rights; (iii) interfere with or disrupt the integrity or performance of the FinStackk Services; (iv) attempt to gain unauthorized access to the FinStackk Services or their related systems or networks; (v) engage in scraping or data mining of the FinStackk Services; (vi) reverse engineer the FinStackk Services or the software or program underlying the FinStackk Services; or (vii)access the FinStackk Services to copy any feature, function, or graphic for competitive or benchmarking purposes.
Non-Solicitation
To the fullest extent permitted under applicable law, you hereby agree that, during the Term and for a period of twelve (12) months immediately following the termination of this Agreement, you will not either directly or indirectly solicit, induce, recruit, or encourage any of FinStackk’s employees, contractors, or consultants (“FinStackk Personnel”) to terminate their relationship with FinStackk or form any employment, contracting, or consulting relationship with any other person or entity (“Hiring Party”). You agree that such breach will render you liable to FinStackk for liquidated damages in the amount of hundred percent (100%) of the annual base compensation agreed to between Hiring Party and the FinStackk Personnel (the “Liquidated Damages Amount”). Said Liquidated Damages Amount shall be payable to FinStackk immediately upon the applicable FinStackk Personnel’s first day of employment with Hiring Party.
Customer Data
All data you provide or that is accessed by the FinStackk Services from Third-Party Services
on your behalf (“Customer Data”) and all Results derived by the FinStackk Services from the
Customer Data, remain your property. You hereby grant FinStackk a non-exclusive, royalty-
free, fully paid-up, sublicensable (through one or more tiers of sublicensees), and transferable
license to use, reproduce, create derivative works of, distribute, perform, and display
Customer Data and the Results during the Term for the purpose of (i) providing the
FinStackk Services and (ii) developing, modifying, maintaining, supporting, or improving the
FinStackk Services.
During the Term of this Agreement and for thirty (30) days after expiration of your
subscription, you may export your Customer Data and Results through the use of the
FinStackk Services. Please note that we may retain Customer Data and Results, as well all
email communications with customers, after termination or subscription to exercise our rights
to Resultant Data above or as required to fulfil our legal obligations, exercise, or defend legal
claims, enforce this Agreement, or comply with applicable law or legal process.
Notwithstanding anything to the contrary in this Agreement, FinStackk shall have the right to
collect and analyze data and other information relating to the provision, use and performance
of various aspects of the FinStackk Services and related systems and technologies (including,
without limitation, information concerning Customer Data and Results, collectively,
“Resultant Data”), and FinStackk will be free (during and after the Term of this Agreement)
to (i) use such Resultant Data to improve and enhance the FinStackk Services and for other
aggregated statistical analysis, technical support, development, diagnostic, corrective andother business purposes, and (ii) disclose such Resultant Data solely in aggregate or other de-
identified form, provided that we will not disclose Customer or any specific Confidential
Information of the Customer in connection with our use of such Resultant Data.
You agree to allow FinStackk to use your trademarks, logos, trade names, and a description
of the business relationship between us, in any FinStackk marketing and sales promotion
materials.
Payment of Fees
You agree to pay all applicable fees (“Fees”) for use of the FinStackk Services as specified
on the Order Form. FinStackk will collect payment for the fees via _______
. Fees are exclusive of taxes, which you’re responsible for if applicable. You hereby
authorize FinStackk or its payment processor to initiate entries to your business bank
checking accounts on file with FinStackk (using your business address on file) to pay
amounts that you owe to FinStackk (including for any Renewal Terms as those payments
come due), and, if necessary, to initiate adjustments for any transactions credited or debited
in error. FinStackk may immediately suspend provision of the Services if your account is past
due. Except to the extent expressly set forth in this Agreement, all payments are non-
refundable and non-creditable.
Mutual Confidentiality
“Confidential Information” means all non-public information disclosed by a party
(“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated
as confidential or that reasonably should be understood to be confidential given the nature of
the information and the circumstances of disclosure. FinStackk’s Confidential Information
includes without limitation the FinStackk Services, its user interface design and layout,
operating policies and procedures, and pricing information.
The Recipient will not disclose or use any Confidential Information of Discloser for any
purpose outside of the scope of this Agreement and must make commercially reasonable
efforts to limit access to Confidential Information of Discloser to its employees and
contractors who need such access for purposes consistent with this Agreement and who have
signed confidentiality agreements with Recipient no less restrictive than the confidentiality
terms of this Agreement.
Confidential Information excludes information that: (i) is or becomes generally known to the
public without breach of any obligation owed to Discloser, (ii) was known to the Recipient
prior to its disclosure by the Discloser without breach of any obligation owed to the
Discloser, (iii) is received from a third-party without breach of any obligation owed to
Discloser, or (iv) was independently developed by the Recipient without use or access to theConfidential Information. The Recipient may disclose Confidential Information to the extent
required by law or court order but will use reasonable efforts to provide Discloser with
advance notice to seek a protective order.
FinStackk Intellectual and Other Property
The software, workflow processes, procedures, user interface, designs, and other technologies
provided as part of the FinStackk Services are proprietary property of FinStackk and its
licensors, and all right, title, and interest in and to such items, including all associated
intellectual property rights, remain only with FinStackk. Customer may not remove or modify
any proprietary marking or restrictive legends in the FinStackk Services. Any feedback or
suggestions (“Feedback”) you provide us about the FinStackk Services is owned by
FinStackk, and we may use such Feedback without any payment or other obligation to you.
FinStackk reserves all rights in the FinStackk Services unless expressly granted in this
Agreement.
FinStackk and the FinStackk logo are trademarks of FinPal Services Inc dba FinStackk.;
unauthorized use is strictly prohibited. All third-party trademarks are used for referential
purposes, and do not indicate or suggest that the owners of such third-party trademarks
endorse or are affiliated with FinStackk.
Term, Termination, Suspension
Initial Term
This Agreement is effective on the date you sign an Order Form, or you otherwise agree to these terms (for example, by clicking through an online agreement) (the “Effective Date”). Your initial subscription term will begin at the subscription start date and continue, unless terminated earlier, for the term specified on your Order Form (the “Initial Term”). Any renewal under Automatic Renewal will be referred to as a “Renewal Term.” An Initial Term or Renewal Term may be referred to generally in this Agreement as a “Term”.
Renewal
Upon the end of the Initial Term and any Renewal Term, except to the extent prohibited by law, your subscription will automatically renew for the same duration as the Initial Term unless you give us notice (via tea) at least (a) seven (7) days for monthly or quarterly subscriptions; or (b) thirty (30) days for annual subscriptions, in each case, prior to the end of the then-current Initial Term or Renewal Term, as applicable.
By Us
We may terminate your subscription at any time by providing notice of termination to you via the email address we have on file. In the event we terminate your subscription for any reasonother than your violation of the section entitled “Unauthorized Uses of the FinStackk Services” or your material breach of this Agreement, we will give you a refund of prepaid fees for unelapsed months of the Services.
Effect of Termination or Expiration of Subscription
the event your subscription ends, or the Agreement is terminated, we will try to transfer to you the “master administrator” status for the Intuit QuickBooks Online™ account that was maintained for you by FinStackk, so that you can elect to maintain that subscription with Intuit or export your data. Upon termination or ending of your subscription, you will cease to have access to the FinStackk Services (or any Customer Data or Results on the FinStackk Services) and or any right to use the App. You should uninstall the App from any devices.
Survival
Any terms that by their nature must survive termination of this Agreement to enable a party to assert its rights and receive the protections of this Agreement, will survive (including without limitation, the sections entitled FinStackk Intellectual and Other Property, Mutual Confidentiality, Customer Data, Payment of Fees, Mutual Warranties, Customer Warranties, Indemnity, Liability Limit, Arbitration, Governing Law and Venue, Assignment, General and Entire Agreement).
Mutual Warranties
Each party represents and warrants to the other party that such party is a corporate entity duly organized, validly existing, and in good standing under the laws of the state or country specified in the Order Form, and such party has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement, and to consummate the transactions contemplated hereby.
Customer Warranties
Customer hereby represents and warrants to FinStackk that: (i) FinStackk’s use, reproduction, modification, distribution, performance, and display of the Customer Data will not infringe, violate, or misappropriate any intellectual property rights of a third-party; (ii) Customer exclusively owns or has a valid and written license agreement to all Customer Data provided to FinStackk via the FinStackk Services or otherwise and has all rights necessary to grant to FinStackk the rights and licenses contained in this Agreement, including the right to use Login Credentials to access Third-Party Services; (iii) Customer’s providing, disclosing, and delivering of Customer Data and use of the FinStackk Services will not violate any applicable laws, regulations, contractual commitments or privacy commitments; and (iv) the Customer Data does not include any viruses, trap doors, time bombs, Trojan horses or other malicious code.
Limited Warranty and Warranty Disclaimer
FinStackk represents and warrants that all professional services performed as part of the
FinStackk Services under this Agreement shall be performed in a workmanlike and
professional manner. You must provide notice of breach of this warranty within thirty (30)
days of the services being performed or the warranty is void. Your sole remedy and our sole
obligation for breach of this representation is at FinStackk’s sole discretion to: (a) reperform
the applicable services or (b) refund the amount of fees applicable to the services.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, YOUR USE OF THE
FINSTACKK WEBSITE, SERVICES, SOFTWARE, AND CONTENT IS ENTIRELY AT
YOUR OWN RISK. THE FINSTACKK SERVICES ARE PROVIDED "AS IS."
FINSTACKK DOES NOT WARRANT ANY PARTICULAR RESULT FROM THE
FINSTACKK SERVICES AS SUCH RESULTS DEPEND ON CUSTOMER DATA
PROVIDED BY YOU. THEREFORE, YOU ASSUME ALL RISK FROM USE OF THE
FINSTACKK SERVICES. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, FINSTACKK DISCLAIMS ALL WARRANTIES, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE FINSTACKK TAKES
REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO
SECURE THE FINSTACKK SERVICES, FINSTACKK DOES NOT GUARANTEE THAT
THE FINSTACKK SERVICES CANNOT BE COMPROMISED. CUSTOMER
UNDERSTANDS THAT THE FINSTACKK SERVICES MAY NOT BE ERROR FREE,
AND USE MAY BE INTERRUPTED. CUSTOMER ASSUMES ALL RISK FROM USE
OF THE FINSTACKK SERVICES, INCLUDING ALL RESULTS.
FINSTACKK DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT
YOUR USE OF THE FINSTACKK SERVICES WILL SATISFY OR ENSURE
COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS OR
ANY ACCOUNTING STANDARDS.
Liability Limit
FINSTACKK IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS
AGREEMENT (INCLUDING, WITHOUT LIMITATION, LEGAL, TAX, OR
ACCOUNTING COMPLIANCE ISSUES, COSTS OF DELAY; LOSS OF OR
UNAUTHORIZED ACCESS TO DATA OR INFORMATION; DAMAGE TO
REPUTATION; LOSS OF PROFITS, PROSPECTIVE ECONOMIC ADVANTAGE,
GOODWILL, CUSTOMERS, CAPITAL, OR REVENUE; AND ANTICIPATED COST
SAVINGS), ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OFOR INABILITY TO USE THE FINSTACKK SERVICES, EVEN IF IT KNOWS OF THE
POSSIBILITY OF SUCH DAMAGE OR LOSS OR IF THE DAMAGE OR LOSS IS
FORESEEABLE.
EXCEPT FOR FINSTACKK’S INDEMNITY OBLIGATIONS, FINSTACKK’S TOTAL
LIABILITY ARISING OUT OF OR RELATED TO THE FINSTACKK SERVICES OR
THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT
EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12 MONTH PERIOD
PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
Indemnity
FinStackk will defend or settle any third-party claim against Customer to the extent that such
claim alleges that FinStackk technology used to provide the FinStackk Services violates a
copyright, known patent, trademark, or other intellectual property right, if Customer,
promptly notifies FinStackk of the claim in writing, cooperates with FinStackk in the defense,
and allows FinStackk to solely control the defense or settlement of the claim. FinStackk will
pay infringement claim defense costs it incurs in defending Customer, and FinStackk
negotiated settlement amounts, and court awarded damages. If such a claim appears likely,
then FinStackk may modify the FinStackk Services, or procure the necessary rights, or
replace it with the functional equivalent, or terminate the functionality and refund any prepaid
and unused fees. FinStackk has no obligation for any claim arising from: FinStackk’s
compliance with Customer’s specifications; a combination of the FinStackk Services with
other technology or aspects where the infringement would not occur but for the combination;
use of Customer Data; or technology or aspects not provided by FinStackk. THIS
PARAGRAPH CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND
FINSTACKK’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT
CLAIMS.
Customer hereby irrevocably agrees to indemnify, defend, and hold FinStackk, its Affiliates,
directors, officers, employees, and agents harmless from and against any and all loss, costs,
damages, liabilities, and expenses (including attorneys’ fees) arising out of or related to (i)
any third-party claim resulting from a breach by Customer of any of Customer’s covenants,
representations, or warranties contained in this Agreement; (ii) the Customer Data and
Results and/or (iii) Customer’s use of the FinStackk Services.
Arbitration
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement
directly through good-faith negotiations, which shall be a precondition to either party
initiating a lawsuit or arbitration. Except for disputes relating to FinStackk’s intellectual
property (such as trademarks, trade dress, domain names, trade secrets, copyrights, andpatents), all claims arising out of or relating to this Agreement and your use of the FinStackk
Services shall be finally settled by binding arbitration administered by the American
Arbitration Association in accordance with the provisions of its Commercial Arbitration
Rules. The parties agree that the arbitration shall take place in Loudoun County, Virginia.
The arbitrator, and not any court or agency, shall have exclusive authority to resolve all
disputes arising out of or relating to this Agreement or the FinStackk Services, including, but
not limited to, any claim that all or any part of these Terms is void or voidable. YOU
EXPRESSLY WAIVE YOUR RIGHT TO A TRIAL BY JURY. The arbitrator shall be
empowered to grant whatever relief would be available in a court; provided, however, that the
arbitrator will not have authority to award damages, remedies, or awards that conflict with
this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as
a judgment in any court of competent jurisdiction. To the extent the filing fee for the
arbitration exceeds the cost of filing a lawsuit, FinStackk will pay the additional cost,
provided that each party will be responsible for their share of the arbitrator fees. You agree
not to participate in claims brought in a private attorney general or representative capacity, or
consolidated claims involving another person’s account, if FinStackk is a party to the
proceeding. This arbitration provision will be governed by the Federal Arbitration Act.
If this arbitration provision is invalidated in whole or in part, the parties agree that the
exclusive jurisdiction and venue described in the Governing Law and Venue section shall
govern any claim in court arising out of or related to the Agreement.
Governing Law and Venue
This Agreement is governed by the laws of the State of Virginia (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this Agreement. Except for disputes subject to the arbitration provision, any suit or legal proceeding must be exclusively brought in the federal or state courts for Loudoun County, Virginia, and Customer submits to this personal jurisdiction and venue. Nothing in this Agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its reasonable attorney’s fees and costs from the other party.
Independent Contractors
The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day-to-day activities of the other; (ii) constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking; or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
Assignment
Customer may not assign or transfer this Agreement or an Order Form to a third-party, without the prior written consent of FinStackk, not to be unreasonably withheld, except that this Agreement and any Order Form may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets of a party. FinStackk may freely assign this Agreement and any Order Form, and its rights and obligations thereunder by operation of law or otherwise. FinStackk may also use subcontractors to perform services, in our sole discretion and without notice, provided that the use of any such subcontractors shall not affect our obligations or responsibilities to you.
General
If any provision of this Agreement is held to be invalid or unenforceable by a court of
competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force
and effect, and such provision will be reformed in a manner to effectuate the original intent of
the parties as closely as possible and remain enforceable. If such reformation is not possible
in a manner that is enforceable, then such terms will be severed from the remaining terms,
and the remaining terms will remain in effect.
No waiver of any term or condition of this Agreement will be valid or binding on either party
unless the same will have been mutually assented to in writing by an officer of both parties.
The failure of either party to enforce at any time any of the provisions of this Agreement, or
the failure to require at any time performance by the other party of any of the provisions of
this Agreement, will in no way be construed to be a present or future waiver of such
provisions, nor in any way affect the ability of either party to enforce each and every such
provision thereafter.
The titles and section headings used in this Agreement are for ease of reference only and shall
not be used in the interpretation or construction of this Agreement. No rule of construction
resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word
“including”, when used herein, is illustrative rather than exclusive and means “including,
without limitation.”
Force Majeure
Notwithstanding any provision contained in the Agreement, neither party will be liable to the other to the extent performance of any obligations (other than the payment of money) under the Agreement is delayed or prevented by an act of God (e.g., a natural disaster, earthquake, accident or epidemic) or another event outside of reasonable control of the party seeking excuse of performance (e.g., acts of war, terrorism, government authority or by another third party outside the party’s control).
Entire Agreement
This Agreement and any valid Orders constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written. If there is any inconsistency between this Agreement and an Order, the Order prevails. Customer is not relying on any representations, oral or written, not included in this Agreement. No representation, promise, or inducement not included in this Agreement is binding.