RealTimeBookkeeping.com
Terms and Conditions Agreement
This
Application Service Provider Agreement ("Agreement") is entered into
by and between RealTimeBookkeeping.com, RTB Global, Inc and any subsidiaries ("RTB"), with offices at 2295
Fletcher Parkway, El Cajon, California 92020, and
RTB
has developed and markets the RealTime Bookkeeping System Solution (the "RTB")
that improves bookkeeping operational efficiency. Subject to the terms and
conditions of this Agreement, the parties desire that RTB host such software so
that Customer may access the software to use Customer’s data. Intending to be
legally bound hereby, RTB and Customer agree as follows
1. Hosting, License, Support and Scanners
1.1. General. Subject to the terms and conditions of this
Agreement, RTB, or its designee, shall remotely host the RTB (the “ASP
Application”) for the purpose of providing Customer with access through the
Internet.
1.2. Hours
of Availability. RTB shall use commercially reasonable efforts to make the
ASP Application available twenty-four (24) hours per day. Notwithstanding the
foregoing, RTB reserves the right to suspend Customers access to the ASP
Application (i) in the event that Customer materially
fails to fulfill its obligations under this Agreement, (ii) for purposes of
scheduled maintenance, or (iii) for purposes of emergency maintenance work at
any time as deemed appropriate by RTB.
1.3. License.
During the Term and subject to the terms and conditions of this Agreement, RTB
hereby grants to Customer a non-exclusive, non-transferable license,
royalty-free, without the right to sub-license, to have its employees or
clients access the object code form of the RTB via the ASP Application.
1.4. Restrictions.
Customer shall not reverse engineer, decompile, translate, disassemble, or
attempt to discover the source code for all or any portion of the ASP
Application, (ii) license, distribute, or disclose the ASP Application to any
third party, except its employees and their Clients that utilize the RTB, or
(iv) use the ASP Application for any purpose other than using Customer’s own
data in accordance with this Agreement. Customer agrees that it is solely
responsible for the content of any material posted to the ASP Application.
1.5. Support.
RTB operates a help desk between the hours of 8:00AM and 5:00PM PST, Monday
through Friday, exclusive of RTB’s scheduled holidays (which are: Christmas
Day, Easter, New Year’s Day, Thanksgiving, July 4th, Memorial Day, Labor Day).
The help desk will accept inquiries by telephone, electronic mail, or Live
Support Instant Message solely from those employees designated by Customer to
make inquiries. RTB will use its best efforts to respond to inquires within 4
hours after receipt.
1.6. Security.
RTB will use industry standard security procedures to secure the transmission
of all information to and from the ASP Application. Such security precautions
will include, at a minimum, the following: (i) user
Identification and access controls designed to limit access to information to
Customer’s authorized users; (ii) industry standard encryption techniques when
information is transmitted to or from the ASP Application; and (iii) physical
security measures, including securing all information on a secure server, in
locked data cabinets within a secure facility.
1.7. Backup.
RTB will maintain and follow a disaster recovery plan designed to minimize
disruption to Customer’s access to the information contained on the ASP
Application, comprised of internal procedures to recover the RTB environment in
the event of a disaster. The plan provides for daily back-up of information
contained on the ASP Application. Daily back-ups are stored on-site for a
period of two (2) weeks with weekly interval back-ups stored for a period six
(6) months at a secure, off-site facility.
1.8. Scanner.
Any scanner purchased from RTB will include a free set-up; however, if you have
a scanner not purchased from RTB and it needs to be set-up, there will be a set-up fee.
Desktop scanners will incur a $75 set-up fee while industrial scanners will incur a $150
set-up fee.
2. Customers Obligations
2.1. General. Customer shall reasonably cooperate with RTB
in connection with the performance of this Agreement by making available such
personnel and information as may be reasonably required, and taking such other
actions as RTB may reasonably request Customer shall determine, and have sole
liability for, the substantive content and sales processes it desires to post
to the ASP Application.
2.2. Primary
Contacts. Customer shall serve as the primary business contact between RTB
and Customer.
3. Payment
3.1. Fees. Payment
by Credit Card or Bank Transfer: prior to activation of your user account and
at any applicable time thereafter you authorize RealTimeBookkeeping.com to charge the
credit card provided by you or transfer funds from the bank account provided by
you for the amount of the fees due for the agreed upon services, together with
any applicable set-up charges, registration fees, bank transfer fees, or fees
resulting from services provided in addition to or in excess of the previously
agreed-upon limits, or any other charges outlined herein as may be applicable.
In
consideration of RTB providing access to the ASP Application, Customer shall
pay to RTB (and if applicable its designee) all applicable License Fees. The License
Fee is charged as contracted on the RTB Proposal Document signed in conjunction
with these Terms & Conditions. License fees are subject to change with a 30
day notice.
RTB is a licensed Intuit Commercial Hosting company. Intuit,Inc charges all users on the RTB System a $5 per user, per month hosting fee.
These charges will be automatically processed each month and billed to client then paid to Intuit, Inc.
3.2. Refunds.
No refunds will be granted after login credentials are issued to the client or 3 days from the date of purchase date, whichever comes first.
3.3. Changes
to Fees or Billing Methods. We reserve the right to change License Fees or
billing methods at any time and we will provide notice of any such change at
least thirty (30) days in advance. If any change is unacceptable to you, you
may cancel your account at any time, but we will not refund any fees that may
have accrued to your account before cancellation.
3.4. Credit
Card/Bank Draft. You may pay the Hardware, Software and License Fees by
credit card/bank draft. When you provide credit card information to us, you
represent and warrant to us that you are the authorized user of the credit card
that is used to pay the License Fee. Where a contract is entered into on a yearly
subscription basis, each year that you have an account, you agree and reaffirm
that we are authorized to charge your credit card for the License Fee. You
agree to promptly notify us of any changes to your credit card account number,
its expiration date or your billing address, and you agree to promptly notify
us if your credit card expires or is canceled for any reason.
3.5. Taxes.
Fees under this Agreement are exclusive of all taxes, including national, state
or provincial and local use, sales, property and similar taxes, where
applicable, RTB agrees to itemize any such taxes on the invoices, and Customer
agrees to pay such taxes (excluding taxes based on RTB’s net income) to RTB as
set forth in Section 3.2.
4. Confidentiality
4.1. Confidential Information. Shall
mean confidential or other proprietary information that is disclosed by one
party to the other party under this Agreement including, without limitation,
business and product plans, customer information, marketing materials, employee
names and other confidential business information. Confidential
Information shall not include information which: (i) is
or becomes public knowledge without any action by, or involvement of, the party
receiving the Confidential Information hereunder; (ii) is independently developed
by the receiving party without use of the other parties Confidential
Information; (iii) is already known on an unrestricted basis to the receiving
party at the time of disclosure under this Agreement; or (iv) is disclosed to
the receiving party by a third party who is entitled to disclose it without
restriction.
4.2. Protection
of Confidential Information. Each party agrees not to transfer or otherwise
disclose the Confidential Information of the other party to any third party. Each
party shall (i) give access to such Confidential
Information solely to those employees with a need to have access thereto for
purposes of this Agreement, and (ii) take the same security precautions to
protect against disclosure or unauthorized use of such Confidential Information
that the party takes with its own confidential information, but, in no event,
shall a party apply less than a reasonable standard of care to prevent such
disclosure or unauthorized use. Nothing in this Agreement shall prevent either party
from disclosing the Confidential Information of the other party pursuant to any
judicial or governmental order, provided that the party gives the other party
reasonable prior notice of such disclosure (to the extent it is permitted to do
so under such order) to contest such order.
4.3 Non-Competition. Commencing on the date hereof (the
"Effective Date") and for a period of five years after the Effective
Date (the "Term"), RealTimeBookkeeping.com shall not, directly or
indirectly, own, manage, engage in, operate or conduct, prepare to or plan to
conduct or assists any person or entity to conduct any business, or have
any interest in any business, person,
firm, corporation or other entity that engages, directly or indirectly, in any
business which is substantially similar to or competitive with the Business
anywhere in the Territory. The covenants set forth in this Section 1(a) shall
be construed as a series of separate covenants covering their subject matter in
each of the separate states where the Customer conducts the Businesses, and
except for geographic coverage, each such separate covenant shall be deemed
identical in terms to the covenant set forth above in this Section. To the
extent that any such covenant shall be judicially unenforceable in any one or
more of such state, such covenant shall not be affected with respect to each of
the other states in the Territory. Each covenant with respect to such state in
the Territory shall be construed as severable and independent.
4.4 Non-Use
and Non-Disclosure. Commencing on
the date hereof and at all times thereafter, RealTimeBookkeeping.com shall hold
in the strictest confidence (except as previously approved by the Customer in
writing), and shall not, directly or indirectly, disclose, divulge, reveal,
report, publish, transfer or otherwise communicate, or use for its or his own
benefit or the benefit of any other person, partnership, firm, corporation or
other entity, or use to the detriment of the Customer, or misuse in any way,
any Confidential Information.
RealTimeBookkeeping.com acknowledges that he will in no way infringe
upon any copyrights of the Customer or and will in no way use, copy,
appropriate or redistribute any part of the Confidential Information, whether
obtained directly or indirectly from the Customer, without a specific written
license agreement with the Customer. It
is agreed that any derivative, modification or elaboration of any Confidential
Information by any third party remains the proprietary property of the Customer
for purposes of this Agreement. RealTimeBookkeeping.com and the Customer each
hereby stipulate that, as between them, all Confidential Information acquired
by the Customer constitutes important, material and confidential and/or
proprietary information of the Business, constitutes unique and valuable
information, and affects the successful conduct of the Business and the Customer's
goodwill, and that the Customer shall be entitled to recover its damages, in
addition to any injunctive remedy that may be available, for any breach of this
agreement.
5.
Intellectual Property Rights
Except as expressly set forth herein, RTB
shall retain all right, title and interest in, and shall be the sole owner of
all forms of intellectual property rights and protections in and to the ASP
Application, the documentation for the RTB Software, and RTB Confidential
Information. Customer shall maintain all rights in the content that it provides
to RTB, as well as all of its Confidential Information, including, without
limitation, information in RTB’s databases related to Customer, its users,
clients and their respective users. Neither party shall copy, distribute,
reproduce or use the other party’s property except as expressly permitted under
this Agreement.
6. Term and Termination
6.1. Term. This Agreement shall be automatically renewed
for twelve (12) months, unless terminated by either party, by giving thirty
(30) calendar days written notice to the other party prior to the expiration of
the initial Term or any successive Term.
7. Limited Warranty
7.1. Software; Repair or Replace. RTB warrants that the
ASP Application when operated on a Supported System will be free from Material
Defects (defined below) during the Term. RTB’s sole responsibility under this
warranty shall be, at RTB option, to either repair or replace the Material
Defect in the ASP Application, or, if RTB cannot repair or replace the Material
Defect to return to Customer a pro-rata refund of fees paid hereunder, limited
to the time period during which the Material Defect impaired Customer’s use of
the ASP Application. RTB represents and warrants that: (1) the RTB and the ASP
Application will perform in accordance with its documentation and
specifications in existence as of the date hereto; (2) RTB is the sole owner of
the RTB Software and the ASP Application, and has obtained any and all valid
software licenses for any of the software it uses to perform its services; and
(3) all of the services to be performed will be rendered using sound,
professional practices and in a competent and professional manner consistent
with the standards of service in its industry using appropriately trained and
qualified personnel. RTB shall have no liability resulting from (a) the
combination, operation or use of the ASP Application with equipment, devices or
software not supplied or approved by RTB; or (b) the alteration or modification
of the ASP Application that was not made or authorized (in advance, and in
writing) by RTB. A "Material Defect" shall mean any reported
malfunction, error or other defect in the RTB Software that: (i) can be reproduced by RTB; and (ii) constitutes a
material nonconformity with the specifications for the RTB Software; or (iii)
prevents or severely impairs Customer’s use of the RTB Software for its
intended purposes.
7.2.
Hardware; Repair or Replace. RTB warrants all equipment purchase by the
customer for material defects during the life of the product. Hardware Warranty
is simply a guarantee that if a piece of hardware should fail to function
properly, the hardware will be repaired or replace by RTB at no additional cost
to the customer. The obligation of RTB does not extend to any warranty for fire,
theft, damage, harm, consequential or incidental damages resulting thereby. Warranty on hardware is valid for the
duration the purchaser is an RTB client.
7.3. Warranty
Disclaimer. BOTH PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE.
ALL RTB SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation
of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF
THE ASP APPLICATION OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR
LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
DAMAGES. THE TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT
OF FEES PAID TO RTB HEREUNDER DURING THE PRECEDING SIX MONTHS. THE FOREGOING
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY.
9. General Provisions
9.1. Relationship of the Parties. The relationship
established between the parties by this Agreement is that of independent
contractors.
9.2. Complete
Understanding; Modification. This Agreement constitutes the complete and
exclusive agreement of the parties and supersedes all prior understandings and
agreements, whether written or oral, with respect to the subject matter hereof.
No modification of or amendment to this Agreement nor any waiver of any rights
under this Agreement shall be effective unless agreed in writing signed by both
parties.
9.3. Severability.
If any provision of this Agreement is held to be invalid or unenforceable under
the circumstances, such provisions application in any other circumstances and
the remaining provisions of this Agreement shall not be affected thereby.
9.4. Non-assign
ability and Binding Effect. Neither party shall assign this Agreement to
any third party without the prior written consent of the other party which will
not be unreasonably withheld, except that either party may assign this
Agreement to any successor all or substantially all of its stock or assets.
9.5.
Notices. All notices and other communications hereunder shall be in
writing and shall be deemed effective when delivered by hand or upon receipt
when mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the addresses first listed above (or at such other
address for a party as shall be specified by like notice).
9.6. Force
Majeure. Neither party shall be liable for any loss resulting from a cause
over which it does not have reasonable control including, but not limited to,
failure of electronic or mechanical equipment or communication lines, telephone
or other interconnect or Internet problems, severe weather, earthquakes, or
natural disasters, wars, or governmental restrictions. To the extent any such
event continues for a period of more than thirty (30) days, Customer may
terminate this Agreement without liability of any kind.
9.7. Waiver.
No failure or delay on the part of any party in exercising any right hereunder,
irrespective of the length of time for which such failure or delay shall continue,
will operate as a waiver of, or impair, any such right. No single or partial
exercise of any right hereunder shall preclude any other or further exercise
thereof or the exercise of any other right. No waiver of any right hereunder
will be effective unless given in a signed writing.
9.8. Governing
Law. This Agreement is governed by the substantive laws of the State of
California. The federal and state courts sitting in San Diego, California,
U.S.A. shall have proper and exclusive jurisdiction and venue with respect to
any disputes arising from or related to the subject matter of this Agreement.