Paychex Accounting Online Terms of Use

Paychex Accounting Online Terms of Use Paychex recommends that Client read the Terms of Use prior to using the Paychex Accounting Online Software ( Software ). If Client does not accept and agree with these terms, Client shall not use the Software. Otherwise, Client agrees that its use of the Software constitutes Client s agreement to be bound by this Agreement and that the Effective Date of this Agreement shall be the date that Client registers to use the Software. This Paychex Accounting Online Terms of Use ( Agreement ) is entered into between Paychex, Inc. ( Paychex ), located in Rochester, New York and the Client identified on the Business Profile. The Agreement will continue until terminated in accordance with its provisions. The Software is a service of Kashoo Cloud Accounting, Inc. ( Kashoo ) located at 103-119 West Pender Street, Vancouver, BC, Canada V6B 1S5. Client s subscription to Service will be billed by Kashoo. The charge on your credit card statement will read Kashoo Cloud Accounting. 1. Software-as-a-Service Subject to the terms and conditions of this Agreement, Paychex grants Client a limited, non-transferable, non-exclusive right and license to access and use the Software, including all changes, modifications, improvements, corrections, and updates thereto ( Services ). Use of the Service is solely for Client s internal business purposes. 2. Use of Service Client Contacts. Client will designate contacts that will provide Paychex with information and directives necessary for Paychex to provide the Service (collectively Client Information ). Client is responsible for the accuracy of Client Information provided by contacts and/or Client. Client Information. Client will execute and/or provide all documentation that Paychex requires to perform its responsibilities under the Agreement including, where necessary, taking all corporate action. Client acknowledges that Paychex may be required to obtain documents necessary to verify the identity of Client pursuant to applicable federal and/or state statutes or regulations. Paychex shall not be required to obtain authorization from Client to act on Client Information. Reliance on Client Information. Paychex will not be responsible for errors that result from Paychex reliance on Client Information. Client s Use of Software. Client agrees to accept the following obligations and responsibilities: A. Client is responsible for the supervision, management, and control of Client s use of the Software, including, but not limited to: (i) assuring proper machine configuration, program installation, audit controls, and operating methods; (ii) establishing adequate back-up plans; and (iii) implementing sufficient procedures to satisfy Client s requirements for security and accuracy of input and output, as well as restarts and recovery in the event of a malfunction. B. Client must take appropriate action by instruction, agreement, or otherwise with Client s employees or other persons permitted to access the Software to satisfy Client s obligations under this Agreement with respect to use, copying, modification, and protection and security of Software, and related material. C. Client Online Account. Whereas, the Client accesses the Software online or through any mobile or other electronic devices ( Client Online Account ), Client is solely responsible for (i) designating who is authorized to have access to Client s Online Account; (ii) safeguarding all of Client s passwords, usernames, logins or other security features used to access Client s Online Page 1 of 5 Rev. 11/13

Account ( Client Online Account Access ); (iii) Client s use of Client s Online Account under any usernames, logins or passwords; (iv) ensuring that use of Client s Online Account complies fully with the provisions of this Agreement; and (v) any unauthorized access, or use, of Client s Online Account caused by Client s actions or inactions, including, without limitation, its failure to safeguard Client Online Account or Client Online Account Access. Client is solely responsible for the maintenance and routine review of computing and electronic system usage records (i.e. log files) and the security of its own data, data storage, computing device(s), other electronic systems, and network connectivity. Client acknowledges and agrees that Paychex is not liable to Client, Client s employees or any other third-party for any consequences, losses, or damages resulting from unauthorized access or use of Client Online Account as set forth in this section. Third Party Services. Client can integrate certain third party services into the Service. These third party services are not provided by Paychex. Client agrees to hold harmless and release Paychex and the Released Parties (defined below) from any liability relating to Client s use of the third party services or integration of the Services with the third party services. Client s ability to use the third party services may be limited according to the third party s terms and conditions. When Client integrates with a third party service, Client authorizes Paychex to share any Client data, whether confidential or not, with the third party service so Client can take advantage of integration with Paychex. Any links to a third party service or website Client finds in the Service or on kashoo.com are provided for convenience only and Paychex does not control or endorse any material or information found on those third-party sites. Trial Version. If Client has registered for a trial use of the Service, Client may access the Service for a trial period granted by Paychex. The Service is provided AS IS, with no warranty during the trial period. All Client data may be deleted after the trial period, unless Client converts its account to a non-trial account. 3. Payment Client must pay all fees for use of the Software as specified on the order on a recurring basis when payment is presented to Client s credit card or financial institution. Client is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This Agreement contemplates one or more orders for the Service, which orders are governed by the terms of this Agreement. 4. Mutual Confidentiality Client Confidential Information. Client Confidential Information will mean all information disclosed or otherwise made available by Client to Paychex that is marked confidential or is of the nature that a reasonable person would identify it as being confidential, and the name, social security number, date of birth, address, and/or bank information of Client and Client s employees provided to Paychex by Client. Paychex will use reasonable care to prevent the disclosure of such Client Confidential Information to any unauthorized person or entity. Paychex may disclose Client Confidential Information to its employees, affiliates, subsidiaries, agents, and contractors to (i) perform or offer Services; (ii) offer additional products or services; (iii) perform analysis to determine Client s qualification to receive future services; and (iv) collect fees due and may disclose Client s payment experiences with Paychex to credit reporting agencies and supply vendor references of Client s behalf. Paychex may also disclose Client Confidential Information (i) to its attorneys, accountants, and auditors; and (ii) pursuant to federal, state, or local law, regulation, court order, legal process, or governmental investigation. The obligations set forth in this section will not apply to any Client Confidential Information that: (i) Client has agreed is free of any nondisclosure obligations; (ii) at the time of disclosure was free of any nondisclosure obligations; (iii) is independently developed by Paychex or that Paychex lawfully received, free of any nondisclosure obligations, from a third-party having the right to furnish such Client Confidential Information; or (iv) is or becomes available to the public without any breach of this Agreement or unauthorized disclosure. Page 2 of 5 Rev. 11/13

5. Property Reservation of Rights. The software, workflow processes, user interface, designs, know-how, and other technologies provided as part of the Service are the proprietary property of Paychex and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain with their respective owners. Client may not remove or modify any proprietary marking or restrictive legends in the Service. Paychex reserves all rights unless expressly granted in this Agreement. Confidentiality of Software. Client acknowledges that the Software contains valuable trade secrets and confidential information owned by Paychex or third parties (collectively Confidential Information ). Client agrees that Client, its employees, and its agents will not, directly or indirectly: (i) sell, lease, assign, sublicense, or otherwise transfer; (ii) duplicate, reproduce, or copy; (iii) disclose, divulge, or otherwise make available to any third party; (iv) use, except as authorized by this Agreement; or (v) decompile, disassemble, or otherwise analyze for reverse engineering purposes the Software or Confidential Information. Client will take appropriate action with Client s employees and agents to satisfy its obligations under this Agreement with respect to the use, protection, and security of Confidential Information. Client will notify Paychex immediately of any unauthorized use or disclosure of Confidential Information and will cooperate in remedying such unauthorized use or disclosure. 6. Termination Termination. Except as otherwise provided, either party may terminate the Agreement upon thirty (30) days prior written notice. Paychex may immediately terminate the Agreement, or a portion thereof, if (i) Client becomes subject to receivership, bankruptcy, or is insolvent; (ii) Paychex, in its sole discretion, determines that a material adverse change has occurred in the financial condition of Client; (iii) Client fails to have sufficient funds when payment is presented; or (iv) Paychex determines, in its sole discretion, that any federal, state, or local legislation, regulatory action, or judicial decision adversely affects its interests under the Agreement. Termination of the Agreement will not relieve Client of any obligations set forth herein, including, but not limited to, its payment obligations. Paychex can, without notice and in Paychex sole discretion, without any notice or liability to Client, terminate Client s right to the license to use the Software or any part of the Service. Paychex can also terminate, without any notice or liability to Client, any part of the Service. Paychex is constantly adding new products and features to the Service, so Paychex can amend this Agreement as Paychex sees fit. If Client does not approve of any amendments or modifications, then Client must quit using the Service. Return of Client Data. A. Within 30-days after termination, and upon Client s request, Paychex will make the Service available for Client to export the Client data. B. After an additional 30-day period, Paychex has no obligation to maintain the Client data and may destroy it. Return or Destroy Paychex Property Upon Termination. Upon termination of this Agreement for any reason, Client must pay Kashoo for any unpaid amounts, and destroy or return all property of Paychex. Upon Paychex request, Client will confirm in writing its compliance with this destruction or return requirement. Aggregate Data. Paychex may use non-personally identifiable Client data for purposes of enhancing the Service, aggregated statistical analysis, technical support and other business purposes. Page 3 of 5 Rev. 11/13

7. Service Level Agreement/Warranty and Remedy Warranty. Paychex warrants to Client that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of 98% uptime availability in any given month (excluding scheduled outages, force majeure, and outages that result from any Client technology issues). Limited Remedy. The Service may be interrupted or contain an error. Clients can terminate this Agreement upon notice to Paychex if the performance falls below the availability warranty, and Kashoo will refund Client a pro-rated amount of any prepaid fees for the Service paid to Kashoo. 8. Liability Limit and Disclaimer Limit on Purposes of Services. The Services are not designed to replace professional advice, such as tax and accounting advice. Disclaimer. Except as expressly provided in this Agreement, the Services are not guaranteed and are provided as is. While Paychex will, and will cause its licensors to, take reasonable, physical, technical and administrative measures to secure the Service, Paychex gives no representations, warranties or conditions of any kind, express or implied, including without limitation representations, warranties or conditions as to uninterrupted or error free or virus free service, accessibility, privacy of files, security, merchantability, quality or fitness for a particular purpose and those arising by statute or otherwise, or from a course of dealing or usage of trade. Limitation on Liability. Paychex, its directors, officers, agents, contractors, shareholders or affiliates and suppliers ( Released Parties ) will not be liable in any way for any claim for: (a) punitive, exemplary or aggravated damages; (b) damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of Client data; (c) indirect, consequential or special damages, arising from or in connection with the Services, regardless of whether or not Client informed or advised Paychex of the possibility of such damages; (d) contribution, indemnity or set-off in respect of any claims against Client; (e) any damages whatsoever relating to third-party products, client materials or any goods or services not developed or provided by Paychex; or (f) any damages whatsoever relating to interruption, delays, errors or omissions even if such interruption, delays, errors or omissions were caused by any of the Released Parties. Total Limit on Liability. Paychex liability for all damages arising out of or related to Paychex breach of this Agreement (whether in contract, warranty tort, including negligence, or otherwise) does not exceed the amount paid by Client within the 12 month period prior to the event that gave rise to the liability. 9. Indemnity Indemnification. Client will indemnify, defend, and hold Paychex and its respective officers, directors, and employees harmless from any and all claims, costs, attorneys fees (including in-house counsel fees), and expenses resulting from or arising in connection with: (i) a Client default; (ii) the use, misuse, reproduction, modification, or unauthorized distribution of Software; or (iii) Client s breach of any warranty set forth in the Agreement. Page 4 of 5 Rev. 11/13

10. Governing Law and Arbitration Governing Law and Arbitration. The Agreement and all aspects of the relationship between Paychex and Client shall be governed exclusively by the laws of the State of New York without regard to, or application of, its conflict of laws, rules, and principles, except for the arbitration agreement contained herein which shall be governed exclusively by the Federal Arbitration Act, 9 U.S.C. section 1 et seq. (the FAA ). Except as provided herein, any dispute arising out of, or in connection with the Agreement will be determined only by binding arbitration in Rochester, New York, in accordance with the commercial rules of the American Arbitration Association. Arbitrable disputes include, without limitation, disputes about the formation, interpretation, applicability, or enforceability of this Agreement. A separate neutral arbitrator must be selected and appointed for each dispute. Any dispute arising under the Agreement will be brought within two (2) years of when the claim accrued. The arbitrator will not be authorized to award exemplary or punitive damages, or any damages excluded in the Limit of Liability provision. The parties agree that the prevailing party in arbitration, and any subsequent judicial proceeding to enforce an arbitration award, will be awarded costs and attorneys fees (including in-house counsel fees) and that an arbitration award may be entered as a judgment in any court having jurisdiction over either party to the Agreement. The parties will not be permitted to bring, or participate in, and the arbitrator will not have any authority or jurisdiction to hear or decide, any claims brought as any type of purported class action, coordinated action, aggregated action, or similar action or proceeding. Each party must only bring claims against each other in their individual capacity. 11. Other Terms Miscellaneous. The Agreement, along with any exhibits, addendums, schedules, and amendments, contains the entire understanding of the parties and supersedes all previous understandings and agreements between the parties for the Services provided, whether oral or written, including, without limitation, any confidentiality or nondisclosure agreement(s) entered into by and between Client and Paychex prior to the date hereof. Neither party will be responsible for any delay or failure to perform obligations specified in the Agreement due to causes beyond the party s reasonable control. Client acknowledges that there have been no representations or warranties made by Paychex or Client that are not set forth in the Agreement. If any provision of the Agreement or any portion thereof is held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remainder of the Agreement will not in any way be affected or impaired. Sections 1-11 will survive the termination of the Agreement. Assignability. Client may not assign the Agreement to any third parties. Any purported assignment will be null and void. Client agrees that Paychex is not rendering legal, tax, accounting, or investment advice in connection with the Services to be performed, nor will Paychex be deemed a fiduciary of Client, a fiduciary of any Client benefit plan offered for the benefit of Client s employees, or the employer or joint employer of Client s employees. Paychex will not be responsible for Client s compliance with, nor will Paychex provide legal or other financial advice to Client with respect to federal, state, and local statutes, regulations, or ordinances including, but not limited to, the Fair Labor Standards Act or any state equivalent. Client agrees to comply with any and all applicable federal, state, and local laws or ordinances. Page 5 of 5 Rev. 11/13