CleanBooks Subscription Agreement

This CleanBooks Subscription Agreement is entered into as of the Effective Date (defined below) by and between Clean Accounting, LLC (d/b/a CleanBooks), a Wisconsin limited liability company (“CleanBooks”) and the client under the Agreement (“Client”). By purchasing services from CleanBooks, Client agrees to be bound by the terms and conditions of the Agreement.

If you agree to the Agreement on behalf of an entity, you represent that you are authorized to bind that entity; if you sign up for any Services without such authority, you agree that you are accepting the Agreement on your personal behalf.

Please read these terms carefully. Among other things, they require the use of binding individual arbitration to resolve disputes rather than jury trials or class actions. For information about how to opt-out, see Section 11.8 (30-day opt-out period) below.

1. Services

1.1. The Services we provide. Our bookkeeping, tax preparation, and fractional CFO services (“Services”) are designed to support your financial organization and management needs. The Services are a solution for bookkeeping and financial organization where we maintain your accounting books, prepare and file your tax related documents, and provide financial strategy and planning for your business based on information provided by you or at your direction. Please note that the Services and any related communications with us are intended to assist with your financial operations but are not a substitute for professional legal, regulatory, tax, financial, real estate, healthcare, or accounting advice. We recommend consulting with licensed professionals in those areas for specific guidance.

1.1.1. Bookkeeping Services. Our bookkeeping Services are a solution for bookkeeping and financial organizations where we maintain your accounting books based on information provided by you or at your direction. 

Certain year-end Services. If you are a bookkeeping Services customer for the quarter following your fiscal year end (i.e., your subscription has not been terminated during such period), we may need to perform certain year-end bookkeeping activities at that time as part of your subscription. If you are not a bookkeeping Services customer for the quarter following your fiscal year end, we will not perform year-end bookkeeping activities and will not bear responsibility or liability with respect to any failure to perform year-end bookkeeping activities on your behalf.

QuickBooks® Online. We use Intuit Inc.’s QuickBooks Online to provide the bookkeeping Services. If you do not already have an account, you authorize us to create one for you. Your and our use of QuickBooks Online will be governed by Intuit Inc.’s Terms of Service and Privacy Statement, and by authorizing us to create an account for you, you agree to Intuit Inc.’s Terms of Service. 

Sole bookkeeping. You agree that we will be your sole bookkeeper and in performing such Services we must use, record, classify and reconcile your financial transactions and other data to prepare your books. For example, depending upon the Services we provide, we may have to: (a) import transactions to your books in order to reconcile your bank accounts, (b) categorize transactions in your books to expense accounts and to balance sheet accounts for amortization purposes, and/or (c) sync your payroll data via an integration or otherwise. As a result, once we have performed such tasks, any modifications made by you or on your behalf (for example, by another Third-Party Provider) to your books may adversely impact Services previously performed by us, causing us to have to re-perform such Services in order to resolve any resulting inconsistencies or inaccuracies or to confirm that there are no such inconsistencies or inaccuracies. If you engage another Third-Party Provider to make changes to your books, or you otherwise make changes to your books directly, while you have engaged us to provide bookkeeping Services, the Parties agree to the following remedies, which shall be at our option and in addition to any rights provided by contract, law or in equity: (i) we may delay bookkeeping Deliverables that are on a deadline, (ii) we may charge our standard hourly fees for the additional work required to remediate the situation, and/or (iii) we may terminate your subscription at any time upon written notice without a refund of prepaid fees for unelapsed months of any Services. For the avoidance of doubt, this Section does not prevent you from managing accounts payable and/or accounts receivable in QuickBooks, and/or processing payroll through QuickBooks.

1.1.2. Tax Preparation Services. If you purchase our tax preparation Services (as reflected on your Engagement Form), we expect to perform the following Services (the “Tax Preparation Services”):

• Prepare the federal, state(s), and local income tax returns with supporting schedules, based on financial statements that accurately represent the financial activity of the Client provided by the Client company.

• Any additional tax returns or other government filings for the Client company not included in the Engagement Form must be requested in writing by the Client company, and accepted in writing by us, and will then be subject to the terms and conditions of the Agreement.

With respect to Tax Preparation Services, our services include filing the following tax returns for the Company:

• One U.S. federal business income tax return,

• One U.S. state business income tax return,

• One U.S. federal personal income tax return, and

• One U.S. state personal income tax return.

If you notify us in writing that there are additional state income tax returns, foreign shareholders owning greater than 25%, foreign financial accounts, or changes in accounting methods, additional fees will apply.

Except as specifically provided in an Engagement Form, this engagement and the Tax Preparation Services do not include any returns other than income tax returns (including without limitation sales or use tax returns) and do not extend to determining the Client company’s filing requirements or nexus in any particular taxing jurisdiction. We may be able to assist you in the preparation of these filings, if you request. This request must be in writing by the Client company, and accepted in writing by us, and will then be deemed added to the Engagement Form and be subject to the Agreement. Please note there are substantial governmental penalties and personal liability for noncompliance.

You acknowledge that our Tax Preparation Services does not include a verification of any amounts or values related to crypto assets or transactions provided by you or on your behalf for purposes of completing any tax returns.

If you owe any taxes as determined by the Tax Preparation Services, you authorize us to pay such taxes on your behalf via the payment channel designated by you and made available to us for tax payments. We may reach out to you for an additional authorization above certain amounts.

We and the Service Provider (as defined below) must use judgment in resolving questions where the tax law is unclear, or where there may be conflicts between the taxing authorities’ interpretations of the law and other supportable positions. We and the Service Provider may apply the “more likely than not” reliance standard when communicating positions to you to resolve such issues in order to avoid penalties that might be assessed against the Service Provider as a return preparer. As a condition of receiving Tax Preparation Services, you agree to honor our reasonable directions and those of the Service Provider regarding disclosure of return positions to avoid or mitigate penalties.

In the course of the Tax Preparation Services, it may come to your or our attention that you may need to file tax returns in one or more additional jurisdictions, including foreign jurisdictions. While we will advise you if this comes to our attention, you remain solely responsible for identifying all filings for which you are seeking Tax Preparation Services, including any liability and additional expenses resulting from choosing not to prepare and file any tax returns, tax forms, and/or supporting schedules (whether recommended by us or not). You must inform us of any new or expanded activities that could trigger filing requirements in additional state(s) or country(ies), such as the acquisition of property or the hiring of employees or use of independent contractors in a new state or country. Activities of a partnership, LLC, trust or other pass-through entity in which you are an owner or beneficiary may also trigger additional state and/or foreign tax filings, so you must inform us if you have acquired an interest in a new pass-through entity over the past year. 

Management is responsible for ensuring proper recording of transactions in the accounts, safeguarding assets, and for the substantial accuracy of the financial records. Because you have final responsibility for the tax returns, you should review them carefully before you sign and file them. Your returns may be audited by the taxing authorities. Any proposed adjustments may be subject to appeal.

Because of the special purpose, nature and format, income tax returns do not constitute financial statements prepared in accordance with generally accepted accounting principles. The tax returns should be used only for income tax purposes and must not be used as a substitute for financial statements.

U.S. citizens and residents and certain nonresidents who have a financial interest in or signature or other authority over any “financial accounts” in a foreign country are required to make a separate filing if the aggregate value of these accounts exceeds $10,000 at any time during the year. Filing requirements also apply to those with direct or indirect control over a foreign or domestic entity with foreign financial accounts, even if the taxpayer does not have foreign financial accounts of its own. We are able to assist you in the preparation of these foreign filings. You are responsible for identifying the need for these filings, and they will be part of the Tax Preparation Services if ordered by you, either initially or by following the process for “as needed” additional services. Please note there are substantial IRS and other governmental penalties for noncompliance.

1.1.2.1.  IRS Regulation 26 C.F.R. § 301.7216-3 consent to disclosure and use. Please note that we may perform any or all of our obligations hereunder through a third-party tax service provider, including in each case its Affiliate(s) (each service provider and its Affiliates, a “Service Provider”) and/or our Affiliate(s). These Service Providers and/or we and our Affiliates may use subcontractors. In such event, we will remain liable to you for any nonperformance of the Agreement by us caused by an act or omission of the applicable Service Provider.

You hereby consent to (1) CleanBooks and/or its Affiliate(s) disclosing your information that is required to provide the tax services (this information is referred to in this paragraph as the “required information” and it includes, for example, your financial and business information, entity and ownership information, complete tax return(s) in CleanBooks’ possession, and other tax return information communicated through CleanBooks’ systems) to us and our Affiliate(s) and/or Service Provider(s), as applicable, (2) our and our Affiliates’ and Service Providers’ use of the required information to provide the tax services, including disclosure to, and use by, subcontractors to provide the tax services, (3) our disclosing your complete tax return(s) and other tax return information to CleanBooks to share it with you through CleanBooks’ systems and facilitate completion of your tax return(s), (4)  CleanBooks using your complete tax return(s) from the tax services, required information, and other tax return information communicated through CleanBooks’ systems to perform and improve its services, including, for example, use in bookkeeping and other services and disclosure to potential partners for evaluation purposes and service providers for processing purposes, and (5) disclosure of the required information and tax return information in response to state subpoenas and grand jury subpoenas, subject to notice to you of the same to the extent permitted by law. Contact your CleanBooks account manager if you want to limit CleanBooks’ disclosures of your complete tax returns. Contact us if you want to limit disclosure of your complete tax return(s) to CleanBooks. This consent applies to required information, complete tax returns, and other tax return information communicated through CleanBooks’ systems for the term stated on your Engagement Form or as otherwise agreed in writing by the Parties. This consent is valid with respect to CleanBooks’ use of your information for services performance and improvement purposes for as long as CleanBooks has a business purpose for using the information, and with respect to other uses and disclosures until the statute of limitations to assess any tax by the Internal Revenue Service or other applicable state agency with respect to the applicable tax return has expired. 

We shall have in place with the applicable Service Provider at all relevant times a written agreement obligating the applicable Service Provider (including its Affiliates, if and as applicable) to comply with confidentiality obligations protective of all such information substantially similar to those contained in the Agreement.

1.1.3.1.  Fractional CFO Services. We offer strategic financial consulting Services to help you manage and grow your business. The Services we provide to you are specified in your Engagement Form and may include: monthly engagement, annual budgeting, and assistance in preparing financial materials related to equity financings or other corporate transactions (“CFO Services”). 

CFO Services provided to you by our employees or agents are fractional services only. We and our employees and agents are independent consultants and have no fiduciary duties to you or your business in the way an in-house CFO would. As such, you agree not to misidentify or misclassify us or our employees or agents as your “CFO” or “Chief Financial Officer” to any third party.

In providing the CFO Services, we act at your management’s direction, and all Deliverables are intended solely for your management and not for any third party. Use of any such analyses or Deliverables for external purposes is at your discretion and by your management. While we may suggest one or more courses of action, it is the responsibility of your management to determine the appropriate course of action in their business judgment, and we will not have responsibility for the business decisions made by you or for any business outcome.

Unless otherwise agreed by the Parties in writing and subject to this Section, you shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to Deliverables (defined herein) upon payment in full therefor. All Deliverables are works made for hire to the extent allowed by law and, in addition, we make all assignments to you necessary to accomplish the foregoing ownership. 

We (and our licensors, as applicable) shall retain all right, title and interest in and to all Background Materials (including all intellectual property and proprietary rights therein) (defined below). To the extent that any Background Materials are included in any Deliverable, we grant you a nonexclusive right and license to use such Background Materials internally and solely in connection with, and as incorporated in, the Deliverable. Except for the limited rights and licenses expressly granted hereunder concerning the Background Materials, no other license is granted and no other use is permitted. “Background Materials” means all information, ideas, know-how, processes, software, templates, works of authorships, trade secrets, methods, and technologies, including all intellectual property and other proprietary rights embodied therein, that (a) are owned or developed by us (whether developed by or for us or otherwise acquired from a third party) prior to the performance of CFO Services under the Agreement or separate and apart from the performance of CFO Services under the Agreement, or that are in-licensed by us from a third party, including any changes or extensions thereto, or (b) are created or developed by us in performing CFO Services under the Agreement, are generally applicable to the services that we provide, and do not include any of your Customer Data.

1.2.  CleanBooks provides the Services at the direction and for the benefit of your management. We provide the Services at the request of, and under the direction of, your management. Your management is responsible for all management decisions and performing all management functions, including (i) setting policies or accepting policy recommendations; (ii) evaluating the reasonableness of underlying assumptions and the adequacy and results of the Services; and (iii) implementation of any findings or recommendations resulting from the Services. We may act upon, and will not have liability for acting upon, instructions in any form (e.g., electronic, written, oral) so long as we reasonably believe that the instructions were actually given by you or on your behalf. You are responsible for the legality of your instructions to us. We are not obligated to identify or offer additional Services. 

We prepare Deliverables resulting from the Services (for example, excerpts, models, budgets, confirmations, etc.) for use by your management. In preparing Deliverables, you agree that we (a) do not have an obligation to independently verify the accuracy or completeness of any facts provided by you or any third party, and (b) do not undertake to update the Deliverable if any facts change, unless the Engagement Form for the services expressly states otherwise. If you elect to present any Deliverable to any third party, such presentation must be made solely by you and not by or on behalf of us, and you agree to remove any references to us from the Deliverable and/or from the presentation.

1.3.  We need and rely on information from you. Our provision of the Services requires that you provide us access to corporate, financial and related information, information technology systems or services, and/or input from you. You agree to timely provide all such information, access and input and reasonably cooperate with us in our provision of the Services. You agree to provide good faith assumptions and accurate and complete representations, information and data, and you agree that we may assume you have done so without further investigation or verification. You agree that late or insufficient information, access or input from you may cause delay in the performance of the Services, inability to provide the Services, or increase in the amount of our fees. 

For the avoidance of doubt, if our performance of the Services is prevented or delayed by any act or omission by you or your agents, vendors, consultants, or employees, we will not be in breach of our obligations or otherwise liable for any related costs, charges, or losses incurred by you.

1.4.  Unauthorized uses of the Services. We may suspend or terminate provision of the Services, in whole or in part, where we reasonably believe that any of our Services are being used in a manner that breaches the Agreement or creates risk of personal injury, property damage, or legal liability for us, you or any third party, or may cause us to lose the services of one of our Third-Party Providers, if any. 

1.5.  Modifications to the Services. You understand that we may modify, change and/or improve our Services. You agree that we may add or remove functionality or features, and that we may suspend or stop part of the Services altogether. Similarly, because some of our Services are provided by our personnel, we reserve the right to determine from time to time in our sole discretion the personnel assigned to provide the Services to you.

1.6.  CleanBooks is not a certified public accounting firm. You understand and agree that CleanBooks is not a certified public accounting firm and does not provide services that would require a license to practice public accounting. You acknowledge that CleanBooks is not a member of the American Institute of Certified Public Accountants (AICPA) and is not governed by any AICPA rules. 

1.7.  CleanBooks Guarantee. CleanBooks is committed to providing timely and accurate Services. In the event that (i) a material error is made in the Client’s financial records that is directly attributable to the CleanBooks’ actions or omissions; (ii) CleanBooks fails to deliver the agreed-upon monthly bookkeeping Deliverables (provided the Client has supplied all necessary information and documentation on time); or (iii) CleanBooks fails to respond to a Client inquiry within two (2) business days (excluding federal holidays), the Client shall be entitled to a refund equal to the prior month’s fees for the specific Service(s) affected.

For the purposes of this provision, a “material error” shall mean any inaccuracy or omission in the Client’s books that (a) is the result of a failure by the CleanBooks to properly record, classify, or reconcile financial data, and (b) materially impacts the accuracy of the Client’s financial reports. 

Refunds under this policy shall be the Client’s sole and exclusive remedy for the Service deficiencies described above.

2. Technology and Data

2.1.  Our Technology; Internal Software. To facilitate the provision of the Services, we may provide your designated users (each, a “User”) with access to and use of functionality of website(s), cloud software services, software tools, automated forms and other technologies developed by or for us (collectively, “Our Technology”). You are responsible for: (a) the confidentiality of User access credentials that are in your possession or control; (b) setting up appropriate internal roles, permissions, policies and procedures for the safe and secure use of Our Technology, (c) your Users’ use of Our Technology; and (d) your Users’ compliance with the Agreement and applicable laws. You must notify us promptly if you become aware, or reasonably suspect, that your account’s security has been compromised. 

To efficiently provide the Services, we use certain internal technologies and tools developed by or for us, such as integrations with Third-Party Services, software rules, checklists and other technologies (collectively, “Internal Software”). You agree to reasonably cooperate with us to enable us to use Internal Software in the provision of the Services and to refrain from interfering with the operation of Internal Software. If you obtain new, or make changes to, information technology systems or services that contain relevant data for the Services, you agree to notify us promptly and reasonably cooperate with us to facilitate the efficient use of Internal Software.

2.2.  Data use. CleanBooks will use Customer Data as described in the Agreement and/or in the CleanBooks Privacy Policy, as updated from time to time, and for the business purposes described therein. By subscribing to any Services, you expressly consent to such use, including the use of Customer Data in Third-Party Services required for the provision of our Services, and the sharing of Customer Data across various Services for which you subscribe (e.g., bookkeeping data for Tax Preparation Services).

You agree that we may perform benchmarking studies on an aggregated basis across all or a subset of our customers, which will not contain any identifying information that can be attributed to you or any of your Users, customers, vendors, employees or representatives. You consent to our use of Customer Data for the purpose of developing and/or performing such benchmarking studies.

2.3.  Intellectual Property Rights. Subject to the limited rights expressly granted in the Agreement, as between the Parties you retain all rights, title and interest, including all Intellectual Property Rights, in and to Customer Data. You grant us and our subcontractors a limited license to use the Customer Data to provide, protect and improve the Services and to perform our rights and obligations under the Agreement.

Subject to the limited rights expressly granted hereunder, as between the Parties we own all rights, title and interest, including all Intellectual Property Rights, in and to Our Technology and Internal Software. We grant your Users a non-exclusive license to use Our Technology for the purpose of facilitating the provision of our Services to you during the term of the Agreement. All rights not expressly granted in the Agreement are reserved by us.

Each Party represents and warrants to the other that it has the authority, including any and all necessary consents, to grant the licenses above.

2.4.  Third-Party Services. Our Services, Our Technology and/or Internal Software can transfer data from or to, or integrate with, Third-Party Services (e.g., your payroll software provider). We do not endorse or make any representation, warranty or promise regarding, and do not assume any responsibility for, any Third-Party Service, regardless of whether it is described as “required,” “recommended” or the like and regardless of whether the Third-Party Service is included in your Engagement Form. You should review applicable terms and policies, including privacy and data gathering practices, and should make whatever investigation you feel necessary or appropriate before obtaining any Third-Party Service. You agree to (a) maintain all subscriptions to Third-Party Services that we require for the provision of the Services and Our Technology or the operation of Internal Software; (b) abide by the terms of your agreements for any Third-Party Services and indemnify us and hold us harmless from any claim related to a breach by you of any such agreement or from any instructions by you to us that would constitute a breach of any such agreement, (c) set up appropriate internal roles, permissions, policies and procedures for the safe and secure use of Third-Party Services, and (d) if we agree to procure Third-Party Services for you (for example, QuickBooks Online), reimburse us for such costs. We have no obligation to provide support for Third-Party Services and do not guarantee the initial or continuing interoperability of the Services, Our Technology and Internal Software with any Third-Party Services. If a Third-Party Provider ceases to make the Third-Party Services available for interoperation with Our Technology or Internal Software for any reason, we may cease providing certain features of Our Technology and/or modify the Services without liability.

2.5.  Login Credentials. If you provide us with login credentials (for example, an account name or number, password, answers to security questions (collectively, “Login Credentials”)), you (a) give us permission and a limited power of attorney to use them to login to, or create an integration with, these other third-party websites and services and access, transfer, reformat, and manipulate your account on your behalf in performance of the Agreement; and (b) represent to us that you have the authority to give us this permission. You consent to our use of Login Credentials to provide the Services and perform our rights and obligations under the Agreement. We will maintain Login Credentials in encrypted form, and we will only use them pursuant to the Agreement or as otherwise directed by you.

2.6.  Facilities and data transfer. CleanBooks requires that all facilities that CleanBooks uses to store Customer Data or Login Credentials adhere to reasonable security standards. As part of providing the Services, we may transfer, store and process Customer Data within the United States. By using the Services, you consent to this transfer, processing and storage of Customer Data.

2.7.  Feedback. If you provide us with feedback, ideas, requests, recommendations or suggestions about the Services (“Feedback”), then we may use that information without obligation to you, and you grant CleanBooks a non-exclusive, worldwide, perpetual, irrevocable license to use, reproduce, incorporate, disclose, and sublicense the Feedback for any purpose.

3.  Confidentiality

3.1.  Confidential Information defined. “Confidential Information” means information of one Party (or its Affiliates) disclosed to the other Party (“recipient”) pursuant to the Agreement that is marked as confidential or would normally be considered confidential information under the circumstances. Customer Data and Login Credentials are your Confidential Information. Confidential Information does not include information that (i) is known to the recipient without a confidentiality obligation prior to its disclosure to the recipient, (ii) is independently developed by the recipient without use of the other Party’s Confidential Information, (iii) is rightfully shared with the recipient by a third party without confidentiality obligations, or (iv) was or becomes publicly known through no fault of the recipient.

3.2.  Non-use and non-disclosure obligations. Subject to Sections 3.3 and 3.5, the recipient will (a) use the other Party’s Confidential Information only to exercise rights and fulfill obligations under the Agreement, and (b) use reasonable care to protect against unauthorized disclosure of the other Party’s Confidential Information to any parties other than the recipient’s Delegates who need to know it and who have a legal obligation to keep it confidential. The recipient agrees to ensure that its Delegates are subject to the same or substantially similar non-disclosure and non-use obligations.

3.3.  Permitted disclosure of Confidential Information

3.3.1.  General. Regardless of any other provision in the Agreement, the recipient or its Affiliates may disclose the other Party’s Confidential Information (a) in accordance with a Legal Process, subject to Section 3.3.2. (Legal Process notification); (b) with the other Party’s written consent; or (c) in connection with performing its obligations and/or enforcing its rights under the Agreement.

3.3.2.  Legal Process notification. The recipient will use commercially reasonable efforts to notify the other Party before disclosing that Party’s Confidential Information in accordance with Legal Process. Notice is not required before disclosure if the recipient is legally prohibited from giving notice.

3.3.3  Opposition. The recipient and its Affiliates will comply, at the expense of the other Party, with the other Party’s reasonable requests to oppose disclosure of its Confidential Information pursuant to Legal Process.

3.3.4.  Expenses of Production. If (a) you request that we, or (b) we are required by law or Legal Process in a proceeding or investigation to which we are not a named party to, produce documents or personnel as witnesses, or to otherwise make information relating to the Services available to a third party, you agree to reimburse us for our professional time, at our then-current standard hourly rates, and expenses, including reasonable attorneys’ fees and expenses, incurred in producing documents or personnel or providing information pursuant to such requests or requirements.

3.4.  Injunctive Relief. The Parties agree that a breach of the recipient’s confidentiality obligations in this Section 3 may cause irreparable damage, which money cannot satisfactorily remedy, and therefore the other Party may seek injunctive relief for any threatened or actual breach of Section 3 without the need to prove damages or post a bond or other surety.

3.5.  Third-Party Infrastructure. The Services, Our Technology and Internal Software operate over the internet via networks only part of which are within our control. Our obligations in Section 3.2 apply only to networks and equipment within our control, and we are not responsible for any delay, loss, interception, or alteration of Customer Data or other Confidential Information on a network or infrastructure outside of our control.

4.  Fees and Payment

4.1.  Fees. We base our subscription fees for Services on certain facts about your business. You agree to provide us with complete and accurate information so we can determine the applicable subscription. If the information is not complete or accurate, materially changes, or you request an expanded or different scope of subscription Services, we may propose a subscription that corresponds to the revised information or your request and reserve the right to terminate the affected Services or the Agreement without liability if we are unable to reach an agreement with you on the revised subscription. Subscription fees (including fees for hourly Services subscribed for on a prepaid basis) are prepaid before or at the start of the subscription period and cannot be carried over to future subscription periods.

As-incurred hourly Services, and all other Services that are not included in your subscription or quoted as a fixed fee, will be billed at our then-current standard hourly rate for the respective Service (as we may update it from time to time). For the avoidance of doubt, the publication of an hourly rate for a Service does not imply that such Service does not incur subscription fees as set forth in your Engagement Form.

4.2.  Fee and scope updates. From time to time, we may update our prices for the Services, or, as our Services evolve, we may change the scope of, or subscription model for, certain Services. If we increase your subscription fees (and/or any related fees, such as usage-based fees) and/or materially change the scope of subscription Services we provide to you, we will provide you with advance written notice of such increase or change at least 30 days prior to your next Renewal Term. If you do not terminate your subscription within such 30-day period, you agree that your continued use of the Services constitutes your agreement to pay, and your authorization for us to collect payment from you in accordance with Section 4.3 of, such increased or updated fees.

Updates to our hourly fees become effective immediately for future hourly Services. We will use commercially reasonable efforts to notify you of such updates prior to their effectiveness. You can find our current hourly fees here.

4.3.  Payment. The Client agrees to automated, recurring billing on a monthly basis, using the payment method provided and authorized by the Client at the commencement of Services. Monthly charges shall be processed automatically on or about the same calendar day each month. In addition to the recurring monthly fees, the Client may be charged for any one-time or non-recurring Services, as applicable, which will be billed separately. It is the Client’s responsibility to ensure that a valid and current payment method remains on file for the duration of the Agreement.

We may immediately suspend provision of any or all Services if your account is past due with respect to the payment of fees for any Services or any other amounts owed by you to us. You agree to pay any fees for Services owed by your Affiliates. Except to the extent expressly set forth in the Agreement, all payments are non-refundable and non-creditable.

We reserve the right to request prepayment before starting the provision of any Services. In the case of nonpayment of any amount due and owed under the Agreement, in addition to such unpaid amounts you will reimburse us for all costs and fees incurred to collect the unpaid amounts.

5.  Term and Termination

5.1.  Initial term; Set Periods. The Agreement is effective on the date you sign an Engagement 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 initial period for which you have paid or owe subscription fees, or if you do not owe prepaid subscription fees then for the period set forth in your Engagement Form or the completion of the Services described in your Engagement Form (the “Initial Term”). 

5.2.  Automatic renewal. Upon the end of the Initial Term and any Renewal Term (defined below), your subscription for the respective Services will automatically renew, without the need to execute a new Engagement Form or other agreement, for the same duration (a “Renewal Term”) as the immediately preceding term of such Services.

5.3.  Termination; Withdrawal. Either Party may terminate the Agreement if the other Party has materially breached the Agreement upon written notice to the breaching Party of the breach and an opportunity to cure of at least thirty (30) days. 

We may withdraw from providing any or all of the Services at any time by providing notice of termination of the Agreement or specific Services to you via the email address we have on file. In the event we terminate the Agreement or any Services for any reason other than your violation of Section 1.4 (Unauthorized uses of the Services) or another breach of the Agreement by you, we will give you a refund of prepaid fees for unelapsed months of the terminated Services. For the avoidance of doubt, you agree that we will not be obligated to issue a refund if our withdrawal is caused by your breach of the Agreement, including your failure to pay any fees when due or to timely provide information, systems access or input that we have reasonably requested for the provision of the Services.

You may stop using the Services at any time without cause. You may terminate your use of the Services by providing at least thirty (30) days’ written notice to contact@cleanbooks.com. In the event you elect to terminate your use of the Services, you shall remain responsible for the payment of fees for one (1) additional full billing cycle following the date of such notice, irrespective of actual usage of Services during that period. Such payment shall be due and payable in accordance with the standard billing terms set forth in Section 4.3 and shall be non-refundable. 

5.4.  Effect of termination or expiration. In the event your subscription to our Services ends, we will be available to transfer to you the “primary administrator” status for the QuickBooks Online account that was maintained for you by CleanBooks, as applicable, so that you can elect to maintain that subscription with Intuit or export your data.

After termination of the Agreement or any specific Services, any support or information production related to the terminated Services shall be at our sole discretion, and if we perform such support or information production you agree to reimburse us for our professional time at our then-current standard hourly rates. We do not guarantee the availability of any documents or information after such termination. You agree that it is your responsibility to retain and protect your records for possible future use, including potential examination by any government or regulatory agencies.

5.5.  Survival. Sections 2.2, 2.3, 2.4, 2.7, 5.4, 5.5, and 8 – 13 (inclusive) will survive the termination or expiration of the Agreement. Section 3 will survive for three (3) years after termination or expiration of the Agreement, and Section 6 will survive for the period set forth therein.

6.  Personnel Non-Solicitation. We incur recruiting, training, education and other non-recoverable costs for the personnel assigned to provide the Services to you. We are willing to incur such costs in reliance on your promises in this Section. You agree not to solicit for hire, directly or indirectly, on behalf of yourself or for any third party, any then-current employee or contractor of ours who has been made known to you in connection with the Services (“Covered Personnel”) during the term of the Agreement and for one (1) year thereafter. This Section does not prohibit you from soliciting or hiring any individual as a result of a general employment advertisement not specifically directed at Covered Personnel.

As a reasonable estimate of our personnel replacement costs and not as a penalty, you agree to pay us $25,000 for every individual Covered Personnel who has terminated their employment or contractor relationship with us as a result of your breach of this Section.

7.  Using the Services on behalf of others. If you are using the Services on behalf of another individual or entity, you represent and warrant that you have all the authorizations and rights necessary and sufficient to do so.

8.  Warranty disclaimer. THE WARRANTIES STATED IN THE AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY CLEANBOOKS. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, WE, OUR AFFILIATES, OUR THIRD-PARTY SERVICE PROVIDERS, AND OUR AND THEIR LICENSORS, SUPPLIERS AND DISTRIBUTORS (THE “PROVIDER ENTITIES”) MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES, OUR TECHNOLOGY, OR OUR TOOLS. THE SERVICES, OUR TECHNOLOGY AND OUR TOOLS (INCLUDING AS INTEGRATED WITH ANY OTHER APPLICATIONS) ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NO WARRANTY IS MADE THAT THE SERVICES, OUR TECHNOLOGY, OUR TOOLS OR THE RESULTS OF THEIR USE WILL MEET YOUR NEEDS OR EXPECTATIONS, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THE RESULTS THEREFROM WILL BE ACCURATE OR RELIABLE, AND/OR WILL COMPLY WITH ANY LAW OR LEGAL REQUIREMENT. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. WE FULLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU UNDER APPLICABLE LAW, ANY IMPLIED WARRANTIES ARE STRICTLY LIMITED TO A PERIOD OF SIXTY (60) DAYS FROM THE DATE OF YOUR EXECUTION OF THE ENGAGEMENT FORM, OR DELIVERY OF THE SERVICE, WHICHEVER IS SOONER.

9.  Limitation of liability. THE CONSIDERATION WHICH WE ARE CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY THE PROVIDER ENTITIES OF THE RISK OF YOUR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL WE BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THE AGREEMENT. EXCEPT FOR AMOUNTS DUE TO US UNDER THE AGREEMENT AND INDEMNITY OBLIGATIONS SET FORTH IN SECTION 10 BELOW, THE MAXIMUM LIABILITY OF EITHER PARTY TO ANY PERSON, FIRM OR CORPORATION ARISING OUT OF OR IN THE CONNECTION WITH THE AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF THE AMOUNT YOU PAID FOR THE NONCONFORMING SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM OR ONE HUNDRED US DOLLARS, WHICHEVER IS GREATER.

The Parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with the provision of the Services and that, were we to assume any further liability other than as set forth herein, such fees would have to be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.

10.  Indemnification. You shall defend, indemnify and hold harmless the Provider Entities and their employees, officers, directors, consultants, representatives and agents from and against all damages, losses, liabilities, claims, demands, actions, suits, judgments, settlements, costs and expenses, including all attorneys’ fees, that arise from or relate to: (a) your use of and/or our provision of the Services (except to the extent arising directly from our willful misconduct or gross negligence), (b) your violation of the Agreement that injures any third party, (c) any content, information or materials provided by you, or (d) infringement by you, or any third party using your account or identity in the Services or Our Technology, of any intellectual property or other right of any third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to reasonably assist and cooperate with us in asserting any available defenses and/or defending any legal proceeding.

11.  Disputes; Class-action waiver

11.1.  Judicial forum for disputes. Except as set forth in Section 11.5. (Arbitration), the Parties agree that any and all claims relating to the Agreement or the Services shall exclusively be brought in the federal or state courts of Outagamie County, Wisconsin, subject to the mandatory arbitration provisions below. Each Party consents to the venue and personal jurisdiction of such courts.

11.2.  Notice of disputes. If you have a dispute with us, you will promptly send written notice to: Clean Accounting, LLC d/b/a CleanBooks, 2009 S. Memorial Dr., Appleton, WI 54911. You agree that if we have a dispute with you, we may contact you by sending notice to the address and/or email address listed on your Engagement Form.

11.3.  Governing law. The Agreement and any controversy arising out of or relating to it shall be governed in accordance with the laws of the State of Wisconsin and any controlling U.S. federal law, including the Federal Arbitration Act, without regard to conflict of law principles.

11.4.  Informal resolution. Before filing a claim, you and we each agree to try to resolve the dispute by contacting the other Party through the notice procedures in Section 11.2 (Notice of disputes). If a dispute is not resolved within thirty (30) days of notice, you or we may bring a formal proceeding.

11.5.  Arbitration. The Parties agree to resolve any and all claims arising from or relating to the Agreement or the Services through final and binding arbitration and that the provisions of the Federal Arbitration Act (FAA) (9 U.S.C. §1 et seq.) govern the Agreement, except as set forth below. The Parties agree that the American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Appleton, WI, or any other location both Parties agree to in writing.

11.6.  Exceptions to arbitration. In the event that either Party brings a claim or cause of action solely for injunctive relief (i) under Section 3.4; (ii) to prevent or stop unauthorized use or abuse of the Services or, in our case, unauthorized use or abuse of Our Technology and/or Our Tools; (iii) to prevent or stop infringement of Intellectual Property Rights; (iv) relating to unlawful acts that threaten future injury to the general public (public injunctive relief); or (v) otherwise, the state and federal courts located in Outagamie County, Wisconsin shall have exclusive jurisdiction over such claim or cause of action. For the avoidance of doubt, if a Party brings a claim or cause of action for injunctive relief under this Section, there shall be no requirement to engage in the informal dispute notice process or arbitration process described herein.

In addition, if the dispute between the Parties is for amounts that are within the jurisdiction of a small claims court, each Party has a right to opt to pursue such small claims directly in small claims court.

11.7.  NO CLASS ACTIONS. THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, AND EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR OR YOUR INDIVIDUAL CAPACITY, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THE AGREEMENT OR BY LAW); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.

11.8.  30-day opt-out period. If you do not wish to be bound by these arbitration provisions (including its waiver of class and representative claims), you must notify us by emailing contact@cleanbooks.com no later than thirty (30) days after the Effective Date (unless a longer period is required by applicable law). An opt-out notice does not revoke any previous arbitration agreement between us.

11.9.  Batch arbitration. To increase the efficiency of administration and resolution of arbitrations, in the event fifty (50) or more similar arbitration demands (those asserting the same or substantially similar facts, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to AAA against us and/or our Affiliate(s) within reasonably close proximity, the arbitration provider shall (a) administer the arbitration demands in batches of fifty (50) demands per batch (to the extent there are fewer than fifty (50) arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (b) designate one (1) arbitrator for each batch; and (c) provide for a single filing fee due per side per batch. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable AAA rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with us and the arbitration provider to implement this “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This “batch arbitration” provision shall in no way be interpreted as authorizing class arbitration of any kind. We do not agree to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section.

11.10.  Future changes to this dispute resolution agreement. If we make any changes to this Section 11 or any successor section (but not including Section 11.2 (Notice of disputes)), you may reject any such change by notifying us via the procedure set forth in Section 11.8 (30-day opt-out period) within thirty (30) days of the change. It is not necessary to submit a rejection of a future change to this Section 11 if you have properly opted out of arbitration in compliance with the requirements of Section 11.8 (30-day opt-out period).

12.  Miscellaneous

12.1.   Updates to these terms. You understand and agree that from time to time we may amend these terms. We will notify you of any material changes by promptly sending an email or posting a notice in the Services. By continuing to access or use the Services after such notice, you agree that you will be deemed to have agreed to be bound by the modified terms. Notwithstanding the foregoing, if the changes have a materially adverse impact on and are not acceptable to you, then you must notify us within thirty (30) days after receiving notice of the change (via contact@cleanbooks.com) If we cannot accommodate your objection, then the prior terms shall remain in force until the expiration of your then-current subscription period. Any renewed subscription will be governed by the then-current terms.

12.2.  Severability. If one or more of the provisions contained in the Agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions.

12.3.  Assignment. You may not assign the Agreement, or your rights or obligations under it (including any claim or right to sue for damages under the Agreement), in whole or in part and any such assignment is void. We may freely assign the Agreement, or our rights and obligations under it, in whole or in part.

12.4.  Electronic notices. We will communicate with you via the email associated with your account with us or the Services’ user interface. It is your responsibility to keep your Services account email address up to date so that you are able to receive electronic communications from us.

12.5.  Entire agreement; amendments. The Agreement constitutes the entire agreement between the Parties with respect to its subject matter, and supersedes any and all prior and contemporaneous agreements, discussions, negotiations, and offers. The Parties agree that any term or condition stated in a customer purchase order or in any other customer order documentation (excluding Engagement Forms) is void. You acknowledge that in entering into the Agreement you have not relied on and will have no rights or remedies in respect of any statement, representation, assurance or warranty other than as expressly set out in the Agreement. Except as specifically stated otherwise in the Agreement, any amendment must be in writing, expressly state that it is amending the Agreement, and must be signed by both Parties.

12.6.  Order of precedence; interpretation. In the event of an express conflict between these terms and any Engagement Form, the Engagement Form shall take precedence and govern. Headings are for information purposes only. The Agreement shall not be interpreted against the drafter.

12.7.  Third-party beneficiaries. The Provider Entities (other than us) are intended third-party beneficiaries of Sections 8 – 10 (inclusive). Clean Accounting, LLC d/b/a CleanBooks and its Affiliates are intended third party beneficiaries of the Agreement in the event the Agreement is between you and a Provider Entity other than Clean Accounting, LLC d/b/a CleanBooks or one of its Affiliates. If a Provider Entity (other than us) or Clean Accounting, LLC d/b/a CleanBooks, as applicable, is an intended third-party beneficiary, it will be considered a “Party” for purposes of the applicable provisions of the Agreement. Except as expressly set forth in the foregoing, there are no other third-party beneficiaries to the Agreement. All Services are for your internal purposes and use, and no third party is intended to rely on any Services, Deliverables or materials provided by us. 

12.8.  No employment, partnership, or agency relationship. Each Party is an independent contractor, and except as expressly set forth in the Agreement neither Party has any authority to act on behalf of the other. Neither Party will represent itself as agent, servant, franchisee, joint venturer, joint employer or legal partner of the other. You agree not to represent our personnel as, or request that our personnel act as, an employee, officer, agent or other representative of your entity. We are entering into the Agreement as principal and not as agent for any Affiliate and claims under the Agreement may be brought only against us and not against any of our Affiliates.

12.9.  No Publicity. Neither Party shall make any public statement about the Agreement or the relationship of the Parties governed by the Agreement that identifies the other Party without the other Party’s prior written consent, except that while you are a customer, we may use your name and logo in customer lists on an equal footing with other customers.

12.10.  Non-Disparagement. The Parties agree not to disparage, slander, or defame, directly or indirectly, each other or its principals, agents, officers, owners, directors, or employees whether during the Term or after termination of the Agreement. Further, this term shall apply, without limitation, to all forms of social media and online forums. Nothing herein shall prevent any Party from making any truthful statement in connection with any legal proceedings or with any investigation by any governmental authority.

12.11.  Compliance. We do not represent or warrant that the Services, Our Technology or Internal Software comply with the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”). You must notify us of any HIPAA compliance requirements prior to entering into the Agreement, or within thirty (30) days of any HIPAA compliance requirements becoming applicable to you and/or us.

12.12.  Unfair Competition. You may not use the Services, Our Technology, or any materials provided by us to build a competitive product or service or to benchmark with a product or service not provided by us.

12.13.  Waivers. A Party’s failure or delay to exercise any right under the Agreement will not act as a waiver of such right. Rights may only be waived in writing signed by the waiving Party.

12.14.  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).

12.15.  Typographical errors. In the event a Service is listed at an incorrect price due to a typographical error or error in pricing information received from our partners or suppliers, we will have the right to refuse or cancel any Engagement Form at the incorrect price. In such event, if you have already paid the incorrect price, we will promptly refund your payment.

13.  Definitions

“Agreement” means these terms, the Engagement Form(s), including any scope(s) of work included or referenced in the Engagement Form(s), and all other terms and conditions agreed to in writing by you and us regarding the provision of the Services.

“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a Party.

“CCPA” means (i) the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq, as amended from time to time including by the California Privacy Rights Act of 2020, and (ii) any regulations promulgated pursuant under, or to implement, the California Consumer Privacy Act of 2018, as amended.

“Control” means control of greater than fifty percent (50%) of the voting rights or equity interests of a Party.

“Customer Data” means data provided by you or at your direction for the provision of the Services, and excerpts and reports of such data prepared as part of the Services for you. For the avoidance of doubt, industry knowledge, general inferences from Customer Data across customers (without identifying you), Our Technology, Internal Software and our workpapers are not Customer Data. 

“Delegates” means employees, consultants, service providers, agents, and professional advisors of an entity or its Affiliates.

“Deliverable(s)” means any work product that is created, developed or made by us specifically for you, or that is specified in an Engagement Form, and delivered to you by us during performance of the Services (but expressly not including any Background Materials).

“Engagement Form” means (i) the ordering document or website page that links to these terms or to a subset of these terms for specific Services (for example, to the Tax Services Terms), and (ii) any other ordering document or workflow provided by us or on our behalf for ordering Services. Engagement Form expressly excludes any terms in your purchase order or other similar document provided by you in the ordering process.

“including” means including, without limitation.

“Intellectual Property Rights” means rights recognized by any jurisdiction with respect to intellectual work product, such as patent rights (including priority rights), design rights, copyrights (including moral rights), mask work rights, trade secret rights, trademarks, service marks, know-how and domain name rights.

“Legal Process” means an information disclosure made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, government investigation, or similar process.

“Party(ies)” means you and us, as defined below.

“we” and “us” means the Services provider entity listed on an Engagement Form.

“Third-Party Service” means any product (for example, software, cloud services), tool (for example, integration or development tools), or service (for example, implementation services) provided by a party other than us that is not acting on our behalf (a “Third-Party Provider”).

“VCDPA” means (i) the Virginia Consumer Data Protection Act of 2021, Code of Virginia § 59.1-575, as amended from time to time, and (ii) any regulations promulgated pursuant under, or to implement, the Virginia Consumer Data Protection Act, as amended.

“you” and “your” means the person or entity listed as customer on an Engagement Form or, if no such person is listed, then the person or entity who accepts the Agreement when ordering Services. “You” shall include your Affiliates only with our prior written consent or if we knowingly and affirmatively provide Services to such Affiliates, and in such case the person or entity named on the Engagement Form represents that such person or entity is authorized to, and does, (a) bind your included Affiliates to the Agreement and (b) provide on behalf of your Affiliates all consents required by the Agreement. The named person or entity and all permitted and included Affiliates of yours shall be parties to the Agreement and shall be jointly and severally liable under the Agreement.