Out of the Box Terms of Service

This Out of the Box (the “Company”, “Out of the Box” “we”, or “us”) Subscription Agreement (this “Agreement”) governs your access to and use of the Services (as defined below) and Our Technology (as defined below).

If you agree to this 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 this 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.

1. Services

1.1  We provide bookkeeping and accounting Services

Our bookkeeping and accounting services (the “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. Our Services and any related communications with us are not a substitute for and do not include legal, regulatory, tax, financial, real estate, healthcare, or accounting advice.

1.2  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.

1.3  Sole bookkeeper

This Section applies to the extent that we provide bookkeeping Services to you.

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 service 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 service 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 1.3 does not prevent you from managing accounts payable and/or accounts receivable in QuickBooks, and/or processing payroll through QuickBooks.

1.4  Data Migration Services

We provide certain data migration Services to assist in the transition of accounting, ERP, or other software systems. Our data migration Services and any related communications with us are not a substitute for and do not include legal, regulatory, tax, financial, real estate, healthcare, or accounting advice. The terms in your data migration Order Form shall supplement the terms herein. All representations, warranties, terms, obligations, covenants, and conditions herein shall remain in full force and effect.

1.5  We provide 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 (a) setting policies or accepting policy recommendations; (b) evaluating the reasonableness of underlying assumptions and the adequacy and results of the Services; and (c) 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. You are solely responsible for any penalties, fines, or deductions (including any such fines, penalties, or deductions related to payroll filings, sales tax filings, employment insurance, or employment-related issues) from any local, state, federal, or other governing body.

We prepare deliverables resulting from the Services (for example, excerpts, models, budgets, confirmations, data migrations 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 any deliverable if any facts change, unless the Order 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, and we will have no liability to you or any such third party relating to your presentation of any deliverable to any third party.

1.6  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.

1.7  Unauthorized uses of the Services

You will only use the Services and Our Technology in accordance with the Out of the Box Terms of Use which is incorporated in these terms by reference. 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 this Agreement (including the Acceptable Use Policy) 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 service providers, if any.

1.8  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.

1.9  QuickBooks^® Online

We may use Intuit Inc.’s QuickBooks Online to provide the 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 and Privacy Statement.

1.10  Out of the Box is not a certified public accounting firm

You understand and agree that Out of the Box is not a certified public accounting firm and does not provide services that would require a license to practice public accounting. You acknowledge that Out of the Box is not a member of the American Institute of Certified Public Accountants (AICPA) and is not governed by any AICPA rules. The Services do not include, and you will not rely on them for: (a) audit, attest, examination, verification, investigation, certification, presentation, or review of financial transactions or accounting records (as such terms are used in the California Business and Professions Code Section 5000 et seq. (“California Public Accountancy Law”); (b) independent advice relating to accounting procedure or to the “recording, presentation, or certification of financial information or data” within the meaning of the California Public Accountancy Law; (c) preparation or certification of reports on audits or examinations of books or records of account, balance sheets, and other financial, accounting and related schedules, exhibits, statements, or reports that are to be used for publication, for the purpose of obtaining credit, for filing with a court of law or with any governmental agency, or for any other purpose, as contemplated by the California Public Accountancy Law; (d) legal or regulatory advice regarding any of your business practices, including with respect to their appropriateness or legality; or (e) tax advice or tax return preparation (although we will provide bookkeeping assistance to your tax preparer of choice). You should seek the services of a duly licensed professional in connection with any of the foregoing. In particular, in compliance with applicable law and accounting standards regarding auditor independence, we cannot (and do not) make any representation or warranty whether any financial records are compliant with GAAP, IFRS or any other accounting standards or rules.

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 this Agreement, including our Acceptable Use Policy, 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

Out of the Box will use Customer Data as described in this Agreement and/or in the Out of the Box 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.

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 this 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, non-exclusive, royalty free, fully paid-up, transferable, and sublicensable license to use the Customer Data to provide, protect and improve the Services and to perform our rights and obligations under this 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 the Services, 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 this Agreement. All rights not expressly granted in this 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 Order 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, third-party websites and services and access, transfer, reformat, and manipulate your account on your behalf in performance of this 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 this Agreement. We will maintain Login Credentials in encrypted form, and we will only use them pursuant to this Agreement or as otherwise directed by you.

2.6  Data Transfer

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 Out of the Box a non-exclusive, worldwide, perpetual, irrevocable, royalty free, fully paid-up, transferable license to use, reproduce, incorporate, disclose, and sublicense the Feedback for any purpose.

2.8  California Consumer Privacy Act and Virginia Consumer Data Protection Act

The following terms apply to the extent and while you are subject to the CCPA or VCDPA and Out of the Box processes personal information (as defined in the CCPA) or personal data (as defined in the VCDPA) as part of Customer Data (“Personally Identifiable Customer Data”):

Out of the Box agrees that it shall not: (a) sell or share any Personally Identifiable Customer Data; (b) retain, use, or disclose Personally Identifiable Customer Data outside the purposes specified in this Agreement or our direct business relationship with you, or (c) combine Personally Identifiable Customer Data with personal data obtained from other sources as prohibited by the CCPA, except, with respect to (b) and (c), as may be otherwise permitted under the CCPA or required by applicable law. As used in this clause, the terms “sell” and “share” have the meaning given to them in the CCPA.

Each of Out of the Box and you acknowledge and agree that: (a) the Personally Identifiable Customer Data is disclosed to Out of the Box only for the limited and specified purpose of Out of the Box’s performance of obligations and exercise of rights under this Agreement, as described herein and in the Out of the Box Privacy Policy; (b) with respect to Personally Identifiable Customer Data, Out of the Box will comply with all applicable obligations under the CCPA or VCDPA, as applicable, and provide the level of privacy protection required of service providers under the CCPA or VCDPA, as applicable; (c) you have the right to take reasonable and appropriate steps to help ensure that Out of the Box uses the Personally Identifiable Customer Data in a manner consistent with your and Out of the Box’s obligations under the CCPA or VCDPA, as applicable, and this Agreement; (d) Out of the Box must notify you if Out of the Box determines that it can no longer meet its obligations under the CCPA and this Agreement; (e) you have the right, upon notice, to take reasonable and appropriate steps to stop and remediate unauthorized use of Personally Identifiable Customer Data; and (f) you shall comply with your obligations as a business or controller under the CCPA and/or VCDPA, as applicable. As used in this clause, the term “business” has the meaning given to it in the CCPA and “controller” has the meaning given to it in the VCDPA. Out of the Box agrees that it will assist Customer with complying with requests from individuals to exercise rights regarding Personally Identifiable Customer Data granted by the CCPA and VCDPA.

3. Confidentiality

3.1  Confidential Information defined

“Confidential Information” means information of one party (or its Affiliates) (“Discloser”) disclosed to the other party (“Recipient”) pursuant to this 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 (a) is known to the Recipient without a confidentiality obligation prior to its disclosure to the Recipient, (b) is independently developed by the Recipient without use of the Discloser’s Confidential Information, (c) is rightfully shared with the Recipient by a third party without confidentiality obligations, or (d) 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 Discloser’s Confidential Information only to exercise rights and fulfill obligations under this Agreement, and (b) use reasonable care to protect against unauthorized disclosure of the Discloser’s Confidential Information to any parties other than the Recipient’s Delegates who need to know such Confidential Information 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 as set forth in this Section 3.2.

3.3  Permitted disclosure of Confidential Information

3.3.1  General

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

3.3.2  Legal Process notification

The Recipient will use commercially reasonable efforts to notify the Discloser before disclosing the Discloser’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 Discloser, with the Discloser’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, plus 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 Discloser 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 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 this 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 any out-of-scope Services for those that are quoted as a fixed fee project will be billed at our then-current standard hourly rate for the respective Service (as we may update it from time to time).

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 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.

4.3  Payment

Out of the Box will collect payment for the fees payable by you under this Agreement automatically via ACH or via Credit Card. You represent that the account you are authorizing for ACH is an account that is not primarily used for personal, familial, or household purposes. By authorizing us to use ACH, you agree to the NACHA Operating Rules that govern ACH payments. Fees are exclusive of taxes, which you’re responsible for if applicable. Notwithstanding any amounts owed to Out of the Box, OUT OF THE BOX DOES NOT PROCESS ANY PAYMENTS. To facilitate payment for the Service via ACH or Credit Card, we use a third-party payment processor (the “Payment Processor”). These payment processing services are provided by the Payment Processor and are subject to the Payment Processor’s terms and conditions, privacy policy, and all other relevant agreements (collectively, the “Payment Processor Agreements”). By agreeing to this Agreement, users that use the payment functions described by this Agreement also agree to be bound by the Payment Processor Agreements for the payment function the user is using, as the same may be modified by the Payment Processor from time to time. You hereby authorize the Payment Processor to store and continue billing your specified payment method even after such payment method has expired, to avoid interruptions in your payments. The Company assumes no liability or responsibility for any payments you make. You authorize Out of the Box and/or the Payment Processor to initiate entries to your business bank checking accounts on file with Out of the Box (using your business address on file) in order to pay amounts that you owe to Out of the Box (including for any Renewal Terms as those payments come due), and, if necessary, to initiate adjustments for any transactions credited or debited in error. 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 this Agreement, all payments are non-refundable and non-creditable. You may cancel your subscription online by emailing us at billing@outoftheboxtechnology.com.

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 this 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 Order Form or you otherwise agree to these terms (for example, by clicking through an online agreement) (the “Effective Date”). Your initial subscription term will begin at the subscription start date and continue, unless terminated earlier, for the 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 Order From or the completion of the Services described in your Order Form (the “Initial Term”). Subscription terms for different types of Services (for example, bookkeeping and tax preparation) may differ.

Certain subscription Services involve periods set by law (for example, a tax year) or by your management (for example, a fiscal year) (“Set Periods“), and aligning the subscription term of such Services with the respective Set Period leads to operational efficiency. Therefore, if the start date of your subscription to Services differs from the start date of an applicable Set Period, you authorize us to adjust the start date of your subscription to align it to the start date of the Set Period, with a corresponding adjustment of billing dates. Such alignment of start dates will not result in an increase of your subscription fees, unless otherwise authorized by this Agreement.

5.2  Automatic renewal

Upon the end of the Initial Term and any Renewal Term, your subscription for the respective Recurring Services will automatically renew, without the need to execute a new Order Form or other agreement, for the same duration (a “Renewal Term”) as the immediately preceding term of such Services, unless you give us non-renewal notice (via billing@outoftheboxtechnology.com) or we give you notice to the email address associated with your account. The non-renewal notice must be provided at least (a) thirty (30) days for monthly or quarterly subscriptions; or (b) sixty (60) days for annual subscriptions, in each case, prior to the end of the then-current Initial Term or Renewal Term, as applicable.

5.3  Termination; Withdrawal

Either party may terminate this Agreement if the other party has materially breached this Agreement upon written notice to the breaching party of the breach and an opportunity to cure of at least 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 this Agreement or any Services for any reason other than your breach of this Agreement, 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 of Services or termination of this Agreement is caused by your breach of this 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, however we will not be obligated to provide a refund of any prepaid subscription fees.

5.4  Effect of termination or expiration 

In the event your subscription to bookkeeping 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 Out of the Box, so that you can elect to maintain that subscription with Intuit or export your data.

After termination of this 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. Sections 2.8 and 3 will survive for three 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 employee or contractor of ours  (“Covered Personnel”) during the term of the Agreement and for one 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 $50,000 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 THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY OUT OF THE BOX. EXCEPT AS EXPRESSLY STATED IN THIS 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 OR ANY OTHER MATTER WHATSOEVER. THE SERVICES, OUR TECHNOLOGY, THE INTERNAL SOFTWARE, OUR TOOLS (INCLUDING AS INTEGRATED WITH ANY OTHER APPLICATIONS) AND ANY OTHER ITEMS OR MATERIALS PROVIDED BY US UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NO WARRANTY IS MADE THAT THE SERVICES, OUR TECHNOLOGY, OUR TOOLS OR ANY OTHER ITEMS OR MATERIALS PROVIDED BY US UNDER THIS AGREEMENT, 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.   YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES, YOUR DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES, ACCESS, DOWNLOADS, OR ANY MATERIALS OR CONTENT OBTAINED THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES, ARE AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF MATERIAL OR CONTENT. 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 60 DAYS FROM THE DATE OF YOUR EXECUTION OF THE ORDER 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 YOU OR ANYONE ELSE 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 THIS AGREEMENT. EXCEPT FOR AMOUNTS DUE TO US UNDER THIS 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 THIS 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 ($100), 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 Service 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 respective 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 this Agreement, (c) any content, information or materials provided by you, or (d) infringement by you, or any third party using your account or identity, 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 Wilmington, Delaware, 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: Out of the Box Technology, LLC, Inc. PO Box 1720 Oregon City, Oregon with a copy sent via email to legal@outoftheboxtechnology.com. 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 Order Form.

11.3  Governing law

The Agreement shall be governed in accordance with the laws of the State of Delaware 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 30 days of notice, you or we may bring a formal proceeding.

11.5  Arbitration

PLEASE READ THIS SECTION CAREFULLY, AS IT LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF, AND REQUIRES YOU ARBITRATE DISPUTES WITH OUT OF THE BOX. If you have a dispute with Out of the Box, Out of the Box will first seek to resolve such a dispute through our support team.

11.5.1  Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND THE COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THE COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION. BOTH YOU AND THE COMPANY AGREE TO HAVE ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT DECIDED BY NEUTRAL BINDING ARBITRATION AND ARE GIVING UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THOSE MATTERS LITIGATED IN A COURT OR JURY TRIAL. BY AGREEING TO THIS AGREEMENT, BOTH YOU AND THE COMPANY ARE GIVING UP THEIR RESPECTIVE JUDICIAL RIGHTS TO DISCOVERY AND APPEAL EXCEPT TO THE EXTENT THAT THEY ARE SPECIFICALLY PROVIDED FOR UNDER THIS AGREEMENT. IF ANY PARTY REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, THAT PARTY MAY BE COMPELLED TO ARBITRATE UNDER FEDERAL, STATE OR PROVINCIAL LAW. BOTH YOU AND THE COMPANY CONFIRM THEIR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.

11.5.2  Agreement to Arbitrate

This Arbitration section is referred to in this Agreement as the “Arbitration Agreement.”  You agree that any and all disputes that cannot be resolved pursuant to the internal issue resolution process identified above will be submitted to and settled by final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and the Company are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

11.5.3  Venue

All disputes arising under or in connection with the Agreement will be submitted to binding arbitration in Wilmington, Delaware, USA pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and the procedures set forth below. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. If your claim is for $10,000 or less, the Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

11.5.4  Arbitration Procedures

The arbitration will take place in Wilmington, Delaware, USA and will apply the governing law of this Agreement. The final and binding arbitration will be performed by a single arbitrator who is a practicing commercial lawyer in English and in accordance with and subject to the Commercial Arbitration Rules of the AAA then in effect. The decision of the arbitrator will be final and binding, and judgment on the award may be entered in any court of competent jurisdiction. The arbitrator will be bound by the warranties, limitations of liability, and other provisions of this Agreement. Notwithstanding the foregoing, each party may seek injunctive relief in a court of competent jurisdiction, where appropriate, to protect its rights pending the outcome of the arbitration.

11.5.5  Costs of Arbitration

Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. To the extent any Arbitration Fees are not specifically allocated to either the Company or you under the AAA Rules, the Company and you shall split them equally; provided that if you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of such Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of any Arbitration Fees, the Company will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, the Company will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.

11.5.6  Confidentiality

All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

11.5.7  Severability

If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of the subsection above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this Agreement will continue to apply.

11.5.8  Future Changes to Arbitration Agreement

Notwithstanding any provision in this Agreement to the contrary, the Company agrees that if it makes any future change to this Arbitration Agreement while you are a user of any Service, you may reject any such change by sending the Company written notice within thirty (30) calendar days of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).

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 30 days after receiving notice of the change (via support at legal@outoftheboxtechnology.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 Order 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 Order Form, the Order 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 are intended third-party beneficiaries of Sections 8 – 10 (inclusive). 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  Compliance

The Services, Our Technology, and derivatives thereof may be subject to U.S. and foreign export laws and regulations. Each party represents and warrants that it is not on any U.S. government denied-party list. You will not permit any User to access or use Our Technology in Russia or in a U.S.-embargoed country or region (which includes the Crimea region, Donetsk People’s Republic (DNR), Luhansk People’s Republic (LNR) of Ukraine, North Korea, Iran, Cuba, and the Syrian Arab Republic) or in violation of any U.S. export law or regulation.

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 30 days of any HIPAA compliance requirements becoming applicable to you and/or us.

12.11  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.

12.12  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.

12.13  Force Majeure

Notwithstanding any provision contained in this 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).

12.14  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 Order Form at the incorrect price. In such event, if you have already paid the incorrect price, we will promptly refund your payment.

13. Definitions

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

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

“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 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.

“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.

“Order 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 data migration Terms), and (ii) any other ordering document or workflow provided by us or on our behalf for ordering Services. Order Form expressly excludes any terms in your purchase order or other similar document provided by you in the ordering process.

“Out of the Box” means Out of the Box Technology, LLC a Michigan limited liability company or an Affiliate thereof.

“party” means a party to this Agreement, unless the context clearly indicates otherwise (e.g., a third party).

“Recurring Services” means any monthly accounting services, bookkeeping services or product orders placed on behalf of you. Unless the context clearly indicates otherwise, “Services” includes Our Technology.

“Services” means the back-office services listed on an Order Form and any other back-office services provided to you by us or on our behalf. Unless the context clearly indicates otherwise, “Services” includes Our Technology.

“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.

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

“you” and “your” means the person or entity listed as customer on an Order Form or, if no such person is listed, then the person or entity who accepts this 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 Order Form represents that such person or entity is authorized to, and does, (a) bind your included Affiliates to this Agreement and (b) provide on behalf of your Affiliates all consents required by this Agreement. The named person or entity and all permitted and included Affiliates of yours shall be parties to this Agreement and shall be jointly and severally liable under this Agreement.