- Client Terms of Use
- Partner Terms Of Use
- Website Terms of Use
These terms were last revised on February 2, 2023.
ACCOUNTING ONLINE TERMS OF SERVICES
The following ACCOUNTING ONLINE TERMS OF SERVICE (this “Agreement” or “Terms”)
are entered into by and between you (“you,” “Participant,” “User,” or “Client”) and EFS
Group, PLLC (“Company”, “EFS Group,” “we”, or “us”). Collectively we may refer to you and
us as “Parties” and individually as a “Party.”
THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR
RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND
EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. THESE
TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE
DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY USING OUR WEBSITE OR PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM
US, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT,
AND YOU ACCEPT WITHOUT EXCEPTION AND ARE FULLY BOUND BY THESE ONLINE
TERMS OF SERVICE IN ADDITION TO ANY APPLICABLE SUPPLEMENTAL TERMS OF
SERVICE. YOU AFFIRM THAT YOU ARE AND END-USER AND THAT YOU ARE NOT
PLACING AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY NOT INDICATED
IN THE SUPPLEMENTAL TERMS OF SERVICE, AND THAT YOU ARE NOT PLACING AN
ORDER FOR COMPETITIVE OR REGULATORY USE.
AS A CONDITION OF PURCHASING AND CONTINUING TO RECEIVE PRODUCTS AND/OR
SERVICES FROM US, YOU AGREE AND UNDERSTAND THAT YOU, YOUR BUSINESS, ITS
OWNERS, AND ITS OFFICERS WILL BE JOINTLY AND SEVERALLY RESPONSIBLE FOR
UNDERSTANDING AND UPHOLDING THE TERMS OF THIS AGREEMENT, AND
THEREFORE LIABLE FOR ANY BREACH. BY PLACING AN ORDER WITH US OR
ACCEPTING SERVICES FROM US, YOU HEREBY WARRANT THAT YOU HAVE THE
CAPACITY TO ENTER INTO THIS AGREEMENT ON THEIR BEHALF.
IF YOU DO NOT AGREE TO BE BOUND TO ALL OF THESE TERMS, DO NOT PURCHASE
FROM US. YOUR FULL ACCEPTANCE OF THESE TERMS IS AN ESSENTIAL CONDITION
TO US PROVIDING OUR PRODUCTS AND SERVICES TO YOU. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, WE RESERVE THE RIGHT TO REFUSE SERVICE TO YOU
AT ANY TIME.
WE RESERVE THE RIGHT TO REVISE THESE TERMS AT ANY TIME. BY ACCESSING
AND/OR USING OUR WEBSITE, ACCOUNTING SERVICES, AND/OR ONLINE SYSTEMS,
YOU AGREE TO ACCEPT AND BE FULLY BOUND BY ANY SUCH REVISIONS WHEN THEY
BECOME EFFECTIVE, WHETHER OR NOT YOU HAVE ACTUALLY REVIEWED THEM. IF
YOU DO NOT AGREE TO ACCEPT AND BE FULLY BOUND BY THIS AGREEMENT, YOU
SHOULD NOT AND ARE EXPRESSLY PROHIBITED FROM HAVING ANY USERS ACCESS
OUR WEBSITE, ACCOUNTING SERVICES, AND/OR OUR ONLINE SYSTEMS.
Services
We will provide to you the Accounting Services as identified in your applicable
Supplemental Terms of Service Agreement and any other agreement for or purchase of
services that explicitly incorporates these Terms (“Accounting Services”).
Below is a list of available services that may be purchased from us. These services may
change from time to time. We are responsible for performing only the services that you
choose in your Supplemental Terms of Service Agreement, and for as long as your
account remains in good standing with us. We reserve the right to refuse service at any
time and for any reason.
1. Available Services
1.1 Expense and Receipt Management
With this service we will help your business track, control, and report expenses related to
your business. We utilize various expense management software, which may include
Hubdoc or other third-party software of our choosing. When utilizing this service, you
agree to legibly upload all receipts in a timely manner.
1.2 Bank Reconciliations
With this service, once per month we will bring your internal bank records (i.e. book
balance) in alignment with your bank statement so that your business’ recorded cash
balance maintains its accuracy and all transactions are accounted for. When utilizing this
service, you agree to continually give us full access to your bank account or uploading
requested bank statements in a timely manner and in accordance with requested
deadlines.
1.3 Financial Statement Preparation
With this service EFS Group will follow General Accepted Accounting Principles (GAAP) to
create financial statements that help gauge your company’s financial health over a
specific period of time. These statements provide information regarding your company’s
financial performance, current conditions, and cash flow. Statements provided with this
service may include the following:
- Balance Sheet – this statement provides detailed information about your
company’s assets, liabilities, and equity ownership. - Income Statement – this statement shows how much money your company made
and spent over a period of time, and gives insight about your company’s
operational performance. - Cash Flow Statement – this statement shows your company’s inflows and
outflows of cash over a specific period of time. - Statement of Shareholders’ Equity – this statement shows changes in the
interests of your company’s shareholders over time. - Explanatory Footnotes – these notes include important disclosures which may include information pertaining to your company’s accounting policies and practices, inventory methods used, income taxes, contingent liabilities, pension plans and other retirement programs, stock options, and more.
1.4 Historical Cleanup
With this service we will work with you to clean and organize your historical bookkeeping
and accounting records. We will review your historical financial records and accounts to
catch prior errors and provide a clearer picture of your past financial information. This
service may require financial statement preparation, which may be billed separately.
1.5 Budgeting
With this service EFS Group will help you establish your business financial goals and
create a 12-month operating budget based on your historical financial statements. We
will meet with you either monthly or quarterly to discuss your budget goals and progress.
This service may require a historical cleanup and/or financial statement preparation,
which may be billed separately.
1.6 Online Payroll
EFS Group provides online payroll processing services using third-party software, which
may include Gusto or similar software applications. Upon signing the initial contract, you
will meet with our Finance Department team where we will give you an overview of what
to expect and communicate what information is needed to set up your payroll
accounts. We will set up your federal accounts and you will be responsible for obtaining
state payroll licenses and, if applicable, workers compensation insurance.
Once fully onboarded, you will receive a payroll report, cash requirement report, and the
date the payroll will be processed. Once you review the report for accuracy and needed
modifications, we will run payroll and send you confirmation of its completion.
This service may require time tracking support, which may be billed separately.
1.7 Time Tracking Support
With this service we will help you utilize the third-party software Gusto to track employee
and contractor time. We will provide instructional videos with helpful information to help
optimize your use of the software. We will use the hours reported in the software to
create payroll and cash requirement reports for your review and approval.
1.8 W2s/1099s
With this service we will help you create W2s and 1099s for services rendered during the
previous work year. EFS Group requires all contractors to send in completed W9s as they
are hired. 1099s will be provided by January 31 st to all contractors who submit their
completed W9s no later than December 31 st of the prior year.
W2s are generated via the third-party software Gusto, which will automatically generate
W2s for each employee. EFS Group will deliver the employee version W2s to you and the
electronic versions to state and federal entities by January 31 st .
1.9 Federal Payroll Tax Payments
EFS Group will set up your federal payroll tax accounts and handle all payroll tax
payments. Payroll tax payments will be collected with each payroll run and will be
immediately submitted electronically via the third-party software Gusto. This service may
require our online payroll service, which may be billed separately.
1.10 Payroll Tax Returns
EFS Group will use federal and state tax IDS to file your payroll tax returns on a monthly,
quarterly, and annual basis. All returns are submitted electronically and are stored in
Gusto for your future reference. To utilize this service, you will need to create a state tax
account, although EFS group will create a federal tax account on your behalf. This service
may also require our online payroll and federal payroll tax payment services, which may
be billed separately.
1.11 Direct deposit and payroll cards
With this service we will help you utilize the third-party software Gusto to allow direct
payments to your employees and contractors. Workers will be required to add their bank
account information and sign a direct deposit authorization form prior to receiving their
first direct deposit.
Alternatively, workers can opt to receive their compensation via prepaid card (i.e. “payroll
card”). We will assist with loading the employee’s or contractor’s wages on the payroll
cards each payday once the worker has provided all necessary payment information.
1.12 New hire onboarding
With this service EFS Group will assist you with your employee onboarding process by
utilizing third-party software such as Jotform, Gusto, Veem, and Teamwork. We will
review their onboarding information, enter them into the system, and schedule their first
payment.
1.13 Benefit administration
EFS Group will act as a liaison between you and the third-party benefit administrator
Gusto. Although EFS Group does not directly handle employee benefits, we will help
connect you to a Gusto specialist who can integrate your company benefits such as
401k, health, dental, vision, and more.
1.14 Business Tax Preparation
EFS Group will ensure that your business follows federal, state, and local tax regulations.
With this service we will seek to take advantage of all tax deductions you qualify for. We
can handle business returns including 1120s (corporations), 1120Ss (S-corporations),
1065s (partnerships), and 990s (non-profits and other exempt organizations).
1.15 Personal Tax Preparation
With this tax preparation service, we will gather, organize, and report your final taxable
income. A professional tax accountant will ensure that tax laws are followed and that
you are given all tax breaks allowed. We may provide tax advice, review a tax return you
have prepared, prepare your tax return using information you have provided, and e-file
your tax return with the Revenue Authority, as applicable.
1.16 Tax Planning
With this service we help you to optimize your tax situation based on your goals and
plans for future. We utilize a variety of strategies that may include maximizing the use of
deductions, credits, exclusions, and allowances, entity optimization and restructuring, and
asset protection activities.
1.17 Forecasting
With this service EFS Group will help you determine the best ways to manage and
allocate your budget so that you can plan for upcoming expenses. We will utilize your
historical data to help you predict future trends in your business and create target goals.
1.18 Tax Resolution
With our tax resolution services, we help you navigate the complicated task of resolving
back tax issues. We will assist you with financial disclosures and analyze your financial
information to help you determine what tax resolutions you may qualify for.
1.19 IRS Representation Services
With this service, EFS Group will help you manage IRS audits by addressing requests for
documentation, reviewing IRS questions, formulating responses, and addressing any
other issues that may arise. We will help you identify the documents you’ll likely need to
present to the auditor that may include budgets, financial statements, receipts, bills,
canceled checks, and other information to support your claimed expenses or deductions.
Our IRS representation services may also include:
Offer in compromise (forms 433-A and 433-B preparation)
Tax lien assistance
IRS levy assistance
Innocent spouse relief
Prior year tax filings
Payment plans and installment agreements
Reduction of penalties
1.20 Accounts Receivable
With this service we help improve your cash flow by managing your Accounts receivables
process. This service may include streamlining invoicing and initiating debt collection
activities.
With this service we help manage your short-term liabilities and cash flow with activities
that may include verifying invoices, maintaining master vendor files, routing invoices for
approvals, coding charges, and processing vendor payments.
1.22 CFO Services
With our CFO service we will partner with you to help you identify and overcome financial
challenges as well as optimize growth, implement systems, raise capital, strategically
utilize capital, manage cash flow, or navigate high-stakes audits or transactions.
1.23 Additional Financial Services
EFS Group offers additional services to support your business, including bookkeeping,
inventory reconciliation, advisory, payroll, and other financial services.
1.24 Additional Services Billed Hourly
EFS Group may charge an additional hourly service fee for manual data entry, tax
schedules, or other services not mentioned in these Terms.
Tax Service Considerations
Tax return preparation services do not constitute accounting or auditing services. We will
rely on the information you provide to us as being complete and accurate. We will not
audit or otherwise verify this data, although we may ask you to clarify some of the
information. Therefore, our services cannot be relied upon to disclose errors, fraud, or
other illegal acts that may exist, nor will we be responsible for the impact on our services
of incomplete, missing, or withheld information, or mistaken or fraudulent data provided
from any source or sources. However, we will inform you of any material errors,
fraudulent financial reporting, or misappropriation of assets that come to our attention.
You have the sole responsibility and liability for reviewing and verifying all
tax returns and results from the Accounting Services for accuracy and completeness,
and for verifying that all required forms have been filed with the IRS or applicable
Revenue Authority, even if those forms are supported by the Accounting Services.
1.21 Accounts Payable
If we e-file your tax return, we will collect and send your Tax Information to the Revenue
Authority that you designate. In compliance with applicable law, we will keep an electronic
copy of your Tax Information, including e-filing details and status.
Unless otherwise stipulated under a statement of work, you understand that all individual
partners, S-corporation shareholders, and LLC members are responsible for submitting
their individual K-1s to their own tax preparers for inclusion with their individual tax
returns.
Our firm might, as the need arises, contact taxing authorities about your account to verify
information. Any information so acquired will only be utilized in the preparation of the tax
returns. We may also alert and provide information to Revenue Authorities to correct or
identify errors in any submissions.
If a taxing authority should later contest the position taken, there may be an assessment
of additional tax, interest, and penalties. We assume no liability for any such assessment
of additional tax, penalties, or interest. If you ask us to take a tax position that in our
professional judgment will not meet the applicable laws and standards as promulgated,
we reserve the right to stop work and will not be liable for any damages that occur
because we cease to render services.
Cryptocurrency Considerations
Please note that the Internal Revenue Service (IRS) considers cryptocurrency (e.g.,
Bitcoin, Ethereum, Litecoin, Dogecoin, etc.) as property for U.S. federal tax purposes. Any
transactions that use cryptocurrency are subject to the same general tax principles that
apply to other property transactions. If you had cryptocurrency activity during the tax
year, you may be subject to tax consequences associated with such transactions and
may have additional foreign reporting obligations.
You agree to provide us with complete and accurate information regarding any
transactions involving cryptocurrency during the applicable tax year.
Online, Mobile, and Third-Party Software
Applications
You may have access to an online portal and/or mobile application that allows you to
manage information, interface with a tax professional, and access different Accounting
Services. You are prohibited from storing any documents or files that do not relate to our
Accounting Services or financial products or services (“Unrelated Files”). EFS Group
reserves the right to delete without notice Unrelated Files stored in the online portal and
revoke your access to the online portal and/or mobile application for violation of these
Terms.
While providing Accounting Services we may at our sole discretion utilize, or provide for
your use, various third-party software, applications, and platforms (“Third-Party
Software”) for your convenience. Third-Party Software may include Quickbooks, JotForm,
Gusto, TeamWork, IRS e-file providers, Electronic Federal Tax Payment System (EFTPS),
Veem, and more. You will be responsible for creating and maintaining an account with,
and fully complying with the terms and conditions of any applicable Third-Party Software.
You further understand and agree that EFS Group does not control any Third-Party
Software, does not make any guarantees regarding it, and expressly disclaims all liability
for any mistakes, errors, omissions, glitches, and unavailability for said software.
Communications and Meetings
You agree that your timely communication is critical to the successful performance of
our Accounting Services. You agree to participate in scheduled calls or video chats
whenever requested. These meetings may be ad hoc or held on a recurring basis. You
further agree to complete intake forms and provide feedback whenever requested. Your
failure to participate in meetings, provide requested feedback, or complete intake forms,
may likely delay the completion of Accounting Services and/or materially impact the
accuracy and quality of those services.
Notices
We will direct any notices to you to either the point of contact specified in the
Supplemental Agreement, or if a Supplemental Agreement is not on file for you, to the
email and/or physical address we have on file for you.
Changing Laws
We will use our professional judgment while performing Accounting Services based on
the information you provide to us given the financial and tax law guidance as currently
promulgated. Subsequent developments issued by the applicable authorities may affect
the information we have previously provided, and these effects may be material.
Whenever we are aware that a possibly applicable tax or financial law is unclear or that
there are conflicting interpretations of the law by authorities (e.g., tax agencies and
courts), we will share our knowledge and understanding of the possible positions that
may be taken. In accordance with our professional standards, we will follow whatever
position you request, if it is consistent with the codes, regulations, and interpretations
that have been promulgated.
Client Responsibilities
1. Provide Access to Information
In order for us to provide Accounting Services to you, you agree to give us full access to
the financial information we request. By providing information to us, you give us a
perpetual and royalty-free license to reproduce, use, store, and process any information
that you provide, including your personal information, to the extent that it is necessary for
us to provide the Accounting Services, enforce our rights, and collect any debts you owe
to us.
You agree to cooperate with us, provide all information and copies of all documents
requested, respond to “Open Items” requests, and review information provided by us in a
timely manner that is reasonably in advance of any applicable deadlines, including
deadlines that are tax related. If you fail to cooperate with us, provide all information
requested by us, review information provided by us in a timely manner, or the information
provided to us is inaccurate, Accounting Services provided to you may be inaccurate or
incomplete, and any guarantee offered by us will be void.
2. Abide by Deadlines
You understand that your adherence to deadlines is critical to us effectively performing
Accounting Services for you. As such, you agree to abide by all deadlines given to you by
us. You understand and explicitly agree that you will bear full responsibility for your
failure to adhere to any deadlines, which may include one or more of the following:
Your project incurring rush fees of $500 or more.
Your project being archived and incurring restart fees of $500 or more.
A stop work order being applied to your project until the required information has
been received and any rush or restart fees have been paid.
Your project incurring unfavorable outcomes, potential liability, and additional fees
and penalties by regulatory bodies and third parties.
You will not receive any refunds or reduction of fees owed for the duration of the
Term for any projects that have been archived or have an active stop work order.
3. Provide Accurate Information
You represent that all information you provide is true and accurate and that you have the
right to provide the information to us. If you provide, or we reasonably believe you have
provided, information that is false, incorrect, incomplete, pornographic, or improper, we
have the right to delete the information, suspend any of your accounts, and refuse all
current or future use of the Accounting Services.
4. Accounts, Licenses, and Insurance
You agree that you are responsible for obtaining and maintaining any licenses, permits,
third-party software accounts, and insurance necessary for the successful performance
of Accounting Services.
Term
Unless specified otherwise in the Supplemental Terms of Service Agreement, the Term of
this Agreement will begin once your payment is received and shall continue until all
services have been rendered or it is terminated in accordance with the termination terms
herein below.
The rights and obligations of the parties set forth in this Agreement which, by their nature,
should survive termination or expiration of this Agreement will survive any such
termination or expiration of this Agreement.
Fees and Payments
You are responsible for all payments for the entire Term and for all Accounting Services.
All fees for the Accounting Services are non-refundable and must be paid in full before
work can begin. Unless we specify otherwise in writing, you understand that if we accept
payments in the form of a monthly fee, this does not convert the Agreement to a monthly
subscription plan, nor does it convert the term to become monthly and renewable.
If you utilize fewer services than provided within any flat rate service plans in a particular
period, you expressly agree that you will not receive a refund, rollover, or similar credit in
the following period for those unused Accounting Services in the previous period.
Furthermore, if you require additional Accounting Services than provided in your
Supplemental Terms of Service Agreement in any period, we will provide those extra
Accounting Services only upon pre-agreed terms, conditions, and additional payment.
You agree that all fees, including any applicable taxes, that you are responsible for, will be
debited from a bank account or charged to a credit card. FOR BANK DEBIT OR CREDIT
CARD PAYMENT, YOU HEREBY AUTHORIZES US TO DEBIT THE BANK ACCOUNT OR
CHARGE THE CREDIT CARD, AS THE CASE MAY BE, THAT HAS BEEN DESIGNATED BY
YOU. You may be assessed additional fees and costs if your bank debit or credit card are
declined for any reason.
Waiver or tolerance by us of any delay in payment of any fee shall not be construed as
waiver of any future such payment delay.
Rates Subject to Change
We expressly reserve the right to change our rates, services offered, and the composition
of our service package, with or without notice to you. Notwithstanding anything to the
contrary, the prices agreed upon in your applicable Supplemental Terms of Service shall
continue to apply for the duration of the Term, but are subject to increases upon contract
renewal.
We also reserve the right to update these Accounting Online Terms at any time with
written notice to you. You expressly acknowledge and agree to be fully bound by those
changes.
New Products, Services, and Updates
Periodically, we may incorporate new products, services, updates, and releases (“New
Releases”). All New Releases shall be governed by the same terms and conditions of this
Agreement.
Refunds, Chargebacks, and Defaulted Payments
Policy
You agree to reimburse us for all collection and/or legal fees and expenses necessitated
by lateness or default in payment. You further understand and agree that your company
and all its owners shall be jointly and severally liable for all payments and obligations
under these Terms, and as such, will be subject to any disclosure and collection efforts.
You agree and understand that all payments, including but not limited to credit card
charges, checks, and wire transfers, for the purchase of any of our products or services
are irrevocable and may not be charged back now or in the future, by you or your credit
card company, banking institution, payment processor, agents, owners, or designees.
Any initiation of a payment reversal or chargeback related to you, your account, or
Accounting Services will be considered a material breach of this Agreement. As such,
any material breaches committed by you shall entitle us to collect any resulting fees we
incur, including but not limited to attorney fees, collection fees, and other costs
associated with addressing chargebacks/payment reversals.
If a payment reversal/chargeback is initiated by you or on your behalf and we are not fully
reimbursed for the reversal/chargeback within ten (10) calendar days, we reserve the
right to turn those charges and your information over to third parties for collection and/or
report you to one or all credit reporting agencies, in addition to pursuing other legal
remedies which we hereby explicitly reserve. We shall have at our sole disposal any other
legal remedy in accordance with this Agreement we independently choose to pursue for
any collection against you.
Notwithstanding anything in this Agreement to the contrary, we explicitly reserve the right
to use and disclose your, your business’, and your business’ owners’ personal and
sensitive information to third parties to the extent reasonably necessary to collect
payments and enforce our rights under this Agreement. The information disclosed may
include, but is not limited to, names, email addresses, purchase date, purchase amounts,
and billing addresses related to your account.
You further agree that us providing proof of your purchase from us is all that is necessary
to establish the legitimacy of any charge to your credit card agency, banking institution, or
payment processor, and is therefore sufficient support documentation to deny any
chargeback/payment reversal initiated by you or on your behalf.
Information Disclosure to Third Parties and
Collections
Notwithstanding anything in this Agreement to the contrary, we reserve the right to use
and disclose your personal and sensitive information to third parties to the extent
reasonably necessary to fulfill our obligations and enforce our rights under this
Agreement. We will not otherwise use, sell, rent, transfer, distribute, or otherwise disclose
or make available your information for our own purposes or for the benefit of anyone
other than you. You hereby irrevocably consent to us sharing your personal and/or
identifying information to third parties, including but not limited to, collection agencies
and credit bureaus, in order collect or report any monies owed by you under this
Agreement.
Suspension or Termination of Services
We reserve the right to suspend or terminate Accounting Services immediately for non-
payment of any fees as well as for any violation of this Agreement. Suspension or
termination of services in accordance with this section will not excuse you of your
obligation to pay any remaining instalment fees, when applicable, or the balance of any
monies owed in connection with the Accounting Services.
Waivers
No waiver by us regarding any of the provisions of this Agreement shall be effective
unless explicitly set forth in writing and signed by our duly authorized agent. Except as
otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any
right, remedy, power, or privilege arising from this Agreement shall operate or be
construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege.
We and our personnel, agents, and assigns are independent contractors and are not your
employees. Nothing in this Agreement shall be construed to create a partnership, joint
venture, or employment relationship between us and you.
Forces Majeure
Neither we nor our assigns, employees, owners, agents, or other third parties acting on
our behalf will be liable or responsible to you, nor be deemed to have defaulted or
breached this Agreement, for any failure or delay in our performance under this
Agreement when and to the extent such failure or delay is caused by or results from acts
or circumstances beyond our reasonable control, including, without limitation, acts of
God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities
(whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national,
state, or local emergency, revolution, insurrection, epidemics, pandemics, lockouts,
strikes, labor disputes (whether or not relating to our workforce), restraints or delays
affecting carriers, inability or delays in obtaining supplies of adequate or suitable
materials, telecommunication breakdowns, or power outages.
COVID-19
By agreeing to these Terms, you understand that COVID-19 is a highly contagious and
potentially lethal virus for which there is no known cure. You understand that COVID-19
can impact anyone of any age and of any fitness level, regardless of any underlying health
issues, and that it may cause long-term or even permanent physical injury or death.
YOU AND YOUR REPRESENTATIVES AND DESIGNEES UNDER THIS AGREEMENT
VOLUNTARILY, KNOWINGLY, AND EXPRESSLY ASSUMES ANY AND ALL RISK THAT
MAY RESULT FROM IN-PERSON INTERACTION WITH OTHERS IN CONNECTION WITH
THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE RISK OF EXPOSURE TO
COVID-19 AND THE POSSIBLE TRANSMISSION OF COVID-19 TO OTHERS.
Intellectual Property
1. Deliverables
Any Accounting Services deliverables (“Deliverables”) submitted to you under this
Agreement are for your non-competitive, non-regulatory, and internal use only and remain
our intellectual property. You are hereby granted a restricted, revocable, and non-
transferable license to use these deliverables internally, provided that your use is in strict
adherence with this Agreement. Under no circumstances may you duplicate, redistribute,
sell, or create derivative works from any Deliverables, document, contract, draft,
communication, or information provided to you under this Agreement without our
express written permission. We reserve all creative, trademark, and copyrights, including,
but not limited to our right to reuse the content we create.
Notwithstanding anything contained in this section to the contrary, any content or
information provided by and/or owned by you shall remain your property.
2. Content
All content provided to you or on our website such as text, graphics, logos, images, free
content, forms, and resources (“Content”) is the property of EFS Group and/or our
suppliers and is protected by copyright and other intellectual property laws. Your access
to Content does not result in a transfer of any intellectual property to you. You agree to
observe and abide by all copyright and other proprietary notices, legends or other
restrictions contained in any such Content and will not make any changes thereto.
You agree to not modify, resell, publish, transmit, reverse engineer, participate in the
transfer or sale, create derivative works, or in any way exploit in whole or in part any of the
Content.
You agree to use our website, Deliverables, and Content solely as a non-competitive end-
user, and will make no other use thereof without our express written permission. You
agree that you do not acquire any ownership rights in any protected material. We do not
grant you any licenses, express or implied, to any Content, Deliverables, or other
intellectual property of ours except as expressly authorized by these Terms.
3. Trademarks
Our company name, logo, slogan(s), and all related names, logos, product and service
names, designs, and slogans are trademarks of ours or our affiliates or licensors. All
other names, logos, product and service names, designs and slogans on this Website are
the trademarks of their respective owners. You agree not to use any marks without
receiving the mark’s owner’s prior written permission.
You hereby agree that any infringement of our intellectual property rights and misuse of
the Deliverables, Content, trademarks, or intellectual property shall result in an immediate
termination of the license granted hereunder in addition to other remedies contained in
this Agreement, including but not limited to, the legal remedies available to us in both law
and equity. If you violate our intellectual property rights or misuse the Deliverables,
Content, or our intellectual property, we reserve the right to immediately terminate your
account and deny any refund or any portion of fees paid and/or owed by you.
Non-Disparagement
You agree that you will not engage in any conduct or communications with a third party,
public or private, designed to disparage our Company. You agree that neither you nor any
of your associates, employees, agents, representatives, or affiliates will directly or
indirectly, in any capacity or manner, make, express, transmit, speak, write, publish,
verbalize or otherwise communicate in any way (or cause, further, assist, solicit,
encourage, support or participate in any of the foregoing), any remark, comment,
message, information, declaration, communication or other statement of any kind,
whether verbal, in writing, electronically transferred or otherwise, that might reasonably
be construed to be derogatory or critical of, or negative toward, our Company or any of
our services, participants, owners, directors, officers, Affiliates, subsidiaries, employees,
agents or representatives.
You further agree that neither you nor anyone acting on your behalf will publish, post, or
otherwise release any material in written or electronic format, make speeches, gain
interviews, or make public statements that mention our Company, operations, clients,
customers, employees, vendors, products, or services without the prior written consent of
our authorized representative.
No Soliciting
You understand and hereby agree that any attempt to induce our employees or
contractors to leave our employ or interfere with our relationship with other customers,
clients, employees, workers, or other service providers would be harmful and damaging to
us.
During the Term of this Agreement and for a period of two (2) years after its expiration or
termination, you agree to not in any way directly or indirectly:
a) Induce or attempt to induce any of our employees or other service providers to
quit employment or retainer with us;
b) Otherwise interfere with or disrupt our relationship with any of our employees
or workers;
c) Discuss employment opportunities or provide information about competitive
employment to any of our employees or other workers; or
d) Solicit, entice, or hire away any of our employees or workers;
e) Solicit, entice, induce, or attempt to induce any customer, client, or reasonably
potential client or customer of ours to undertake or cause any action that
would negatively impact our business, including, but not limited to, ceasing to
engage with or continue doing business with us.
Indemnification
YOU AGREE TO INDEMNIFY AND HOLD COMPANY COMPLETELY HARMLESS FROM
AND AGAINST ANY AND ALL CLAIMS, DEMANDS, OR LIABILITY (INCLUDING ALL COSTS,
EXPENSES AND REASONABLE ATTORNEY’S FEES IN DISPOSING OF AND DEFENDING
ANY SUCH CLAIMS, DEMANDS OR LIABILITY) ARISING OUT OF THE ACCOUNTING
SERVICES EXCEPT TO THE EXTENT THAT THE CLAIM, DEMAND, OR LIABILITY IS A
RESULT OF COMPANY’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS
INDEMNIFICATION PROVISION IS TO BE READ TO AFFORD COMPANY THE BROADEST
PROTECTION PERMITTED BY LAW.
YOU ALSO HEREBY AGREE TO INDEMNIFY AND HOLD COMPANY HARMLESS FROM
AND AGAINST ANY CLAIMS, LOSSES, COSTS, DAMAGES, LIABILITIES, JUDGMENTS,
SETTLEMENTS OR REGULATORY ACTIONS, INCLUDING COSTS, FINES, EXPENSES AND
REASONABLE ATTORNEYS’ FEES ARISING FROM OR IN ANY MANNER RELATING TO
ACTIONS BROUGHT BY YOU OR OTHERS IN CONNECTION WITH YOUR MISCONDUCT
OR BREACH OF CONTRACT. THIS INDEMNIFICATION PROVISION IS TO BE READ TO
AFFORD COMPANY THE BROADEST PROTECTION PERMITTED BY LAW.
THE PARTIES AGREE THAT THE OBLIGATIONS CONTAINED WITHIN THIS SECTION
WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
Assignment
You may not assign this Agreement without our prior written consent. Any attempted
assignment, delegation, or transfer of this Agreement by you to a third party in violation of
this assignment restriction shall be null and void. We reserve the right to assign this
Agreement and any or all of our rights and/or obligations under this Agreement to any
parent, subsidiary, affiliate, successor, or designated third party without your consent.
Subject to the foregoing limitation upon assignment, this Agreement shall be binding
upon and inure to the benefit of the Parties hereto and the respective heirs, personal and
legal representatives, successors and assigns of the Parties.
ARBITRATION AND CHOICE OF LAW
WITH REGARD TO ANY CLAIMS YOU MAY HAVE NOW OR IN THE FUTURE, ARISING OUT
OF OR RELATING TO THIS AGREEMENT, OUR COMPANY, OUR PRODUCTS, OR OUR
SERVICES, YOU HEREBY EXPRESSLY AGREE TO WAIVE ANY RIGHT TO TRIAL BEFORE A
JURY OR JUDGE IN A COURT OF LAW AND TO PRESENT SUCH CLAIM ONLY THROUGH
BINDING ARBITRATION IN ACCORDANCE WITH THE FOLLOWING:
THESE TERMS AND ALL RELATED DOCUMENTS, PROGRAMS, INCLUDING ALL EXHIBITS
ATTACHED HERETO, AND ALL MATTERS ARISING OUT OF OR RELATING TO THESE
TERMS, WHETHER SOUNDING IN CONTRACT, TORT, OR STATUTE, ARE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, UNITED
STATES OF AMERICA, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PROVISIONS THEREOF TO THE EXTENT SUCH PRINCIPLES OR RULES WOULD REQUIRE
OR PERMIT THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN
THOSE OF THE STATE OF TEXAS.
UNLESS REMEDIES HAVE BEEN EXPLICITLY PROVIDED FOR OTHERWISE IN THESE
TERMS AND THE AGGRIEVED PARTY CHOOSES TO ENFORCE ITS RIGHTS IN
ACCORDANCE AND EXCLUSIVELY WITH THOSE REMEDIES, AND EXCLUDING SUITS FOR
INJUNCTIVE RELIEF AND THE ENFORCEMENT OF AN AWARD, THE ONLY MEANS FOR
RESOLVING ADVERSARIAL DISPUTES ARISING OUT OF THESE TERMS SHALL BE AS
FOLLOWS:
FOR ANY DISPUTE, CLAIM OR CONTROVERSY UNDER $25,000 IN VALUE ARISING OUT
OF OR RELATING TO THESE TERMS, OR THE BREACH THEREOF, ANY SUCH DISPUTE
SHALL BE RESOLVED BY ARBITRATION ADMINISTERED BY FAIRCLAIMS
(WWW.FAIRCLAIMS.COM) IN ACCORDANCE WITH ITS SMALL CLAIMS RULES &
PROCEDURES EFFECTIVE AT THE TIME A CLAIM IS MADE, AND JUDGMENT ON THE
AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION THEREOF.
FOR ANY DISPUTE, CLAIM OR CONTROVERSY AT LEAST $25,000.01 IN VALUE ARISING
OUT OF OR RELATING TO THESE TERMS, OR THE BREACH THEREOF, ANY SUCH
ARBITRATION ADMINISTERED BY FAIRCLAIMS (WWW.FAIRCLAIMS.COM) IN
ACCORDANCE WITH ITS FASTTRACK RULES & PROCEDURES FOR CLAIMS OVER
$25,000 EFFECTIVE AT THE TIME A CLAIM IS MADE, AND JUDGMENT ON THE AWARD
RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION THEREOF.
EACH PARTY HEREBY EXPRESSLY CONSENTS TO ANY SUCH DISPUTES BEING SO
RESOLVED BY THESE ARBITRATION TERMS, AND THAT ALL PROCEEDINGS BE
EXCLUSIVELY CONDUCTED REMOTELY. IF REMOTE ATTENDANCE IS NOT AVAILABLE,
ALL ARBITRATION HEARINGS SHALL BE CONDUCTED IN ANY SUITABLE FACILITY
LOCATED IN THE HOUSTON, TEXAS AREA. YOU HEREBY CONSENT TO ELECTRONIC
SERVICE OF PROCESS, WITH SERVICE TO BE MADE TO THE EMAIL ADDRESS THAT
COMPANY HAS ON FILE FOR YOU.
JUDGMENT ON THE AWARD RENDERED IN ANY ARBITRATION HEARING SHALL BE
BINDING, NON-APPEALABLE, AND ENTERED IN ANY COURT HAVING JURISDICTION.
THE ARBITRATOR SHALL HAVE THE POWER TO RULE ON HIS OR HER OWN
JURISDICTION, INCLUDING ANY OBJECTIONS WITH RESPECT TO THE EXISTENCE,
SCOPE, OR VALIDITY OF THE ARBITRATION TERMS OR TO THE ARBITRABILITY OF ANY
CLAIM OR COUNTERCLAIM. THE ARBITRATOR SHALL HAVE THE POWER TO
DETERMINE THEIR OWN JURISDICTION AND THE EXISTENCE OR VALIDITY OF A
CONTRACT OF WHICH AN ARBITRATION CLAUSE FORMS A PART. SUCH AN
ARBITRATION CLAUSE SHALL BE TREATED AS AN AGREEMENT INDEPENDENT OF THE
OTHER TERMS OF THE CONTRACT. IF ANY PROVISION OF THIS ARBITRATION
AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE
SEVERED AND THE REMAINING ARBITRATION TERMS SHALL BE ENFORCED.
YOU FURTHER AGREE TO AND DO HEREBY WAIVE ANY RIGHT TO CLASS ARBITRATION
AND AGREE, INSTEAD, TO CONDUCT AN ARBITRATION RELATED SOLELY TO ANY
INDIVIDUAL CLAIMS YOU AND/OR ANY ENTITY RELATED TO YOU ASSERTS AGAINST
THE COMPANY.
EACH PARTY SHALL BE RESPONSIBLE FOR ITS OWN COSTS ASSOCIATED WITH
ARBITRATION.
IN THE EVENT THAT ARBITRATION IS INAPPLICABLE OR IMPOSSIBLE, ALL PARTIES
AGREE THAT HARRIS COUNTY, TEXAS WILL BE THE SOLE AGREED VENUE FOR
LITIGATION NECESSARY TO ENFORCE THIS AGREEMENT. HOWEVER, NOTHING IN
THIS AGREEMENT OR IN THESE ARBITRATION TERMS SHALL PREVENT ANY PARTY
FROM APPLYING TO AND OBTAINING FROM ANY COURT HAVING JURISDICTION A
TEMPORARY INJUNCTION, PRELIMINARY INJUNCTION, PERMANENT INJUNCTION, OR
OTHER EQUITABLE RELIEF AVAILABLE TO PREVENT IMMEDIATE LOSS. ANY PARTY
SHALL ALSO BE ENTITLED TO FILE IN ANY COURT HAVING JURISDICTION ANY SUIT
NECESSARY TO ENFORCE A DECISION OR AWARD RESULTING FROM AN ARBITRATION
PROCEEDING.
THE PARTIES AGREE THAT THE OBLIGATIONS CONTAINED WITHIN THIS SECTION
WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
Headings
The section headings in this Agreement and in your applicable Supplemental Terms of
Service Agreement are for your and our convenience and in no way shall be interpreted to
alter, modify, amend, limit, or restrict any party’s contractual rights or obligations.
Entire Agreement
Unless otherwise specified herein or in your Supplemental Terms of Service Agreement
with us, these Terms, the Supplemental Terms of Service Agreement, and any other
documents expressly incorporated by reference constitute the entire agreement between
you and us with respect to our products and services, and supersede all prior or
contemporaneous communications and proposals, whether electronic, oral, or written,
between you and us. A printed version of this agreement and of any notice given in
electronic form shall be admissible in judicial or administrative proceedings based upon
or relating to this agreement to the same extent and subject to the same conditions as
other business documents and records originally generated and maintained in printed
form.
Contact Us
We welcome your questions or comments regarding the Terms:
EFS Group, PLLC
Phone: (888) 311-6375
Fax: (832) 553-7612
Email: info@efsgllc.com
These terms were last revised on October 27, 2022.
WHITE LABEL BOOKKEEPING TERMS OF
SERVICE
The following WHITE LABEL BOOKKEEPING TERMS OF SERVICE (this “Agreement” or
“Terms”) are entered into by and between you (“you,” “Partner,” “Participant,” “User,” or
“Client”) and EFS Group, PLLC (“Company”, “EFS Group,” “we”, or “us”). Collectively we may
refer to you and us as “Parties” and individually as a “Party.”
THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR
RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND
EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. THESE
TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE
DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY USING OUR WEBSITE OR PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM
US, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT,
AND YOU ACCEPT WITHOUT EXCEPTION AND ARE FULLY BOUND BY THESE TERMS IN
ADDITION TO ANY APPLICABLE SUPPLEMENTAL TERMS THAT ARE INCORPORATED
HEREIN. YOU AFFIRM THAT YOU ARE AND END-USER AND THAT YOU ARE NOT
PLACING AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY NOT INDICATED
IN YOUR ORDER, AND THAT YOU ARE NOT PLACING AN ORDER FOR COMPETITIVE OR
REGULATORY USE.
AS A CONDITION OF PURCHASING AND CONTINUING TO RECEIVE PRODUCTS AND/OR
SERVICES FROM US, YOU AGREE AND UNDERSTAND THAT YOU, YOUR BUSINESS, ITS
OWNERS, AND ITS OFFICERS WILL BE JOINTLY AND SEVERALLY RESPONSIBLE FOR
UNDERSTANDING AND UPHOLDING THE TERMS OF THIS AGREEMENT, AND
THEREFORE LIABLE FOR ANY BREACH. BY PLACING AN ORDER WITH US OR
ACCEPTING SERVICES FROM US, YOU HEREBY WARRANT THAT YOU HAVE THE
CAPACITY TO ENTER INTO THIS AGREEMENT ON THEIR BEHALF.
IF YOU DO NOT AGREE TO BE BOUND TO ALL OF THESE TERMS, DO NOT PURCHASE
FROM US. YOUR FULL ACCEPTANCE OF THESE TERMS IS AN ESSENTIAL CONDITION
TO US PROVIDING OUR PRODUCTS AND SERVICES TO YOU. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, WE RESERVE THE RIGHT TO REFUSE SERVICE TO YOU
AT ANY TIME.
WE RESERVE THE RIGHT TO REVISE THESE TERMS AT ANY TIME. BY ACCESSING
AND/OR USING OUR WEBSITE, BOOKKEEPING SERVICES, ACCOUNTING SERVICES,
AND/OR ONLINE SYSTEMS, YOU AGREE TO ACCEPT AND BE FULLY BOUND BY ANY
SUCH REVISIONS WHEN THEY BECOME EFFECTIVE, WHETHER OR NOT YOU HAVE
ACTUALLY REVIEWED THEM. IF YOU DO NOT AGREE TO ACCEPT AND BE FULLY
BOUND BY THIS AGREEMENT, YOU SHOULD NOT AND ARE EXPRESSLY PROHIBITED
FROM PLACING AN ORDER OR ALLOWING ANY USER TO ACCESS OUR WEBSITE,
SERVICES, AND/OR OUR ONLINE SYSTEMS.
1. SCOPE.
These Terms shall apply and be deemed incorporated by reference to each order that is
placed via the Order Form which references or accompanies these Terms of Service.
Partner will order from EFS, and EFS agrees to provide the Services in accordance with
the terms and conditions set forth herein and as set forth in the Order Form. The Order
Form is hereby incorporated into this Agreement.
2. ORDERING.
Partner will procure Services using an Order Form that references these Terms.
Partner’s subscription plan for the Services is specified in the applicable Order Form.
Such Order Form will be binding upon signature by both Partner and EFS.
2.1. Term.
These Terms commence on the Effective Date of the applicable Order From (the
“Effective Date”) and will continue for the period set forth in the Order Form, unless
terminated earlier pursuant to Section 12.1 (the “Initial Term”).
2.2. Renewal.
The Initial Term shall automatically renew for one (1) successive twelve (12) month
term (the “Renewal Term” together with the Initial Term, the “Term”) unless either party provides written notice to the other party of their intention not to renew the Order Form
at least sixty (60) days prior to the expiration of the then-current Term. EFS may not
increase the Fees set forth in the applicable Order Form during the then-current Term.
EFS may increase such Fees in any upcoming Renewal Term by no more than five
percent (5%) of the total Fees of the then-current Term, provided that EFS notifies
Partner of any Fee increase at least ninety (90) days prior to the expiration of the then-
current Term.
2.3. Electronic and Automatic Upgrades.
Partner may add additional scope or work requests via an Order Form at any time. Fees
for the Term will be charged at the rate specified in the Order Form, and in any Renewal
Term. If Partner exceeds the then-current volume tier for the applicable Service set forth
in the Order Form, Partner will automatically be upgraded to the next subscription tier.
Additionally, the same mechanism applies for each and every Partner Customer’s
Average Monthly expenses, such that an increase in Average Monthly expenses into a
higher tier range will result in an automatic price increase for that particular Partner
Customer according to the then current Average Monthly expense pricing tiers.
2.4. Committed Minimum Entity and Average Expense Tiers.
Partner may not reduce its commitment under the Service subscription plan specified in
the Order Form during the applicable Term. Partner is not entitled to any refund of fees
paid or relief from fees due if the volume of Services Partner actually uses is less than
the Partner’s committed volume set forth in the Order Form, and Partner may not carry
over any unused volume to Partner’s next Renewal Term.
2.5. Order Form Control.
In the event of a conflict between the terms and conditions of these Terms and those of
an Order Form, the terms and conditions of these Terms will control, provided that to
the extent any Order Form includes terms and conditions not addressed in these Terms
or not in conflict with the terms and conditions of these Terms, then such Order Form
terms and conditions will supplement and be a part of these Terms.
3. FEES, PAYMENT TERMS & TAXES.
3.1. Fees.
Partner will pay EFS the Fees set forth in an applicable Order Form for the Services as
consideration for the Services provided by EFS in accordance with these Terms, with the
first such payment due immediately. All Fees paid up through the point of termination
or expiration shall be nonrefundable.
3.2. Payments.
Payment will be facilitated by auto debit via ACH or Credit Card. EFS will request
Partner’s banking or credit card information separately via a secure form and process
recurring autopay for EFS services.
3.3. Late Payments, Disputes, & Chargebacks.
Partner will incur a monthly finance charge of one and a half percent (1.5%) for any
balance that is overdue by thirty (30) days. Services shall be suspended if past due
amounts are over forty-five (45) days past due. Partner shall be responsible for any
reasonable and documented costs incurred by EFS in the collection of unpaid invoices
that are more than ninety (90) days past due, including, but not limited to, collection and
filing costs and reasonable attorney’s fees.
If Partner disputes any portion of an invoice, Partner agrees to pay the undisputed
portion of the invoice and to submit a written dispute within ten (10) business days of
the invoice date. Partner’s dispute must include written documentation to support the
dispute. Upon receipt of a written dispute from Partner, the parties will attempt to
resolve the dispute through good faith negotiation. If the parties fail to resolve such
dispute within sixty (60) days after delivery of such notice, then either party may seek
arbitration in accordance with the procedures set forth in Section 14.2. Partner’s failure
to submit a written dispute of charges within such time shall be deemed final
acceptance of all charges.
Partner agrees to reimburse EFS for all collection and/or legal fees and expenses
necessitated by lateness or default in payment. Partner further understands and agrees
that its company and all its owners shall be jointly and severally liable for all payments
and obligations under these Terms, and as such, will be subject to any disclosure and
collection efforts.
Partner agrees and understands that all payments, including but not limited to credit
card charges, checks, and wire transfers, for the purchase of any of EFS’s products or
services are irrevocable and may not be charged back now or in the future, by Partner or
its credit card company, banking institution, payment processor, agents, owners, or
designees. Any initiation of a payment reversal or chargeback related to Partner or its
account will be considered a material breach of this Agreement. As such, any material
breaches committed by Partner shall entitle EFS to collect any resulting fees EFS incurs,
including but not limited to attorney fees, collection fees, and other costs associated
with addressing chargebacks/payment reversals.
If a payment reversal/chargeback is initiated by Partner or on its behalf and EFS is not
fully reimbursed for the reversal/chargeback within ten (10) calendar days, EFS reserves
the right to turn those charges and Partner’s information over to third parties for
collection and/or report Partner to one or all credit reporting agencies, in addition to
pursuing other legal remedies which EFS hereby explicitly reserves. EFS shall have at its
sole disposal any other legal remedy in accordance with this Agreement it
independently chooses to pursue for any collection against Partner.
Notwithstanding anything in this Agreement to the contrary, EFS explicitly reserves the
right to use and disclose Partner’s and its owners’ personal and sensitive information to
third parties to the extent reasonably necessary to collect payments and enforce EFS’s
rights under this Agreement. The information disclosed may include, but is not limited
to, names, email addresses, purchase date, purchase amounts, and billing addresses
related to Partner’s account.
Partner further agrees that EFS providing proof of Partner’s purchase via a signed
Order Form is all that is necessary to establish the legitimacy of any charge to
Partner’s credit card agency, banking institution, or payment processor, and is
therefore sufficient support documentation to deny any chargeback/payment reversal
initiated by Partner or on Partner’s behalf.
3.4. Taxes.
All Fees are exclusive of any federal, state, or local sales or use taxes, or any other taxes
or fees assessed on, or in connection with the Services.
3.5. Clean-Up Services and Special Projects.
Services rendered to Partner in connection with bringing Partner books current,
commonly referred to as catch-up/clean-up services, or other services (collectively,
“Clean-up Services”) not included in monthly Fees, as may be specified by EFS from
time to time, and in the case of all the foregoing, must be approved in advance in writing
(email to suffice) by Partner. Clean-up Services are assessed per the type of entity;
pricing is available upon request. Clean-up Service fees will be invoiced as one-time,
separate invoice(s). Notwithstanding the foregoing, EFS shall not charge Partner for any
such additional or Clean-up Services that are incurred as a direct result of EFS errors.
4. SERVICES.
4.1. Access to Services.
Subject to the terms and conditions of these Terms, EFS will provide the Services to
Partner for the Term as provided in the Order Form. These Terms do not permit access
by persons who are not Partner employees or customers (“Authorized Users”). Partner
understands and acknowledges that the Services are provided to Partner via a
dedicated Account Manager in accordance with these Terms. EFS reserves all rights not
specifically granted to Partner hereunder. Nothing herein will prevent EFS or its
licensors, if any, from promoting, providing, licensing, or sublicensing the Services or
providing any services to other parties.
4.2. Documentation License Grant.
Subject to the terms and conditions of these Terms, EFS grants to Partner a limited,
revocable, non-exclusive, non-transferable, and non-sublicensable right and license to
use the instruction manuals and functional specifications that accompany the Services
as delivered by EFS to Partner (“Documentation”) for its internal use during the Term,
provided that all proprietary notices are clearly visible on the Documentation.
4.3. Prohibitions.
Under no circumstances may Partner modify, decompile, reverse compile, disassemble,
reverse engineer, decrypt, or otherwise seek to recreate, or copy the Documentation or
the components thereof, adapt the Services in any way that’s inconsistent with the
Order Form or these Terms, use the Services to create a derivative or transformative
work, or grant any other person or entity the right or access to do so, without the
advance written consent of EFS. Except as expressly authorized by these Terms,
Partner will not modify, copy, duplicate, reproduce, unbundle, sublicense, hypothecate,
sell, assign, transfer, display, distribute, lend, rent, or lease the Services or any portion
thereof to any third party. The Services may not be sub-licensed to third parties by
Partner.
4.4. Ownership.
Access to the Services is subscription-based and not sold. Partner will not, by virtue of
these Terms or otherwise, acquire any rights whatsoever in the Services, and Partner
hereby expressly disclaims any other rights therein. EFS will have and retain all right,
title, and interest in and to the Services and all intellectual property comprising the
Services, as well as any modifications or enhancements made thereto or any derivative
works made therefrom, with the sole exception of any data submitted by Partner
(“Partner Data”) or Confidential Information provided by Partner. Partner hereby
irrevocably assigns to EFS ownership of any and all suggestions, feedback,
modifications, enhancements, improvements, alterations, changes, or revisions to the
Services made or suggested by Partner or its Authorized Users. Partner will cooperate
with EFS to confirm such assignments and EFS’s ownership of such modifications.
Partner acknowledges that EFS has invested a significant amount of resources in the
creation of the Services and will take no actions that may detrimentally affect such
Services. Partner will not allow any third party to use or view the Services without EFS’s
prior written consent.
4.5. Restrictions.
Unless otherwise agreed to in these Terms, Partner agrees it will not: (a) sell or lease
any or all of the Services to non-Authorized Users; (b) provide, transmit, disclose,
divulge, or make available to, or permit use of the Services by, any third party or entity
that is not an Authorized User; (c) use the Services in a service bureau, outsourcing or
other arrangement to process or administer data on behalf of any third party that is not
an Authorized User; (d) install, provide as a service, bundle, disclose, copy, use, or make
the Services available for use, or otherwise utilize any or all of the Services in any
manner that is not explicitly authorized in these Terms; or (e) permit or assist any third
party with any of the foregoing restrictions.
4.6. Notification.
Partner will promptly notify EFS of any determination, discovery, or notification that any
person or entity is or may be misusing or infringing any Services. Partner will not take
any legal action relating to the protection or defense of any Services without EFS’s prior
written approval.
OBLIGATIONS OF THE PARTIES
1.0. Partner Obligations.
Partner shall have the sole responsibility for acquiring, installing and maintaining its
own technology environment and equipment necessary to properly access, operate, and
utilize the Services, including, without limitation: servers, Internet access, project
management software, and email; for any communications or other costs incurred in
operating, accessing and using the Services; and for any other expenses relating to the
foregoing. Partner shall be responsible for training its Designated Bookkeeper on any of
Partner’s systems, with the exception of the accounting software specified in the Order
Form. Partner shall establish adequate operational back-up systems and procedures to
ensure recovery and continuity of its systems and operations in the event of a failure.
Partner shall be solely responsible for the security and confidentiality of any usernames
or passwords granted to Partner or its Authorized Users to access the Services. Partner
shall be solely responsible for any authorized or unauthorized access to the Services
using such usernames and passwords, and any actions taken thereunder. Partner shall
limit use of access to the Services solely to those of its Authorized Users whose duties
require such use and access and shall undertake best efforts to ensure that EFS’s
Confidential Information and EFS’s intellectual property are kept secure. Partner shall
have the sole responsibility for maintaining the privacy and security of all Partner Data.
Partner agrees to co-operate with EFS as necessary to allow EFS to provide the Services
and perform its obligations pursuant to these Terms, and to provide, in a timely manner, such information, including the Partner Data, that is complete and accurate in all
respects, as EFS may require to perform the Services.
2.0 Regulatory Compliance.
Partner assumes sole and complete responsibility for ensuring that it and its Authorized
Users’ use of the Services and all related Partner policies and procedures are in
compliance with all applicable federal, state, and local laws and regulations, including,
without limitation, laws relating to confidentiality of consumer information, privacy, and
security.
3.0 EFS Support Limitations.
Except as otherwise set forth in Order Form, support services provided under these
Terms do not include on-site consultation, systems administration, facilities
management, or customized programming support to resolve problems resulting from
Partner equipment used to access the Services. In addition, support is not provided
under these Terms for third-party software, hardware, or networks. Any time spent by
EFS attempting to provide such support or services may be charged to Partner at EFS’s
then-standard hourly rates. To ensure appropriate performance and security of the
Services, EFS may routinely provide training and/or continuing education to any
Designated Bookkeeper on a regularly scheduled basis. This may require the Services,
or a portion thereof, to be temporarily suspended or delayed during this period. EFS will
use reasonable efforts to notify Partner in advance of any scheduled training that may
adversely affect Partner’s receipt of Services.
4.0 Security.
Each party agrees to notify the other party promptly upon becoming aware of any
unauthorized access or use of the Services or Partner Data by any unauthorized third
party.
PARTNER’S RESPONSIBILITY FOR USE
1.0 Acceptable Use.
Partner assumes sole and complete responsibility for ensuring that the Services are
used only by Authorized Users, and that Authorized Users do not make unauthorized
use of the Services. Unauthorized use includes, without limitation, any use that exceeds
the scope of these Terms and the Order Form, and any use that is in violation of any
applicable law or regulation. Partner will ensure that Authorized Users comply with the
following requirements, and will be responsible and fully liable for any noncompliance
by Authorized Users: (i) Authorized Users must not enter or transmit any information
using the Services that is unlawful, false, offensive, defamatory, or infringes the rights of
any person; (ii) Authorized Users must not use the Services in a way that disrupts use of
the Services by others; and (iii) Authorized Users must not use any information obtained
through the Services except for the purpose for which the information was provided,
and must not attempt to use the Services to gain unauthorized access to information.
2.0 Suitability.
Partner shall be responsible for determining the suitability of the Services for its
operations and/or customers. As with manually kept records, records kept using the
Services may contain errors, whether resulting from incorrect input or recording of
information, Services errors, or other causes. Partner shall be responsible for ensuring
the accuracy of any information provided to the Designated Bookkeeper, ensuring and
confirming the accuracy of any output and results created by the Services and
Designated Bookkeeper prior to use or dissemination, and undertaking procedures to
test, identify and correct any errors or omissions relating to the foregoing.
3.0 Application.
Partner and Authorized Users, or their related parties, are solely responsible for any
decisions made, advice rendered, or other actions taken based on information obtained
using the Services. Partner acknowledges that any information obtained through the
Services is only a single factor, among many, in any decision made by Partner and that
such decisions are instead based on the totality of the circumstances and not solely on
the results obtained from the use of the Services.
4.0 Abide by Deadlines.
Partner understands that adherence to deadlines is critical to EFS effectively performing
the Services for you. As such, Partner agrees to abide by all deadlines given to it by
EFS. Partner understands and explicitly agrees that it will bear full responsibility for its
failure to adhere to any deadlines, which may include one or more of the following:
Incurring rush fees of $500 or more.
Project being archived and incurring restart fees of $500 or more
A stop work order being applied to project until the required information has been
received and any rush or restart fees have been paid.
Services producing unfavorable outcomes, potential liability, and additional fees
and penalties by regulatory bodies and third parties.
Not receiving any refunds or reduction of fees owed for the duration of the Term
for any projects that have been archived or have an active stop work order.
PARTNER DATA
1.0 Data Location.
All Partner Data shall reside on Partner’s systems.
2.0 Partner Data.
The Services involve the receipt and processing of data owned by Partner and/or its
customers, including, without limitation, Partner Data. Because Partner Data is
provided by Partner and its Authorized Users, EFS does not control such Partner Data. In
connection with Partner Data, Partner affirms, represents, and warrants that Partner
owns or has the necessary licenses, rights, consents, and permissions to use and
authorize EFS to use all Partner Data in the manner contemplated hereunder and to
transfer to and process such Partner Data within the United States as may be required
by applicable law. Partner Data may be accessed by EFS workers in Belize pursuant to
Section 16. Partner shall provide EFS with copies of any consents or other materials as
may be requested by EFS, as relevant and applicable, and shall use any consent forms
that may be required by EFS. Partner represents and warrants that Partner has all the
rights necessary for Partner to grant the rights in Section 8.1, and the use of Partner
Data does not violate any law.
By providing Partner Data, Partner hereby grants EFS a worldwide, non-exclusive,
royalty-free, sublicensable, and transferable license to use, reproduce, distribute, modify,
edit, adapt, publish, translate, incorporate, prepare derivative and collective works
utilizing, display, and perform the Partner Data for purposes of performing the Services
for Partner under these Terms. Additionally, Partner grants to EFS a worldwide, non-
exclusive, perpetual, irrevocable, royalty-free, sublicensable, and transferable license to
use, reproduce, adapt, perform, compile, display, incorporate, modify, and create
derivative and collective works utilizing Partner Data in a de-identified format for the
improvement of the Services and EFS’s other products and services that exist now or
may exist in the future. For the avoidance of doubt, EFS will compile and present any
such Partner Data that it so uses in such a manner that data cannot reasonably uniquely
identify Partner or any individual.
3.0 Inaccurate Partner Data.
All Partner Data originates from Partner and its Authorized Users, and as such, is
beyond the control of EFS. EFS does not monitor the specific content or accuracy of the
Partner Data provided to it. Without limiting the generality of any other provision of
these Terms, EFS shall have no responsibility or liability related to the accuracy, content,
currency, completeness, or delivery of the Partner Data provided by Partner or its
Authorized Users. Partner is responsible for the accuracy, content, currency,
completeness, and delivery of the Partner Data uploaded and/or input by its Authorized
Users, and Partner warrants that the Partner Data posted by its Authorized Users is
accurate, current, and complete.
4.0 Data Security Requirements.
EFS shall cause EFS’s employees, service providers and subcontractors (“EFS Agents”)
to implement, maintain and enforce administrative, physical, logical, and other security
measures to prevent the unauthorized access, use, corruption, loss or disclosure of
Partner Data and Confidential Information of Partner that are consistent with generally
accepted industry practices, information security policies of EFS, and applicable laws
and regulatory requirements.
PARTNER WARRANTIES
1.0 Mutual Representations and Warranties.
Each party represents and warrants that it has full authority to enter into and perform its
obligations under the terms of these Terms and that the execution of these Terms will
not conflict or interfere with any contract, obligation, or order to which it is subject or
bound. Each party represents and warrants that it will comply with all applicable federal,
state, and local laws, rules, and regulations in connection with its respective obligations
under these Terms.
2.0 Services Warranty.
EFS warrants that the Services will be performed in a workmanlike manner that is
consistent with industry standards. In the event the Services fail to comply with the
foregoing warranty, EFS shall, at EFS’s sole cost and expense, correct the non-
conforming Services. In the event that EFS fails to correct the non-conformance within
ninety (90) days of receipt of notice from Partner of a breach of this Section 8.2, Partner
may terminate the Services.
3.0 EFS’s Disclaimer of Warranty.
THE WARRANTIES SET FORTH IN SECTION 8.2 AND IN THE ORDER FORM ARE
LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY EFS. WITH THE
EXCEPTION OF SUCH WARRANTIES, THE SERVICES, DOCUMENTATION, AND ANY
OTHER SERVICES PROVIDED BY EFS UNDER THE ORDER FORM, THESE TERMS OR
ANY OTHER AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.
TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, EFS EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR
PURPOSE. EFS DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS THAT THE SERVICES WILL MEET PARTNER’S REQUIREMENTS,
THAT ACCESS TO OR OPERATION OR USE OF THE SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SERVICES, IF ANY, WILL BE
CORRECTED, OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR
COMPLETE. EFS DOES NOT WARRANT OR REPRESENT THAT USE OF THE SERVICES
WILL RESULT IN COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, AND
PARTNER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE FOR ENSURING
COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS. THE
SERVICES ARE NOT A BACKUP SERVICE FOR STORING CONTENT OR OTHER DATA,
AND EFS WILL HAVE NO LIABILITY REGARDING ANY LOSS OF PARTNER DATA.
PARTNER WILL BE SOLELY RESPONSIBLE FOR CREATING BACKUPS OF ANY PARTNER
DATA PROVIDED OR WORKPRODUCTS PROVIDED UNDER THE SERVICES. EFS MAKES
NO OTHER WARRANTIES AND ASSUMES NO RESPONSIBILITY OR LIABILITY
REGARDING ANY DATABASE SERVICE OR SERVERS, OR ANY THIRD-PARTY
HARDWARE, EQUIPMENT, OR SERVICE WITH WHICH THE SERVICES MAY BE
REQUIRED TO COMMUNICATE OR OPERATE WITH OR IN.
INDEMNIFICATION
1.0 Intellectual Property Infringement.
If EFS reasonably determines that a claim, demand, suit, or proceeding (including any
and all liabilities, damages, losses, costs, expenses, and reasonable attorneys’ fees
arising therefrom) (collectively, a “Claim”) is likely to occur as a result of the Services,
EFS will have the right, in EFS’s sole discretion, to immediately suspend Services and
return to Partner the prorated portion of any pre-paid, unused fees for the relevant
Services.
EFS will have no obligation with respect to any Claim of infringement that is based upon
or arises out of (i) the use or combination of the Services with any hardware, software,
products, data, or other materials not provided by EFS; (ii) modification or alteration of
the Services or work product by anyone other than EFS; (iii) use of the Services in
excess of the rights granted in these Terms; or (iv) EFS’s permitted use of Partner Data
and any other materials and intellectual property furnished by Partner (collectively, the
“Excluded Claims”).
2.0 Partner Indemnification.
Partner will defend, indemnify, and hold harmless EFS and its subsidiaries, affiliates,
officers, directors, agents, and employees (collectively, “EFS Parties”) from and against
any claims arising out of any action or proceeding by a third party made or brought
against any one or more of the EFS Parties alleging: (i) an Excluded Claim; (ii) an act or
omission by Partner which is a breach by Partner of any of Partner’s obligations under
these Terms, (iii) the Partner Data violates, infringes, or misappropriates the rights of any third party, including the intellectual property rights of a third party; or (iv) Partner’s
negligence or willful misconduct.
3.0 Procedures for Indemnification.
In the event of any occurrence which may constitute grounds for indemnification under
this Section 9, the party seeking indemnification agrees: (i) to notify the other party
promptly of any occurrence with respect to which indemnification is sought, provided
that any delay shall only relieve the indemnifying party of its obligations hereunder to
the extent that the defense of such Claim is prejudiced by such delay; (ii) to cooperate
with the indemnifying party in the defense of any claim with respect to which
indemnification is sought; (iii) to tender to the indemnifying party the right to assume
and control the defense of any claim with respect to which indemnification is being
sought, provided that the indemnifying party may not settle a claim unless it
unconditionally releases the indemnified parties of all liability; and (iv) not to cause or
contribute to any occurrence, nor to take any action, or fail to take any action, which
causes, contributes to or increases the indemnifying party’s liability hereunder.
4.0 Exclusive Remedy.
This Section 9 sets forth Partner’s exclusive remedy with respect to any Claim for EFS’s
alleged violation of the intellectual property or other rights of third parties with respect
to the Services. EFS will have no liability to indemnify Partner under this Section 9 if
Partner is in breach of any of its obligations under these Terms.
EFS GROUP LIMITATION OF LIABILITY
EFS WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE,
INDIRECT, EXEMPLARY, OR SPECIAL DAMAGES (INCLUDING LOSS OF PROFITS, DATA,
BUSINESS, GOODWILL, OR COSTS TO PROCURE SUBSTITUTE GOODS OR SERVICES),
REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT,
TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE,
OR OTHERWISE, AND EVEN IF ANY PARTY WAS ADVISED OF THE LIKELIHOOD OF
SUCH DAMAGES. PARTNER’S LIABILITY FOR DAMAGES, REGARDLESS OF WHETHER
SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY,
BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE, UNDER
THESE TERMS WILL IN NO EVENT EXCEED TWO (2) TIMES THE AGGREGATE AMOUNT
OF FEES PARTNER PAID TO EFS FOR THE SERVICES THAT GIVE RISE TO THE
LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE
CAUSE OF ACTION AROSE. THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 DO
NOT LIMIT (A) A PARTY’S LIABILITY FOR BREACH OF SECTION 13, (B) PARTNER’S
OBLIGATIONS UNDER SECTION 9, (C) PARTNER’S VIOLATION OF EFS’ INTELLECTUAL
PROPERTY RIGHTS, OR (D) ANY LIABILITY ARISING FROM PARTNER’S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
INTELLECTUAL PROPERTY RIGHTS
1.0 EFS Intellectual Property Rights.
The Services, and all right, title, and interest in and to the Services, including, but not
limited to all intellectual property rights therein, any developments, modifications, and
improvements thereto, and any new processes developed by EFS as part of or apart
from the Services and made available to Partner or related to the Services, are and will
remain EFS’s exclusive property. EFS reserves all rights, title, and interest in and to the
Services.
2.0 Know-How.
Each party is free to exercise the knowledge, skill, and experience acquired by its
employees in the course of performing its obligations under these Terms, so long as
such know-how does not include the other party’s Confidential Information.
TERM & TERMINATION
1.0 Termination.
Either party may terminate these Terms, effective upon written notice to the other party
(the “Defaulting Party”), if the Defaulting Party:(a) materially breaches any provision of,
or fails to perform its obligations under, the Agreement and such breach is incapable of
cure, or with respect to a material breach capable of cure, the Defaulting Party fails to
cure the breach within thirty (30) days of receipt of written notice thereof; or (b)
becomes insolvent, subject voluntarily or involuntarily, to any proceeding under any
domestic or foreign bankruptcy or insolvency law, is dissolved or liquidated or takes any
corporate action for such purpose, makes a general assignment for the benefit of creditors, or has a receiver, trustee, custodian, or similar agent appointed by order of
any court of competent jurisdiction to take charge of or sell any material portion of its
property or business (“Insolvency Event”).
2.0 No Termination for Convenience.
Notwithstanding the foregoing, should Partner terminate the Agreement for any other
reason prior to the then-current Term, Partner agrees to pay EFS in full for all Fees that
would have become due during the Term, unless such termination is caused by an
uncured material breach by EFS. Any and all Fees paid up through the point of
termination shall be nonrefundable.
3.0 Consequences Upon Termination.
Upon the termination or expiration of these Terms for any reason: (a) Partner’s and its
Authorized Users’ subscriptions to use the Services will terminate; (b) Partner and its
Authorized Users will cease all access and use of the Services and any EFS intellectual
property related thereto; (c) each party will immediately return to the other party any of
the other party’s Confidential Information, intellectual property, Documentation, and any
other property of the other party in such party’s possession; and (d) each party will
certify its compliance with this Section 12.3 to the other party in writing upon request.
Notwithstanding anything to the contrary, EFS may retain data, including, without
limitation, Partner Data collected using the Services for minimum periods as required by
applicable law and regulations. Thereafter, EFS may delete any retained Partner Data in
accordance with EFS’s data retention policy as then in effect and as modified from time
to time. EFS will have no affirmative obligation to return Partner Data to Partner upon
termination.
4.0 Suspension for Ongoing Harm.
Partner agrees that EFS may with reasonably contemporaneous email notice to Partner
suspend access to the Services if EFS reasonably concludes that the Services are being
used to engage in denial of service attacks, spamming, or illegal activity, and/or use of
the Services is causing immediate, material and ongoing harm to EFS or others. In the
event that EFS suspends Partner’s access to the Services, EFS will use commercially
reasonable efforts to limit the suspension to the offending portion of the Services and
resolve the issues causing the suspension of the Services. Partner further agrees that
EFS will not be liable to Partner nor to any third party for any suspension of the Services
under such circumstances as described in this Section 12.4.
5.0 Ongoing Rights.
Neither termination of these Terms nor waiver of any right to terminate under these
Terms shall impair or limit any additional rights or remedies that Partner or EFS may
have at law or in equity. The termination of these Terms shall not release either party
from the obligation to make payment of all amounts then or thereafter due and payable.
CONFIDENTIALITY
1.0 Confidential Information Defined.
“Confidential Information” includes, but is not limited to, EFS’s intellectual property and
data, Partner Data, any information or know-how (including, but not limited to,
information relating to research, products, services, quantity, price, pricing, delivery,
development, inventions, processes, engineering, marketing, techniques, Partners,
internal procedures, business and marketing plans or strategies, finances, employees
and business opportunities) concerning a party and its affiliates and disclosed by such
party (the “Disclosing Party”) to the other party (the “Receiving Party”) either directly or
indirectly in any form whatsoever (including, but not limited to, in writing, in machine
readable or other tangible form, orally or visually) that has been marked as
“confidential” or “proprietary” or with a similar legend, whose confidential nature has
been made known by Disclosing Party, orally or in writing, to the Receiving Party
concurrently with the disclosure of such information, or that, due to its character and
nature, a reasonable person under like circumstances would treat as confidential.
Confidential Information will not include information that: (a) is or becomes publicly
available other than through the Receiving Party or its Authorized Representatives; (b) is
in the Receiving Party’s possession at the time of disclosure as shown by the Receiving
Party’s files and records immediately prior to the time of disclosure; (c) is acquired by
the Receiving Party from a third party, who provides the information without breaching
any express or implied obligations or duties to the Disclosing Party; (d) is disclosed by
the Receiving Party with the Disclosing Party’s prior written consent; or (e) is
independently developed by the Receiving Party without reference to Confidential
Information.
2.0 Level of Care.
The Receiving Party will maintain the confidentiality of, and agrees to use the same care
to prevent disclosure of, the Confidential Information it uses to avoid disclosure,
publication, or dissemination of its own information of a similar nature, but in no event
less than a reasonable standard of care. The Receiving Party further agrees to use the
Confidential Information only in connection with and in furtherance of the business
transactions contemplated by these Terms. The Receiving Party may disclose
Confidential Information to its employees, directors, officers, affiliates, agents,
subcontractors, attorneys, accountants, or professional advisors, who have a need to
have access to the Confidential Information in carrying out the business transactions
contemplated by these Terms (“Authorized Representatives”). The Receiving Party will
inform its Authorized Representatives of the confidential nature of the Confidential
Information and the applicability of these Terms thereto and will obligate and direct its
Authorized Representatives to maintain the confidentiality of the Confidential
Information and otherwise to observe the terms of this Section 13.
3.0 Disclosure Due to Valid Court Order.
The Receiving Party may disclose Confidential Information in response to a valid order
or request of a court or other governmental body, provided, however, that the Receiving
Party will promptly give written notice to the Disclosing Party of any such order, inquiry,
or request so that the Disclosing Party may seek an appropriate protective order or
reach a mutual written agreement with the Receiving Party, requiring that the
information so disclosed be used only for the purposes for which the inquiry or request
was made or the order was issued.
4.0 Ownership.
All Confidential Information disclosed by the Disclosing Party will remain the property of
the Disclosing Party, and except as otherwise provided in these Terms, the Receiving
Party does not acquire any license, right, title, or interest in such Confidential
Information.
5.0 Confidential Information After Termination.
Upon the termination or expiration of these Terms, the Receiving Party, upon the written
request of the Disclosing Party, will: (i) destroy all documents and tangible materials
(and any copies) containing, reflecting, incorporating, or based on the Disclosing Party’s
Confidential Information; (ii) permanently erase all of the Disclosing Party’s Confidential
Information from its computer systems, provided that any copy that is maintained as an
archive copy on a disaster recovery or information technology backup system may be
retained so long as such Confidential Information is protected in accordance with this
Section 13 for as long as the Confidential Information is retained; and (iii) certify in
writing to the Disclosing Party that it has complied with the requirements of this clause.
6.0 Remedies.
The Receiving Party acknowledges that improper dissemination of Confidential
Information may cause irreparable damage to the Disclosing Party and agrees that the
Disclosing Party will have available to it, in addition to any other remedy provided by law,
the right to apply for mandatory injunctive relief to enforce compliance by the Receiving
Party with the provisions of these Terms.
GOVERNING LAW; DISPUTE RESOLUTION
1.0 Governing Law.
These Terms shall be governed by the laws of the State of Texas, without application of
conflicts of laws principles.
2.0 Dispute Resolution.
WITH REGARD TO ANY CLAIMS PARTNER MAY HAVE NOW OR IN THE FUTURE,
ARISING OUT OF OR RELATING TO THIS AGREEMENT, EFS, OR THE SERVICES,
PARTNER HEREBY EXPRESSLY AGREES TO WAIVE ANY RIGHT TO TRIAL BEFORE A
JURY OR JUDGE IN A COURT OF LAW AND TO PRESENT SUCH CLAIM ONLY THROUGH
BINDING ARBITRATION IN ACCORDANCE WITH THE FOLLOWING:
THESE TERMS AND ALL RELATED DOCUMENTS, PROGRAMS, INCLUDING ALL
EXHIBITS ATTACHED HERETO, AND ALL MATTERS ARISING OUT OF OR RELATING TO
THESE TERMS, WHETHER SOUNDING IN CONTRACT, TORT, OR STATUTE, ARE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, UNITED STATES OF AMERICA, WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAWS PROVISIONS THEREOF TO THE EXTENT SUCH PRINCIPLES OR RULES WOULD
REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER
THAN THOSE OF THE STATE OF TEXAS.
UNLESS REMEDIES HAVE BEEN EXPLICITLY PROVIDED FOR OTHERWISE IN THESE
TERMS AND THE AGGRIEVED PARTY CHOOSES TO ENFORCE ITS RIGHTS IN
ACCORDANCE AND EXCLUSIVELY WITH THOSE REMEDIES, AND EXCLUDING SUITS
FOR INJUNCTIVE RELIEF AND THE ENFORCEMENT OF AN AWARD, THE ONLY MEANS
FOR RESOLVING ADVERSARIAL DISPUTES ARISING OUT OF THESE TERMS SHALL BE
AS FOLLOWS:
FOR ANY DISPUTE, CLAIM OR CONTROVERSY UNDER $25,000 IN VALUE ARISING OUT
OF OR RELATING TO THESE TERMS, OR THE BREACH THEREOF, ANY SUCH DISPUTE
SHALL BE RESOLVED BY ARBITRATION ADMINISTERED BY FAIRCLAIMS
(WWW.FAIRCLAIMS.COM) IN ACCORDANCE WITH ITS SMALL CLAIMS RULES &
PROCEDURES EFFECTIVE AT THE TIME A CLAIM IS MADE, AND JUDGMENT ON THE
AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION THEREOF.
FOR ANY DISPUTE, CLAIM OR CONTROVERSY AT LEAST $25,000.01 IN VALUE ARISING
OUT OF OR RELATING TO THESE TERMS, OR THE BREACH THEREOF, ANY SUCH
ARBITRATION ADMINISTERED BY FAIRCLAIMS (WWW.FAIRCLAIMS.COM) IN
ACCORDANCE WITH ITS FASTTRACK RULES & PROCEDURES FOR CLAIMS OVER
$25,000 EFFECTIVE AT THE TIME A CLAIM IS MADE, AND JUDGMENT ON THE AWARD
RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION THEREOF.
EACH PARTY HEREBY EXPRESSLY CONSENTS TO ANY SUCH DISPUTES BEING SO
RESOLVED BY THESE ARBITRATION TERMS, AND THAT ALL PROCEEDINGS BE
EXCLUSIVELY CONDUCTED REMOTELY. IF REMOTE ATTENDANCE IS NOT AVAILABLE,
ALL ARBITRATION HEARINGS SHALL BE CONDUCTED IN ANY SUITABLE FACILITY
LOCATED IN THE HOUSTON, TEXAS AREA. PARTNER HEREBY CONSENTS TO
ELECTRONIC SERVICE OF PROCESS, WITH SERVICE TO BE MADE TO THE EMAIL
ADDRESS THAT EFS HAS ON FILE FOR PARTNER.
JUDGMENT ON THE AWARD RENDERED IN ANY ARBITRATION HEARING SHALL BE
BINDING, NON-APPEALABLE, AND ENTERED IN ANY COURT HAVING JURISDICTION.
THE ARBITRATOR SHALL HAVE THE POWER TO RULE ON HIS OR HER OWN
JURISDICTION, INCLUDING ANY OBJECTIONS WITH RESPECT TO THE EXISTENCE,
SCOPE, OR VALIDITY OF THE ARBITRATION TERMS OR TO THE ARBITRABILITY OF
ANY CLAIM OR COUNTERCLAIM. THE ARBITRATOR SHALL HAVE THE POWER TO
DETERMINE THEIR OWN JURISDICTION AND THE EXISTENCE OR VALIDITY OF A
CONTRACT OF WHICH AN ARBITRATION CLAUSE FORMS A PART. SUCH AN
ARBITRATION CLAUSE SHALL BE TREATED AS AN AGREEMENT INDEPENDENT OF THE
OTHER TERMS OF THE CONTRACT. IF ANY PROVISION OF THIS ARBITRATION
AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL
BE SEVERED AND THE REMAINING ARBITRATION TERMS SHALL BE ENFORCED.
PARTNER FURTHER AGREES TO AND DOES HEREBY WAIVE ANY RIGHT TO CLASS
ARBITRATION AND AGREE, INSTEAD, TO CONDUCT AN ARBITRATION RELATED
SOLELY TO ANY INDIVIDUAL CLAIMS PARTNER AND/OR ANY ENTITY RELATED TO
PARTNER ASSERTS AGAINST EFS.
EACH PARTY SHALL BE RESPONSIBLE FOR ITS OWN COSTS ASSOCIATED WITH
ARBITRATION.
IN THE EVENT THAT ARBITRATION IS INAPPLICABLE OR IMPOSSIBLE, ALL PARTIES
AGREE THAT HARRIS COUNTY, TEXAS WILL BE THE SOLE AGREED VENUE FOR
LITIGATION NECESSARY TO ENFORCE THIS AGREEMENT. HOWEVER, NOTHING IN
THIS AGREEMENT OR IN THESE ARBITRATION TERMS SHALL PREVENT ANY PARTY
FROM APPLYING TO AND OBTAINING FROM ANY COURT HAVING JURISDICTION A
TEMPORARY INJUNCTION, PRELIMINARY INJUNCTION, PERMANENT INJUNCTION, OR
OTHER EQUITABLE RELIEF AVAILABLE TO PREVENT IMMEDIATE LOSS. ANY PARTY
SHALL ALSO BE ENTITLED TO FILE IN ANY COURT HAVING JURISDICTION ANY SUIT
NECESSARY TO ENFORCE A DECISION OR AWARD RESULTING FROM AN ARBITRATION
PROCEEDING.
THE PARTIES AGREE THAT THE OBLIGATIONS CONTAINED WITHIN THIS SECTION
WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
MULTIPLE ENTITIES
If Partner requests EFS to provide Services to another legal entity owned by Partner,
under common ownership or otherwise associated with Partner (“Affiliated Entity”),
Partner affirms and agrees that it has signed these Terms both on its own behalf and as
an authorized agent for the Affiliated Entity and the terms of these Terms shall be
applicable to such Affiliated Entity.
USE OF SUBCONTRACTORS; LOCATIONS
Partner expressly acknowledges and agrees that EFS reserves the right to provide the
Services from locations, and/or through use of subcontractors, worldwide, including
from EFS’s workers in Belize.
NON-SOLICITATION
During the Term of these Terms and for twelve (12) months thereafter (“Restricted
Period”), neither party will, without the other party’s prior written consent, either directly
or indirectly, on its own behalf or in the service or on behalf of others, hire or engage is
any solicitation of known employees or contractors who were engaged by the other
party at any time during the one (1) year period prior to termination or expiration of
these Terms (“Restricted Personnel”). The parties acknowledge that the hiring or
engagement of any Restricted Personnel is likely to cause irreparable damage to EFS or
Partner, as applicable, that would be difficult or impossible to ascertain or prove.
Accordingly, the parties agree that any breach of this Section 17 will obligate the
soliciting party to pay the other party on demand, as liquidated damages, an amount
equal to the Restricted Personnel’s annual salary. Each party agrees that this Section 17
does not provide for unreasonably large liquidated damages.
Notices
Except as otherwise specified in these Terms, all notices, permissions and approvals
hereunder must be sent in writing to the person(s) indicated on the Order Form and
shall be deemed to have been given upon: (i) personal delivery, (ii) the second business
day after mailing via certified mail, or (iii) the first business day after sending by email.
All notices for termination or an indemnifiable claim must be provided via email in
addition to either personal delivery or certified mail.
Publicity
During the Term, Partner agrees to allow for the use of its name, trademarks, or other
identifying information in a good faith manner consistent with industry standards and
strictly in connection with the marketing and promotion of EFS’s business and activities.
Furthermore, each party acknowledges and agrees that it will not, and ensures that its
affiliates will not, at any time make, publish, or communicate to any person or entity or
in any public forum any defamatory or disparaging remarks, comments, or statements
concerning the other party or its affiliates or their respective businesses, or any of their
respective employees, officers, and existing and prospective customers, suppliers,
investors and other associated third parties.
Independent Contractor
The parties are and will remain independent contractors with respect to all performance
rendered pursuant to these Terms. The provisions hereof are not intended to create any
partnership, joint venture, agency, or employment relationship between the parties or
between a party and the employees, agents, or independent contractors of the other
party.
Assignment
Partner may not assign or otherwise transfer (including by operation of law or change of
control) any of its rights or obligations under these Terms without the prior written
consent of EFS (which such consent shall not to be unreasonably withheld, delayed or
conditioned), provided that should Partner merge with, acquire, or be acquired by
another entity, or sell all or substantially all of its assets (collectively, a “Combination”),
it may do so upon written notice to EFS, provided further that, the resulting combined
entity may only use the Services within the scope of the Partner’s operations at the time
of the Combination. EFS may freely assign the Agreement or any of its rights or
obligations under these Terms. Any purported assignment in violation of this provision
shall be null and void. Subject to this Section 18.4, this Agreement shall be binding upon
and inure to the benefit of the permitted successors and assigns of the parties.
Force Majeure
Except for payment obligations, neither party shall be held responsible for any delay or
failure in performance under these Terms to the extent that such delay or failure is
caused by fire, flood, explosion, war, terrorism, strike, embargo, pandemic, civil or
military authority, act of God, or other similar causes beyond its control.
Waiver
Any term or provision of these Terms may be waived at any time by the party entitled to
benefit thereof by a written instrument executed by such party. No delay on the part of
the either party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of either party of any right, power, or
privilege hereunder operate as a waiver of any other right, power or privilege hereunder
nor shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, power or
privilege hereunder. No course of dealing or failing of either party to strictly enforce any
term, right or condition of these Terms in any instance will be constructed as a general
waiver or relinquishment of such term, right, or condition.
Severability
If any provision of these Terms shall be held to be illegal or otherwise unenforceable by
a court of competent jurisdiction, such provision shall be severed, and the balance of
the Agreement shall continue in full force and effect.
Counterparts
When applicable, these Terms may be executed in two or more counterparts in
electronic form each of which shall be considered an original, but which together shall
constitute one and the same agreement.
No Third-Party Rights
No provision of these Terms shall be deemed or construed in any way to result in the
creation of any rights or obligation in any person not a party or not affiliated with a party
to these Terms.
Provisions; Interpretation; Absence of
Presumption; Currency
These Terms shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing any instrument to be
drafted. When the context may require, any pronouns used in these Terms shall include
the corresponding masculine, feminine or neuter forms, and the singular form of nouns
or pronouns shall include the plural. The descriptive headings herein are inserted for
convenience only and are not intended to be part of or to affect the meaning or
interpretation of these Terms. All references to payments and dollar amounts refer to
United States Dollars, and all payments hereunder shall be made in United States
Dollars. These Terms shall be binding upon and inure to the benefit of the successors
and assigns the parties.
Entire Agreement; Amendment or Modification of
Agreement
The provisions of these Terms contain the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and supersede all
prior agreements and understandings relating to such subject matter. The resulting
documents shall not, solely as a matter of judicial construction, be construed more
severely against one of the parties than the other. Except as otherwise provided herein,
these Terms may not be modified, altered, waived or amended, except by written
agreement executed by both parties.
18.12. Survival. Any provision of these Terms, the performance of which requires that it
be in effect after the expiration and/or termination of the Agreement, shall survive such
expiration and/or termination and shall remain operative and in full force and effect,
including, for the avoidance of doubt, Sections 4.3, 4.4, 4.5, 5.1, 8, 11, 12, 13, 17, and
18.4.
DEFINITIONS
“Affiliated Entity” has the meaning set forth in Section 15.
“Agreement” means these Terms and the applicable Order Form.
“Authorized Representatives” has the meaning set forth in Section 13.2.
“Authorized Users” means Partner Employees and Partner Customers.
“EFS Partner” means an individual or entity to whom EFS renders Services.
“EFS Parties” has the meaning set forth in Section 9.2.
“Claim” has the meaning set forth in Section 9.1.
“Partner Customer” means the individuals and entities added to Partner’s Partner
Platform (as may be detailed in the Order Form’s Scope of Services).
“Partner Data” means all electronic data or information submitted by Partner to the
Services.
“Partner Employees” means Partner’s employees, representatives, consultants,
contractors, or agents who are authorized to access and use the Services subject to the
terms of these Terms.
“Partner Parties” has the meaning set forth in Section 9.1.
“Confidential Information” has the meaning set forth in Section 13.1.1.
“Defaulting Party” has the meaning set forth in Section 12.1.
“Disclosing Party” has the meaning set forth in Section 13.1.1.
“Documentation” means the instruction manuals and functional specifications that
accompany the Services as delivered by EFS to Partner.
“Effective Date” means the first day of the Term.
“Excluded Claims” has the meaning set forth in Section 9.1.
“Fees” means those license and other fees set forth on Order Form, attached hereto and
incorporated herein by this reference.
“Potential Partner” means an (i) individual or entity to whom EFS offers or submits a bid
or proposal related to any Services; and/or (ii) a person or entity with respect to which
EFS has developed Confidential Information for the purposes of proposing to render
Services.
“Receiving Party” has the meaning set forth in Section 13.1.1.
“Restricted Period” has the meaning set forth in Section 17.1.
“Restricted Personnel” has the meaning set forth in Section 17.1.
“Order Form” means a written statement of work, including the Scope of Services, and
schedule of applicable fees for the Services in a form acceptable to EFS signed by EFS
and Partner and referencing these Terms. The initial Order Form is issued subject to
these Terms of Service and will be deemed signed by EFS and Partner upon execution of
the Order Form by EFS and Partner.
“Services” means the services, activities and responsibilities required under these Terms
and the Order Form, including the proprietary web-based system accessible via a web
portal maintained by EFS, and any services, functions or responsibilities that are not
specifically described in these Terms or Order Form, but which are an inherent,
necessary or customary part of such services, functions and responsibilities or which
are required for performance and delivery of the services, functions and responsibilities
described in the Agreement or the Order Form.
“Service Level Agreement” means the service level agreement provided by EFS, if any, as
may be modified from time to time.
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