Terms and conditions

Effective Date: July 1st, 2020

Please read these terms and conditions carefully, because they are a binding agreement between you and FirmWorks, LLC d/b/a Rootworks (“Rootworks”, “we”, “us” or “our”).

These Rootworks Services Terms and Conditions (“Terms and Conditions”, as amended from time to time, and collectively with any Statements of Work and the Acceptable Use Policy, this “Agreement”) govern your use of the Services. By signing (electronically or otherwise) a Statement of Work or accessing the Services, you agree that: (i) you have read and understand this Agreement; (ii) you are bound by this Agreement; (iii) this Agreement is valid and enforceable against you; and (iv) to the extent you are using the Services on behalf of a business entity, you have the power and authority to bind that business entity to this Agreement. We use the term “you” to refer to you as an individual and to any business entity for which you are acting as an agent or representative.

I. Certain Definitions.

To help you understand this Agreement, we are including definitions of certain words we use in this Agreement.

“Academy-level Membership Services” has the meaning set forth in the Statement of Work for academy-level membership services.

“Acceptable Use Policy” means the Rootworks acceptable use policy located at www.rootworks.com/acceptable-use-policy, as may be updated from time to time.

“Advantage-level Membership Services” has the meaning set forth in the Statement of Work for advantage-level membership services.

“Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or is under common control with, such party, but only for so long as such control exists, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.

“Client Materials” means the content, data or other information you provide, make available, or otherwise store with us in connection with our performance of the Services.

“Digital-level Membership Services” has the meaning set forth in the Statement of Work for digital-level membership services.

“Rootworks Materials” means all materials and information owned by, developed by or on behalf of, or licensed to, Rootworks, including without limitation the Work Product and the Membership Materials.

“Rootworks Trademarks” means THE NEXT GENERATION ACCOUNTING FIRM®, BOSS® (word plus design), and/or THE MODERN FIRM®.

“Membership Materials” means the Platform and, to the extent identified in the Statement of Work, the Rootworks Trademarks and third party resources licensed to Rootworks.

“Membership Services” means the Academy-level Membership Services, Advantage-level Membership Services and Digital-level Membership Services.

“Platform” means the platform located at www.rootworks.com, a subdomain or page thereof, or another location as we may make available from time to time, and associated tools, lessons and resources located or linked therein.

“Services” means the Membership Services and Website Services identified in a Statement of Work. “Statement of Work” means a statement of work for the Services that incorporates these Terms and Conditions by reference and is executed by authorized representatives of both parties.

“Website” means the website on our Platform designed and delivered to you pursuant to the Website Setup and Subscription Services.

“Website Setup and Subscription Services” has the meaning set forth in the Statement of Work for website setup and subscription services.

“Website Hosting and Management Services” has the meaning set forth in the Statement of Work for website hosting and management.

“Website Services” means the Website Setup and Subscription Services and the Website Hosting and Management Services.

“Work Product” means the materials and information, including the Website, developed by Rootworks as a result of this Agreement specifically related to the Services provided to you under this Agreement.

II. Services.

1. General. Subject to the terms and conditions of this Agreement, we will make the Services available to you during the Term. You may contact us at any time to request changes to the Services provided to you under this Agreement.

2. Website Setup and Subscription Services. To the extent you have purchased Website Setup and Subscription Services, the following additional terms apply:

   1. Website Development Kick-off. As soon as practicable, but in any event within fifteen (15) days of the date of the Statement of Work, we will initiate arranging a website kick-off call (the “Kick-off Call”) to discuss the scope of the Website development. If you fail to respond to schedule the Kick-off Call within thirty (30) days of our contacting you to schedule such call, notwithstanding Section V.2.B herein, all fees paid to us will no longer be refundable.

   2. Cooperation. You will designate a point of contact who has the authority to make decisions for approval. You agree that this point of contact will make decisions in a timely manner. You agree to cooperate with us in good faith and provide us with all requested information or approval required us to perform the Website Setup and Subscription Services.

   3. Website Security. The Website will contain standard log-in and password protection. We will use commercially reasonable efforts to maintain the security and integrity of the Website. You will maintain the confidentiality and integrity of your log-in credentials and ensure that only authorized individuals have access.

3. Use Restrictions.

   1. Reverse Engineering. You shall not, and shall not cause or permit any other party to, reproduce, disassemble, decompile, decrypt, extract, reverse engineer any aspect of the Services, including without limitation the Platform, or any component thereof, or otherwise apply any procedure or process to the Services or any component thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Services or any algorithm, process, procedure or other information contained in the Services.

   2. Interference with Services. You will not engage in any activity that interferes with or disrupts the host server or Rootworks or its Affiliates’ services or networks, including but not limited to any third-party service providers that we may engage, or any other user of our network. You will not misuse the host server system resources, including, without limitation, intentional misuse of system resources, such as employing programs that consume excessive network capacity, CPU cycles, or disk IO. You will not access or attempt to access in an unauthorized or illegal manner any computers, networks and/or accounts not belonging to you. You will not circumvent or attempt to circumvent our security measures or the security measures of another user of our network. You will not transmit, distribute, or store any information, data or material in violation of law, including but not limited to, unauthorized use of material protected by copyright, trademark, trade secret, or other intellectual property right. You will not engage in any activities that, in our sole discretion, are or could be illegal or harmful to our operations, customers, Affiliates, licensors or licensees.

III. Rights and Ownership.

1. General.

   1. Rootworks Materials. Rootworks is the sole and exclusive owner (or licensee, where applicable) of the Rootworks Materials. Except as expressly set forth herein, no rights to the Rootworks Materials are granted to you.

   2. Client Materials. You are the sole and exclusive owner of the Client Materials. Subject to our compliance with the terms and conditions of this Agreement, you hereby grant us a worldwide, non-exclusive, non-sublicenseable, non-transferable (except to the extent provided herein), perpetual, irrevocable, royalty-free, fully paid-up right and license to use the Client Materials (i) for the purposes of performing the Services, and (ii) for our internal business purposes, including troubleshooting and improving the Services, and (iii) in an anonymized and aggregated format, for any lawful purpose.

2. Website Services. To the extent you have purchased one or both of the Website Services, during the Term, and subject to compliance with the terms and conditions of this Agreement, we hereby grant you a worldwide, non-exclusive, non-sublicenseable, non-transferable, revocable, royalty free, limited right and license to use the Work Product solely as required to publicly perform and display the Website on the internet. We reserve all rights not expressly granted herein.

3. Membership Services. To the extent you have purchased Membership Services, during the Term, and subject to compliance with the terms and conditions of this Agreement, we hereby grant you a worldwide, non-exclusive, non-sublicenseable, non-transferable, revocable, royalty free, limited right and license to use the Membership Materials solely as required to access the Membership Services. We reserve all rights not expressly granted herein.

4. Trademarks. Notwithstanding anything in this Agreement to the contrary, your use of the Rootworks Trademarks shall be subject to our trademark usage policy. You agree that you will not at any time during or after the Term assert or claim any interest in or do anything that may adversely affect the validity of any Rootworks Trademark or any other trademark, trade name or product designation belonging to or licensed to us (including, without limitation registering or attempting to register any Rootworks Trademark or any such other trademark, trade name or product designation). You agree not to use any trademark, trade name or product name confusingly similar to a trademark, trade name or product name of Rootworks, except for the Rootworks Trademarks expressly licensed hereunder. All goodwill accumulated by your use of the Rootworks Trademarks is owned and deemed to be accrued by Rootworks.

IV. Fees and Payment.

Fees for the Services and timing of payments are set forth on the Statement of Work for such Service. Interest shall accrue at the lesser of 1.5% per month or the maximum amount permitted by applicable law for any fees that remain unpaid beyond any due dates. When you provide payment information to us or to one of our payment processors, you represent that you are the authorized user of the card, PIN, key, or account associated with that payment, that you are expressly authorizing us to charge your credit card or to process your payment with the chosen third-party payment processor for any fees you incur with us. We may require you to provide your address or other information to meet our obligations under applicable tax law. If your use of the Services is subject to any use or sales tax, then we may also charge you for those taxes. You acknowledge and agree that, except to the extent set forth in Section V.2.B herein, all fees paid by you are final and nonrefundable.

V. Term and Termination.

1. Term. The term of this Agreement shall run from the date of the earliest Statement of Work until the expiration or termination of all Statements of Work (the “Term”).

2. Termination.

   1. Membership Services. You may cancel renewal of the Membership Services by contacting us at support@rootworks.com on or before the 25th day of the last month for which you would like to receive Membership Services.

   2. Website Setup and Subscription Services. Subject to Section II.2.A, you may terminate Website Setup and Subscription Services prior to the Kick-off Call for a full refund by contacting us at support@rootworks.com. After such period, you may contact us to terminate the Website Setup and Subscription Services (or cancel renewal for such period beyond the Go Live Date), but all fees paid are nonrefundable.

   3. Website Hosting and Management Services. You may cancel renewal of the Website Hosting and Management Services by contacting us at support@rootworks.com on or before the 25th day of the last month for which you would like to receive Website Hosting and Management Services.

3. Effect of Termination. Upon termination or expiration of this Agreement, subject to the perpetual license granted pursuant to Section III.1.B, all licenses granted hereunder will immediately and automatically terminate. We will hold your Client Materials for no fewer than ninety (90) days following termination for you to retrieve your Client Materials. Following that period, we may destroy your Client Materials in our sole discretion with no liability to you. You agree to promptly destroy or return all Rootworks Materials in your possession.

4. Termination for Cause. We may immediately and without notice cancel your account or terminate your access to the Services if you breach any of the terms of this Agreement.

VI. Representations and Warranties.

You represent and warrant that:

1. You have the full power and authority to execute, deliver and perform this Agreement. This Agreement is a valid, binding and enforceable against you in accordance with its terms and no provision requiring your performance is in conflict with your obligations under any constitutional document, charter or other agreement (of whatever form or subject) to which you are a party or by which you are bound.

2. You are duly organized, authorized and in good standing under the laws of the state, region or country of your incorporation and formation, and are duly authorized to do business in each other state, region and country in which your business makes such authorization necessary or required.

3. You have sufficient rights to all Client Materials required to grant the rights under Section III.1.B and necessary for us to otherwise perform our obligations and exercise our rights under this Agreement.

VII. Indemnification.

By using the Services, you agree to indemnify, defend, and hold us, our Affiliates, and our and their employees, agents, managers, members and representatives harmless from and against any loss, liability, damage, penalty, fines, fees and expenses (including attorneys’ fees, expert witness fees and costs of defense) that may be suffered or incurred as a result of: (i) your breach of this Agreement; (ii) your negligence or willful misconduct, or (iii) your violation of any applicable law.

VIII. Limitation of Liability.

1. LIMITATION OF LIABILITY. IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL OUR TOTAL LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY YOU TO US UNDER THIS AGREEMENT TO A MAXIMUM AMOUNT OF (I) FOR WEBSITE SETUP AND SUBSCRIPTION SERVICES, THE TOTAL AMOUNT OF FEES PAID, AND (II) FOR ALL OTHER SERVICES, THE FEES PAID FOR THE SERVICE AT ISSUE DURING THE PRIOR TWELVE (12) MONTHS, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT, OR OTHERWISE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, OUR LIABILITY IS NOT EXCLUDED FOR ANY AMOUNTS WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

2. DISCLAIMER OF WARRANTIES. THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. WE HEREBY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, TO YOU AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF OUR RIGHTS. WE DO NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED AND WE WILL NOT BE LIABLE FOR ANY INTERRUPTIONS, OUTAGES OR OTHER DELAY OCCURRENCES RELATING TO THE SERVICES.

3. WEB SERVICES. YOU AGREE THAT WE HAVE NO LIABILITY WITH RESPECT TO ANY DELAY IN THE WEBSITE SETUP AND SUBSCRIPTION SERVICES CAUSED BY YOUR BREACH OF THIS AGREEMENT OR ANY DELAY IN PROVIDING US WITH REQUESTED INFORMATION OR CONTENT IN CONNECTION WITH OUR DEVELOPMENT OR PUBLICATION OF YOUR WEBSITE. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR YOUR DOMAIN NAME(S) AND THAT WE HAVE NO LIABILITY IN CONNECTION WITH YOUR DOMAIN NAME REGISTRATION OR RENEWAL. WE HAVE NO LIABILITY WITH RESPECT TO ANY CLIENT MATERIALS. YOU ARE SOLELY RESPONSIBLE FOR ALL ACTIONS OF ALL USERS OF YOUR WEBSITE AND ANY DATA THAT IS CREATED, STORED, DISPLAYED BY, OR TRANSMITTED BY YOUR WEBSITE.

IX. Confidentiality.

1. Rootworks Confidential Information. You agree that the Rootworks Materials are our confidential information. You shall not to use the Rootworks Materials for any purpose other than for your internal business purposes. You shall not disclose the Rootworks Materials to any third party without our prior written consent.

2. Your Confidential Information. We agree that the Client Materials are your confidential information. We shall not use the Client Materials for any purpose other than as provided herein. We shall not disclose the Client Materials for any purpose, other than to perform our obligations or exercise our rights under this Agreement or at your request.

3. Exceptions. Neither party hereunder will have any obligation to keep confidential any information that: (i) is public knowledge at the time of its disclosure; (ii) becomes public knowledge after its disclosure other than by breach of this Agreement; (iii) was known by the receiving party prior to its disclosure without any obligation of confidentiality; or (iv) was independently developed by the receiving party without reference to the confidential information of the disclosing party.

4. Content Submissions. Notwithstanding anything in this Agreement to the contrary, you may submit content and materials to us (“Content Submissions”). When you upload any Content Submissions, you acknowledge that such Content Submissions are not confidential information, and you hereby grant us and our licensees a perpetual, irrevocable, worldwide, royalty-free, fully paid up, sub-licensable through multiple tiers, transferable, non-exclusive license to use, reproduce, adapt, publicly display, publicly perform, synchronize and otherwise exploit that Content Submission in any manner and in any media formats and channels now known or later developed or discovered, including in connection with advertising, promotions or third party services, without notice or payments to you and without requiring your further review or approval. You agree that we and our licensees may give you credit for your Content Submission, but are not required to do so. To the extent permitted by applicable law, you hereby waive and agree not to assert any “moral rights” or other proprietary rights in your Content Submission against us, our licensees, our representatives or other users. When you upload any Content Submission, you represent and warrant that you own that Content Submission and have obtained any necessary permissions required in order to grant us the rights described in this section. You agree to pay any monies owed to any party based on our and our licensee’s use of your Content Submission. Your Content Submissions may not be acknowledged or returned. You upload any Content Submissions voluntarily and no confidential or fiduciary relationship exists between us or any other party and you based on your uploads. You acknowledge you will not be paid anything for uploading your Content Submission in any way.

5. Feedback. Any Feedback given by you is entirely voluntarily, and we are free to use, disclose, reproduce, license or otherwise distribute, and exploit Feedback provided to us as we see fit, without obligation or restriction of any kind to you. Feedback, even if designated as confidential by you, shall not, absent a separate written agreement, create any confidentiality obligation for us. As used in this Agreement, “Feedback” means your suggestions, comments, or other input specifically about the Services or the Platform.

X. Miscellaneous.

1. Severability. If any provisions of this Agreement are held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions shall continue in full force and effect and shall be construed in a manner that effectuates the intent of this Agreement as a whole, notwithstanding such stricken provision(s).

2. No Waiver. No provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.

3. Complete Agreement. This Agreement states the entire agreement and understanding between Rootworks and you with respect to the subject matter contained herein, and supersedes all other prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of Rootworks or you. In the event of any conflict between any provision of these Terms and Conditions and the provisions of a Statement of Work, the provisions of these Terms and Conditions shall control, except to the extent the parties expressly provide in the Statement of Work that those terms shall control. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.

4. Assignment. This Agreement binds and inures to the benefit of each party’s permitted successors and assigns. You may not assign this Agreement without our prior written consent. We may assign this Agreement in our sole discretion at any time without your consent.

5. Survival. All terms that by their nature are continuing shall survive the termination or expiration of this Agreement, including, without limitation, ‘Confidentiality’, ‘Indemnification’, ‘Representations and Warranties’, ‘Limitation of Liability’, and ‘Miscellaneous’.

6. Governing Law; Jurisdiction; Venue. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be construed, governed and enforced in accordance with the laws of the State of Delaware, without regard to the internal law of Delaware regarding conflict of laws. You consent and submit to the exclusive jurisdiction of the federal and/or state courts of Delaware and any action or suit concerning this Agreement (including non-contractual disputes or claims) and/or other related matters shall be brought in federal or state court with appropriate subject matter jurisdiction in Delaware. You shall not raise in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. You acknowledge that you have read and understand this clause and agree willingly to its terms.

7. Injunctive Relief. The parties agree that any breach of Section III.4 (Trademarks) or Section IX (Confidentiality) would cause the non-breaching party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the non-breaching party will be entitled to file for injunctive relief against such breach or threatened breach, without proving actual damages or posting a bond or other security.

8. Force Majeure. Except for your payment obligations, neither party shall be responsible for failures or interruptions of communications facilities or equipment of third parties, labor strikes or slowdowns, shortages of resources or materials, natural disasters, world events, acts of war or terrorism, outbreaks, epidemics or pandemics, delay or disruption of shipment or delivery, trespass or interference of third parties, whether physical or electronic, governmental restrictions or lockdowns, or similar events or circumstances outside its reasonable control, whether or not otherwise enumerated.

9. Updates to these Terms. We may update these Terms and Conditions from time to time in our sole discretion upon notice to you, and will post the new Terms and Conditions on our website. By continuing to access the Services, you agree to these updated Terms and Conditions.

XI. Contact Information.

All notices and other communications required or permitted under this Agreement will be sent to your e-mail on file with us.

We can be contacted at: support@rootworks.com