Thank you for selecting the Services offered by PLANGURU, LLC, a Delaware limited liability company (“PlanGuru” or the “Company”). Review these Terms of Service (this “Agreement”) thoroughly. This Agreement is a legal agreement between you, the “User”, and PlanGuru. By clicking “I AGREE” on our sign up form, indicating acceptance electronically, or by installing, accessing or using the Services, you are agreeing to be bound by these Terms of Service as well as the terms set forth in the registration forms completed on the previous screens.
“Application” or “App” means the code version of any software to which User is provided access as part of the Services, including any updates or new versions.
“Documentation” means any user guides, online help, release notes, training materials and other documentation provided or made available by Company to User regarding the use or operation of the Services.
“Host” means any computer equipment on which the Application is installed, which is owned and operated by User.
“Personal Information” means User’s identity data that will be accessible to and/or managed by the Services for the purposes of registering User, providing sign-on information, managing passwords or certifying User access. Identity data for User may be physically or logically maintained in a single repository or in separate physical or logical repositories.
“Services” refer to the specific Company internet-accessible service Application that provides budgeting, forecasting, and financial analytics tool and services, as described on the Company’s website and during the User registration forms on the previous screens. The Application that provides the Services is hosted by Company or its services provider and made available to User over a network on a term-use basis. Unless otherwise stated all Services utilize and rely upon third-party platforms and software providers, including but not limited to Intuit® QuickBooks®.
“Support Services” means all technical and non-technical services performed or delivered by Company under this Agreement, including, without limitation, implementation services and other professional services, training and education services but excluding the Services.
“Term” shall mean that period during which User will have on-line access and use of the Application through Company’s Services.
“User” shall mean the individual granted access to the Application and the Services pursuant to these Terms of Service.
“User Content” means all data and materials provided by User to Company for use in connection with the Services.
a. Upon acceptance of this Agreement, User shall be permitted to install the Application and utilize the Services. User acknowledges and agrees that the Application and Services will not function properly, or at all, without access to high speed, secure internet access.
b. During the Term, User will receive a nonexclusive, non-transferable, non-assignable, non-sublicensable, royalty free, worldwide right to access and use the Services solely for its internal operations to provide budgeting, forecasting, and financial analytics tools and solutions for User’s products subject to the terms of this Agreement.
c. User acknowledges that this Agreement is a services agreement and Company will not be delivering copies of the Application to User as part of the Services.
d. User acknowledges and agrees that all Services are highly dependent upon third-party platforms and software providers, including but not limited to Intuit® QuickBooks®. In the event that one or more of the third-party platforms or software providers websites, or other means of access is not functioning or is functioning in a limited manner, the functions and accessibility of the Services will be limited or may not function properly, or at all. The Application and the Services may be integrated and/or configured to include such third-party platforms and software. Company has no control over or access to modify such third-party platforms or software in any way. Company shall not in any way be liable to User for any damages, direct or indirect, special, consequential or otherwise for any issues, problems, defects, malfunctions, or inability to use, in any way relating to such third-party platforms or software, even if Company is advised of the potential for such damages by a third-party platforms and/or software.
e. The Services are provided on an AS IS and AS AVAILABLE basis.
a. User shall not, and shall not permit any person to: (i) copy, reproduce, distribute or republish the Services or Application; (ii) make the Services available to any third party; (iii) use or access the Services to provide service bureau, time-sharing or other computer hosting services to third parties; (iv) modify or create derivative works based upon the Services or Documentation; (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Application used to provide the Services or in the Documentation; (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Application used to provide the Services; or (vii) access the Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, Company shall own all right, title and interest in and to the Application, Services, Documentation and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. User agrees to assign any and all right, title and interest it may have in and to the foregoing to Company.
4. USER RESPONSIBILITIES
a. Assistance. User shall provide commercially reasonable information and assistance to Company to enable Company to deliver the Services. Upon request from Company, User shall promptly deliver User Content to Company in an electronic file format specified and accessible by Company. User acknowledges that Company’s ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.
b. Compliance with Laws. User shall comply with all applicable local, state, national and foreign laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. User acknowledges that Company exercises no control over the content of the information transmitted by User through the Services. User shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
c. Unauthorized Use; False Information. User shall: (i) notify Company immediately of any unauthorized use of any User identification, password or other User information or any other known or suspected breach of security; (ii) report to Company immediately and use reasonable efforts to stop any unauthorized use of the Application or the Services that is known or suspected by User or any User; and (iii) not provide false identity information to gain access to or use the Services.
d. User Activity. User shall be solely responsible for the acts and omissions of the User. Company shall not be liable for any loss of data or functionality caused directly or indirectly by the User.
e. User Input. User is solely responsible for collecting, inputting and updating all User Content stored on the Host, and for ensuring that the User Content is correct and does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third-party; or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. Although Company has no obligation to monitor User’s or any User’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
f. User Hardware. User is solely responsible for obtaining, maintaining and supervising all required hardware, software, servers, internet connections, equipment, devices and communication systems necessary to access and utilize the Application and the Services.
g. License from User. Subject to the terms and conditions of this Agreement, User shall grant to Company a limited, non-exclusive and non-transferable license to copy, store, configure, perform, display and transmit User Content solely as necessary to provide the Services to User.
h. Ownership and Restrictions. User retains ownership and intellectual property rights in and to its User Content. Company or its licensors retain all ownership and intellectual property rights to the Services, Application, and anything developed and delivered under the Agreement. Third-party technology may be necessary for use with some Company programs, User shall be solely responsible for supplying, using, maintaining and servicing all third-party technology. User’s right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by Company and not under this Agreement. Company assumes no responsibility for third-party technology and User shall bear all risks associated with access and use of such third-party technology.
i. Enhancements. Company shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendation or other feedback provided by User relating to the operation of the Services.
j. Reporting Problems/Backups. User shall report all problems, issues or concerns relating to the Application and/or the Services on a timely basis. User shall follow all instructions and procedures provided by Company to address errors and malfunctions. User shall at all time maintain current backup copies of all User Data and programs and shall maintain policies and procedures necessary to recover lost User Data and programs.
User shall pay the Subscription Fee (identified on the registration forms completed on the previous screens) to Company on a monthly or annual basis via credit card in order to access the Application and Services. All fees are stated in United States Dollars and must be paid by User to Company in United States Dollars.
6. TERM AND TERMINATION
a. Term of Agreement. The term of this Agreement shall begin upon acceptance by the User, and shall continue until such time as the User deletes the App or that the Company terminates the User or terminates the User’s access to the App or the Services.
b. Suspension for Non-Payment. Company reserves the right to suspend delivery of the Services if User fails to timely pay any amounts due to Company under this Agreement. Suspension of the Services shall not release User of its payment obligations under this Agreement. User agrees that Company shall not be liable to User or to any third-party for any liabilities, claims or expenses arising from or relating to suspension of the Services resulting from User’s nonpayment.
c. Suspension for Ongoing Harm. Company reserves the right to suspend delivery of the Services if Company determines that User or User’s use of the Services is causing immediate and ongoing harm to Company or others. Company shall not be liable to User or to any third-party for any liabilities, claims or expenses arising from or relating to any suspension of the Services in accordance with this Section. Nothing in this Section will limit Company’s rights as set forth in the provisions below.
d. Effect of Termination. Upon termination of this Agreement, Company shall immediately cease providing the Services and all usage rights granted under this Agreement shall terminate.
7. AVAILABILITY OF SERVICES
a. The Services will achieve System Availability (as hereinafter defined) of at least 99% during each calendar year of the Term.
“System Availability” means the number of minutes in a year that the key components of the Services are operational as a percentage of the total number of minutes in such year, excluding downtime resulting from (i) scheduled maintenance, (ii) events of Force Majeure in the Agreement, (iii) malicious attacks on the system, (iv) issues associated with the User’s hardware, software, devices, local area networks or internet service provider connections, or (v) inability to deliver Services because of acts or omissions of User. Company reserves the right to take the Service offline for scheduled maintenance for which User has been provided reasonable notice and Company reserves the right to change its maintenance window upon prior notice to User.
b. The User acknowledges and agrees that the Company has no control over, and shall not be responsible for, the availability for any third-party platforms and software providers or websites.
a. Warranty. Company represents and warrants that it will provide the Services in a professional manner consistent with general industry standards and that the Services will perform substantially in accordance with the Documentation. For any breach of a warranty, User’s exclusive remedy shall be termination of this Agreement.
b. COMPANY WARRANTS THAT THE SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. COMPANY DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT COMPANY WILL CORRECT ALL ERRORS IN ITS PROVISION OF THE SERVICES. USER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. USER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL third-party platforms or software providers AND DOES NOT GUARANTEE THE PERFORMANCE OF ANY third-party platform or software UNDER ANY CIRCUMSTANCES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY COMPANY (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NEITHER COMPANY NOR ANY OF ITS LICENSORS, OTHER SUPPLIERS OR ANY third-party platform or software PROVIDER WARRANT OR GUARANTEE THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL COMPANY OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF USER CONTENT OR ANY USER’S DATA, FILES, OR PROGRAMS.
c. DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 8 ARE THE ONLY WARRANTIES MADE BY COMPANY. COMPANY MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE APPLICATION, THE SERVICES, AND ANY RELATED SERVICES OR SOFTWARE. COMPANY HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL OR WRITTEN INFORMATION GIVEN BY COMPANY, ITS MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, AGENTS, ATTORNEYS, ANY third-party platform or software PROVIDER OR THE LIKE WILL CREATE A WARRANTY.
9. LIMITATION OF LIABILITY
COMPANY (NOR ANY LICENSOR OR OTHER SUPPLIER OF COMPANY, NOR ANY third-party platform or software PROVIDER) SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, OR DATA RESULTING FROM THE USE OR INABILITY TO USE THE APPLICATION OR ANY SERVICES, OR FROM ANY MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS INCURRED BY USER, ANY USER OR ANY THIRD-PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY USER UNDER THIS AGREEMENT DURING THE MONTH IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
a. Indemnification by Company. If a third-party makes a claim against User that the Services infringe any patent, copyright or trademark, or misappropriates any trade secret, Company shall defend User and its directors, officers and employees against the claim at Company’s expense and Company shall pay all losses, damages and expenses (including reasonably attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Company, to the extent arising from the claim. Company shall have no liability for any claim based on (i) the User Content; (ii) modification of the Services not authorized by Company; (iii) use of the Services other than in accordance with the Documentation and this Agreement; or (iv) usage of its Suppliers’ patents, copyrights, trademarks or other intellectual property, misappropriation of Suppliers’ trade secrets. Company may, at its sole option and expense, procure for User the right to continue use of the Services, modify the Services in a manner that does not materially impair the functionality, or terminate the Subscription Term.
b. Indemnification by User. If a third-party makes a claim against Company that the User Content infringes any patent, copyright or trademark, or misappropriates any trade secret, or that User’s negligence or misconduct has caused loss, bodily injury or death, User shall defend Company and its members, managers, directors, officers, employees, agents and attorneys against the claim at User’s expense and User shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement signed by User, to the extent arising from the claim.
a. Definition. “Confidential Information” means (i) the terms of this Agreement; (ii) any and all information contained in the Application or in any document marked as “confidential,” “proprietary,” or other similar marking; and (iii) whether or not such information is reduced to writing or is marked as “confidential,” “proprietary,” or similar marking, all information concerning (A) the Services, the Application, procedures employed in the operations of either party and the business affairs of either party; (B) the identity of the suppliers, business partners, prospective business partners, work subjects or sources, prospective work subjects or sources, or vendors of either party, and the nature and extent of either party’s business relationships with such persons and entities; (C) either party’s financial condition, results of operations, business plans, prospects, projections, strategies, budgets, practices, techniques, trade secrets, employees, employee lists, management, investors, products, know-how, formulae, specifications, strategic and development plans, financial matters, marketing information, marketing programs, pricing information, price lists, co-developer identities, data, business records, User lists, project records, reports, drawings, designs, work product, services, policies, procedures, proposals, contracts, leases, rental agreements, memoranda, notes, training material, files, correspondence, computer disks, information relating to processes, technologies, theories, research, development, computer programs, or manufacturing, and all other technical or business information of either party; (D) the developments, ideas, and inventions which derive in any manner from Confidential Information or are produced during the course of the Term; and (E) all other information of either party that may be disclosed by such party or to which either party may be provided access by the other, or which is generated as a result of or in connection with either party’s business purposes.
b. Confidentiality. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third-party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.
c. Exceptions. Confidential Information excludes information that: (i) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party; (ii) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party; or (iii) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this Agreement and the relationship of the parties, but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.
12. GENERAL PROVISIONS
a. Non-Exclusive Service. User acknowledges that the Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Company’s ability to provide the Services or other technology, including any features or functionality first developed for User, to other parties, including possible competitors of User.
b. Personal Data. User hereby acknowledges and agrees that Company’s performance of this Agreement may require Company to process, transmit and/or store User personal data (“Personal Data”). By submitting Personal Data to Company, User agrees that Company and its affiliates may process, transmit and/or store Personal Data for Company to perform its obligations under this Agreement. User agrees to obtain all necessary consents and make all necessary disclosures before transferring Personal Data and using the Application and Services. User confirms that User is solely responsible for any Personal Data that may be contained in content, including any information which any User shares with third parties on User’s behalf. Prior to processing, User will inform Company about any special categories of data contained within User Personal Data and any restrictions or special requirements in the processing of such special categories of data, including any cross-border transfer restrictions. User is responsible for ensuring that the Company’s Services meet such restrictions or special requirements for Company to process any Personal Data prior to transmitting such Personal Data to Company.
d. Changes. Company reserves the right to modify this Agreement in its sole discretion, at any time, and the modifications will be effective when posted through the Application or through the e-mail address that User provided during registration. User agrees to regularly monitor and review this Agreement for modifications and revisions.
e. Assignment. Neither party may assign this Agreement or any right under this Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this Agreement to an acquirer of all or substantially all of the business of such party to which this Agreement relates, whether by merger, asset sale or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this Agreement, provided, however, that such party shall not be relieved of any obligation under this Agreement.
f. Notices. Except as otherwise permitted in this Agreement, notices under this Agreement shall be in writing and shall be deemed to have been given (i) five (5) business days after mailing if sent by registered or certified U.S. mail; (ii) when transmitted if sent by e-mail, provided that a copy of the notice is promptly sent by another means specified in this Section 12; or (iii) when delivered if delivered personally or sent by express courier service.
g. Force Majeure. Each party will be excused from performance for any period that continues for more than thirty (30) days during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, government restrictions, communication line failures, and power failures.
h. Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.
i. Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.
j. Entire Agreement. This Agreement, including all Schedules and Exhibits, contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement. This Agreement may be amended solely in a writing signed by both parties. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and shall be void unless specifically accepted in writing by the party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the terms.
k. Survival. Section 3, 6, and 8 through 12 of this Agreement shall survive the expiration or termination of this Agreement for any reason.
l. Publicity. Company may include User’s name and logo in its User lists and on its website and marketing materials.
m. No Third-Party Beneficiaries. This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of User or upon any other person or entity.
n. Independent Contractor. The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel. The parties agree that no partnership, joint venture or agency relationship exists between the parties as a result of each parties’ performance under this Agreement or otherwise.
o. Statistical Information. Company may anonymously compile statistical information related to the performance of the Services for purposes of improving the Services, provided that such information does not identify User’s data or include User’s name.
p. Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, excluding its conflict of law principles.
q. Compliance with Laws. Company shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the Services, including those laws related to data privacy, international communications, and the transmission of technical or Personal Data.