7 Experts Weigh In On the Future of Accounting
Every industry is impacted by the rise of technology and automation, and for many, that can be an...
A. Botkeeper provides an automated bookkeeping and accounting solution through the use of machine learning and AI. The solution is comprised of a website, a financial hub accessible through http://portal.botkeeper.com/, and the services accessible through the financial hub (collectively, the “Services”).
B. From time to time, individual customers of Botkeeper and other community members desire to promote the Services as a member of the Program (each such person, a “Member”) to prospective new customers.
C. Botkeeper desires to reward Member and Member wishes to receive such rewards from Botkeeper when prospective new customers purchase a subscription to the Services.
Therefore, Botkeeper and Member hereby agree to the terms and conditions of this Agreement.
Program to allow and empower current users or Members of Botkeeper Services to promote the Services to new customers.
2.1 Program Participation. Member agrees to comply with all terms of this Agreement, including the Botkeeper trademark restrictions guidelines (“Exhibit A”) and Client Terms of Services Agreement (“TOS”) as applicable to Botkeeper Services (Exhibit A and TOS are hereby incorporated into this Agreement by reference and, collectively the “Documentation”). Under no circumstances may Member or end users acquire any ownership rights in Botkeeper Services.
2.2 Modification. At any time and in Botkeeper’s sole discretion, Botkeeper may modify any of the terms and conditions contained in this Agreement by posting a revised or new agreement. If any modification is unacceptable to Member, Member’s only recourse is to terminate this Agreement. Member’s continued participation in the Program following Botkeeper’s posting of a revised or new agreement will constitute binding acceptance of the modification. Botkeeper may, in its sole discretion, modify the fees and payment terms at any time by providing notice to the Member.
2.4 Third Party Services. Certain services and products provided by third parties, and not by Botkeeper, are made available in connection with the marketing and distribution of Botkeeper in the Program (“Third Party Services”). You are responsible for reviewing, understanding and complying with the terms and conditions governing any Third Party Services, and your use of any Third Party Services indicates your acceptance of such terms and conditions. You agree that Botkeeper is not responsible for the performance of third parties in connection with the Third Party Services, and to indemnify Botkeeper for third party claims relating to your use thereof.
3.1 Conduct of Business. Member agrees:
3.1.1 To conduct business and promote Botkeeper Services in a manner which reflects favorably at all times on the products, services, goodwill and reputation of Botkeeper;
3.1.2 To conduct business and promote Botkeeper Services in full compliance with all applicable laws and regulations;
3.1.3 To conduct business and promote Botkeeper Services in full compliance with all agreements you may have with Botkeeper;
3.1.4 Not engage in deceptive, misleading or unethical practices;
3.1.5 Not to make any statements, representations, warranties, or guarantees that are inconsistent with this Agreement;
3.1.6 To provide support and services of the highest quality and integrity; and
3.1.7 To use best efforts to resolve any complaints or disputes with end users regarding Member’s services under the Program in a fair and timely manner. Member agrees not to use or display any materials or content on Member’s Web site(s) in a manner that is defamatory, misleading, libelous, obscene or otherwise potentially damaging to the reputation of Botkeeper or the goodwill associated with Botkeeper.
3.2 Right to Inspect. Botkeeper shall have the right to inspect Member’s provision of support and services under this Agreement, and all Program related material in order to ensure Member’s full compliance with the terms and conditions of this Agreement. Member shall cooperate fully and shall provide Botkeeper immediate access to all requested materials in order to allow Botkeeper to exercise its right to inspect.
3.3 Authorization. Member hereby authorizes Botkeeper and third parties authorized by Botkeeper to disclose and/or publish information regarding Member’s name, address and other contact information, expertise profile, and business profile in printed and/or electronic forms in any medium.
4.1 Conditions of Payment. Member will receive a flat fee of five hundred dollars ($500.00) if the following conditions are met:
4.1.1 At minimum, the client must sign up for what is currently referred to as a “Simple Package,” as amended or modified from time to time, for $299.00 per month;
4.1.2 The client must sign up for a minimum 1-year agreement with Botkeeper; and
4.1.3 The client must (i) retain their subscription to the Botkeeper Services and otherwise remain a Botkeeper client for a minimum of 90 days, and (ii) Botkeeper must have received payment from client for 90 days of Botkeeper Services.
4.2 Modification. Pursuant to Section 2.2 above, Botkeeper reserves the right to modify the Conditions of Payment at any time in its sole discretion (with notice of such changes to be provided to Member).
5.1 Term. This Agreement shall be effective upon Member’s acceptance as indicated by Member click of the “ACCEPT” button (or otherwise providing signature, digital or otherwise) (the “Effective Date”), and shall remain in effect for so long as Member is in full compliance with the terms of the Agreement, until terminated as provided herein.
5.2.1 Botkeeper may terminate this Agreement for cause immediately and without further notice in the event that: (i) Member fails to perform any of Member’s obligations under this Agreement; (ii) Botkeeper, in its sole discretion, determines that Member is using the Program for another purpose or for a purpose that conflicts with the goals of the Program; or (iii) any conduct or proposed conduct of Member exposes or threatens to expose Botkeeper to any liability or obligation, including any obligation under federal, state or local law.
5.2.2 Either party may terminate this Agreement upon notification to the other. Termination shall be effective thirty (30) days following notification by either party.
5.3 Effect of Termination. Upon expiration or termination of this Agreement, regardless of the reason therefor: (i) all privileges and benefits of the Program will be immediately revoked; (ii) Member shall immediately cease use of all Botkeeper trademarks, tradenames, copyrights and any Program material provided to Member by Botkeeper:; (iii) Member shall promptly return to Botkeeper all Botkeeper confidential information or certify in writing that it has destroyed such information; (iv) all rights and licenses granted under this Agreement will immediately and automatically terminate; and (v) Member will immediately discontinue representing that Member is a Program participant.
6.1 Indemnification. Member agrees that Botkeeper shall have no liability to you or any of your clients or customers and that you shall indemnify, defend and hold Botkeeper harmless from any expenses, damages, costs or losses (including reasonable attorney’s fees) resulting from any suit or proceeding based upon a claim arising (i) by reason of your performance or non-performance under this Agreement; (ii) a breach of any representation, warranty, or obligation made by Member contained in the terms of this Agreement, and/or (iii) for any personal injury, product liability, or other claim arising from the promotion of Botkeeper Services by you. In the event Botkeeper seeks indemnification from you under this Section 5, Botkeeper will immediately notify you in writing of any claim or proceeding brought against it for which it seeks indemnification under this Agreement. Botkeeper reserves the right, at its option, to assume full control of the defense of such claim or proceeding with legal counsel of its choice. If Botkeeper so undertakes its own defense, any settlement of such claim or proceeding requiring payment from you shall be subject to your prior written approval. Member agrees to reimburse Botkeeper upon demand for any expenses reasonably incurred by Botkeeper in defending such claim, including, without limitation, attorney’s fees and costs, as well as any judgment or settlement of the claim or proceeding. In no event may you enter into any third party agreements which would in any manner whatsoever affect the rights of, or bind Botkeeper in any manner without the prior written consent of Botkeeper.
6.2 Disclaimers. Botkeeper makes no representations or warranties of any kind with respect to the Program and any Botkeeper Services provided to Member “as is.” EXCEPT AS PROVIDED IN THE SOFTWARE TERMS OF SERVICE, BOTKEEPER HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PROGRAM, PRODUCTS OR SERVICES PROVIDED BY BOTKEEPER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS PROVIDED IN THE BOTKEEPER PRODUCT AGREEMENT(S), BOTKEEPER SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF ANY WARRANTY.
6.3 Limitations of Liability. TO THE FULLEST EXTENT ALLOWED BY LAW, BOTKEEPER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE PROGRAM OR THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA OR ANY DAMAGES OR SUMS PAID BY MEMBER TO THIRD PARTIES, EVEN IF BOTKEEPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER SUCH CLAIM IS BASED UPON BREACH OF CONTRACT, WARRANTY OR ANY STATUTORY DUTY, NEGLIGENCE OR OTHER TORT, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. SINCE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL DAMAGES, THIS LIMITATION MAY NOT APPLY TO MEMBER. BOTKEEPER’S TOTAL LIABILITY FOR ALL DAMAGES, ALLEGED DAMAGES, AND LOSSES HEREUNDER, (WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE LESSER OF AMOUNTS RECEIVED BY BOTKEEPER UNDER THIS AGREEMENT OR ONE THOUSAND ($1,000) DOLLARS.
Member agrees to carefully follow the requirements set forth herein and Exhibit A in order to ensure that all advertising, marketing, promotional, web and trade show materials conform to the following restrictions so that customers are not confused as to the relationship between Member and Botkeeper and receive a clear and consistent marketing message about Botkeeper Services.
7.1 Member acknowledges that Botkeeper owns and retains all intellectual property rights in the Botkeeper Marks and materials, as well as in all Botkeeper Services, and agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity or enforceability of any trademark, image, logo, trade name, trade secret, copyright or patent belonging to or licensed by Botkeeper (including, without limitation, any act, or assistance to any act, which may infringe or lead to the infringement of any copyright in Botkeeper Services) or attempt to grant any right therein. As part of such obligation, Member agrees that it will not adopt, use or register any mark, logo, trade name, company name, domain name, screen name or other source indicator which might be reasonably understood to refer to any Botkeeper Services, including any mark, logo, trade name or the like containing the words, acronyms or prefixes “Botkeeper.” Member further agrees not to attach any additional trademarks, logos, trade designations or other legends to any Botkeeper Services without the prior written consent of Botkeeper. Member further agrees not to affix any Botkeeper trademark, logo or trade name to any non-Botkeeper Services. Any use of Botkeeper’s Marks or other Botkeeper owned names and logos as part of Member’s own source identifiers, or in a way that might create confusion with the Botkeeper Marks or Botkeeper owned names, is prohibited.
7.2 Upon expiration or termination of this Agreement, Member will immediately cease all display, advertising and use of the Botkeeper name or the names of any Botkeeper Services and will not thereafter use, advertise or display any name, mark or logo which is, or any part of which is, similar to or confusing with any such Botkeeper Marks, Botkeeper materials and other Botkeeper owned designations associated with any Botkeeper Services.
7.3 Botkeeper reserves the right to object to any uses or misuses of its trademarks that it deems, in its sole discretion, to be inappropriate or to constitute a violation of applicable law. In the event that Botkeeper finds any such improper use or misuse to be intentional, Botkeeper shall have the right to take any and all appropriate action up to and including termination of your participation in the Program. Member agrees to reasonably cooperate without charge in Botkeeper’s efforts to protect its intellectual property rights, and will make any modifications or alterations to any of its content that contains or makes reference to Botkeeper Marks or an Botkeeper name, upon request. Member agrees to notify Botkeeper immediately in writing of any breach of Botkeeper’s intellectual property rights that comes to Member’s attention.
7.4 Correctly Promote Your Participation in the Program. Upon your participation into the Program, Botkeeper encourages you to inform your current and prospective clients/customers of your membership in the Program, in accordance with the Agreement. You can convey this information in your advertising, promotional materials, detailed brochures, sales materials and Web sites (“Approved Materials”), but you agree to only do this in a way that does not lead customers to believe that you are somehow an Botkeeper representative or employee, or that you are somehow “Officially Endorsed by”, “Certified by”, “Authorized by”, or formally “Partnered” with Botkeeper beyond the Member designations indicated under this Agreement.
Do not use the term “Botkeeper Ambassador,” “Botkeeper Partner,” or any other description other than one of the following statements in your Approved Materials:
“Member: Botkeeper® Ambassador Program”; or
“Member of the Botkeeper® Ambassador Program”; or
“Botkeeper® Ambassador Program Member”
7.5 No Inappropriate Content. Except as set forth herein, Botkeeper, in its sole judgment, to be obscene, violent or otherwise in poor taste or unlawful, or for the purpose of encouraging unlawful activities, or otherwise misusing or bringing into dispute or disrepute the Botkeeper Marks, names or logos or Botkeeper Services.
8.1 Member in Good Standing. Member shall at all times during the term of the Agreement meet the criteria listed in the Agreement (or determined from time to time at Botkeeper’s sole discretion) and the Member Guide or be subject to removal from the program upon sole discretion of Botkeeper.
8.2 Confidentiality. Botkeeper may from time to time provide you with confidential information including, but not limited to, Program Materials. You acknowledge that such confidential information is the property and a confidential trade secret of Botkeeper. You shall not reveal, disclose or distribute such confidential information in any form to employees, except on a need to know basis, nor to any third party, except to the extent specifically permitted by Botkeeper. You agree to take all reasonable precautions to prevent unauthorized disclosure and use of such confidential information. This obligation of confidentiality does not apply to information which is (a) rightfully in the public domain other than by a breach of a duty to Botkeeper; (b) rightfully received from a third party without any obligation of confidentiality; (c) rightfully known to you without any limitation on use or disclosure prior to its receipt from Botkeeper; (d) independently developed by you; or (e) generally made available to third parties by Botkeeper without restriction on disclosure. You may not disassemble, reverse-engineer, or decompile any software that is provided to you by Botkeeper. Member agrees to return to Botkeeper immediately upon Botkeeper’s written request any confidential information Member has received in writing or other tangible form. Member acknowledges that the unauthorized disclosure or use of Botkeeper confidential information will cause irreparable harm to Botkeeper, and that accordingly, Member agrees that Botkeeper will have the right to seek and obtain injunctive relief in addition to any other rights and remedies to prevent any such unauthorized use or disclosure.
8.3 Assignment. Member may not sell, transfer or assign this Agreement, in whole or in part, or any of the rights hereunder, unless Member obtains the prior written consent of Botkeeper.
8.4 Notices. Unless otherwise stated, all notices required under this Agreement shall be in writing and shall be considered given (i) immediately, when sent by email, or (ii) upon delivery when sent certified mail, return receipt requested, or via a commercial overnight carrier, fees prepaid. All communications to Botkeeper must be sent to the persons and addresses indicated in the membership platform and copy to:
179 South Street
Boston, MA 02111
Attn: Marketing Dept.
With a copy to:
Fox Rothschild LLP
101 Park Avenue, 17th Floor
New York, NY 10178
Attn: Max S. Cantor
8.5 Survival. The provisions of this Agreement which, by their terms, require or contemplate performance by the parties after expiration or termination, or which reasonably ought to be understood to so require or contemplate, shall be enforceable notwithstanding any expiration or termination.
8.6 Entire Agreement. This Agreement constitutes the entire agreement between Member and Botkeeper with regard to the subject matter hereof. The terms and conditions of this Agreement shall supersede any previous agreements between the parties with respect to the subject matter hereof, and any terms and conditions printed or written on any purchase order issued by Member.
8.7 Non-Waiver. No waiver of any condition or covenant contained in this Agreement or failure to exercise a right or remedy of Botkeeper or Member shall imply or constitute a waiver by the waiving party of the same or any other condition, covenant, right or remedy contained herein.
8.8 Severability. If a court of competent jurisdiction declares any provision of this Agreement invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
8.9 Governing Law and Jurisdiction. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of Massachusetts, with the exception of its choice or conflicts of law provisions. Both parties agree to submit to the exclusive jurisdiction of the courts located in the State of Massachusetts, County of Suffolk.
8.10 Independent Relationship. Nothing contained herein shall be deemed or construed as creating a joint venture or partnership between Botkeeper and Member. Neither Botkeeper nor Member is authorized, by virtue of this Agreement, as an agent or other representative of the other, or to make any commitments or representations of any kind on behalf of the other.
8.11 No Endorsement. Member acknowledges that Botkeeper makes no claim on Member’s behalf as to the quality of the products or services Member offers.
8.12 Force Majeure. Neither party hereto shall be liable for the failure to perform any of its obligations under this Agreement, with the exception of Member’s payment obligations, if such failure is caused by the occurrence of any event beyond the reasonable control of such party, including without limitation fire, flood, strikes and other industrial disturbances, failure of transport, accidents, wars, riots, insurrections, or acts of God.
8.13 Compliance with Laws. Member agrees, represents, and warrants that it and its agents, subcontractors, and employees shall comply with all applicable federal, state, county, and local laws, ordinances, regulations and codes in the performance of the Agreement, including the procurement of permits and certificates and the submission of reports and filings. Member also agrees to indemnify and hold harmless Botkeeper from and against all claims that may be sustained by Botkeeper from Member’s failure to comply with such laws, ordinances, and the like.
8.14 Review by Legal Counsel. Each party has had the opportunity to review this Agreement with the assistance of legal counsel. Any rule of construction construed the Agreement against the drafting party shall not apply.
8.15 No Export. Member shall not export directly or indirectly any Botkeeper Services outside the United States.
The following are the trademark usage restrictions for the Botkeeper Ambassador Program (“Trademark Restrictions”).
A. No Use of Logo Forms or Box Designs- When referencing the Botkeeper name, the use of product logos or box designs is prohibited. Botkeeper trademarks must be displayed only in plain text and only for approved purposes as set forth below. Such plain text usage must retain the distinctive capitalization and/or spacing of the mark.
Correct: Botkeeper® software; or BOTKEEPER® software
Incorrect: Bot keeper® software
B. Correctly Promote Your Affiliation in the Botkeeper Ambassador Program- Upon your enrollment, Botkeeper encourages you to inform your current and prospective clients/customers of your participation in the Program, in accordance with all of the Trademark Restrictions listed herein. You can convey this information in your advertising, and in detailed brochures, sales materials and websites (“Approved Materials”), but you should only do this in a way that does not lead clients to believe that you are somehow “Officially Endorsed by”, “Authorized by”, or formally “Partnered” with Botkeeper, or that you are an employee or representative of Botkeeper. The best way to promote your membership is to simply place one of the following plain-text statements in your sales and/or advertising materials:
“Member: Botkeeper® Ambassador Program”; or
“Participant of the Botkeeper® Ambassador Program”; or
“Botkeeper® Ambassador Program Member”
C. No Use in Direct Business Source Identifiers
The Botkeeper or other similar marks or logos, including but not limited to phonetic equivalents, cannot be used in your company name, product/service name or in your direct business source identifiers such as stationery, business cards, company signs, domain names or company website titles. These identifiers indicate the name of your business and, thus, the source of its products or services. In order to avoid any possible confusion with regard to the source of Botkeeper’s products/services, versus your or another party’s products/services, use of Botkeeper’s trademarks in these source identifiers is prohibited. However, Botkeeper does not object to the statements in Section B above being used in appropriate context, which make clear the true nature of your relationship to Botkeeper. You can also make truthful statements about the nature of your services, such as:
“Passionate in Botkeeper® Services”; or
“Supporting Botkeeper® users since...”; or
All other uses of the Botkeeper or other Botkeeper marks on direct business source identifiers are strictly prohibited.
Additionally, by participating in the Program, you agree that the Approved Materials will not contain any content that could be deemed by Botkeeper, in its sole judgment, to be obscene, violent or otherwise in poor taste or unlawful, or for the purpose of encouraging unlawful activities, or otherwise misuse or bring into dispute or disrepute the Botkeeper trademark, any other Botkeeper owned marks or logos, or Botkeeper’s products or services. Botkeeper reserves the right to object to unfair uses or misuses of its trademarks/logos and to hold you in breach of the Agreement for any such unfair uses or misuses in Botkeeper’s sole discretion.
D. No Use of Botkeeper Company Trade Name, Trademark or Company Logo- No person or company except Botkeeper may use the Botkeeper company name, trademark or company logo. The only use of the company name that is permitted is the plain-text listing of the ownership legend for Botkeeper’s trademarks, as shown in Section E below.
E. Appropriate Symbols and Ownership Legends Must Be Used
When used in accordance with these Trademark Restrictions, Botkeeper’s Botkeeper® trademarks should appear with the “®” symbol directly next to the mark as shown.
The appropriate ownership “legend” must also be displayed at least once in any materials where the Botkeeper names are mentioned (unless space is not available, e.g., on business cards). Such legend should generally read as follows:
“Botkeeper is a registered trademark and/or registered service mark of Botkeeper, Inc.”