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ACCOUNTING VERTICAL PARTNER

Terms of Service and Privacy Policy

 

 

ACCOUNTING VERTICAL PARTNER

  

TERMS OF SERVICE

  

Updated February 4, 2021

  

1. SCOPE. Client will order, and Botkeeper agrees to provide, the Services in accordance with the terms and conditions set forth here (“TOS”) and as set forth in an Order Form.

2. ORDERING. Client will procure Services using an Order Form that references these TOS. Such Order Form will be binding upon Client and Botkeeper upon signature by both Client and Botkeeper. In the event of a conflict between the terms and conditions of these TOS and those of a Order Form, the terms and conditions of these TOS will control; provided, that to the extent any Order Form includes terms and conditions not addressed in these TOS or not in conflict with the terms and conditions of these TOS, then such terms and conditions will supplement and be a part of these TOS.

  

3. FEES, PAYMENT TERMS & TAXES.

  

3.1. Fees. Client will pay Botkeeper the Fees set forth in an applicable Order Form for the Services as consideration for the Services provided by Botkeeper in accordance with these TOS, with the first such payment being due and payable on the Service Start Date. Any and all Fees paid up through the point of termination or expiration shall be nonrefundable.

3.2. Late Payments & Disputes. Client will incur a monthly finance charge of one and a half percent (1.5%) for any balance that is overdue by thirty (30) daysaccess to Botkeeper services shall be suspended if past due amounts are over forty-five (45) past due. Client shall be responsible for any reasonable and documented costs incurred by Botkeeper 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 Client disputes any portion of an invoice, Client agrees to pay the undisputed portion of the invoice and to submit a written dispute within ten (10) days of the invoice date. Client’s dispute must include written documentation to support the dispute. Upon receipt of a written dispute from Client, Botkeeper will attempt to resolve the dispute with Client 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 15.2. Client’s failure to submit a written dispute of charges within such time shall be deemed final acceptance of all charges.

3.3. 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.

3.4. Third-Party Technology. All third-party technology fees associated with providing the Services shall be added to the Client invoice monthly. Client’s signature on this Order Form shall serve as written notice and acceptance of these fees.

3.5. Clean Up Services and Special Projects. Services rendered to Client in connection with bringing Client books current, commonly referred to as catch up/clean up services, or other Services not included in monthly Fees, as may be specified by Botkeeper from time to time, and in the case of all the foregoing, approved in advance in writing (including by email) by Client. Clean up Services are assessed per the type of entity (Starter through Basic V); pricing is available upon request. Clean up fees will be invoiced per Client’s preference: a) as one time, separate invoices or b) included in Client’s regularly scheduled invoice. Notwithstanding the foregoing, Botkeeper shall not charge Client for any such additional or clean up Services that are incurred as a result of errors or gross negligence on the part of Botkeeper.

3.6. Auto Debit. Payment will be facilitated by auto debit via ACH. Botkeeper will request Client’s banking information separately via a secure form and use Bill.com and/or Stripe to process recurring autopay for Botkeeper services. A late charge of one and a half percent (1.5%) per month shall accrue on past due amounts that are over thirty (30) days past due; access to Botkeeper services shall be suspended if past due amounts are over forty-five (45) days past due. Client shall be responsible for any reasonable and documented costs incurred by Botkeeper 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.

3.6.1. Credit Cards. At Botkeeper’s discretion, should Client elect a credit card payment, a processing fee (approximately three percent (3%) of the invoice total) shall be added to the Client invoice.

  

4. PROVISIONING OF CLIENT CUSTOMERS AND CLIENT RESPONSIBILITIES.

  

4.1. Commitment. Client commits to the Platform Fees and the Total Monthly Commitment in the Order Form, if included.

4.2. Provisioning. Entities are charged to Client at the full monthly price at time of provisioning; monthly fees will not be prorated. Should Client not reach the Total Monthly Commitment, Client shall still be charged the Total Monthly Commitment. Should Client exceed the Total Monthly Commitment (and the Incentive Value, if applicable), Client shall authorize the additional charges via an additional Order Form

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4.3. Other Pricing. If Client selects to provision entities that are included in the Scope of Services, but pricing is not included herein, Client shall be charged the current Botkeeper list price for those entities at time of provisioning

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4.4. Named Users. Should Client terminate an entity already provisioned on the Botkeeper platform during the Term (a “Named User”), Client shall have the option to replace the Named User for another entity. The replacement entity shall be limited to the same scope detailed in Exhibit A: Scope of Services, and shall be provisioned in the Botkeeper partner portal at no additional charge. Should Client's replacement entity require more or customized services exceeding the Scope of the current Named User, Botkeeper and Client shall at that time review those services, and agree to the additional scope and fees in writing. Client may not pause or stop payment on the Named User’s seat during the replacement period. Should Client not elect to fill the Named User’s seat, the Fees associated with the Named User shall continue to be charged for the remainder of the Term.

4.5. Financial Reporting. Financial reporting deadline is the fifteenth (15th) calendar day of each month, unless otherwise detailed in the Scope of Services.

  

5. SERVICES.

  

5.1. Access to Services. Subject to the terms and conditions of these TOS, Botkeeper will provide the Services to Client for the Term as provided in the Order Form and Service Level Agreement. These TOS do not permit access by persons who are not Authorized Users. Client understands and acknowledges that the Services are made accessible by Botkeeper to Client via Internet connections pursuant to the terms and conditions of these TOS. Botkeeper reserves all rights not specifically granted to Client hereunder. Nothing herein will prevent Botkeeper or its licensors, if any, from promoting, providing, licensing, or sublicensing the Services or providing any services to other parties.

5.2. Documentation License Grant. Subject to the terms and conditions of these TOS, Botkeeper grants to Client a limited, non-exclusive, non-transferable, and non-sublicensable right and license to use and make copies of the Documentation for internal use, archival purposes, and for training and education of Client’s Authorized Users, provided that all proprietary notices of Botkeeper and its licensors, if any, are reproduced.

5.3. Prohibitions. Under no circumstances may Client modify, decompile, reverse compile, disassemble, reverse engineer, decrypt, or otherwise seek to recreate the source code of the Services, adapt the Services in any way, use the Services to create a derivative work, or grant any other person or entity the right or access to do so, without the advance written consent of Botkeeper. Except as expressly authorized by these TOS, Client 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. All proprietary and/or other notices of Botkeeper or its licensors, if any, shall be provided and maintained on the Services at all times. Third parties may not be given access to the Services.

5.4. Ownership. Access to the Services is subscription-based and not sold. Client will not, by virtue of these TOS or otherwise, acquire any rights whatsoever in the Services and Client hereby expressly disclaims any other rights therein. Botkeeper 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, with the sole exception of any Client Data or Confidential Information provided by Client. Client hereby irrevocably assigns to Botkeeper ownership of any and all suggestions, modifications, enhancements, improvements, alterations, changes, or revisions to the Services made or suggested by Client or its Authorized Users. Client will cooperate with Botkeeper to confirm such assignments and Botkeeper’s ownership of such modifications. Client acknowledges that Botkeeper has expended a significant amount of time and energy in the creation of the valuable Services and will take no actions that may detrimentally affect such Services. Client will not allow any third party to use or view the Services without Botkeeper’s prior written consent.

5.5. Restrictions. Unless otherwise agreed to in these TOS, Client 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 or machine that is not an Authorized User; (c) use the Services in a service bureau, out-sourcing 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 TOS; (e) publish, post, upload, or otherwise transmit any data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any systems, data, personal information, or property of another; (f) use or knowingly permit the use of any security testing tools in order to prove, scan, or attempt to penetrate or ascertain the security of the Services; (g) use or launch, or knowingly permit the use or launch of, any automated system, including, without limitation, “robots,” “spiders,” or “offline readers,” that access the Services in a manner that sends more request messages to the Services in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; or (h) permit or assist any third party with any of the foregoing restrictions. Botkeeper shall use its best efforts not to sell to or enter into a written agreement for provision of Services with any Client Customer without Client’s prior consent. Should any Client Customer contact Botkeeper independently, Botkeeper shall direct such Client Customer to Client. At Botkeeper’s request, Client shall provide to Botkeeper written names of all Client Customers associated with Order Form or any other applicable Order Form(s); however, Client may update its Client Customers from time to time.

5.6. Notification. Client will promptly notify Botkeeper of any determination, discovery, or notification that any person or entity is or may be misusing or infringing any Services. Client will not take any legal action relating to the protection or defense of any Services without Botkeeper’s prior written approval.

  

6. OBLIGATIONS OF THE PARTIES.

  

6.1. Client Obligations. Client 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, LANs and WANs; for any communications or other costs incurred in operating, accessing and using the Services; and for any other expenses relating to the foregoing. Client shall be responsible for selecting and training adequate personnel with the requisite experience necessary to operate Client’s systems and who are familiar with Client’s records associated with the Services. Client 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. Client shall be solely responsible for the security and confidentiality of any usernames or passwords granted to Client or its Authorized Users to access the Services, and shall limit disclosure of such usernames and passwords to its Authorized Users. Client shall be solely responsible for any authorized or unauthorized access to the Services using such usernames and passwords, and any actions taken thereunder. Client 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 Botkeeper’s Confidential Information and Botkeeper’s intellectual property are kept secure. Client shall use its best efforts to ensure that all Authorized Users afforded access to the Services and any other information and materials produced or disclosed in connection therewith protect the same against unauthorized use, dissemination or disclosure. Client shall have the sole responsibility for maintaining the privacy and security of all Client Data. Client agrees to co-operate with Botkeeper as necessary to allow Botkeeper to provide the Services and perform its obligations pursuant to these TOS, and to provide, in a timely manner, such information, including the Client Data, that is complete and accurate in all respects, as Botkeeper may require to perform the Services.

6.2. Regulatory Compliance. Client assumes sole and complete responsibility for ensuring that Authorized Users’ use of the Services and all related Client 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, and any other federal, state or local privacy or information security laws or regulations.

6.3. Botkeeper Support and Maintenance Limitations. Botkeeper shall use commercially reasonable efforts to correct verifiable and reproducible errors in the Services reported to Botkeeper by Client. As used in these TOS, an “error” is any failure of the Services to function in substantial conformity with the applicable Documentation provided by Botkeeper. Botkeeper may correct errors by making revisions to programming or by providing reasonable “work-around” solutions. Botkeeper reserves the right to modify any Documentation if such Documentation, in Botkeeper’s sole determination, incorrectly describes the Services functions and may do so in order to resolve an error. Botkeeper retains sole discretion to determine whether and when to make new releases available and the terms on which they will be made available to Client. Except as otherwise set forth in Order Form, support services provided under these TOS do not include on-site consultation, systems administration, facilities management, or customized programming support to resolve problems resulting from Client equipment used to access the Services, resulting from modifications to the Services not made or authorized by Botkeeper, or resulting from the combination of or interface for the Services with other programming or equipment if the combination or interface has not been made by or approved in writing by Botkeeper. In addition, support is not provided under these TOS for third-party software, hardware, or networks. Any time spent by Botkeeper attempting to provide such support or services may be charged to Client at Botkeeper’s then-standard hourly rates. To ensure appropriate performance and security of the Services, Botkeeper may routinely perform maintenance on a regularly scheduled basis. This may require the Services, or a portion thereof, to be suspended during the maintenance period. Botkeeper will use reasonable efforts to notify Client in advance of any scheduled maintenance that may adversely affect Client’s access to the Services. Under certain circumstances, Botkeeper may need to perform emergency maintenance, including, without limitation, a security patch installation or hardware replacement. Botkeeper may not be able to provide Client with advance notice in case of emergency maintenance.

6.4. Security. Botkeeper has established and shall use commercially reasonably adequate security programs and procedures relating to the Services and Client Data. Each of Client and Botkeeper agrees to use its reasonable efforts to prevent unauthorized persons from having access to the Services, or any equipment providing the Services. Each party agrees to notify the other party promptly upon becoming aware of any unauthorized access or use of the Services or Client Data by any third party.

  

7. CLIENT’S RESPONSIBILITY FOR USE.

  

7.1. Acceptable Use. Client 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: (a) use of the Services to access web sites other than the Botkeeper web site; (b) attempts to gain access to data about individuals other than for legitimate business purposes; (c) alteration or modification of individual data or of any Services configuration values from the originally delivered values; (d) accessing the Services through any technology or means other than through the user account information provided to Client by Botkeeper; (e) if Botkeeper and Client have agreed that Client will use the Services from dedicated computers, installation or use of the Services on computers other than the dedicated computers; and (f) any use of the Services or the information contained therein in violation of any applicable law or regulation. Client 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.

7.2. Suitability. Client shall be responsible for determining the suitability of the Services for its operations and whether the Services will achieve the results Client desires. The Services are provided as a tool for Client to use as Client sees fit in its business. 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. Client is solely responsible for understanding the limitations of the Services. Client shall be responsible for ensuring the accuracy of any data input into the Services, ensuring and confirming the accuracy of any output and results created by the Services prior to use or dissemination, and undertaking procedures to test, identify and correct any errors or omissions relating to the foregoing.

7.3. Application. Client 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. Client acknowledges that any information obtained through the use of the Services is only a single factor, among many, in any decision made by Client 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.

7.4. Client Responsibilities for Deployment and Ongoing Service. 7.4.1. Accounting Software Access two (2) business days prior to the scheduled Kick-off Call. 7.4.1.1. QBO - Send Accounting Firm invite per instructions provided. 7.4.1.2. Xero - Add User per instructions provided. 7.4.2. Have all credentials and documents ready prior to the scheduled deployment call. This includes the following: 7.4.2.1. Bank statements (if credentials are not available). 7.4.2.2. Credit Card(s). 7.4.2.3. Third Party Applications and Payroll, including but not limited to: Bill.com; Stripe; Payroll (eg. Gusto, ADP, Paychex); Expensify; POS system; Paypal. 7.4.2.4. Loan documents, including but not limited to: equity documents, taxes; process documents. 7.4.3. If Client is unable to deliver the access and documents that Botkeeper requires, Botkeeper will contact Client to discuss. 7.4.5. Ensure all applicable accounts are synced to QBO and Xero. If they become disconnected, they should reconnect within one (1) business day from receipt of notification.   

8. CLIENT DATA.

  

8.1. Data Location. All Client Data shall reside on Botkeeper systems powered by AWS servers in the United States.

8.2. Client Data. The Services involve the receipt, processing, and storage of data input by Client and its Authorized Users. Because Client Data is provided by Client and its Authorized Users, Botkeeper does not control such Client Data. In connection with Client Data, Client affirms, represents, and warrants that Client owns or has the necessary licenses, rights, consents, and permissions to use and authorize Botkeeper to use all Client Data in the manner contemplated hereunder and to transfer to and process such Client Data within the United States as may be required by applicable law. Client Data may be accessed by Botkeeper employees in the Philippines (see Section 17). Client shall provide Botkeeper with copies of any consents or other materials as may be requested by Botkeeper, as relevant and applicable, and shall use any consent forms that may be required by Botkeeper. Client represents and warrants that Client has all the rights necessary for Client to grant the rights in this Section 8.1 and the use of Client Data does not violate any law. By providing Client Data, Client hereby grants Botkeeper 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 Client Data for purposes of providing access to the Services to Client under these TOS. Additionally, Client grants to Botkeeper 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 Client Data in a de-identified format for the improvement of the Services and Botkeeper’s other products and services (as may exist now or in the future). For the avoidance of doubt, Botkeeper will compile and present any such Client Data that it so uses in such a manner that data cannot reasonably uniquely identify, either explicitly or implicitly, Client or any individual.

8.3. Inaccurate Client Data. All Client Data originates from Client and its Authorized Users, and as such, is beyond the control of Botkeeper. Botkeeper neither initiates the uploading and/or input of such Client Data nor monitors the specific content or accuracy of the Client Data being uploaded and/or input. Without limiting the generality of any other provision of these TOS, Botkeeper shall have no responsibility or liability related to the accuracy, content, currency, completeness, or delivery of the Client Data provided by Client or its Authorized Users. Client is responsible for the accuracy, content, currency, completeness, and delivery of the Client Data uploaded and/or input by its Authorized Users, and Client warrants that the Client Data posted by its Authorized Users is accurate, current, and complete.

8.4. Data Security Requirements. Botkeeper shall and shall cause Botkeeper’s employees, service providers and subcontractors (“Botkeeper Agents”) to implement, maintain and enforce administrative, physical, logical, and other security measures to prevent the unauthorized access, use, corruption, loss or disclosure of Client Data and Confidential Information of Client and the Authorized Users that are consistent with generally accepted industry best practices, information security policies of Botkeeper and laws and regulatory requirements applicable to the protection and use of Client Data and Confidential Information. Annually, Botkeeper shall provide its then-current information security policies to Client. Botkeeper shall and shall cause the Botkeeper Agents to encrypt all Client Data during storage and transmission and shall provide secure and lawful storage, transmission and disposal of the Client Data and Confidential Information.

  

9. WARRANTIES.

  

9.1. 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 TOS and that the execution of these TOS will not conflict 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 performance and obligations under these TOS.

9.2. Services Warranty. Botkeeper warrants that: (i) to the best of Botkeeper’ knowledge, the Services, as provided by Botkeeper, does not and will not contain any Trojan horses, works, viruses, or other disabling devices; and (ii) the Services, as provided by Botkeeper, will function in substantial conformity with these TOS and the applicable Documentation and other materials provided by Botkeeper to Client. In addition to any other rights or remedies available to Client, in the event the Services fail to comply with the foregoing warranty, Botkeeper shall, at Botkeeper’s sole cost and expense, correct the non-conforming Services. In the event that Botkeeper fails to correct the non-conformance within ninety (90) days of receipt of notice from Client of a breach of this Section 9.2, Client may terminate the Services.

9.3. Botkeeper’s Disclaimer of Warranty. THE WARRANTIES SET FORTH IN SECTION 9.2 AND IN THE SERVICE LEVEL AGREEMENT ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY BOTKEEPER. WITH THE EXCEPTION OF SUCH WARRANTIES, THE SERVICES, DOCUMENTATION, AND ANY OTHER SERVICE PROVIDED BY BOTKEEPER UNDER THESE TOS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, BOTKEEPER 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. BOTKEEPER DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS, THAT ACCESS TO OR OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED ERROR FREE, OR VIRUS FREE, THAT DEFECTS IN THE SERVICES, IF ANY, WILL BE CORRECTED, OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE. BOTKEEPER DOES NOT WARRANT OR REPRESENT THAT USE OF THE SERVICES WILL RESULT IN COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, AND CLIENT 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 BOTKEEPER WILL HAVE NO LIABILITY REGARDING ANY LOSS OF CLIENT DATA. CLIENT WILL BE SOLELY RESPONSIBLE FOR CREATING BACKUPS OF ANY CLIENT DATA PROVIDED. EXCEPTING SECTION 9.2, BOTKEEPER MAKES NO OTHER WARRANTIES AND ASSUMES NO RESPONSIBILITY OR LIABILITY REGARDING ANY RELATIONAL DATABASE SERVICE OR SERVERS, OR ANY THIRD PARTY HARDWARE, EQUIPMENT OR SERVICE WITH WHICH THE SERVICES MAY BE REQUIRED TO COMMUNICATE OR OPERATE.

  

10. INDEMNIFICATION.

  

10.1. Intellectual Property Infringement.

10.1.1. Botkeeper will defend, indemnify, and hold harmless Client and its officers, directors, agents and employees (collectively, “Client Parties”) from and against any claims, demands, suits, or proceedings (including any and all liabilities, damages, losses, costs, expenses, and reasonable attorneys’ fees arising therefrom) (collectively, a "Claim") arising out of any action or proceeding by a third party made or brought against any one or more of the Client Parties alleging that the Services infringe a copyright or misappropriate a trade secret of a third party, in the venue in which such services are provided.

10.1.2. If a Claim that the Services violate, infringe, or misappropriate a copyright or trade secret of a third party, or if Botkeeper reasonably determines such a Claim is likely to occur, Botkeeper will have the right, in Botkeeper’s sole discretion, to either (i) procure for Client the right or license to continue to use the Services free of the infringement Claim; (ii) modify the Services to make them non-infringing, without loss of material functionality; or (iii) if neither (i) or (ii) are reasonably available to Botkeeper, Botkeeper may, in its sole discretion, immediately terminate these TOS and return to Client the prorated portion of any pre-paid, unused fees for the relevant Services.

10.1.3. Botkeeper 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 Botkeeper or not approved by Botkeeper in the Documentation; (ii) modification or alteration of the Services by anyone other than Botkeeper; (iii) use of the Services in excess of the rights granted in these TOS; or (iv) Botkeeper’s permitted use of Client Data and any other materials and intellectual property furnished by Client (collectively, the “Excluded Claims”).

10.2. Client Indemnification. Client will defend, indemnify, and hold harmless Botkeeper and its subsidiaries, affiliates, officers, directors, agents, and employees (collectively, “Botkeeper Parties”) from and against any arising out of any action or proceeding by a third party made or brought against any one or more of the Botkeeper Parties alleging: (i) an Excluded Claim; (ii) an act or omission by Client which is a breach by Client of any of Client’s obligations under these TOS, (iii) the Client Data violates, infringes, or misappropriates the rights of any third party, including the intellectual property rights of a third party; or (iv) Client’s gross negligence or willful misconduct.

10.3. Procedures for Indemnification. In the event of any occurrence which may constitute grounds for indemnification under this Section 10, 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.

10.4. Exclusive Remedy. This Section 10 sets forth Client’s exclusive remedy with respect to any Claim for Botkeeper’s alleged violation of the intellectual property or other rights of third parties with respect to the Services. Botkeeper will have no liability to indemnify Client under this Section 10 if Client is in breach of any of its obligations under these TOS.

11. LIMITATION OF LIABILITY.

NEITHER PARTY WILL 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 SUCH PARTY WAS ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. EACH PARTY’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 TOS WILL IN NO EVENT EXCEED TWO (2) TIMES THE AGGREGATE AMOUNT OF FEES CLIENT PAID TO BOTKEEPER 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 11 DO NOT LIMIT (A) A PARTY’S LIABILITY FOR BREACH OF SECTIONS 8.3 OR 14, (B) A PARTY’S OBLIGATIONS UNDER SECTION 10, (C) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (D) ANY LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

  

12. INTELLECTUAL PROPERTY RIGHTS.

  

12.1. Botkeeper 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 software programs developed by Botkeeper as part of or apart from the Services and made available to Client or related to the Services, are and will remain Botkeeper’s exclusive property. Botkeeper reserves all rights, title, and interest in and to the Services.

12.2. 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 TOS, so long as such know-how does not include the other party’s Confidential Information.

  

13. TERM & TERMINATION.

  

13.1. Term. These TOS commences as of the Effective Date and will continue for the period set forth in Order Form, or until any and all Order Forms under these TOS expire or terminate.

13.1.1. Renewal Term. The initial term of this Order Form shall be twelve (12) months from the Service Start Date, unless terminated earlier pursuant to Section 13.2 (the “Initial Term”). 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. Botkeeper may not increase the Fees set forth in this Order Form during the Term except that Botkeeper may increase such Fees by no more than five percent (5%) of the Fees for the previous annual period; provided that Botkeeper notifies Client of any Fee increase no later than ninety (90) days before the end of the Initial Term or any Renewal Term.

13.2. Mutual Termination of Agreement. Either party may terminate these TOS, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:

13.2.1. 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

13.2.2. 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”).

13.3. No Termination for Convenience. Notwithstanding the foregoing, should Client terminate the Agreement for any other reason prior to the then-current Term, Client agrees to pay Botkeeper in full for all Fees that would have become due during the Term, unless such termination is caused by an uncured material breach by Botkeeper. Any and all Fees paid up through the point of termination shall be nonrefundable.

13.3. Consequences Upon Termination. Upon the termination or expiration of these TOS for any reason: (a) Client’s and its Authorized Users’ subscriptions to use the Services will terminate; (b) Client and its Authorized Users will cease all access and use of the Services and any Botkeeper 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 13.3 to the other party in writing upon request. To the extent that Botkeeper is able, Botkeeper will retain data collected using the Services for any minimum period required by applicable law and regulations. Thereafter, Botkeeper may delete any retained Client Data in accordance with Botkeeper’s data retention policy as then in effect and as modified from time to time. Notwithstanding the foregoing, Client shall have thirty (30) days from the termination of these TOS to download and remove any Client Data, and Botkeeper will have no affirmative obligation to return Client Data to Client upon termination. This Section 13.3 is subject to Section 13.6.

13.4. Suspension for Ongoing Harm. Client agrees that Botkeeper may with reasonably contemporaneous telephonic notice to Client suspend access to the Services if Botkeeper 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 Botkeeper or others. In the event that Botkeeper suspends Client’s access to the Services, Botkeeper 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. Client further agrees that Botkeeper will not be liable to Client nor to any third party for any suspension of the Services under such circumstances as described in this Section 13.4.

13.5. Ongoing Rights. Neither termination of these TOS nor waiver of any right to terminate under these TOS shall impair or limit any additional rights or remedies that Client or Botkeeper may have at law or in equity. The termination of these TOS shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable

.

13.6. Termination Assistance Services. In the event of a termination by Client under Section 13.2 or in connection with a Change of Control as provided in Section 19.3, upon request by Client and for a period not to exceed twelve (12) months (the “Termination Assistance Period”) Botkeeper shall use commercially reasonable efforts to provide to Client and Authorized Users such assistance as may be required to transition from Botkeeper to an alternative service provider without material interference with, interruption to or degradation of the Services provided by Botkeeper including, without limitation, the following: (i) continued support of the Services; (ii) knowledge transfer regarding the operation, use and support of the Services (provided that such knowledge transfer does not contain any intellectual property or Confidential Information of Botkeeper); and (iii) data migration to an alternative platform or alternative solution (provided that such data migration does not contain any intellectual property or Confidential Information of Botkeeper) (the “Termination Assistance Services”). The Term of these TOS shall not be deemed to have expired or terminated until the Termination Assistance Services are completed. The Termination Assistance Services shall be provided as part of the Services and shall be included in the Fees for the Services which Client will pay on a month-to-month basis; provided, that if the obligations described in the definition of Termination Assistance Services cannot be performed by Botkeeper with its then-current personnel and resources, then Botkeeper shall notify Client and Client may authorize Botkeeper to perform such additional Services and to charge Botkeeper’s then-current personnel rates for any activities that cannot be performed by the then-current personnel and resources.

  

14. CONFIDENTIALITY.

   14.1. Confidential Information Defined.

14.1.1. “Confidential Information” includes, but is not limited to, Client 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, customers, 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.

14.1.2. 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.

14.2. 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 as it employs 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 TOS. 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 TOS (“Authorized Representatives”). The Receiving Party will inform its Authorized Representatives of the confidential nature of the Confidential Information and the applicability of these TOS 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 14.

14.3. 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

14.4. Ownership. All Confidential Information disclosed by the Disclosing Party will remain the property of the Disclosing Party, and except as otherwise provided in these TOS, the Receiving Party does not acquire any license, right, title, or interest in such Confidential Information.

14.5. Termination. Upon the termination or expiration of these TOS, 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 14 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.

14.6. 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 TOS.

  

15. GOVERNING LAW; DISPUTE RESOLUTION.

  

15.1. Governing Law. These TOS shall be governed by the laws of the State of Delaware, without application of conflicts of laws principles.

15.2. Dispute Resolution. Except where otherwise provided herein, any dispute, claim or controversy arising out of or relating to these TOS or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these TOS to arbitrate, shall be determined by arbitration in Boston, MA before one (1) arbitrator. The arbitration shall be administered by JAMS in accordance with its streamlined rules and procedure. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In any action or proceeding to interpret or enforce these TOS, upon final, non-appealable judgment the prevailing party shall be entitled to recover from the non-prevailing party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

  

16. MULTIPLE ENTITIES.

  

If Client requests Botkeeper to provide Services to another legal entity owned by Client, under common ownership or otherwise associated with Client (“Affiliated Entity”), Client affirms and agrees that it has signed these TOS both on its own behalf and as an authorized agent for the Affiliated Entity and the terms of these TOS shall be applicable to such Affiliated Entity.

  

17. USE OF SUBCONTRACTORS; LOCATIONS.

  

Client expressly acknowledges and agrees that Botkeeper reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide, including from Botkeeper’s office in the Philippines.

  

18. NON-SOLICITATION.

  

18.1. Parties’ Personnels. During the Term of these TOS and for six (6) 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 any known employee or contractor who was engaged by the other party at any time during the one (1) year period prior to termination or expiration of these TOS (“Restricted Personnel”). The parties acknowledge that the hiring or engagement of any Restricted Personnel is likely to cause irreparable damage to Botkeeper or Client, as applicable, that would be difficult or impossible to ascertain or prove. Accordingly, the parties agree that any breach of this Section 18.1 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 18.1 does not provide for unreasonably large liquidated damages.

18.2. Term of the Restricted Period. During the Term of these TOS and for a period of twelve (12) months thereafter, the parties agree that neither shall not knowingly Engage in Solicitation of any Botkeeper Customer or Potential Customer, or Client Customer or Potential Customer, as applicable.

18.3. Remedies. The parties acknowledge that the restrictions contained herein are reasonable and necessary for the protection of the parties’ legitimate business interests and that any violations of these restrictions would cause immediate, substantial and irreparable injury to the other party and/or its customers. In the event of any violation of these non-solicitation provisions, the parties agree that remedies at law may be insufficient to remedy such violations and that therefore upon final non-appealable judgment by a court of competent jurisdiction, the parties shall be entitled, in addition to remedies at law, to seek preliminary and permanent injunctive relief, and receive reasonable attorneys' fees, costs, and expenses from the soliciting party, in addition to any other remedies at law and in equity that may be available.

18.4. Amendment. If any court determines that the duration, scope, or geographical restrictions contained herein are unenforceable, it is the intention of the parties that the non-solicitation provisions set forth herein shall not thereby be terminated but shall be deemed amended to the extent required to render it valid and enforceable. Such amendment shall apply only with respect to the operation of this provision in the jurisdiction of the court which has made the adjudication.

  

19. MISCELLANEOUS.

  

19.1. Notices. Except as otherwise specified in these TOS, all notices, permissions and approvals hereunder must be sent in writing to the person(s) indicated on the cover page and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).

19.2. Publicity. During the Term, Client grants Botkeeper a license to use Client’s name and logo on its website and other marketing materials to identify that Botkeeper is a service provider to Client. Client’s execution of these TOS shall serve as its written consent.

19.3. Independent Contractor. The parties are and will remain independent contractors with respect to all performance rendered pursuant to these TOS. 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.

19.4. Assignment. Neither party will assign any of its rights, or obligations under these TOS without the other party’s prior written consent, which will not be unreasonably withheld. In the event of a merger or acquisition whereby an acquirer gains greater than fifty percent (50%) control of Botkeeper (a “Change of Control”), Botkeeper shall provide fourteen (14) business days’ prior notice to Client of a Change of Control. Upon receipt of such notice from Botkeeper, Client shall have fourteen (14) business days to notify Botkeeper of its intent to exercise an option to terminate these TOS (the “Change of Control Termination Option”). In the event Client exercises the Change of Control Termination Option in accordance with this Section 19.4, Client shall have the right to receive Termination Assistance Services as set forth in Section 13.6.

19.5. Force Majeure. Except for payment obligations, neither party shall be held responsible for any delay or failure in performance under these TOS to the extent that such delay or failure is caused by fire, flood, explosion, war, terrorism, strike, embargo, civil or military authority, act of God, or other similar causes beyond its control.

19.6. Waiver. Any term or provision of these TOS 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 TOS in any instance will be constructed as a general waiver or relinquishment of such term, right, or condition.

19.7. Severability. In the event that any provision of these TOS 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.

19.8. Counterparts. These TOS 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.

19.9. No Third Party Rights. No provision of these TOS 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 TOS.

19.10. Provisions; Interpretation; Absence of Presumption; Currency. These TOS 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 TOS 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 TOS. All references to payments and dollar amounts refer to United States Dollars, and all payments hereunder shall be made in United States Dollars. these TOS shall be binding upon and inure to the benefit of the successors and assigns the parties.

19.11. Entire Agreement; Amendment or Modification of Agreement. The provisions of these TOS 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 preparation of these TOS has been a joint effort of the parties, and 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 TOS may not be modified, altered, waived or amended, except by written agreement executed by both parties.

19.12. Survival. The terms and provisions of Sections will survive any termination or expiration of these TOS.

  

20. DEFINITIONS.

  

“Affiliated Entity” has the meaning set forth in Section 16.

“Authorized Representatives” has the meaning set forth in Section 14.2.

“Authorized Users” means Client Employees and Client Customers.

“Botkeeper Customer” means an individual or entity to whom Botkeeper renders Services.

“Botkeeper Parties” has the meaning set forth in Section 10.2.

“Claim” has the meaning set forth in Section 10.1.1.

“Client Customer” means the individuals and entities added to Client’s Partner Platform (as may be detailed in the Order Form’s Scope of Services).

“Client Data” means all electronic data or information submitted by Client to the Services.

“Client Employees” means Client’s employees, representatives, consultants, contractors, or agents who are authorized to access and use the Services subject to the terms of these TOS

“Client Parties” has the meaning set forth in Section 10.1.1.

“Confidential Information” has the meaning set forth in Section 14.1.1.

“Defaulting Party” has the meaning set forth in Section 13.2.

“Disclosing Party” has the meaning set forth in Section 14.1.1.

“Documentation” means the instruction manuals and functional specifications that accompany the Services as delivered by Botkeeper to Client.

“Engage in Solicitation” means to solicit, induce, entice, service, or hire or attempt to solicit, induce, service, hire or entice any person or entity to purchase, lease, rent, finance, obtain or receive any product or service that competes, or may compete, with any of the Services. This term includes, but is not limited to, participating in any manner whatsoever in a business endeavor, including, but not limited to: acting for oneself (including as an individual, sole proprietor, principal, incorporator, contractor, member, manager, shareholder, partner, or owner); acting in concert with others (including as an employee, officer, director, agent, representative, principal, lender or holder of 5% or more of the equity interests); and making loans, gifts or providing financial assistance or property to another.

“Excluded Claims” has the meaning set forth in Section 10.1.3.

“Fees” means those license and other fees set forth on Order Form, attached hereto and incorporated herein by this reference.

“Financial Hub” means the web and mobile-based practice management platform through which the Client can track and manage Client Customers.

“Potential Customer” means an (i) individual or entity to whom Botkeeper offers or submits a bid or proposal related to any Services; and/or (ii) a person or entity with respect to which Botkeeper has developed Confidential Information for the purposes of proposing to render Services.

“Receiving Party” has the meaning set forth in Section 14.1.1.

“Restricted Period” has the meaning set forth in Section 18.1.

“Restricted Personnel” has the meaning set forth in Section 18.1.

“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 Botkeeper signed by Botkeeper and Client and referencing these TOS. The initial Order Form is issued subject to these Terms of Service and will be deemed signed by Botkeeper and Client upon execution of the Order Form by Botkeeper and Client.

“Services” means the services, activities and responsibilities required under these TOS and the Order Form, including the proprietary web-based system accessible via a web portal maintained by Botkeeper, and any services, functions or responsibilities that are not specifically described in these TOS 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.

 

Privacy Policy

Protecting your personal information is our priority. This Privacy Policy applies to https://www.Botkeeper.com/, portal.Botkeeper.com, and the services and platform accessible through those websites (collectively, “Botkeeper”) and governs how we collect and use your personal information.

This is an important document. We recommend that you read it carefully.

 

International Considerations

We offer Botkeeper to clients who are primarily in the United States. Botkeeper is hosted in the United States and is governed by United States law. Please be aware that your personal information may be transferred to, stored, and processed in the Philippines, where Botkeeper maintains an office, and in the United States where our servers are located and our central database is operated. The data protection and other laws of the United States and other countries might not be as comprehensive as those in your country.

By using Botkeeper, you understand that, and consent to, your personal information being transferred to our facilities and to the facilities of those third parties with whom we share it as described in this Privacy Policy.

 

Personal Information Defined

Personal information means any information that identifies you that can be reasonably used to infer this information.


Collection of your Personal Information

When you access or use Botkeeper, we may collect personal information from you, such as your:
– First and Last Name
– Mailing Address
– E-mail Address
– Phone Number
– Employer
– Job Title

If you purchase our products or services, we collect billing and credit card information. This information is used to complete the purchase transaction.

We do not collect any personal information about you unless you voluntarily provide it to us. You may be required to provide certain personal information to us when you elect to use Botkeeper. These may include: (a) registering for an account on Botkeeper; (b) entering a sweepstakes or contest sponsored by us or one of our partners; (c) signing up for special offers from selected third parties; (d) sending us an email message; or (e) submitting your credit card or other payment information when ordering and purchasing products and services on Botkeeper.

 

Use of your Personal Information

When you give us your personal information, we may use it:

• for the specific purpose for which it was collected;
• to deliver Botkeeper to you;
• to personalize your experience on Botkeeper;
• to provide customer service to you and/or to address your technical support questions;
• to alert you of new products or services, features, or enhancements;
• to provide important information about Botkeeper, such as changes to Botkeeper or updates to our policies;
• to improve Botkeeper;
• as permitted by law; and
• for any other purpose with your consent.

You have the right at any time to prevent us from contacting you for marketing purposes. You can opt-out of promotional communications by following the unsubscribe instructions provided in each promotional email that we send to you. We may continue to send you administrative emails including, for example, periodic updates to this Privacy Policy, even if you indicate that you no longer wish to receive promotional email from us.

We will retain your personal information only for as long as reasonably necessary for the purposes set forth above. We may retain your personal information for legitimate business purposes, if it may be necessary to prevent fraud or future abuse if required by law, or as retained in our data backup systems or cached or archived pages. All of your personal information that we keep will continue to be subject to the terms of this Privacy Policy to which you have agreed.


When We Disclose Your Personal Information

We do not sell, rent, or lease your personal information to third parties without your consent. We may disclose your personal information for certain purposes and to third parties as described below:

With Your Consent. We may share your personal information when we have your consent. You can revoke your consent at any time by providing notice to us at human@botkeeper.com.

Service Providers. We may employ other companies and people to perform tasks on our behalf and we may need to share your personal information with them to provide services to you. Unless we tell you differently, they do not have any right to use your personal information beyond what is necessary to assist us.

To Protect Botkeeper. We may disclose your personal information, without notice, if required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on us; (b) protect and defend our rights or property; and/or (c) act under exigent circumstances to protect the personal safety of our users or the public.

Business Transfers. In the event we undergo a business transaction such as a merger, acquisition by another company, or sale of all or a portion of our assets, your personal information may be among the assets transferred. Any acquirer of our assets may continue to process your personal information as set forth in this Privacy Policy.

External Business Partners. Botkeeper may, from time to time, contact you on behalf of external business partners about a particular offering that may be of interest to you. In those cases, your unique personally identifiable information (e-mail, name, address, telephone number) is not transferred to the third party.

 

Managing Your Personal Information

Correcting, Updating, Accessing, or Removing Personal Information. You can correct, update, or remove your personal information if it changes or if you no longer want to receive information from us beyond information related to our services. This can be done by managing your personal information through your Botkeeper account or by emailing a request to us at human@botkeeper.com. You may also request access to your personal information that we collect by sending a request to us at human@botkeeper.com.

Deleting Your Account. You may request deletion of your account by sending an e-mail to human@botkeeper.com. Please note that some information may remain in our private records after deletion of your account. We may use any aggregated data derived from or incorporating your personal information after you delete your account, but not in a manner that would identify you personally.

Your California Privacy Rights. California Civil Code Section 1798.83 permits users that are California residents to request certain information regarding our disclosures of personal information to third parties for such third parties’ direct marketing purposes. If you are a California resident and would like to make such a request, please contact us at human@botkeeper.com.

 

Tracking User Behavior

Botkeeper may keep track of the websites and pages our users visit within Botkeeper in order to determine what Botkeeper services are the most popular. This data is used to deliver customized content and advertising within Botkeeper to you.

 

Automatically Collected Information

Information about your computer hardware and software may be automatically collected by Botkeeper. This information can include: your IP address, browser type, domain names, access times and referring website addresses. This information is used for the operation of the service, to maintain quality of the service, and to provide general statistics regarding use of Botkeeper.

 

Use of Cookies

Botkeeper may use “cookies” to help you personalize your online experience. A cookie is a text file that is placed on your computer by a web page server. Cookies cannot be used to run programs or deliver viruses to your computer. Cookies are uniquely assigned to you and can only be read by a web server in the domain that issued the cookie to you.

One of the primary purposes of cookies is to provide a convenience feature to save you time. For example, a cookie helps Botkeeper recall your specific information on subsequent visits. This simplifies the process of recording your personal information, such as billing addresses, shipping addresses, and so on. When you return to the same Botkeeper website, the information you previously provided can be retrieved, so you can easily use the Botkeeper features that you customized.

You have the ability to accept or decline cookies. Most Web browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies if you prefer. If you choose to decline cookies, you may not be able to fully experience the interactive features of the Botkeeper services or websites you visit.

 

Do Not Track Signals

Some web browsers may transmit “do not track” signals to websites with which the web browser communicates. Botkeeper does not currently recognize or respond to “do not track” signals. However, Botkeeper may in the future elect to recognize or respond to “do not track” signals.

 

Links

Botkeeper contains links to other sites. Please be aware that we are not responsible for the content or privacy practices of other websites. We encourage you to be aware when you leave Botkeeper and to read the privacy statements of any other website that collects your personal information.

 

Security of your Personal Information

We secure your personal information from unauthorized access, use, or disclosure. We use the following methods for this purpose:

– SSL Protocol
– Incapsula
– Two Factor Authentication
– Database Encryption

When personal information (such as a credit card number) is transmitted to other websites, it is protected through the use of encryption, such as the Secure Sockets Layer (SSL) protocol.

We strive to take appropriate security measures to protect against unauthorized access to or alteration of your personal information. Unfortunately, no data transmission over the Internet or any wireless network can be guaranteed to be 100% secure. As a result, while we strive to protect your personal information, you acknowledge that: (a) there are security and privacy limitations inherent to the Internet which are beyond our control; and (b) security, integrity, and privacy of any and all information and data exchanged between you and us through Botkeeper cannot be guaranteed.

 

Children Under Thirteen

We do not knowingly collect personal information from children under the age of thirteen. If you are under the age of thirteen, you must ask your parent or guardian for permission to use this website.

 

Changes to this Statement

We reserve the right to change this Privacy Policy from time to time. We will notify you about significant changes in the way we treat personal information by sending a notice to the primary email address specified in your account, by placing a prominent notice on our site, and/or by updating any privacy information on this page. Changes will become effective immediately but will not apply retroactively.

 

Contact Information

We welcome your questions or comments regarding this Privacy Policy. If you believe that we have not adhered to this Privacy Policy, please contact us at:

Botkeeper
179 South St., 2nd Floor
Boston, Massachusetts 02111

Email Address:
support@Botkeeper.com

Telephone number:
800-823-8064

Effective as of October 2020