TERMS & CONDITIONS
ARTICLE 1: DEFINITIONS.
Unless otherwise defined in the Agreement (including all exhibits thereto) or an attached Schedule, capitalized terms used in this Agreement will have the meanings set forth below:
Section 1.1 “Authorization” or “Authorized” means any and all authorizations or approvals by Company as required by Scrubbed described in this Agreement. Any and all such authorizations must be made by Company in writing, email or any other form of written communication, pursuant to proper notice.
Section 1.2 “Bill” or “Invoice” means any bill, invoice of a vendor of Company, corrective invoice, credit memo, statement, W9 form, check request, expense report, any other document or any other monetary obligation of Company received by Scrubbed, including duplicate or corrective invoices, or any other request by Company for processing in accordance with this Agreement .
Section 1.3 “Client Portal” means the secured portion of Scrubbed’s web-based platforms through which applications and data sources may be accessed and utilized by Company .
Section 1.4 “Confidential Information” means any trade secrets or confidential business information of a party including, but not limited to: the terms and conditions of the Agreement; information relating to its research and development activities; product designs, prototypes and technical specifications; algorithms, trade secrets or technical data; show-how and know-how; marketing plans and strategies; pricing and costing policies; advertiser, Company and supplier lists and accounts; nonpublic financial information of a party; or any information identified by a part as confidential.
Section 1.5 “Intellectual Property” means any and all information in any form, including software, know how, processes, methods, procedures, formulae, technology, methodologies, machine readable texts or files, algorithms, web sites, web pages, and displays, and all expressions of such in any form. Intellectual Property includes, but is not limited to information that is protected by patents, trademarks, service marks, copyrights, design rights, registered or not, and includes but is not limited to trade secrets, confidential information, proprietary information, and all contents of applications for registration of patents, trademarks, service marks, copyrights, or design rights. Intellectual Property includes all enhancements, changes, revisions, improvements, modifications, and derivative works of any and all information, Software, know how, processes, methods, procedures, formulae, technology, methodologies, machine readable texts or files, algorithms, web sites, web pages, and displays that exist at the time that this Agreement is entered into by the parties.
Section 1.6 “Payee” means the individual or entity to whom Scrubbed is to make payment of Company-authorized Bills.
Section 1.7 “Service Fee” means the monthly fee for services to be paid at the start of the each service month for services to be rendered by Scrubbed.
Section 1.8 “Service Platform” means that portion of Scrubbed’s web-based technology platform and documents management applications dedicated to secure communications between Company and Scrubbed.
Section 1.9 “Services” mean the services listed in Scope of Services that Scrubbed shall provide to Company pursuant to this Agreement.
Section 1.10 “Software” means the source code and object code versions of any applications programs, operating system software, computer software languages, utilities, other computer programs and related documentation, in whatever form or media, including the tangible media upon which such applications programs, operating system software, computer software languages, utilities, other computer programs and related documentation are recorded or printed, together with all corrections, improvements, updates and releases thereof.
Section 1.11 “Transaction Volume” means the number of Company employees, monthly accounts receivables and accounts payable, monthly billing invoices, monthly checks written and general ledger accounts.
ARTICLE 2: COMMENCEMENT OF SERVICES AND SCOPE OF SERVICES
Section 2.1 Commencement and Continuation of Services. The Service Agreement shall commence upon Scrubbed’s receipt of a fully executed copy of the Service Agreement. Scrubbed will begin to provide the Services set forth in the Scope of Services and bill Company for these services according to the Fees and Expenses, unless Scrubbed determines it has Cause to terminate the arrangement.
Section 2.2 Scope of Services. Scrubbed shall provide only the specific Services set forth in the Scope of Services. Company agrees that Scrubbed will not perform any activities on behalf of Company without first obtaining Company’s written agreement, either by way of an amendment to this Service Agreement, or the preparation and execution of a separate Services Agreement.
At no time shall Scrubbed: (1) render any opinion on the financial statements of the Company including performing any audit or review of the financial statements; or (2) provide any consultation regarding business or investment decisions.
Section 2.3 Security, Authorized Users and Passwords. Data between Company and Scrubbed is transmitted through the Internet. The security of transmissions over the Internet can never be guaranteed. Scrubbed is not responsible for Company’s access to the Internet, for any interception or interruption of any communications through the Internet, or for changes to or losses of data. In order to protect Company, Scrubbed may suspend Company’s use of the Services via the Internet immediately, without notice, pending an investigation, if any breach of security is suspected. Company agrees and understands that its employees must create and use their Company passwords each time they access Scrubbed’s Portal. Company shall assume complete control over the distribution and security of passwords and agrees that its employees shall not disclose or otherwise make their passwords available to anyone not authorized to sign on to Scrubbed’s Client Portal on behalf of Company. Company agrees that Scrubbed shall not be responsible for any or all transactions conducted because Company or its employees have disclosed or otherwise made their passwords available to someone other than the designated user.
ARTICLE 3: Scrubbed’s Duties and Responsibilities
Section 3.1 Scrubbed Duties. Scrubbed shall provide the Services and perform any acts incident to those Services that, in Scrubbed’s best judgment, will assist Company in achieving the results for which Scrubbed has been engaged. Scrubbed will inform Company of the software and communications necessary to utilize the Services. Company agrees and understands that Scrubbed is not a registered independent public accounting firm and will not render services in accordance with standards required by the Public Company Accounting Oversight Board.
Section 3.2 Retaining Records. Scrubbed may choose to make and retain images only of the original receipts, invoices, bills and supporting documentation reflecting specific transactions and notices related to the transactions. Scrubbed has the right to destroy all documents or images (excluding fixed asset, securities transaction and tax payment records, which shall be maintained until contract termination in which case Scrubbed will make these records available to Company for their permanent retention) eight (8) years after the date on which they were originally imaged or copied by or for Scrubbed.
Section 3.3 Keeping Company and Scrubbed Informed about Developments. Scrubbed agrees to promptly notify Company of all significant matters and developments relevant to and within the scope of Scrubbed’s Agreement with Company and to consult with Company about those developments. Likewise, Company agrees to promptly notify Scrubbed of all significant matters and developments relevant to and within the scope of the Agreement and to consult with Scrubbed about those developments. Scrubbed agrees to provide Company at Company’s request and expense with copies of all written materials and computerized data pertaining to Scrubbed’s Services performed for Company.
ARTICLE 4: Company’s Duties and Responsibilities
Section 4.1 Company’s Duties.
- Company shall pay Scrubbed the fees and expenses specified in Fees & Expenses. In any and all actions and/or proceedings by Scrubbed relating to collection of its fees and expenses, Company shall pay all of Scrubbed’ attorney’s fees and costs, including all appellate proceedings and all expert consultants’ and witnesses’ fees.
- Company shall designate a primary representative and a backup representative, both of whom will represent Company in any and all matters involving this Agreement and the Services, including receiving any reports from Scrubbed, answering any questions, binding the Company in any contractual decisions involving the Agreement or the Services, or providing Authorizations to Scrubbed. Company shall provide notice to Scrubbed of any changes in the designation of the primary or backup representatives.
- Company consents that delays by any and all of its employees in responding to correspondence, emails, telephone calls and other requests from Scrubbed may impair Scrubbed’s abilities to effectively render Services to Company.
- Company shall fully cooperate with Scrubbed and shall provide information that will help Scrubbed in achieving the results for which Scrubbed has been engaged, including, without limitation, furnishing documents and information requested by Scrubbed. Company shall make available all necessary personnel to respond to questions from Scrubbed.
- In the event of an audit of Company by a state or federal government agency, Company shall pay all costs, fees and expenses incurred by Scrubbed in connection with such audit.
- Company shall provide access to their required system(s) and data necessary so Scrubbed can perform its contracted services to Company in a timely and efficient manner. Any and all modifications, development or installation of hardware required is Company’s responsibility and may trigger additional implementation effort and time by Scrubbed, and as such, may incur additional fees and may impact the onboarding completion date.
- Company is responsible for installing, downloading or making the necessary communications connections as required by Scrubbed.
Section 4.2 Company’s Responsibility for Compliance with Laws. Scrubbed agrees to use its best efforts to cause the applicable Services to be rendered in such a manner that they will be able to assist Company in complying with its applicable legal and regulatory responsibilities. Nevertheless, Company shall be responsible for (i) compliance with all laws and governmental regulations affecting Company’s business and (ii) any and all uses Company may make of the Services to assist it in complying with such laws and governmental regulations.
Section 4.3 Accuracy of Company Information, Review of Output. All Services will be based upon information provided to Scrubbed by Company and the Company will be responsible for the accuracy of all such information. Scrubbed has no obligation to verify the accuracy of such information and will not be liable for any adverse consequences resulting from errors or omissions contained in such data. Except however, that Scrubbed shall determine the accuracy of invoice coding by applying and reviewing invoice coding based on business rules developed and agreed to by Company. Company further agrees that upon receipt from Scrubbed, Company will promptly review all financial statements, reports, payroll registers, disbursement records, and other documents produced by Scrubbed (“Information”) for accuracy, validity and conformity with Company’s records. Company will promptly notify Scrubbed in writing via email, letter or any other form of written communication of any error, omission, or discrepancy discovered by Company in the Information provided by Scrubbed. Company must provide such written notification within thirty (30) days of its receipt of the Information, or Company automatically waives any and all claims it may have arising from or related to any such errors, omissions or discrepancies in the Information.
Section 4.4 Company’s Authorization. Company gives Scrubbed express permission to open all mail, email, faxes, voicemail or other correspondence in Company’s name or other documents which have been forwarded to or received or received by Scrubbed, and to make and retain copies or images of documents contained in such correspondence.
Section 4.5 Employment of Consultants, Experts and Accountants. Scrubbed, in its discretion, may employ consultants, experts and accountants in connection with this Agreement. All such consultants, experts and accountants shall report exclusively to Scrubbed.
Section 4.6 Service Deliverables. Company and Scrubbed shall work together to achieve the service deliverables which has to be provided to Company based on the Scope of Services.
ARTICLE 5: FEES AND EXPENSES
Section 5.1 Service Fee, Set-Up and Monthly Fees. Upon signing this Agreement, Company shall pay the Service Fee set forth in Fees & Expenses. Scrubbed retains the right to increase the fees for the Services in the future upon mutual agreement. If at such time Scrubbed provided notice of an increase in fees, and parties cannot in good faith negotiate the increased price, Company may, instead of paying the increased fees, elect to terminate this Agreement by providing a thirty-day notice.
Section 5.6 Customized Work. Company agrees to pay for any customized work or additional work performed by Scrubbed that is not set forth in this Agreement, including changes to the Scope of Services.
ARTICLE 6: TERM AND TERMINATION OF SERVICES
Section 6.1 Term. The initial term of this Agreement will be for one year from the Effective Date. The Agreement shall be subject for renewal at the option of both parties unless either party gives written notice of non-renewal to the other party at least 30 days before the expiration of the then current term.
Section 6.2 Termination by Company. Company may terminate this Agreement only for cause anytime. Cause to terminate will be if Scrubbed is not able to continue rendering the Services or if Scrubbed has not met the Company service expectations. In the event Company desires to terminate this Agreement for cause, Company shall give Scrubbed a written notice before terminating. If Company terminates this Agreement for reasons other than Cause pursuant to this section, Company shall pay proportionate Service Fee related to services rendered during that period of termination.
Section 6.3 Termination by Scrubbed. At the initial stage of engagement period, if Scrubbed determines not to provide the Services to Company for cause as defined, Scrubbed shall retain any portion of the Service Fee paid by Company as payment in full for Scrubbed’s work performed during the service month period. If Scrubbed determines not to provide the services to Company for reasons other than for cause, Scrubbed shall provide 30-day notice of its intent to terminate and immediately refund the Service Fee less any associated direct costs. For the purposes of Scrubbed’s right to terminate, cause will be defined as follows: (a) Scrubbed has reason to believe that either Company, or any of its officers, directors or managing agents have engaged in any illegal acts relating to the Services; (b) Company is not current in its payments to Scrubbed; or (c) Company is experiencing severe cash flow difficulties, (d) it is determined that the cooperation needed from the Company to provide a smooth accounting outsourcing solution will not be achieved.
ARTICLE 7: PRIVACY AND PROPRIETARY RIGHTS
Section 7.1 Confidentiality. The parties acknowledge that during the negotiation and term of the Agreement, each party may have access to Confidential Information relating to the other party. A party that receives the Confidential Information (the “Receiving Party”) of the other party (the “Disclosing Party”) agrees that it will not, directly or indirectly, disclose any Confidential Information relating to the Disclosing Party without Disclosing Party’s prior written consent, and will promptly return or destroy all such Confidential Information upon the request of the Disclosing Party. Confidential Information will not include any information to the extent it (i) is or becomes a part of the public domain through no act or omission on the part of the Receiving Party, (ii) is disclosed to third parties by the Disclosing Party without restriction on such third parties, (iii) is in the Receiving Party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under the Agreement, (iv) is disclosed to the Receiving Party by a third party having no obligation of confidentiality with respect thereto, (v) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information or (vi) is released from confidential treatment by written consent of the Disclosing Party. This section shall survive this agreement for one (1) year.
Section 7.2 Privacy. Scrubbed agrees not to sell or disclose any personally identifiable information to any third party without Company’s consent. Scrubbed will only disclose information to third parties about Company’s account or its business or financial condition: (a) where it is necessary for conducting the Services, (b) if required by law or government regulation, or (c) if Company requests or authorizes it in writing.
Section 7.3 No Other Rights. No party hereto grants, assigns, or otherwise transfers to any other party to this Agreement any interest in any Intellectual Property owned or licensed by it, except as expressly set forth herein, or in a separate written agreement executed by all parties. All Intellectual Property of any party to this Agreement is confidential and proprietary, and each party to this Agreement shall treat all such Intellectual Property as confidential and proprietary and shall only Use such Intellectual Property as permitted in this Agreement.
ARTICLE 8: MODIFICATION OF AGREEMENT
This Agreement represents the entire agreement between Scrubbed and Company including all aspects of the Services to be rendered to Company and the payment of fees and expenses in connection therewith. There are no promises, terms, conditions or obligations other than those contained herein, and this Agreement shall supersede all previous communications, representations, or other agreements either verbal or written, between Company and Scrubbed. No other terms or conditions on any document (including any purchase order, invoice or other form) not signed by both parties shall be of any force or effect. This Agreement may be modified, replaced or rescinded only in writing, and signed by a authorized representative of each party.
ARTICLE 9: ARBITRATION
Any and all actions, proceedings, and/or disputes relating to the enforcement or interpretation of any or all terms of this agreement, the nature of the Services performed by Scrubbed under this Agreement, no matter how characterized or classified, and/or performance under the terms of this Agreement, no matter the nature of the claims or issues, any and all such disputes shall be submitted to binding arbitration under the then prevailing rules of the American Arbitration Association and shall be a confidential proceeding. Arbitration shall be conducted in City and County of San Francisco, California in the United States and each party shall bear its own costs of the arbitration. Each party will choose one independent arbitrator. The two arbitrators so chosen shall jointly select a third arbitrator. Decision of the arbitrators shall be final and the parties agree to enter any decisions as judgments in the court of appropriate jurisdiction. However, this article’s provisions shall not apply to any action or proceeding by Scrubbed to collect any or all of its fees and/or expenses.
Article 10: LIMITATIONS OF LIABILITY
Section 10.1 Indemnification. Each party (“Indemnifying Party”) shall indemnify, defend and hold the other party (“Indemnified Party”) harmless from any and all third party claims, settlements, liability, damages and/or costs (including, but not limited to, attorney’s fees) payable to such third parties arising from a claim directly resulting from the reckless or willful misconduct of the Indemnifying Party in the performance of this Agreement. As a condition of the foregoing, Indemnified Party will promptly notify Indemnifying Party of such claims, provide Indemnifying Party with sole control of defense and settlement and will reasonably cooperate with Indemnifying Party with the defense and/or settlement thereof.
Section 10.2 Limitation of Liability. Company agrees that Scrubbed will not be responsible or liable for any damages for failing to conduct any transaction or for issuing any report when: (a) the website or other system was not working properly and Company knew or should have known about the problem when it Authorized the transaction; or (b) the information Company or Company’s Customers, vendors or payees have supplied to Scrubbed is incorrect, incomplete or not timely. Company agrees that Scrubbed will not be responsible for detecting errors, irregularities, or illegal acts of Company or its employees.
Notwithstanding anything in this Agreement to the contrary, Scrubbed’s liability under this Agreement for damages under any circumstances for claims of any type shall be limited to a combined maximum of the previous six (6) month’s combined fees.
Scrubbed is not privy to or a party to negotiations or agreements with the Company’s vendors or business affiliates that may impose these types of costs or penalties due to errors or omissions. As such, Company will notify Scrubbed in advance of any such arrangements with vendors or business affiliates that may impose or cause to occur these or any other type of costs arising from an error or omission so that any additional safeguards can be implemented to avoid such costs. These safeguards may include but are not limited to oversight, review and final approval by the Company for these particular transactions. Scrubbed reserves the right to carve out transactions from its scope of responsibility that it deems too great a liability if an error or omission were to occur. This in no way refutes, alters or affects the limitations of liability and damages set forth in this section (Section 10.2)
Notwithstanding anything in this Agreement to the contrary, Scrubbed will not be responsible for special, indirect, incidental, consequential or other similar damages (including lost profits or declines in the value of a business) that Company may incur or experience in connection with this Agreement or the Services, however caused and under whatever theory of liability, even if Company has advised Scrubbed of the possibility of such damages.
This Section sets forth the full extent of Scrubbed’s liability for damages resulting from this Agreement, or the Services rendered or to be rendered hereunder, regardless of the form in which such liability or claim for damages may be asserted, and sets forth the full extent of Company’s remedies. Both Company and Scrubbed acknowledge that the fees for the Services to be provided hereunder reflect the allocation of risk set forth in this Section. Nothing in this Agreement is intended to adversely affect Company’s obligation to mitigate damages.
ARTICLE 11: MISCELLANEOUS
Section 11.1 Assignment. Neither party may assign, (e.g. merger, buyout, acquisition, or bankruptcy) any of its rights or obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld. Whereby one party assigns its interest in this agreement to a third party, the other party may terminate this agreement immediately upon written notice.
Section 11.2 Severability. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
Section 11.3 Notice. Company agrees to give such notice to the person who signed this Agreement on behalf of Scrubbed by email to Scrubbed’s email address or in writing to Scrubbed’s address.
Section 11.4 Governing Law and Jurisdiction. As stated in Article 9, the Agreement will be governed by and construed in accordance with the laws of the State of California excluding that body of laws known as conflicts of law. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the county of San Francisco, California and the parties hereby irrevocably consent to personal jurisdiction and venue therein.
Section 11.5 Attorney Fees. Except for the purpose of collections, each party shall bear its own costs for any arbitration pursuant to Article 9 or any litigation to arise for
Section 11.6 Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, terrorism, power outage, system failure, labor shortage or dispute, governmental act, failure of the Internet, or failure or delay in any software, hardware or telecommunications provided by the other party.
Section 11.7 Non Solicitation. During the Term hereof and for a period of two (2) years following the termination or expiration of this Agreement, the Parties hereto agree not to hire, solicit, nor attempt to solicit, the services of any employee or consultant of the other Party that provided or received services under this Agreement, without prior written consent.
Violation of this provision shall entitle the offended party to assert liquidated damages against the offending party equal to one hundred fifty percent (150%) of the solicited person's annual compensation and all reasonable legal fees incurred by the offended Party. The rights of the Parties hereto arising from this Section 11.7 Non-Solicitation shall survive the expiration or other termination of this Agreement.