FINCENT, INC. CUSTOMER AGREEMENT

Customer Agreement

PLEASE READ THIS CUSTOMER AGREEMENT (THIS "AGREEMENT") CAREFULLY BEFORE USING ANY OF THE SERVICES THAT ARE PROVIDED BY FINCENT INC, A DELAWARE, UNITED STATES CORPORATION ("FINCENT").

BY USING FINCENT'S SERVICES, YOU:

  • AGREE ON BEHALF OF YOURSELF AND THE ENTITY THAT EMPLOYS OR ENGAGES YOU ("CUSTOMER") THAT THIS AGREEMENT GOVERNS YOUR AND CUSTOMER'S USE OF FINCENT'S SERVICES,
  • AGREE THAT THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND CUSTOMER, AND
  • REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO MAKE THE ABOVE AGREEMENTS.

IF YOU OR CUSTOMER DO NOT AGREE TO THIS AGREEMENT, YOU AND CUSTOMER SHALL NOT, AND SHALL HAVE NO RIGHT TO, USE FINCENT'S SERVICES.

BY ACKNOWLEDGING ACCEPTANCE OF THIS AGREEMENT, YOU, ON BEHALF OF YOURSELF AND CUSTOMER, AGREE TO BE BOUND BY THIS AGREEMENT.

This Agreement is effective as of the date of full execution (the "Effective Date") by Fincent and the undersigned customer ("Customer"). Fincent and Customer agree as follows:

1. Definitions

A capitalized term not otherwise defined in this Agreement shall have the following meaning:

"Affiliate" means any person or entity that controls, is controlled by, or is under common control with the subject person or entity, but only for so long as such control exists, and that is not a competitor of Fincent.

"Authorized User" means a natural person who is an employee or contractor of Customer or its Affiliates, is authorized by Customer to use the Services, and is not a competitor of Fincent.

"Customer Data" means any data, information, documents or other material provided to Fincent by Customer in connection with Customer's use of, or generated from Customer's use of, the Services.

"Order" means an order form for the Services that specifies the Services, and the term, pricing, payment and other terms for the Services, which are accepted by the parties subject to this Agreement.

"Services" mean Fincent's bookkeeping, payroll, tax filing, technical accounting advisory and/or other services that are set forth in the applicable Order.

"Term" means the initial period beginning from when Fincent makes the Services available to Customer and continuing until the end of the term specified in the applicable Order (e.g., monthly, quarterly, semi-annual or annual), plus any renewal periods, unless earlier terminated pursuant to this Agreement. This Agreement shall automatically renew for additional consecutive renewal periods equal to the initial period, unless earlier terminated pursuant to this Agreement.

2. Services

2.1 Use
Subject to Customer's compliance with this Agreement, Fincent agrees to provide Customer access to and use of the Services set forth in the applicable Order for Customer's internal business use during the Term on a non-exclusive basis.

2.2 Support
Fincent agrees to provide support services for the Services as set forth in the applicable Order to Customer in accordance with Fincent's then-current published support plan. The Services are subject to modification from time to time at Fincent's sole discretion. Fincent will use commercially reasonable efforts to give Customer prior written notice of any such modifications. Customer hereby authorizes Fincent to access Customer's Services in order to provide support.

3. Requirements

3.1 Customer Responsibilities
Customer agrees to cooperate with Fincent in connection with the performance of this Agreement by making available such personnel and information, which may include company and financial information such as bank statements, credit card statements, payroll information, tax returns, and charter documents, as may be reasonably required, connecting Customer's bank and other accounts to the Fincent platform, and taking such other actions as Fincent may reasonably request for the performance of the Services.

Customer is solely responsible for:

  1. maintaining the confidentiality of the access keys and other access credentials associated with the accounts of Customer and the Authorized Users, which shall not be shared with any third parties or by or between any Authorized Users,
  2. all activities that occur with respect to the accounts of Customer and the Authorized Users,
  3. determining the suitability of the Services and the Customer Data generated through the Services for its business and operations and complying with all applicable laws, rules or regulations applicable to Customer, the Customer Data and use of the Services by Customer and the Authorized Users, and
  4. the accuracy, quality and legality of the Customer Data.

Customer agrees to notify Fincent promptly if Customer becomes aware of any unauthorized disclosure or use of the access keys or other access credentials, or any activity that is not authorized by this Agreement or any Order.

3.2 Third Party Services
Customer may use the Services with other services (e.g., bookkeeping software, payment processing services) provided by third parties ("Third Party Services"). Fincent is not responsible for any Third Party Services nor the availability, operation or use of the Services to the extent such availability, operation or use requires such Third Party Services. Fincent does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of information, including Customer Data, provision of Customer Data by Fincent to such third party provider, or other interaction with such third party provider is solely between Customer and such provider and is governed by such provider's terms and conditions. Customer is responsible for any installations, integrations and exchanges of information with Third Party Services.

3.3 Use
Customer agrees to use, and to ensure that the Authorized Users use, the Services in accordance with this Agreement and the applicable Order. Customer is responsible for all Authorized Users' compliance with this Agreement and the applicable Order. Customer agrees not to, and to ensure that the Authorized Users do not:

  1. use the Services or permit the Services to be used to perform any services for a third party on a Fincent, hosted, service bureau, time sharing, outsourcing offering or other basis,
  2. use the Services or permit the Services to be used (a) in violation of any applicable laws, rules or regulations, (b) for any purpose that is illegal, infringing, libelous, tortious, fraudulent or deceptive, or (c) to cause abuse, harm, harassment, distress, torts or violation of any rights of any persons,
  3. upload or permit the Services to be used to upload any viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs or cancelbots,
  4. use or permit the use of any software, hardware, application or process (a) to circumvent mechanisms in the Services intended to limit the scope of use or to try to gain unauthorized access to the Services, (b) that interferes with the Services, interferes with or disrupts machines or networks connected to the Services, or (c) that violates the regulations, policies or procedures of such machines or networks,
  5. intentionally tamper with or breach the security of the Services, or
  6. release the results of any evaluation of the Services to any third party without prior written approval of Fincent.

3.4 Restrictions
Customer and the Authorized Users shall not:

  1. reverse engineer, decompile, disassemble or otherwise derive or attempt to derive or discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (the "Software"), except for any non-waivable right to decompile Software expressly permitted by applicable mandatory law,
  2. modify, port, adapt, translate or create any derivative work based upon, the Services or Software,
  3. copy, distribute, publicly display, sublicense, lease, loan, rent, sell, resell or otherwise transfer the Services or Software to any third party,
  4. remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the Services or Software, or add any other markings or notices to the Services or Software, or
  5. access or use the Services to evaluate its functionality or performance for competitive or benchmarking purposes, including for developing or improving any similar application, product or service, or any similar feature or functionality of the Services.

4. Customer Data

The Customer Data is owned by Customer. Customer agrees that Fincent may access and use the Customer Data and Customer's usage data:

  1. to provide the Services to Customer, including to generate data, information and materials from the Customer Data,
  2. to perform this Agreement, including to maintain, invoice and support the Services,
  3. to conduct analytics regarding the use of the Services, and
  4. to develop, evaluate and improve the products and services of Fincent.

Customer understands and agrees that Fincent may provide Customer Data to service providers of Customer or third parties that provide any portion of the Services.

5. Ownership

The Services and Software, including any developments, enhancements, improvements and derivative works therein and thereto, are the intellectual property of and are owned by Fincent and its licensors. As between Fincent and Customer, Fincent retains title to and ownership of all right, title and interest in and to the Services and Software (including any developments, enhancements, improvements and derivative works therein and thereto), including all intellectual property and other proprietary rights therein and thereto. Subject to the limited access rights set forth in Section 2, Customer does not have any right, title or interest in or to the Services and Software. All rights not expressly granted in this Agreement are reserved by Fincent.

6. Feedback

If Fincent receives any feedback, suggestions, ideas, reports, or other information relating to the Services from Customer or any Authorized User (the "Feedback"), Customer hereby agrees that Fincent may freely use, reproduce, display, distribute, transmit, store, create derivative works of, and otherwise exploit the Feedback. Further, Customer hereby irrevocably assigns to Fincent all right, title and interest in and to the Feedback, including any intellectual property rights therein and thereto, and otherwise agrees not to enforce, and otherwise waives to the fullest extent legally possible, any rights, including moral rights, that Customer or any Authorized User may have now or in the future in respect of the Feedback. Neither Customer nor any Authorized User will receive any additional consideration or compensation for the Feedback.

7. Confidentiality

Each party (a "Recipient") agrees to protect the confidentiality of any Confidential Information (as defined below) of the other party (a "Discloser") from unauthorized disclosure or use with at least the same degree of care that the Recipient uses for its own Confidential Information, but no less than reasonable care, and not to use or disclose to any person or entity any Confidential Information of the Discloser except in accordance with this Agreement.

The Recipient may disclose Confidential Information of the Discloser to the directors, employees and contractors of the Recipient and its Affiliates who are subject to obligations to maintain the confidentiality of the Confidential Information at least as protective of the Confidential Information as those contained in this Section and who have a bona fide need to know the Confidential Information in order to use the Services or to perform this Agreement.

"Confidential Information" means any data or information that is disclosed by the Discloser to the Recipient and not generally publicly available in whatever form, whenever and however disclosed, including data, code, algorithms, pricing, financials, trade secrets, proprietary information, personal identifiable data or any other data or information that is either identified as confidential at the time of disclosure, or which by its nature and/or the circumstances of disclosure a reasonable business person would consider to be confidential.

Confidential Information shall not include information that:

  1. is now or hereafter becomes part of the public domain through no act or failure to act of the Recipient,
  2. is information that the Recipient had rightfully in its possession without restriction as to use or disclosure before receiving such information from the Discloser,
  3. is hereafter rightfully obtained by the Recipient from a third party without restriction as to use or disclosure, provided that such third party is not known by the Recipient to be bound by a confidentiality agreement with respect to such information, or
  4. information independently developed by the Recipient without any reference to, reliance on or use of the Discloser's Confidential Information.

For clarity, the Services and Software are the Confidential Information of Fincent. In addition, the Recipient may disclose Confidential Information of the Discloser to the extent compelled by law or a court or other judicial or administrative body, provided that the Recipient notifies the Discloser of such compelled disclosure promptly and in writing (to the extent legally permitted) and cooperates with the Discloser, at the Discloser's reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

All Confidential Information remains the sole property of the Discloser. Nothing in this Agreement is intended to grant or does grant, either express, implied or otherwise, to a party any rights in or to the other party's Confidential Information, except as expressly set forth in this Agreement.

All confidentiality obligations created by this Section with respect to Confidential Information that does not constitute a trade secret under applicable law shall survive until the three year anniversary of this Agreement's termination or expiration, and all confidentiality obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive until, if ever, such Confidential Information is no longer a trade secret.

8. Privacy and Security

8.1 Sharing
Customer is providing the Customer Data to Fincent and for use with the Services in accordance with applicable privacy laws and privacy policies, and without violating any third party's rights. Each party warrants that it shall collect, store, use and process personal identifiable data or personal information as defined under applicable privacy laws ("Personal Data") in accordance with applicable privacy laws. Each party hereby authorizes the exchange, use and processing of Personal Data for providing and using the Services and for performing this Agreement. Fincent agrees to use any Personal Data in accordance with the terms set forth in its Privacy Policy and applicable laws solely for providing the Services. Fincent's Privacy Policy, as may be updated from time to time (the "Privacy Policy"), is hereby incorporated into this Agreement, and Customer hereby agrees to the collection, use and processing practices set forth therein in connection with Customer's use of the Services.

8.2 Composition
Fincent does not have any control over the nature, scope or origin of the Customer Data processed by the Services. Customer acknowledges that the provision of the Services is dependent upon the adequacy, relevancy, accuracy and quality of the Customer Data that it provides or makes available to Fincent and for use with the Services. Customer shall have sole responsibility for the adequacy, relevancy, accuracy and quality of the Customer Data.

8.3 Security
Fincent agrees to maintain administrative, physical and technical safeguards and procedures to help protect the Customer Data from accidental loss, and unauthorized access, use or disclosure consistent with generally accepted, published industry standards, and applicable data protection laws. Customer agrees to maintain administrative, physical and technical safeguards and procedures to protect the Customer Data and any of Fincent's Confidential Information consistent with generally accepted, published industry standards, and applicable data protection laws. Customer acknowledges that use of the Services involves transmission of Customer's data over networks that are not owned, operated or controlled by Fincent. Fincent cannot guarantee that its security safeguards and procedures will be error-free, that transmissions of any Customer Data will always be secure or that unauthorized persons or entities will never be able to defeat Fincent's security measures or those of Fincent's third-party hosting providers. Customer is solely responsible for maintaining the security of Customer's owned, operated and managed systems. Fincent is not responsible for any alteration, compromise, degradation, interception, monitoring or any other loss or unauthorized access, use or disclosure of any Customer Data.

9. Payment Terms

9.1 Fees
Customer agrees to pay Fincent the fees based on the pricing tier for the Services selected by Customer as set forth in the applicable Order (the "Fees"); provided, however, that if Customer's use of any Services exceeds the usage as mutually agreed in the applicable Order for such Services, Customer agrees to pay the additional fees for such excess usage. Fees are in the currency set forth in the applicable Order. All Fees will be invoiced in accordance with the payment schedule set forth in the applicable Order, provided further that Fincent will invoice Customer for any use of the Services that exceeds the usage set forth in the applicable Order as soon as practicable. All Fees are due and payable within 30 days following Customer's receipt of Fincent's invoice, unless otherwise set forth in the applicable Order. All Fees are non-refundable except as set forth in this Agreement.

9.2 Renewals
Unless otherwise stated in the applicable Order, upon expiration of the initial term or any renewal term within the Term, the Term shall automatically renew at the then current Fincent list pricing for the latest pricing tier selected by Customer in such Order. The Services set forth in the applicable Order during any automatic renewal Term shall be the same as the previous Term unless otherwise agreed at the time of renewal.

9.3 Taxes
Fees do not include any taxes, duties, fees or other amounts assessed or imposed by any government authority. Customer is solely responsible for paying all such taxes, duties, fees and other amounts, other than taxes imposed on Fincent's income. Customer will pay all such amounts upon demand or provide evidence of payment or exemption. In case of any withholding requirements, Customer agrees to pay any required withholding itself and will not reduce the Fees payable or paid to Fincent on account thereof.

9.4 Late Fees
A Fee that is not paid by its respective due date shall be assessed a 10% late payment charge (or, if less, the highest legal rate under applicable law) for each month the Fee is not paid. In addition, Fincent may suspend the Services to Customer until all past due Fees are paid in full. Customer will reimburse Fincent for all reasonable costs incurred by Fincent for collecting any past due amounts.

10. Limited Warranty

10.1 Services
Fincent warrants that the Services will perform substantially in accordance with its published specifications during the Term when used in accordance with this Agreement and the applicable Order. Fincent agrees to undertake commercially reasonable efforts to make the Services available 24 hours a day, seven days a week. Notwithstanding the foregoing, Fincent reserves the right to suspend Customer's access to the Services for scheduled or emergency maintenance, or in the event Customer is in breach of this Agreement or the applicable Order, including failure to pay any Fees. In the event of a warranty claim, Customer's sole remedy shall be re-performance of the Services, or if Fincent is unable to re-perform the Services so that it complies with its warranty, to terminate this Agreement and to refund Customer a pro-rated amount of the applicable Fees for the Services pre-paid by Customer covering the whole months following the effective date of such early termination.

10.2 Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1, THE SERVICES, INCLUDING ANY INFORMATION OR OTHER DATA GENERATED THROUGH THE SERVICES, ARE PROVIDED "AS IS". FINCENT DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FINCENT DOES NOT WARRANT THAT THE SERVICES OR USE THEREOF WILL BE ERROR FREE, UNINTERRUPTED OR VIRUS FREE. FINCENT DOES NOT WARRANT THAT THE SERVICES, INCLUDING ANY INFORMATION OR OTHER DATA GENERATED THROUGH THE SERVICES, OR USE THEREOF WILL ACHIEVE ANY DESIRED EXPECTATIONS OF OR RESULTS DESIRED BY CUSTOMER.

Customer agrees that Fincent and any related communications with Fincent are not a substitute for, and do not include legal, financial or accounting advice, and that Fincent is not a public accounting firm.

11. Indemnification

11.1 Intellectual Property
Fincent, if notified promptly in writing and given authority, control, information and assistance at Fincent's expense for defense and settlement of same, shall defend Customer against any third party action, suit or proceeding brought against Customer so far as it is based on a claim that the use of the Services infringes a United States patent or copyright, and shall indemnify and hold harmless Customer for:

  1. all attorneys' fees, and court or tribunal costs incurred by Fincent with respect to defense and settlement of such third party claim,
  2. any judgments, fines, costs and penalties awarded by any court or tribunal against Fincent and/or its customers, including Customer, for such third party claim and
  3. any amounts paid in settlement of such third party claim as mutually agreed by Fincent and the third party in such claim.

If Fincent reasonably believes that use of the Services is likely to be enjoined, or if the Services are held to infringe such patent or copyright, Fincent shall, at its expense and at its sole option:

  1. procure for Customer the right to continue using the Services,
  2. replace the Services with other non-infringing services of substantially equivalent functionality or
  3. modify the Services so that there is no infringement, provided that such modified services provide substantially equivalent functionality.

If, in Fincent's reasonable opinion, the remedies above are infeasible or commercially impracticable, Fincent may, in its sole discretion, terminate this Agreement and refund Customer a pro-rated amount of the applicable Fees for the Services pre-paid by Customer covering the whole months following the effective date of such early termination. Customer shall not settle any matter without the prior written approval of Fincent.

11.2 Exceptions
The indemnification obligation in this Section 11 will not apply to the extent the infringement is caused by any of the following:

  1. the Services are modified in any unauthorized manner by Customer or any Authorized User, or a third party not authorized by Fincent,
  2. the Services are combined by Customer or any Authorized User with other software, hardware, application or process not authorized by Fincent,
  3. the Services are used by Customer or any Authorized User in violation of this Agreement or the applicable Order, or
  4. any materials, data or information, including the Customer Data, provided by Customer.

11.3 Sole Remedy
THIS SECTION 11 PROVIDES CUSTOMER'S SOLE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT, MISAPPROPRIATION OR VIOLATION.

12. Limitation of Liability

IN NO EVENT SHALL FINCENT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING ANY INFORMATION OR OTHER DATA GENERATED THROUGH THE SERVICES, OR USE THEREOF OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FINCENT'S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER FOR THE SERVICES FOR THE SIX MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

No claim against Fincent may be brought more than one year after the facts giving rise to such claim have arisen. The limitations of liability and exclusions of damages in this Section form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in this Agreement is found to have failed its essential purpose.

13. Marketing

Customer hereby grants Fincent the right to use Customer's company name and logo as a reference for marketing purposes on Fincent's website and in other public or private communications with Fincent's existing or prospective customers, subject to Customer's written trademark usage guidelines as provided to Fincent.

14. Termination

14.1 Suspension
In the event of any actual or threatened breach of this Agreement by Customer or any Authorized User (including non-payment of Fees), without limiting Fincent's other rights and remedies, Fincent may immediately suspend Customer's use of the Services.

14.2 Termination
This Agreement may be terminated:

  1. by either party at any time for any or no reason after giving the non-terminating party prior written notice of at least 90 days,
  2. by the non-breaching party if the other party breaches a material term of this Agreement that is uncured within 30 days (or, in the case of non-payment, five days) after delivery of notice of such breach, or
  3. if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors not dismissed within 30 days.

In addition, Fincent may immediately terminate this Agreement upon any breach by Customer of Section 3, 5 or 7.

14.3 Fees
Upon expiration or termination of this Agreement, Customer will pay Fincent any unpaid amounts that are owed to Fincent through and including such expiration or termination date. Upon termination of this Agreement based on Customer's breach (following any applicable cure period), Customer will pay Fincent any unpaid amounts that would have been owed to Fincent for the remainder of the then-current Term if such early termination had not occurred as well as any other amounts owed to Fincent under this Agreement, without limiting Fincent's other rights and remedies. Upon termination of this Agreement based on Fincent's breach (following any applicable cure period), Fincent will refund Customer any amounts pre-paid for the Services pursuant to this Agreement for the remaining full calendar months in the then-current Term.

14.4 Effect
Upon expiration or termination of this Agreement:

  1. the access and use rights granted by Fincent to Customer in Section 2 will cease immediately,
  2. Customer will immediately cease all use of the Services, and delete or destroy (or, at Fincent's request, return) all Fincent Confidential Information in its possession or control, and
  3. Fincent will have no further obligation to maintain or provide access to the Customer Data in its possession or control and will thereafter delete the Customer Data stored through the Services, unless legally prohibited.

14.5 Survival
Section 3 through 7, 9, 10.2, 11, 12, 14 and 15 will survive any expiration or termination of this Agreement.

15. General

15.1 Parties
Fincent and Customer are independent contractors. Nothing in this Agreement shall be deemed to constitute a joint venture or partnership between the parties, nor constitute any party as the agent of the other party for any purpose, or entitle any party to commit or bind the other party in any manner. Except as expressly provided in this Agreement, nothing in this Agreement or under applicable law is intended to confer any rights or obligations upon any person or entity other than the parties hereto, Fincent's licensors and their respective successors and permitted assigns.

15.2 Governing Law; Arbitration
This Agreement shall be governed by the laws of California, United States. This Agreement shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods. In the event of a dispute regarding this Agreement (a "Dispute"), a party will provide the other party with written notice of the Dispute as soon as practicable, and the parties agree to exercise commercially reasonable efforts to resolve the Dispute amicably through their designated officers. A Dispute that cannot be resolved within 15 days following the discussions contemplated by the prior sentence will, upon written demand of either party, be resolved exclusively by the Judicial Arbitration and Mediation Service by a single arbitrator pursuant to the arbitrator's Comprehensive Arbitration Rules and Procedures then in effect in San Francisco, California, United States. The arbitration will be conducted and all evidence will be submitted in the English language. Each party shall bear its own costs and expenses, and the two parties will share equally the fees and costs of the arbitrator. The award rendered in the arbitration may be enforced in any court of competent jurisdiction. Notwithstanding anything in this Agreement to the contrary, Fincent shall have the right, at its election, to seek injunctive or other equitable relief in any court of competent jurisdiction in order to protect its intellectual property rights, and to enforce or obtain compliance with this Agreement without first submitting such matter to arbitration, which remedy will be cumulative and not exclusive.

THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING REGARDING THIS AGREEMENT. CUSTOMER AGREES THAT IT WILL NOT COMMENCE OR PARTICIPATE IN A CLASS ACTION AGAINST FINCENT.

If any action is pursued to enforce this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, in addition to any other relief to which such party may be entitled.

15.3 Legal Compliance
Customer will not use or transfer any technology or data in violation of applicable laws governing technology use and transfer, including U.S. Export Administration Regulations. Customer represents that it is not, and is not acting on behalf of:

  1. any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions, or
  2. any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List;

and Customer will not permit the Services to be used for any purposes prohibited by law.

15.4 Entire Agreement; Amendments; Waivers; Severability
This Agreement, together with the Orders, is the parties' entire agreement with respect to its subject matter, and supersedes any prior communications, discussions, understandings or agreements. Any use of Customer's pre-printed forms, such as purchase orders, are for convenience only, and any pre-printed terms and conditions set forth in Customer's pre-printed forms that are in addition to, inconsistent or in conflict with, or different than, this Agreement shall be given no force or effect. Neither commencement of performance, nor failure to object to any additional or different terms and conditions from Customer, by Fincent shall constitute an acceptance of any terms and conditions proposed by Customer that are in addition to, inconsistent or in conflict with, or different than, this Agreement. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived with the written consent of duly authorized representatives of the parties. If any provision of this Agreement is held to be unenforceable, the unenforceable provision shall be replaced by an enforceable provision that comes closest to the parties' intent underlying the unenforceable provision, and the remaining provisions of this Agreement shall remain in full force and effect.

15.5 Subcontracts; Assignment
Fincent may subcontract the Services cloud hosting to its authorized subcontractor without Customer's consent and without providing notice, provided that Fincent will remain responsible for its subcontractor's compliance with this Agreement. Fincent may assign or transfer this Agreement, in whole or in part, in connection with any acquisition, consolidation, merger, reorganization, transfer of all or substantially all of its assets or other business combination, or by operation of law without Customer's consent. Customer may assign or transfer this Agreement in whole to an Affiliate or by business combination, operation of law or otherwise without Fincent's prior written consent and with written notice to Fincent. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and permitted assigns.

15.6 Force Majeure
A party shall not be liable for its inadequate performance (other than its payment obligations) caused by any condition beyond such party's reasonable control, including accidents, acts of God, government acts, civil unrest, acts of war or terrorism, pandemic or epidemic, strikes or other labor problems, failures in telecommunications, internet, internet service provider or hosting facilities, power shortages and denial of service attacks. If any of such event has occurred, the non-performing party shall:

  1. immediately notify the other party in writing describing at a reasonable level of detail the circumstances causing such default or delay and
  2. be excused from further performance or observance of its affected obligations (other than its payment obligations) for as long as such circumstances prevail and such party continues to use reasonable commercial efforts to recommence performance or observance as soon as possible and to whatever extent possible without delay.

15.7 Notices
All notices shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or:

  1. when sent, if sent by email during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day,
  2. three days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or
  3. one business day after deposit with a nationally recognized express courier, freight prepaid, with written verification of receipt.

All notices shall be sent to the parties at their respective address in the applicable Order, or to such other address as subsequently notified in accordance with this Section.

15.8 Counterparts
This Agreement may be signed in counterparts, including via facsimile, pdf or other electronic reproduction.

Signature Page

The signatures of authorized individuals of the parties below confirm that this is a valid and binding Customer Agreement effective as of the Effective Date.

Fincent Inc.

By: ___________________________________

Name: ___________________________________

Title: ___________________________________

Date: ___________________________________

_________________________________________  
(print Customer's full legal name)

By: ___________________________________

Name: ___________________________________

Title: ___________________________________

Date: ___________________________________

VER 1.0

Finance