Terms and Conditions

By executing the order form (as defined below), by selecting a check box expressly agreeing to these terms & conditions or by otherwise accepting these terms & conditions in writing (such earliest date, the date of “acceptance”), you acknowledge that you have read, understood, and agree to be bound by these terms & conditions and the order form, if applicable (together, this “agreement”). If you are entering this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this agreement, in which case the term “customer” refers to such entity. If you do not have such authority, or if you do not agree with this agreement, you must not access the exuberant platform (defined below). Each of customer and exuberant, exuberant. com. (“exuberant”) may be referred to herein as a “party” and together as the “parties”.

Exuberant may change the terms and conditions of this Agreement from time to time by providing at least thirty (30) days’ prior notice either by emailing the email address associated with Customer’s account or through other reasonable means. Customer can review the most current version of this Agreement at any time at https://Exuberant.com/terms.php. If Customer accesses the Exuberant Platform after the date on which the revised Agreement becomes effective, Customer’s access will constitute acceptance of the revised terms and conditions. If any change to this Agreement is not acceptable to Customer, Customer’s only remedy is to stop accessing the Exuberant Platform.

Background

Exuberant has developed a proprietary software-as-a-service platform that provides a comprehensive suite of tools to support automated accounting and finance services (the “Exuberant Platform”). The Exuberant Platform consist of cloud-based financial tools, software and services which may include (i) bookkeeping, accounting and access to banking services, (ii) financial information storage and reporting, (iii) tax preparation and advisory services, and (iv) the service of communicating information to, from and among third party servicers, as per Customer instructions. The Exuberant Platform includes any updates that are made generally available by Exuberant to customers at no additional charge during the Term (as defined below), but expressly excludes any upgrades or additional services, features or analytics that are made available by Exuberant for an additional charge. The specific aspects of the Exuberant Platform that Customer is entitled to access hereunder will be set forth in an order form signed by the Parties or will be otherwise agreed to by the Parties via a purchase order or through options in an online menu made available by Exuberant and selected by Customer (the “Order Form”).

Access to Platform

(a) Exuberant Platform. Exuberant will make the Exuberant Platform available to Customer via the Internet pursuant to this Agreement during the Term. Subject to the terms and conditions of this Agreement, Exuberant hereby grants Customer a limited, nonexclusive, nontransferable (except as set forth in the section titled “General”), non-sublicensable right to access and use the Exuberant Platform during the Term solely for Customer’s internal business purposes.

(b) Limitations. The following limitations and restrictions will apply to the Exuberant Platform: Customer will not provide access to the Exuberant Platform to any person who is not an employee of Customer, unless otherwise agreed to in writing by Exuberant (“Authorized Users”). Except as expressly permitted hereunder, Customer will not and will not permit or authorize any third party to:

(i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Exuberant Platform;

(ii) modify, translate or create derivative works based on the Exuberant Platform;

(iii) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Exuberant Platform;

(iv) use the Exuberant Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party;

(v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Exuberant Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or

(vi) remove or obscure any proprietary notices or labels of Exuberant or its suppliers on the Exuberant Platform.

Ownership; Reservation of Rights

(a) Customer Data. Customer or its licensors own the data input or uploaded by Customer into the Exuberant Platform, including, without limitation, any such information regarding Customer’s finances (“Customer Data”). Customer hereby grants Exuberant the nonexclusive, worldwide, royalty-free, fully paid up, non-sublicensable (except to contractors, consultants and service providers providing services on behalf of Exuberant), nontransferable (except as set forth in the section titled “General”) right and license to (i) copy, use, modify, distribute and display the Customer Data and the Customer Content (defined below) to perform its obligations under this Agreement, (ii) copy, modify and use Customer Data or Customer Content in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions, archival purposes and improving Exuberant’s products and services, and (iii) create aggregated and/or anonymized data from the Customer Data or Customer Content (“Aggregated Data”), which does not include information that identifies or would reasonably be expected to identify Customer or any of its Authorized Users. For the avoidance of doubt, Aggregated Data is not Customer Data or Customer Content. As between the parties, Customer reserves any and all right, title and interest in and to the Customer Data other than the licenses therein expressly granted to Exuberant under this Agreement. Exuberant makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility or liability for, the quality, content, nature, veracity or reliability of any Customer Data.

(c) Ownership; Reservation of Rights. Customer acknowledges and agrees that, as between the parties, Exuberant retains all rights, title, and interest in and to the Exuberant Platform, all copies or parts thereof (by whomever produced), all improvements, updates, modifications or enhancements thereto, and all intellectual property rights therein. Exuberant grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Exuberant Platform.

(d) Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Exuberant with respect to the Exuberant Platform. Exuberant will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Exuberant a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (i) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (ii) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

(e) Customer Responsibilities. Only Customer’s Authorized Users who have been assigned a unique login to the Exuberant Platform will be entitled to access and use the Exuberant Platform under this Agreement. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Exuberant Platform and notify Exuberant promptly of any such unauthorized access or use, and (ii) use the Exuberant Platform only in accordance with the documentation, this Agreement and any applicable laws and regulations. Customer will be solely liable for any uses of accounts linked to Customer’s login credentials.

(f) Privacy; Data Security. Exuberant may collet, use, disclose, and otherwise process Customer personal information in accordance with Exuberant’s privacy policy, and will implement and maintain commercially reasonable administrative, physical and technical controls designed to safeguard Customer Data. Exuberant reserves the right to decline to share Customer Data with any third party where Exuberant believes that such sharing may expose Customer or Exuberant to excessive security, financial or reputational risk. Exuberant has no liability for any collection, processing, storage, use or disclosure of Customer Data by any third party servicer or any other third party.

Support

Exuberant agrees to provide reasonable support to Customer during Exuberant’ normal support hours. Exuberant additionally agrees to provide customer service support in the form of e-mail and telephone during Exuberant’ normal customer support hours.

Financial Transactions

Exuberant shall not perform any financial transactions for Customer. Customer understands and agrees that Exuberant will provide a bookkeeping solution solely in accordance with the information provided by Customer to Exuberant. Exuberant does not provide verified financial statements, or attestation services. Finaly’s responsibility is to reconcile the bank and credit card accounts and categorize transactions with Customer’s approval, reviewed by Customer. The financial reports in the Exuberant Platform are generated automatically using whichever compatible accounting software Customer has chosen (e.g. QuickBooks, Freshbooks, Xero, etc.) based on information provided to Exuberant by Customer. Further, subject to the terms and conditions of this Agreement, Exuberant will reconcile Customer’s accounts using a variety of data sources including but not limited to Customer’s bank statements, credit card statements, payroll reports, sales tax filings, deposit reports from merchant services provides, but Exuberant does not provide auditing or attestation services related to these reconciliations. All reporting is subject to further edit pending Customer’s review and approval.

Payment

(a) Fees; Payment Terms. As consideration for Exuberant providing the Exuberant Platform hereunder, Customer agrees to pay Exuberant the aggregate monthly fee set forth in the Order Form. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Exuberant within ten (10) days from the time such payment is due, Exuberant may suspend Customer’s access to the Exuberant Platform until such payment is made.

(b) Net of Taxes. All amounts payable by Customer to Exuberant hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know how payments, customs, privilege, excise, sales, use, value added and property taxes (collectively "Taxes"). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Exuberant. Customer will not withhold any Taxes from any amounts due Exuberant.

(c) In order to use the payment functionality of Exuberant's application, you must open a "Dwolla Account" provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in or transferred through your Dwolla Account are held or transferred by Dwolla's financial institution partners. You must be at least 18 years old to create a Dwolla Account. You authorize Exuberant to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla Account through Exuberant's application, and Dwolla account notifications will be sent by Exuberant, not Dwolla. Exuberant will provide customer support for your Dwolla Account activity through its standard support features.

Term and termination

(a) Term. The initial term of this Agreement will commence on the date of Acceptance and continue for the initial term set forth in the Order Form, unless earlier terminated as set forth herein (the “Initial Term”). Thereafter, this Agreement will automatically renew for additional periods of the same duration (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of non-renewal at least sixty (60) days’ prior to the end of the then-current term.

(b) Termination; Effect of Termination. In addition to any other remedies it may have, either party may terminate this Agreement if the other party breaches any of the terms or conditions of this Agreement and fails to cure such breach within five (5) days of receiving notice thereof. Upon any termination or expiration of this Agreement for any reason, Customer may request an export of the Customer Data in a mutually agreed upon format within thirty (30) days of the effective date of such termination or expiration. Thereafter, Exuberant may, but is not obligated to, in its sole discretion and without delivery of any notice to Customer, delete any Customer Data stored or otherwise archived on the Exuberant Platform or on Exuberant’s network. Upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of Exuberant to provide the Exuberant Platform will immediately terminate and (i) Customer will cease use of the Exuberant Platform; and (ii) each party will return or destroy all copies or other embodiments of the other party’s Confidential Information (subject to Exuberant’s rights under the section titled Customer Data).

(c) Survival. Termination of this Agreement in accordance with the section titled “Term and termination”, or expiration of this Agreement, will not affect any obligations of the parties that have accrued up to the date of such termination or expiration, including without limitation any payment obligation. Upon any expiration or termination of this Agreement, the provisions of the sections titled “Customer Data”, “Ownership; Reservation of Rights”, “Feedback”, “Payment” “Termination; Effect of Termination”, “Survival”, “Confidentiality”, “Disclaimer”, “Limitations of Liability”, “Indemnification” and “General” will survive.

Confidentiality

As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Exuberant’s Confidential Information includes, without limitation, the Exuberant Platform and the terms of this Agreement.

Information will not be deemed “Confidential Information” if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party.

Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither party will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information.

Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (A) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (B) as required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).

Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

Representations and Warranties

(a) Representations and Warranties. Each party represents and warrants to the other party that (i) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (ii) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when signed by both parties. (b) Customer Representations and Warranties. Customer represents, warrants and covenants that: (i) Customer has all rights necessary to grant to Exuberant the rights and licenses in this Agreement with respect to the Customer Data and any information, content or other materials it uploads, submits or otherwise makes available to Exuberant (the “Customer Content”); (ii) Exuberant’s use of the Customer Data and Customer Content as permitted hereunder does not and will not infringe or violate the rights of any third party; and (iii) Customer’s provision of the Customer Data and Customer Content to Exuberant, and Exuberant’s use thereof in accordance with this Agreement, will not violate any applicable laws, rules or regulations.

Warranty disclaimer

Except as expressly provided in this Agreement, the Exuberant Platform is provided “as is,” and Exuberant expressly disclaims all warranties and conditions of any kind, express, implied, or statutory, including, without limitation, the implied warranties of title, noninfringement, merchantability, and fitness for a particular purpose. Interruption of Service: Customer hereby acknowledges and agrees that Exuberant will not be liable for any temporary delay or interruptions of the Exuberant Platform. Each party acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein. Unless an approval process is specified in the Order Form, all bookkeeping services provided by Exuberant to a Customer will be deemed accepted when delivered.

Limitation of liability

(a) Disclaimer of Consequential Damages. Exuberant SHALL NOT BE LIABLE FOR (A) ANY LOSS OF USE, LOSS OF DATA, OR INTERRUPTION OF BUSINESS OR (B) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), REGARDLESS OF THE FORM OR ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF Exuberant HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH IMITATIONS, Exuberant WOULD NOT ENTER INTO THIS AGREEMENT.

(b) General Cap on Liability. Exuberant’S LIABILITY HEREUNDER FOR EACH INDIVIDUAL CLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO Exuberant DURING THE THREE (3) MONTH PERIOD BEFORE THE ACTION AROSE. UNDER NO CIRCUMSTANCES WILL Exuberant’s LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OR THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO EXUBERANT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

(c) Independent Allocations of Risk. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH IMITATIONS, Exuberant WOULD NOT ENTER INTO THIS AGREEMENT. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

Indemnity

(a) Customer Indemnity. Customer will defend Exuberant and the officers, directors, agents, and employees of Exuberant (“Exuberant Indemnified Parties”) against any third-party claim, action, suit, or proceeding (a “Claim”) arising from (i) any use or disclosure by Customer of the Exuberant Platform in violation of this Agreement or (ii) the Customer Data or Customer Content. Customer shall indemnify the Exuberant Indemnified Parties against all losses, damages, liabilities, and all reasonable expenses and costs, including reasonable attorney’s fees, incurred by Exuberant as a result of any such third-party claim, action, suit, or proceeding.

(b) Exuberant’ Indemnity. Exuberant will defend Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) against any Claim arising from an allegation that Customer’s authorized use of the Exuberant Platform infringes any intellectual property right of a third party. Further, Exuberant will indemnify the Customer Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Notwithstanding the foregoing, Exuberant’s indemnification obligation will not apply to claims to the extent arising from (i) modification of the Exuberant Platform by any party other than Exuberant without Exuberant’s express consent; (ii) the combination, operation, or use of the Exuberant Platform with other product(s), data or services where the Exuberant Platform would not by itself be infringing; or (iii) unauthorized or improper use of the Exuberant Platform. If the use of the Exuberant Platform by Customer has become, or in Exuberant’s opinion is likely to become, the subject of any claim of infringement, Exuberant may at its option and expense (A) procure for Customer the right to continue using the Exuberant Platform as set forth hereunder, (B) replace or modify the Exuberant Platform to make it non-infringing so long as the Exuberant Platform has at least equivalent functionality, (C) substitute an equivalent for the Exuberant Platform or (D) if options (A)-(D) are not reasonably practicable, terminate this Agreement. This paragraph states Exuberant’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

(c) Mechanics of Indemnity. The indemnifying party’s obligations are conditioned upon a Customer Indemnified Party or Exuberant Indemnified Party (each, an “Indemnified Party”) giving the other party (the “Indemnifying Party”): (i) prompt, written notice of any Claim for which the Indemnified Party is seeking indemnity; (ii) granting the Indemnifying Party sole control of the defense and settlement of such Claim; and (iii) reasonably cooperating with the Indemnifying Party at the Indemnifying Party’s expense; provided, that, the Indemnifying Party shall not settle any Claim unless such settlement completely relieves the Indemnified Party of all liability without admitting any fault on the Indemnified Party’s behalf.

General

Customer agrees that Exuberant may (i) list and/or identify Customer’s name (including by displaying any Customer trademark) to identify the business relationship between the parties on Exuberant’s website and in other marketing and advertising collateral and (ii) publish a case study with respect to Customer’s use of the Exuberant Platform. Customer may not remove or export from the United States or allow the export or re-export of the Exuberant Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.

Any assignment or attempted assignment by either party otherwise than in accordance with this paragraph will be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

In the event of a conflict between the Order Form and these Terms & Conditions, these Terms & Conditions will govern unless expressly stated otherwise in the Order Form. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. All notices under this Agreement will be in writing and sent to the addresses set forth in the Order Form and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”).

Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement will be governed by the laws of the State of Florida without regard to its conflict of laws provisions.

For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Miami, Florida and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Customer acknowledges that any unauthorized use of the Exuberant Platform may cause irreparable harm and injury to Exuberant for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer agrees that Exuberant may be entitled to injunctive relief in the event Customer uses the Exuberant in any way not expressly permitted by this Agreement.