TERMS OF SERVICE

These Terms of Service (these “Terms”) are a legally binding agreement between Incubateme Corp., a Delaware corporation d/b/a myPocketCFO (“Company”, “we”, “us” and “our” as context dictates) and you, the end user, who is utilizing the Services (as defined), or, the entity for which you are acting as a duly authorized representative (“Representative”) where the entity (“Customer”) has obtained Services use rights for you pursuant to a separate agreement or by click-through purchase on our website (an “Order Form”), in which case, these Terms bind the Customer in addition to the terms and conditions of Order Form. To the extent there is any conflict between these Terms and the Order Form, the conflicting terms of the Order Form shall govern.

If you are not a Representative, you hereby acknowledge that you agree to be personally liable under these Terms. “You”, “your” and “Authorized User” (as context dictates) shall mean you in your personal capacity or as a Representative, as dictated by who has ordered the Services under an Order Form. “Party” means us or you or Customer as applicable, and “Parties” means the foregoing collectively.

THESE TERMS CONTAIN A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. IF YOU ACCEPT THESE TERMS, YOU AND COMPANY AGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND GIVE UP THE RIGHT TO GO TO COURT, INDIVIDUALLY OR AS PART OF A CLASS ACTION.

1. Acceptance of the Terms of Service

These Terms are effective on the date you create an Account (as defined) or first use the Services until you or we terminate your Account. IF YOU ARE NOT AN AUTHORIZED USER OR CANNOT OR DO NOT WISH TO BIND YOUR EMPLOYER OR ANY OTHER ENTITY YOU REPRESENT,  YOU MUST NOT REGISTER FOR ACCESS OR USE THE SERVICES OR ACCEPT THESE TERMS. Notwithstanding termination of your Account, some clauses in these Terms will continue to be applicable to you even after your Account is terminated (see Section 9 (Suspension and Termination)).

You also agree to abide by other Company rules and policies, including our Privacy Policy (which explains what information we collect from you and how we protect it) that are expressly incorporated into and are a part of these Terms. Please read them carefully.Once you accept these Terms you are bound by them until they are terminated (see Section 9 (Suspension and Termination)).

2. Changes to the Terms of Service

We may update these Terms from time to time. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes.

3. Company Services

Company provides, subject to payment of applicable fees, a proprietary software platform that allows SMBs to obtain accounting and finance services through our website (“Website”), including the preparation and submission of tax filing services (the “Services”). We also provide customer support that is available  to you through the agreed upon channels using your Account.

You are only provided a right to access and use the Services pursuant to these Terms during the agreed upon service period (“Service Term”). Subject to our disclaimers, we only warrant that the Services will perform in accordance with the commercially reasonable standard of service delivery and in accordance with any guidance document we provide (“Documentation”). Company may update or modify the Services from time to time. If Company changes the Services in a manner that materially reduces its functionality, Company will inform Customer, unless Customer has opted out of communications of this type from Company.

Certain Service (e.g. tax filing service) we provide you shall utilize the expertise of third party independent contractors (e.g. tax accountants) or their representatives (“Independents” or “ICs”). Such ICs are subject to contractual arrangements with Company that flows through legal protections afforded you under this Agreement, including in respect of confidentiality and compliance with applicable laws.  To safeguard your interests in case Services are provided by ICs, we provide escrow services for payments to ensure you are satisfied before payment is made to the ICs. See Section 8 (Service Term, Fees & Payment) for further details.

4. Use of Services

5. Customer Data

6. Intellectual Property Rights and Ownership

7. Representations and Warranties

You represent and warrant that (a) you are not a subject of economic or trade sanctions administered or enforced by any governmental authority or otherwise designated on any list of prohibited or restricted parties (including but not limited to the list maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury), (b) you are not a citizen, resident, or organized in a jurisdiction or territory that is the subject of comprehensive country-wide, territory-wide, or regional economic sanctions by the United States, (c) your access and use of any of the Services will fully comply with all applicable laws and regulations, and that you will not access or use the Services to conduct, promote, or otherwise facilitate any illegal activity or act in breach of Section 4.4 (Restrictions), (d) your use of the Services and acceptance of these Terms is duly authorized and for the sole purpose of the party that is a signatory to the Order Form pursuant to which Authorized Users have been granted access to the Services, and (e) you are not in breach of any obligation to a third party as a result of compliance with these Terms.

8. Service Term, Fees & Payment.

  1. the ICs cancel the provision of Service to you; or
  2. you do not inform us of the IRS confirmation but we or the ICs have received such confirmation on your behalf.
  1. Refunds. We do not normally offer any refunds for Services paid for (except as noted above in respect of ICs where monies may be returned to you).  We may however refund you any pro-rated fees you paid in advance during a Service Term if we terminate your receipt of Services for our convenience.

9. Suspension and Termination.

  1. You may request a termination of these Terms by closing your Account through the options available on our Website and ceasing to use the Services or by emailing us at the address provided.
  2. Any termination of your Account will not negate certain of your obligations under these Terms. The following Sections will survive any expiration or termination of these Terms, or any termination of your Account or use rights: 5 (Customer Data), 6 (Intellectual Property Rights and Ownership), 9 (Suspension and Termination), 12 (Indemnification), 13 (Limitation of Liability), 14 (Confidential Information), 16 (General Terms), and 17 (Consent to Electronic Communication).
  3. Without limiting any other remedies, we may refuse your access to the Services or may limit, suspend, modify, delete or terminate your Account without notice for any reason, including, but not limited to, a suspected violation of these Terms, including illegal or improper use of your Account, an unauthorized third-party’s access to the Services, illegal or improper use of the Services, any violation of our intellectual property, or a security emergency where the Services’ ongoing use could be disruptive to other customer’s use or any equipment or infrastructure utilized or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services, each other foregoing as determined by Company in its sole discretion. You may lose your username, password and all related information and files associated with your Account, as a result of Account termination, without responsibility on the part of Company for any damage that may result from the foregoing, and Company is under no obligation to compensate you for any such losses or results. If a Customer has more than one Account, Company may terminate all such Accounts. We are not obligated to retain or forward any information related to your Account. If you delete your Account, your records and any information that is otherwise stored for your benefit may be deleted and not be retrievable.

10. Warranty Disclaimer

THE SERVICES (INCLUDING ALL INFORMATION, RESULTS, REPORTS, RECOMMENDATIONS, AND OTHER MATERIALS GENERATED OR MADE AVAILABLE THROUGH THE SERVICES OR ANY ASSOCIATED SITES OR SERVICES) AND ANY OTHER COMPANY OFFERING ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE OPERATION OF THE SERVICES, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE), OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES.

WE ARE NOT LIABLE, AND YOU AGREE NOT TO HOLD US RESPONSIBLE, FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, INCLUDING, BUT NOT LIMITED TO: (I) YOUR USE OF OR YOUR INABILITY TO USE OUR WEBSITE OR SERVICES; (II) DELAYS OR DISRUPTIONS IN OUR WEBSITE OR SERVICES, INCLUDING IN RESPECT OF A PARTNER; (III) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING, OR LINKING TO, OUR WEBSITE OR SERVICES; (IV) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN OUR WEBSITE OR SERVICES; (V) DAMAGE TO YOUR HARDWARE DEVICE FROM THE USE OF THE WEBSITE OR SERVICES; (VI) THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES’ USE OF THE WEBSITE OR SERVICES; (VII) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT; AND (VIII) YOUR NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR OR YOUR LOSS OF OR INABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THESE TERMS AND THE SERVICES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, SATISFACTORY QUALITY, OR ACCURACY, OR THAT THE SERVICES AND INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES, COMPANY’S SERVERS, OR ELECTRONIC COMMUNICATIONS SENT FROM COMPANY SHALL BE ERROR-FREE, SECURE, UNINTERRUPTED, FREE OF VIRUSES OR VOID OF OTHER HARMFUL COMPONENTS.

COMPANY MAKES NO REPRESENTATIONS ABOUT ANY CUSTOMER DATA OR OTHER INFORMATION IN OR FROM ANY AUTHORIZED USER ACCOUNT. COMPANY HAS NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OR FAILURE TO STORE ANY CUSTOMER DATA.

CUSTOMER ASSUMES ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM CUSTOMER’S (INCLUDING AUTHORIZED USERS’) USE OF OR ACCESS TO THE SERVICES OR CUSTOMER’S DEALINGS OUR PARTNERS, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, INTEGRITY, QUALITY, USEFULNESS, OR LEGALITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY (INCLUDING CUSTOMER’S COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICES), LOSS OF DATA, PROFITS, OR BUSINESS, OR ANY OTHER LOSS OR DAMAGE THAT RESULTS FROM THE USE OF OR RELIANCE ON THE SERVICES.

11. Third-Party Services and Linked Websites.

The Services may enable Customer to connect to or make use of certain third-party products, services, content, or websites. Such third-party products, their functionality, services, content, and websites are not under Company’s control and Customer use at Customer’s sole risk and is subject to the applicable licenses, privacy policies, and agreements of the applicable third party. Provision of such third-party products, services, content, or websites does not imply Company’s endorsement thereof or attach any liability to Company or its affiliates. Without limiting the foregoing, Company may provide tools through the Services that enable Customer to export information, including Customer Data, to third party services. By using these tools, Customer agrees that Company may transfer such information to the applicable third-party service. Such third-party services are not under Company’s control and Company is not responsible for their use of Customer’s exported information nor for any activities or conduct of such third-party service providers. Customer agrees that Company disclaims all liability arising from or in connection with the third-party services, websites, products, content and actions, and Customer hereby expressly release Company from any and all liability arising from or in connection with the third-party services.

12. Indemnification

  1. Company Indemnification.
    Company shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with these Terms, infringes or misappropriates such third party's US intellectual property rights provided that Customer promptly notifies Company in writing of such Third-Party Claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such Third-Party Claim.

    This Section 12.1 will not apply to the extent that the alleged infringement arises from: (a) modification of any part of Services by any party other than Company; (b) combining the Services with other non-Company products, services or processes; (d) any unauthorized use of the Service; (d) Customer Data or any third-party data, elements or components contained within the Services that is not authorized by Company, or (e) Customer settling or making any admissions with respect to a claim without Company’s prior written consent.
  2. Customer Indemnification.
    Customer shall indemnify, defend and hold harmless from and against all Losses resulting from any Third-Party Claim: (a) arising or relating to Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party's rights, including any intellectual property rights; (b) arising from or relating to Customer's or any Authorized User's (i) negligence or willful misconduct or (ii) use of the Services in a manner not authorized by these Terms; (c) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; or (d) modifications to the Services not made by Company, provided that Customer may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in its own defense  by using counsel of its own choice.
  3. Mitigation. 
    If Customer’s use of the Services is (or in Company’s opinion is likely to be) enjoined due to a claim of intellectual property infringement or if Company determines such actions are reasonably necessary to avoid material liability, then Company may, in its sole discretion and cost: (a) substitute a substantially functionally similar service; (b) procure for Customer the right to continue using the Services; or if Company determines (a) and (b) to be commercially unreasonable, (c) terminate the Order Form in its entirety or with respect to the affected part or feature of the Services effective immediately on written notice to Customer, in which event Customer shall cease all use of the Services immediately and Company shall promptly refund to Customer, on a pro rata basis, the share of any license fees prepaid by Customer for the future portion of the Order Form term that would have remained but for such termination.
  4. Sole remedy
    THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND COMPANY'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
  5. Sole remedy
    THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND COMPANY'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

13. Limitation Of Liability

IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) ANY OF THE FOREGOING TO THE EXTENT ARISING FROM ANY ACTION OR INACTION OF A THIRD PARTY, INCLUDING THIRD PARTY SERVICE PROVIDERS THAT ARE NOT COMPANY’S SUBCONTRACTORS, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

IN NO EVENT WILL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO COMPANY UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 13 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

14. Confidential Information

“Confidential Information” means any technical and business information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be proprietary or confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any performance information relating to the Services, and Customer Data will be deemed Confidential Information of Company and subject to use only as permitted under this Agreement. Except as expressly authorized in these Terms, the Receiving Party will hold in confidence and not use or disclose any Confidential Information of the Disclosing Party. Notwithstanding anything in this Section 14, Customer Data may be used as set forth in these Terms. The Receiving Party’s obligations under this Section 14 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

15. Governing Law and Dispute Resolution

  1. Governing Law. These Terms, and any dispute concerning, arising from or related to these Terms, shall be governed by the laws of the State of California, without regard to California’s choice of law provisions. Further, each Party hereby waives the right to trial by jury in any court proceeding between them, including without limitation as to any claim or cause of action based upon, arising out of or directly or indirectly related to these Terms, including contract, tort, and statutory claims.
  2. Negotiation of Disputes; Arbitration. Except for an action for interim equitable relief that may be sought in any court of competent jurisdiction, if a dispute arises between the Parties relating to these Terms,  then, upon written notice to the other Party, either Party may file a request for binding arbitration to be governed by the Streamlined Arbitration Rules and Procedures current commercial arbitration rules of the Judicial Arbitration and Mediation Service (“JAMS”) in effect at that time (the “Rules”). The Parties agree to arbitrate solely on an individual basis, and these Terms prohibit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The place of arbitration shall be San Francisco, California and arbitration will be conducted by a sole arbitrator whose decision shall be final and binding. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration provided however the arbitrator may award costs as appropriate under the circumstances against a Party.
  3. Mitigation. If Customer’s use of the Services is (or in Company’s opinion is likely to be) enjoined due to a claim of intellectual property infringement or if Company determines such actions are reasonably necessary to avoid material liability, then Company may, in its sole discretion and cost: (a) substitute a substantially functionally similar service; (b) procure for Customer the right to continue using the Services; or if Company determines (a) and (b) to be commercially unreasonable, (c) terminate the Order Form in its entirety or with respect to the affected part or feature of the Services effective immediately on written notice to Customer, in which event Customer shall cease all use of the Services immediately and Company shall promptly refund to Customer, on a pro rata basis, the share of any license fees prepaid by Customer for the future portion of the Order Form term that would have remained but for such termination.
  4. Sole remedy
    THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND COMPANY'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

16. General Terms

  1. Entire Agreement. These Terms (including all exhibits and Company policies referred to in these Terms and any Order Forms) constitute the complete and exclusive statement of the mutual understanding of the Parties. In the event of conflict between these Terms and any terms contained within an Order Form entered between Company and Customer, including all exhibits and attachments, the Order Form shall govern with respect to such terms.
  2. Assignment. These Terms will inure to the benefit of, and be binding upon, the Parties hereto and their representatives, successors, permitted assigns and other legal representatives to the extent permitted under this Section 16.2. These Terms may not be assigned by Customer, and no rights or obligations under these Terms may be designated, transferred or assigned by Customer, without Company’s prior written consent solely at its discretion.  Company may assign these Terms and or transfer or designate any right or obligation under these Terms to an affiliate or any party without Customer’s consent.
  3. Severability; Waivers. If any provision of these Terms will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that these Terms will otherwise remain in effect. No waiver will be implied from conduct or failure to enforce or exercise rights under these Terms, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of these Terms.
  4. Notice. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address, and are deemed given when sent, or posted through the Services. Notices to Company must be sent to the Company designated support representative.
  5. Force Majeure. Neither Company nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the Party's reasonable control (for example, pandemic, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
  6. Independent Contractors. The Parties to these Terms are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
  7. No Third-Party Beneficiaries. These Terms are solely for the benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

17. Consent to Electronic Communications

By using the Services, Customer consents to receiving certain electronic communications from Company as further described in Company’s Privacy Policy. Customer should read Company’s Privacy Policy to learn more about Customer’s choices regarding Company’s electronic communications practices.

18. Contact Information

Customer may contact Company by sending correspondence by emailing the Company designated support representatives at support@mypocketcfo.com or as set out on our Website.

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