Effective Date: 10/24/25
READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE TOTALLY ACCOUNTING PLATFORM AND SERVICE. These "Terms of Service" are entered into by and between Totally Accounting, LLC ("Totally Accounting," "we," or "us"), and you and your Affiliates ("Customer," "you," or "your"). This Agreement states the terms and conditions that govern your access to and use of the Services.
ARBITRATION NOTICE: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH TOTALLY ACCOUNTING.
By (1) executing and accepting the Totally Accounting Order Form (2) checking a box indicating your acceptance, (3) accessing or using the Totally Accounting Services, you agree to be bound by this Agreement and all other policies, procedures, and rules that we may publish, as well as any additional terms and conditions which we and you may agree to in writing on a valid Order Form.
We may refuse to offer Totally Accounting Services to any entity, and use of the Totally Accounting Services is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service. If you do not agree with the Terms of Service, or you are not legally able to enter into a contract, you are not authorized to use the Totally Accounting Services. If you are accessing and using the Totally Accounting Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these terms.
Totally Accounting provides an online virtual platform offering bookkeeping and related business financial services (the "Services"), including but not limited to:
(a) Accounting
(b) Bookkeeping
(c) Payroll (outsourced)
(d) Tax advisory (outsourced)
Totally Accounting maintains a roster of independent accountants and bookkeepers (collectively, the "Contractors"). Customers may select a Contractor from this roster. Each Contractor operates as an independent professional, not as an employee, agent, or representative of Totally Accounting. TOTALLY ACCOUNTING SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR THE PERFORMANCE, ACTS, OR OMISSIONS OF ANY CONTRACTOR.
Customer expressly authorizes Totally Accounting and the selected Contractor to access Customer's QuickBooks account and financial data to perform the Services. Customer acknowledges and consents to the sharing of such information solely for the purpose of performing the agreed Services.
• Tax Advisory Services are outsourced to Fluent Financials LLC.
• Payroll Services are outsourced to Friday Inc.
Customer acknowledges that Totally Accounting does not control or supervise such vendors and agrees to communicate directly with them for service delivery, though payment will be made to Totally Accounting.
Totally Accounting may use Intuit Inc.'s QuickBooks Online to provide the Services. If you do not already have an account, you authorize Totally Accounting to create one for you. Your and our use of QuickBooks Online will be governed by Intuit Inc.'s Terms and Conditions and by authorizing us to create an account for you, you agree to Intuit Inc.'s terms.
Totally Accounting provides the Services at the direction and for the benefit of your management. Your management is responsible for all management decisions and performing all management functions, including (i) setting policies or accepting policy recommendations; (ii) evaluating the reasonableness of underlying assumptions and the adequacy and results of the Services; and (iii) implementation of any findings or recommendations resulting from the Services.
Totally Accounting may act upon, and will not have liability for acting upon, instructions in any form (e.g., electronic, written, oral) so long as Totally Accounting reasonably believes that the instructions were actually given by you or on your behalf. You are responsible for the legality of your instructions to us. Totally Accounting is not obligated to identify or offer additional Services.
Totally Accounting prepares deliverables resulting from the Services for use by your management. In preparing deliverables, you agree that Totally Accounting (a) does not have an obligation to independently verify the accuracy or completeness of any facts provided by you or any third party, and (b) do not undertake to update the deliverable if any facts change, unless the Order Form for the Services expressly states otherwise. If you elect to present any deliverable to any third party, such presentation must be made solely by you and not by or on behalf of us, and you agree to remove any references to us from the deliverable and/or from the presentation.
Totally Accounting's provision of the Services requires that you provide access to corporate, financial and related information, information technology systems or services, and/or input from you. You agree to timely provide all such information, access and input and reasonably cooperate with us in our provision of the Services. You agree to provide good faith assumptions and accurate and complete representations, information and data, and you agree that Totally Accounting may assume you have done so without further investigation or verification. You agree that late or insufficient information, access or input from you may cause delay in the performance of the Services, inability to provide the Services, or increase in the amount of our fees.
For the avoidance of doubt, if our performance of the Services is prevented or delayed by any act or omission by you or your agents, vendors, consultants, or employees, Totally Accounting will not be in breach of our obligations or otherwise liable for any related costs, charges, or losses incurred by you.
You will only use the Services and TA Technology in accordance with the Totally Accounting Acceptable Use Policy, which is incorporated in these terms by reference. Totally Accounting may suspend or terminate provision of the Services, in whole or in part, where we reasonably believe that any of our Services are being used in a manner that breaches this Agreement (including the Acceptable Use Policy) or creates risk of personal injury, property damage, or legal liability for us, you or any third party, or may cause us to lose the services of one of our third-party service providers, if any.
You understand that Totally Accounting may modify, change and/or improve our Services. You agree that Totally Accounting may add or remove functionality or features, and that Totally Accounting may suspend or stop part of the Services altogether. If any changes or modifications to Services are made that materially degrade the Services for which you are contracted, Totally Accounting will provide you with 30 days written notice before the changes go into effect.
Similarly, because some of our Services are provided by our personnel, Totally Accounting reserves the right to determine from time to time in our sole discretion the personnel assigned to provide the Services to you.
Totally Accounting is not a certified public accounting firm. You understand and agree that Totally Accounting is not a certified public accounting firm and does not provide services that would require a license to practice public accounting. You acknowledge that Totally Accounting is not a member of the American Institute of Certified Public Accountants (AICPA) and is not governed by any AICPA rules.
The Services do not include, and you will not rely on them for: (i) audit, attest, examination, verification, investigation, certification, presentation, or review of financial transactions or accounting records (as such terms are used in the California Business and Professions Code Section 5000 et seq. ("California Public Accountancy Law")); (ii) independent advice relating to accounting procedure or to the "recording, presentation, or certification of financial information or data" within the meaning of the California Public Accountancy Law; (iii) preparation or certification of reports on audits or examinations of books or records of account, balance sheets, and other financial, accounting and related schedules, exhibits, statements, or reports that are to be used for publication, for the purpose of obtaining credit, for filing with a court of law or with any governmental agency, or for any other purpose, as contemplated by the California Public Accountancy Law; (iv) legal or regulatory advice regarding any of your business practices, including with respect to their appropriateness or legality; or (v) unless otherwise expressly included on an Order Form, tax advice or tax return preparation (although Totally Accounting will provide bookkeeping assistance to your tax preparer of choice, and/or you can subscribe for tax Services, which are provided separately from our bookkeeping Services).
You should seek the services of a duly licensed professional in connection with any of the foregoing. In particular, in compliance with applicable law and accounting standards regarding auditor independence, Totally Accounting cannot (and does not) make any representation or warranty whether any financial records are compliant with GAAP, IFRS or any other accounting standards or rules.
To facilitate the provision of the Services, Totally Accounting may provide your designated users (each, a "User") with access to and use of functionality of website(s), cloud software services, software tools, automated forms and other technologies developed by or for us (collectively, "TA Technology"). You are responsible for: (a) the confidentiality of User access credentials that are in your possession or control; (b) setting up appropriate internal roles, permissions, policies and procedures for the safe and secure use of TA Technology, (c) your Users' use of TA Technology; and (d) your Users' compliance with this Agreement, including our Acceptable Use Policy, and applicable laws. You must notify us promptly if you become aware, or reasonably suspect, that your account's security has been compromised.
To efficiently provide the Services, we use certain internal technologies and tools, many of which are developed by or for us, such as integrations with Third-Party Services, software rules, checklists and other technologies (collectively, "Internal Software"). You agree to reasonably cooperate with us to enable us to use Internal Software in the provision of the Services and to refrain from interfering with the operation of Internal Software. If you obtain new, or make changes to, information technology systems or services that contain relevant data for the Services, you agree to notify us promptly and reasonably cooperate with us to facilitate the efficient use of Internal Software.
Totally Accounting will use any information, files, or materials that you provide to us or upload through the website or services, including any personal information or content related to your account or use of the services (collectively "Customer Data") as described in this Agreement and/or in the Totally Accounting Privacy Policy, as updated from time to time, and for the business purposes described therein. By subscribing to any Services, you expressly consent to such use, including the use of Customer Data in Third-Party Services required for the provision of our Services, and the sharing of Customer Data across various Services for which you subscribe (e.g., bookkeeping data for tax preparation services).
You agree that Totally Accounting may perform benchmarking studies on an aggregated basis across all or a subset of our customers, which will not contain any identifying information that can be attributed to you or any of your Users, customers, vendors, employees or representatives. You consent to our use of Customer Data for the purpose of developing and/or performing such benchmarking studies.
"Aggregate Data" means: (i) data derived and/or collected from or based on the Customer Data; (ii) statistical, system, usage, and configuration data regarding the Customer's compliance with this Agreement and Customer's usage of the Services. In any case, Aggregate Data shall: (y) not specifically identify Customer or Customer's customers; and (z) shall not consist of any of Customer's Confidential Information, provided, however, that Customer shall not consider statistical, aggregate data part of its Confidential Information.
Customer acknowledges that Customer's use of the Services may require the processing and transmission of Customer Data to Totally Accounting. Customer shall own all title and Intellectual Property Rights in and to the Customer Data. Notwithstanding the foregoing, when Customer or its end users uploads, submits, or stores Customer Data through the Services, Customer grants Totally Accounting a worldwide license to use, host, store, reproduce, modify, and create derivative works from the Customer Data to provide, support, and improve the Services. Totally Accounting is not responsible for any electronic communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third-party networks. Customer acknowledges that Customer Data and information regarding Customer's account will be processed by Totally Accounting and stored and processed using online hosting services selected by Totally Accounting. Customer represents and warrants that it has all necessary rights in, and obtained all necessary consents to, the Customer Data to grant Totally Accounting the rights to provide the Services to Customer. Notwithstanding anything to the contrary in this Agreement, Customer authorizes and agrees that Totally Accounting may collect Aggregate Data and such Aggregate Data shall be the property of Totally Accounting.
You agree not to misuse the Services or help anyone else to do so. For example, you must not do (or even try to do) any of the following in connection with the Services:
(i) use the Services (a) to violate any law, statute, ordinance or regulation (including those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising), including, but not limited to, transactions relating to counterfeit goods, stolen goods, illegal or controlled substances, substances that pose a risk to consumer safety, illegal online gambling/wagering, escort services, pyramid schemes, counterfeit goods, the unlicensed sale of firearms, or any type of money laundering, or (b) in connection with any of the foregoing;
(ii) process false or inaccurate transactions;
(iii) probe, scan, or test the vulnerability of any system or network;
(iv) breach or otherwise circumvent any security or authentication measures;
(v) use the Services for personal, family or household purposes;
(vi) transmit, store, or process protected health information subject to HIPAA;
(vii) abuse referrals or promotions;
(viii) sell the Services unless specifically authorized to do so;
(ix) harass or abuse Totally Accounting personnel or representatives or agents performing services on behalf of Totally Accounting; or
(x) represent our personnel, or request our personnel to act, as your employee, officer, signatory, agent or fiduciary
Except as expressly authorized in this Agreement or by us prior to each instance, you shall not:
(i) access, tamper with, or use non-public areas or parts of TA Technology, or shared areas of TA Technology you haven't been invited to;
(ii) provide TA Technology to any third party other than your Users, use TA Technology as a service bureau, or otherwise violate or circumvent any use limitations or restrictions set forth in this Agreement or TA Technology;
(iii) derive the source code or use tools to observe the internal operation of, or scan, probe or penetrate, TA Technology;
(iv) copy, modify or make derivative works of TA Technology;
(v) frame or mirror the Services, TA Technology, or any part thereof;
(vi) use TA Technology: (a) to send spam, duplicative, or unsolicited messages in violation of applicable laws or regulations; (b) to send or store material that violates the rights of a third party; (c) to send or store material containing viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (d) for any other illegal or unlawful purpose.
You may not knowingly facilitate or aid a third party in any of the foregoing activities.
Subject to the limited rights expressly granted in this Agreement, as between the parties you retain all rights, title and interest, including all Intellectual Property Rights, in and to Customer Data. You grant us and our subcontractors a limited license to use the Customer Data to provide, protect and improve the Services and to perform our rights and obligations under this Agreement.
Subject to the limited rights expressly granted hereunder, as between the parties Totally Accounting owns all rights, title and interest, including all Intellectual Property Rights, in and to TA Technology and Internal Software. Totally Accounting grants your Users a non-exclusive license to use TA Technology for the purpose of facilitating the provision of our Services to you during the term of this Agreement. All rights not expressly granted in this Agreement are reserved by us.
Each party represents and warrants to the other that it has the authority, including any and all necessary consents, to grant the licenses above.
Totally Accounting Services, TA Technology and/or Internal Software can transfer data from or to, or integrate with, Third-Party Services (e.g., your payroll software provider). We do not endorse or make any representation, warranty or promise regarding, and do not assume any responsibility for, any Third-Party Service, regardless of whether it is described as "required," "recommended" or the like and regardless of whether the Third-Party Service is included in your Order Form. You should review applicable terms and policies, including privacy and data gathering practices, and should make whatever investigation you feel necessary or appropriate before obtaining any Third-Party Service. You agree to (a) maintain all subscriptions to Third-Party Services that we require for the provision of the Services and TA Technology or the operation of Internal Software; (b) abide by the terms of your agreements for any Third-Party Services and indemnify us and hold us harmless from any claim related to a breach by you of any such agreement or from any instructions by you to us that would constitute a breach of any such agreement, (c) set up appropriate internal roles, permissions, policies and procedures for the safe and secure use of Third-Party Services, and (d) if we agree to procure Third-Party Services for you (for example, QuickBooks Online), reimburse us for such costs. We have no obligation to provide support for Third-Party Services and do not guarantee the initial or continuing interoperability of the Services, TA Technology and Internal Software with any Third-Party Services. If a Third-Party Provider ceases to make the Third-Party Services available for interoperation with TA Technology or Internal Software for any reason, we may cease providing certain features of TA Technology and/or modify the Services without liability.
If you provide Totally Accounting with login credentials (for example, an account name or number, password, answers to security questions (collectively, "Login Credentials")), you (a) give Totally Accounting permission and a limited power of attorney to use them to login to, or create an integration with, these other third-party websites and services and access, transfer, reformat, and manipulate your account on your behalf in performance of this Agreement; and (b) represent to us that you have the authority to give us this permission. You consent to our use of Login Credentials to provide the Services and perform our rights and obligations under this Agreement. Totally Accounting will maintain Login Credentials in encrypted form, and we will only use them pursuant to this Agreement or as otherwise directed by you.
Totally Accounting requires that all facilities that Totally Accounting uses to store Customer Data or Login Credentials adhere to reasonable security standards. As part of providing the Services, we may transfer, store and process Customer Data within the United States. By using the Services, you consent to this transfer, processing and storage of Customer Data.
If you provide Totally Accounting with feedback, ideas, requests, recommendations or suggestions about the Services ("Feedback"), then we may use that information without obligation to you, and you grant Totally Accounting a non-exclusive, worldwide, perpetual, irrevocable license to use, reproduce, incorporate, disclose, and sublicense the Feedback for any purpose.
Totally Accounting may collect and use certain information about you when you access or use our Platform or Services, as described in the Privacy Policy, available at /privacy, which may be updated from time to time.
• Silver Plan – Basic bookkeeping.
• Gold Plan – Includes bookkeeping and accounting support.
• Platinum Plan – Includes tax advisory and payroll services, outsourced as described in Section 2.4.
All Services shall be detailed in a signed Order Form executed by both parties. The Order Form will specify the selected plan, service details, pricing, and term.
Any modifications to the Services or pricing during the term shall be made through a mutually signed Change Order.
Subscription pricing is valid for the initial term. Totally Accounting may adjust pricing upon renewal, with notice provided at least ten (10) days prior to renewal.
Prior to signing any Order Form, Totally Accounting will conduct a comprehensive walk-through assessment of the Customer's business and bookkeeping needs to determine appropriate pricing and plan selection.
Totally Accounting may also increase Subscription fees if there is a material change in the Customer's business during a Term by providing written notice to Customer at least thirty (30) days prior to the change going into effect. Such changes may include, but are not limited to, substantial growth, new services, and Customer requests related to current services.
If no such notice is provided, Totally Accounting reserves the right to increase fees by 5% annually for inflationary purposes at each renewal period without notice to Customer.
Totally Accounting will collect payment for the fees payable by you under this Agreement automatically via ACH or credit card through it's third-party payment processor. You represent that the account you are authorizing for ACH or credit card is an account that is not primarily used for personal, familial or household purposes. By authorizing us to use ACH or credit card, you agree to the NACHA Operating Rules that govern ACH payments. Fees are exclusive of taxes, which you're responsible for if applicable. You authorize Totally Accounting and/or its payment processor to initiate entries to your business bank checking accounts on file with Totally Accounting (using your business address on file) in order to pay amounts that you owe to Totally Accounting (including for any Renewal Terms as those payments come due), and, if necessary, to initiate adjustments for any transactions credited or debited in error. We may immediately suspend provision of any or all Services if your account is past due with respect to the payment of fees for any Services or any other amounts owed by you to us. You agree to pay any fees for Services owed by your Affiliates. Except to the extent expressly set forth in this Agreement, all payments are non-refundable and non-creditable.
We reserve the right to request prepayment before starting the provision of any Services. In the case of nonpayment of any amount due and owed under this Agreement, in addition to such unpaid amounts you will reimburse us for all costs and fees incurred to collect the unpaid amounts.
Customer shall provide timely and complete access to all necessary data, credentials, and systems required for service performance.
Customer is solely responsible for the accuracy and completeness of all data and financial information provided.
Customer acknowledges and agrees that Contractors are independently engaged professionals. Customer may directly communicate with the selected Contractor for the purpose of Services. Totally Accounting is not responsible for the professional advice or work product of any Contractor.
The initial subscription term shall be as stated in the Order Form.
The subscription will automatically renew unless terminated by either party with thirty (30) days' written notice before the renewal date.
Either party may terminate this Agreement upon written notice if the other party materially breaches any provision and fails to cure within fifteen (15) days after written notice.
Upon termination, access to Services shall cease. Fees paid are non-refundable except as expressly stated otherwise.
Upon the end of the Initial Term and any Renewal Term, your subscription for the respective Services will automatically renew, without the need to execute a new Order Form or other agreement, for the same duration (a "Renewal Term") as the immediately preceding term of such Services, unless you give us non-renewal notice (via support@TotallyAccounting.com) or we give you notice to the email address associated with your account. Non-renewal notice must be provided at least sixty (60) days prior to the end of the then-current Initial Term or Renewal Term, as applicable.
Either party may terminate this Agreement if the other party has materially breached this Agreement upon written notice to the breaching party of the breach and an opportunity to cure of at least 60 days.
Totally Accounting may withdraw from providing any or all of the Services at any time by providing notice of termination of this Agreement or specific Services to you via the email address we have on file. For the avoidance of doubt, you agree that we will not be obligated to issue a refund if our withdrawal is caused by your breach of this Agreement, including your failure to pay any fees when due or to timely provide information, systems access or input that we have reasonably requested for the provision of the Services.
You may stop using the Services at any time without cause, however we will not be obligated to provide a refund of any prepaid subscription fees.
If Customer signs an annual contract that is paid monthly, Customer agrees to pay Totally Accounting the remaining balance on the annual contract should Customer choose to end services before the end of the Initial Term or renewal term. Customer understands that Totally Accounting puts in a lot of extra work at the beginning of a term and the prices are reflected accordingly. Prices would have been different if terms were different.
In the event your subscription to accounting operations Services ends, we will be available to transfer to you the "primary administrator" status for the QuickBooks Online account that was maintained for you by Totally Accounting, so that you can elect to maintain that subscription with Intuit or export your data.
After termination of this Agreement or any specific Services, any support or information production related to the terminated Services shall be at our sole discretion, and if we perform such support or information production you agree to reimburse us for our professional time at our then-current standard hourly rates. We do not guarantee the availability of any documents or information after such termination. You agree that it is your responsibility to retain and protect your records for possible future use, including potential examination by any government or regulatory agencies.
"Confidential Information" means information of one party (or its Affiliates) disclosed to the other party ("recipient") pursuant to this Agreement that is marked as confidential or would normally be considered confidential information under the circumstances. Customer Data and Login Credentials are your Confidential Information. Confidential Information does not include information that (i) is known to the recipient without a confidentiality obligation prior to its disclosure to the recipient, (ii) is independently developed by the recipient without use of the other party's Confidential Information, (iii) is rightfully shared with the recipient by a third party without confidentiality obligations, or (iv) was or becomes publicly known through no fault of the recipient.
Subject to Sections 7.1, the recipient will (a) use the other party's Confidential Information only to exercise rights and fulfill obligations under this Agreement, and (b) use reasonable care to protect against unauthorized disclosure of the other party's Confidential Information to any parties other than the recipient's representatives who need to know it and who have a legal obligation to keep it confidential. The recipient agrees to ensure that its representatives are subject to the same or substantially similar non-disclosure and non-use obligations.
Notwithstanding anything in this Agreement to the contrary, the recipient or its Affiliates may disclose the other party's Confidential Information (a) with the other party's written consent; or (b) in connection with performing its obligations and/or enforcing its rights under this Agreement.
The recipient will use commercially reasonable efforts to notify the other party before disclosing that party's Confidential Information in accordance with Legal Process. Notice is not required before disclosure if the recipient is legally prohibited from giving notice.
The recipient and its Affiliates will comply, at the expense of the other party, with the other party's reasonable requests to oppose disclosure of its Confidential Information pursuant to Legal Process.
If (a) you request that we, or (b) we are required by law or Legal Process in a proceeding or investigation to which we are not a named party to, produce documents or personnel as witnesses, or to otherwise make information relating to the Services available to a third party, you agree to reimburse us for our professional time, at our then-current standard hourly rates, and expenses, including reasonable attorneys' fees and expenses, incurred in producing documents or personnel or providing information pursuant to such requests or requirements.
The Services, TA Technology and Internal Software operate over the internet via networks only part of which are within our control. Our obligations in Section 7.2 apply only to networks and equipment within our control, and we are not responsible for any delay, loss, interception, or alteration of Customer Data or other Confidential Information on a network or infrastructure outside of our control.
THE WARRANTIES STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY TOTALLY ACCOUNTING. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, WE, OUR AFFILIATES, OUR THIRD-PARTY SERVICE PROVIDERS, AND OUR AND THEIR LICENSORS, SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES AND TA TECHNOLOGY.
THE SERVICES AND TA TECHNOLOGY (INCLUDING AS INTEGRATED WITH ANY OTHER APPLICATIONS) ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. NO WARRANTY IS MADE THAT THE SERVICES AND TA TECHNOLOGY OR THE RESULTS OF THEIR USE WILL MEET YOUR NEEDS OR EXPECTATIONS, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THE RESULTS THEREFROM WILL BE ACCURATE OR RELIABLE, AND/OR WILL COMPLY WITH ANY LAW OR LEGAL REQUIREMENT. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. WE FULLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU UNDER APPLICABLE LAW, ANY IMPLIED WARRANTIES ARE STRICTLY LIMITED TO A PERIOD OF 60 DAYS FROM THE DATE OF YOUR EXECUTION OF THE ORDER FORM, OR DELIVERY OF THE SERVICE, WHICHEVER IS SOONER.
IN NO EVENT SHALL TOTALLY ACCOUNTING BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT.
EXCEPT FOR AMOUNTS DUE TO US UNDER THIS AGREEMENT AND INDEMNITY OBLIGATIONS SET FORTH IN SECTION 8.4 BELOW, THE MAXIMUM LIABILITY OF EITHER PARTY TO ANY PERSON, FIRM OR CORPORATION ARISING OUT OF OR IN THE CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF THE AMOUNT YOU PAID FOR THE NONCONFORMING SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM OR ONE HUNDRED US DOLLARS, WHICHEVER IS GREATER.
TOTALLY ACCOUNTING DISCLAIMS ANY LIABILITY FOR ERRORS, OMISSIONS, OR MISCONDUCT BY CONTRACTORS OR OUTSOURCED SERVICE PROVIDERS.
You shall defend, indemnify and hold harmless Totally Accounting, Totally Accounting's representative and third-party service providers and their employees, officers, directors, consultants, representatives and agents from and against all damages, losses, liabilities, claims, demands, actions, suits, judgments, settlements, costs and expenses, including all attorneys' fees, that arise from or relate to: (a) your use of and/or our provision of the Services (except to the extent arising directly from our willful misconduct or gross negligence), (b) your violation of this Agreement that injures any third party, (c) any content, information or materials provided by you, or (d) infringement by you, or any third party using your account or identity in the Services or TA Technology, of any intellectual property or other right of any third party.
We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to reasonably assist and cooperate with us in asserting any available defenses and/or defending any legal proceeding.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.
All matters and legal proceedings arising out of or related to the transactions contemplated by this Agreement; the negotiation, making, validity, interpretation or enforcement of this Agreement; and all related matters between the parties on behalf of themselves and their respective representatives: (a) are governed by the laws of the State of New York, without reference to any conflict of laws principles or the choice of law doctrine; and (b) are to be exclusively brought in the State courts of the State of New York, or the federal courts of the United States of America, in each case located in the County of New York (together, the "Specified Courts").
The parties irrevocably: (a) submit and consent to the exclusive jurisdiction and venue of the Specified Courts and waive any objection now or hereafter to the propriety or convenience of such venues; and (b) waive any rights they may have to a trial by jury or the determination of any factual issues by a jury.
Totally Accounting and you agree to arbitrate all disputes and claims between us before a single arbitrator. You agree that, by entering into these Terms, you and Totally Accounting are each waiving the right to a trial by jury or to participate in a class action. These Terms evidence a transaction or website use in interstate commerce, and thus the Federal Arbitration Act ("FAA") governs the interpretation and enforcement of this provision. This arbitration provision will survive termination of these Terms.
(a) Arbitration Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section.
(b) Arbitration Location and Procedure.
Unless otherwise agreed, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and we submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
(c) Arbitrator's Decision.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable.
(d) Fees.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
(e) Changes.
Notwithstanding the provisions of the modification-related provisions above, if we change this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
This Agreement, together with the Order Form and any Change Orders, constitutes the entire understanding between the parties.
Any modification or amendment must be in writing and signed by both parties.
If you are using the Services on behalf of another individual or entity, you represent and warrant that you have all the authorizations and rights necessary and sufficient to do so.
Totally Accounting incurs recruiting, training, education and other non-recoverable costs for the personnel assigned to provide the Services to you. We are willing to incur such costs in reliance on your promises in this Section. You agree not to solicit for hire, directly or indirectly, on behalf of yourself or for any third party, any then-current employee or contractor of ours who has been made known to you in connection with the Services ("Covered Personnel") during the term of this Agreement and for one year thereafter. This Section does not prohibit you from soliciting or hiring any individual as a result of a general employment advertisement not specifically directed at Covered Personnel.
As a reasonable estimate of our personnel replacement costs and not as a penalty, you agree to pay us $25,000.00 for every individual Covered Personnel who has terminated their employment or contractor relationship with us as a result of your breach of this Section.
All notices must be in writing and delivered to the address specified in the Order Form.
You understand and agree that from time to time we may amend these terms. We will notify you of any material changes by promptly sending an email or posting a notice in the Services. By continuing to access or use the Services after such notice, you agree that you will be deemed to have agreed to be bound by the modified terms.
Notwithstanding the foregoing, if the changes have a materially adverse impact on and are not acceptable to you, then you must notify us within 30 days after receiving notice of the change (via support@TotallyAccounting.com). If we cannot accommodate your objection, then the prior terms shall remain in force until the expiration of your then-current subscription period. Any renewed subscription will be governed by the then-current terms.
If one or more of the provisions contained in this Agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions.
You may not assign this Agreement, or your rights or obligations under it (including any claim or right to sue for damages under this Agreement), in whole or in part and any such assignment is void. We may freely assign this Agreement, or our rights and obligations under it, in whole or in part.
We will communicate with you via the email associated with your account with us or the Services' user interface. It is your responsibility to keep your Services account email address up to date so that you are able to receive electronic communications from us.
This Agreement, together with the Order Form and any Change Orders, constitutes the entire understanding between the parties with respect to its subject matter, and supersedes any and all prior and contemporaneous agreements, discussions, negotiations, and offers. The parties agree that any term or condition stated in a customer purchase order or in any other customer order documentation (excluding Order Forms) is void. You acknowledge that in entering into this Agreement you have not relied on and will have no rights or remedies in respect of any statement, representation, assurance or warranty other than as expressly set out in this Agreement.
Except as specifically stated otherwise in this Agreement, any amendment must be in writing, expressly state that it is amending this Agreement, and must be signed by both parties.
In the event of a conflict between the Order and this Agreement, this Agreement shall prevail, unless otherwise specified in the Order Form. Headings are for information purposes only. This Agreement shall not be interpreted against the drafter.
The Totally Accounting's third-party service providers are intended third-party beneficiaries of this Agreement. Except as expressly set forth in the foregoing, there are no other third-party beneficiaries to this Agreement. All Services are for your internal purposes and use, and no third party is intended to rely on any Services, deliverables or materials provided by us.
Each party is an independent contractor, and except as expressly set forth in this Agreement neither party has any authority to act on behalf of the other. Neither party will represent itself as agent, servant, franchisee, joint venturer, joint employer or legal partner of the other. You agree not to represent our personnel as, or request that our personnel act as, an employee, officer, agent or other representative of your entity. We are entering into this Agreement as principal and not as agent for any Affiliate, and claims under this Agreement may be brought only against us and not against any of our Affiliates.
Neither party shall make any public statement about this Agreement or the relationship of the parties governed by this Agreement that identifies the other party without the other party's prior written consent, except that while you are a customer, we may use your name and logo in customer lists on an equal footing with other customers.
Customer agrees to allow Totally Accounting use of its name and logo on the Totally Accounting website and social media as a general client reference. Any other use of Customer's trademarks, trade name, logos, or public referrals to its relationship with Customer may not be made without Customer's prior written consent.
We do not represent or warrant that the Services, TA Technology or Internal Software comply with the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA"). You must notify us of any HIPAA compliance requirements prior to entering into this Agreement, or within 30 days of any HIPAA compliance requirements becoming applicable to you and/or us.
You may not use the Services, TA Technology, or any materials provided by us to build a competitive product or service or to benchmark with a product or service not provided by us.
A party's failure or delay to exercise any right under this Agreement will not act as a waiver of such right. Rights may only be waived in writing signed by the waiving party.
Notwithstanding any provision contained in this Agreement, neither party will be liable to the other to the extent performance of any obligations (other than the payment of money) under this Agreement is delayed or prevented by an act of God (e.g., a natural disaster, earthquake, accident or epidemic) or another event outside of reasonable control of the party seeking excuse of performance (e.g., acts of war, terrorism, government authority or by another third party outside the party's control).
In the event a Service is listed at an incorrect price due to a typographical error or error in pricing information received from our partners or suppliers, we will have the right to refuse or cancel any Order Form at the incorrect price. In such event, if you have already paid the incorrect price, we will promptly refund your payment.
The provisions of Sections 3, 4.8, 6.4, 6.10, 7, 8, 9, and 10 of this Agreement survive expiration, termination or cancellation of this Agreement for any reason.
For questions about this Subscription Agreement, please contact us at info@totallyaccounting.com or support@totallyaccounting.com.