1. Introduction
This Function Subscription Agreement ("Agreement") is entered into between the business entity submitting the Order Form, using our Services, and/or using our Website and Technology ("you", "your(s)") and ClearBooks, Inc doing business as Function, Inc. ("Function", "we", "us", "our"), together the "parties" and each a "party."
1.1 Scope of Agreement
The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, "Terms"), govern your access to and use of:
(a) OneFunction.com ("Website") and all content, functionality, and services offered on or through it.
(b) our Technology,
(c) any back-office services detailed on the Order Form, and
(d) any additional services we provide to you (or provided on our behalf) as detailed in the applicable Order Form (collectively, the "Services").
1.2 Order Form and Conflicts
The Order Form is the document or webpage through which you order Services and agree to these Terms, which may include additional terms applicable to certain Services. Any terms and conditions listed in your purchase orders, confirmations, or other documents submitted during or after the ordering process are excluded from this Agreement and shall have no effect.
If there is a conflict between these Terms and the Order Form, the terms of the Order Form shall prevail.
1.3 Acceptance of Terms
Please read these Terms carefully before using the Services. By accessing or using the Services, or by clicking to accept or agree to these Terms when presented with the option, you acknowledge that you have read, understood, and agree to be bound by this Agreement and our Privacy Policy, which is incorporated herein by reference.
If you do not agree to these Terms or the Privacy Policy, you may not access or use the Website or Services, nor submit an Order Form to us.
If you accept this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that entity to this Agreement.
1.4 Restrictions on Use
This Website and the Services are intended solely for business use and are not available for individual consumer use. Access is restricted to:
(a) businesses, charitable organizations, or not-for-profit organizations located in the United States, and
(b) users who are at least 18 years old and reside in the United States or its territories.
In addition to the above, you may not use the Website or Services if you:
(a) appear on the U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC) Specially Designated Nationals List (SDN),
(b) are a direct competitor of Function and have not received prior written consent from Function; or
(c) operate an illegal business or engage in illegal activity.
If you fail to meet these eligibility requirements, Function reserves the right to refuse or terminate Services at its sole discretion.
1.5 Changes to Terms
We may update these Terms from time to time at our sole discretion. Changes take effect immediately upon posting and apply to all access and use of the Website and Services thereafter.
By continuing to use the Website or Services after updated Terms are posted, you agree to the changes. We encourage you to review these Terms periodically, as they are binding on you.
1.6 Privacy
You agree that Function may collect, use, and maintain your personal information in accordance with our Privacy Policy, including any updates we publish.
If you provide personal information (as defined under applicable law) about persons other than yourself, you represent and warrant that you have complied with all applicable laws and obtained the necessary authority or consent for Function to collect and process such information in connection with our business.
You further agree that Function may share your personal information among Function and, with its contractors, affiliates, and Service Providers as necessary to provide the Services. Such sharing does not constitute a “sale” of information as defined under the California Consumer Privacy Act (CCPA).
2. Services
2.1 Bookkeeping Services
Our Bookkeeping Services are designed to help you organize and maintain accurate financial records based on the information you provide or direct us to use. These Services, and any related communications, are not a substitute for legal, regulatory, tax, financial, real estate, healthcare, or accounting advice and should not be relied upon as such.
You acknowledge and agree that subscribing to our Bookkeeping Services requires that:
- we are your exclusive bookkeeper, and
- Year-end bookkeeping Services will only be provided if you have an active subscription.
To deliver our Services, we must record, classify, and reconcile financial transactions and manage data within your accounting books as your exclusive bookkeeper. This process may include:
(a) importing transactions to reconcile your bank accounts,
(b) categorizing transactions for expense accounts and balance sheet purposes, or
(c) syncing payroll data through integrations or other methods.
If you or a third party makes unauthorized changes to your books while we are providing Bookkeeping Services, these modifications may disrupt the accuracy of our work. In such cases, we may need to re-perform certain tasks to address inconsistencies or confirm accuracy. To resolve such issues, we may:
(i) delay deliverables with pending deadlines,
(ii) charge additional fees for the extra work required, and/or
(iii) terminate your subscription with written notice, without refunding prepaid fees for unused Services.
For clarity, this section does not restrict your ability to manage accounts payable, accounts receivable, or payroll directly in QuickBooks.
If your Order Form includes our Bookkeeping Services and your subscription remains active during the quarter following your fiscal year-end, we may perform specific year-end bookkeeping activities as part of your Bookkeeping Services.
However, if your subscription is terminated before or during this period, these year-end activities will not be provided, and Function accepts no responsibility or liability for any failure to perform them on your behalf.
2.2 Other Services
If your Order Form includes CFO Services or Tax Services, the following additional terms apply and are incorporated into this Agreement:
2.3 Use of QuickBooks® Online
Our Services use Intuit Inc.’s QuickBooks Online platform. If you do not already have a QuickBooks Online account, you authorize us to create one on your behalf. Both your use and our use of QuickBooks Online are subject to Intuit Inc.’s Terms of Service and Privacy Statement. By authorizing us to set up an account for you, you agree to be bound by those terms.
You also agree that we, along with our contractors and service providers, are permitted to provide your Customer Information to the QuickBooks Online platform and use the platform QuickBooks Online as necessary to perform the Services.
2.4 Services Provided as an Independent Contractor
Our Services are provided to you as an independent contractor, not as your employee, agent, partner, or joint venturer. We may engage subcontractors and Service Providers (defined herein) to provide the Services. From time to time, non-CPA personnel may perform certain Services.
Nothing in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Neither party has the right, power, or authority to bind or contract on behalf of the other party in any manner.
2.5 Changes to Services
You acknowledge and agree that Function may modify, update, or enhance the Services from time to time. These changes may include adding or removing functionality or features or suspending or discontinuing certain aspects of the Services. We also reserve the right, at our sole discretion, to assign or reassign personnel responsible for delivering the Services to you.
2.6 Limitations of Services
Any information, advice, recommendations, or other content included in reports, presentations, or other communications we provide under this Agreement—excluding Customer Information—is intended solely for your internal use. No third party should rely on any Services or Technology provided by Function to you.
You acknowledge and agree that Function is not a certified public accounting firm and does not provide services requiring a license to practice public accounting. Function is not a member of the American Institute of Certified Public Accountants (AICPA) and is not subject to AICPA rules.
Furthermore, you acknowledge and agree that Function does not provide, and the Services and any deliverables do not include or serve as a substitute for:
(a) legal or regulatory advice regarding your business practices, including their appropriateness or compliance,
(b) audit, attest, examination, verification, investigation, certification, presentation, or review of financial transactions or accounting records,
(c) preparation or certification of reports on audits, or examinations of books, balance sheets, or other financial or accounting records for publication, obtaining credit, court filings, governmental filings, or any similar purpose under any public accountancy laws, or
(d) tax advice or tax return preparation, except to the extent included in your Order Form as Tax Services.
For any of the above, you should seek the services of a duly licensed professional.
2.7 Compliance with Accounting Standards
In compliance with applicable laws and standards governing auditor independence, Function makes no representations or warranties regarding the compliance of any financial records with GAAP, IFRS, or any other applicable accounting standards or regulations.
3. Fees and Payment
3.1 Fees
Our subscription fees for Services will be set forth on the Order Form. However, if the information you provide to us is incomplete, inaccurate, or materially changes, or if you request an expanded or modified scope of Services, we may propose a revised subscription plan that reflects the updated information or your request. If we are unable to reach an agreement on the revised subscription, we reserve the right to terminate the affected Services or this Agreement without liability.
Hourly Services provided on an as-incurred basis, as well as any other Services not included in your subscription or not quoted as a fixed fee, will be billed at our then-current standard hourly rate for the respective Service, which may be updated from time to time. For clarity, the publication of an hourly rate for a Service is indicated on your Order Form.
3.2 Pricing Updates
We may periodically update the fees for our Services or adjust the scope or subscription model as our Services evolve. Without limiting the generality of the foregoing, Subscription fees are based on your level of expenses and will be adjusted every 3 months. For clarity, your subscription fees will be based on your expenses from the prior 3 months.
If we otherwise increase your subscription fees (including any related fees, such as usage-based fees) or materially change the scope of your subscription Services, we will provide you with written notice at least 30 days before the start of your next Renewal Period.
If you do not terminate your subscription within this 30-day period, your continued use of the Services will constitute acceptance of the updated fees and your authorization for us to collect payment in accordance with Section 3.3.
Updates to our hourly fees take effect immediately for any future hourly Services. We will use commercially reasonable efforts to notify you of such updates in advance.
3.3 Payment Terms
Subscription fees, including fees for hourly Services, must be paid before or at the start of the subscription period. Prepaid fees cannot be carried over to future subscription periods.
Function will collect payment for fees payable under this Agreement automatically via ACH.
You represent that the account you authorize for ACH is not primarily used for personal, familial, or household purposes. By authorizing ACH payments, you agree to comply with the NACHA Operating Rules governing ACH transactions.
All fees are exclusive of taxes, which you are responsible for where applicable. You authorize Function and/or its payment processor to initiate debits from your business bank checking account on file (linked to your business address on record) to pay any amounts owed under this Agreement, including amounts for Renewal Terms as they become due. You also authorize adjustments to your account for any errors in prior transactions.
If your account becomes past due for any Services or other amounts owed, we may immediately suspend the provision of any or all Services.
You agree to pay all fees for Services, including those incurred by your affiliates. Unless expressly stated otherwise in this Agreement, all payments are non-refundable and non-creditable.
4. Providing Customer Information
4.1 Responding to Requests for Information
You agree to:
(a) designate one or more individuals with the appropriate skill, knowledge, and/or experience to act as your authorized representative for matters related to this Agreement,
(b) respond promptly to reasonable requests from us for instructions, information, or approvals necessary for us to provide the Services.
You are responsible for maintaining your internal controls and overseeing your key business decisions and functions, including but not limited to:
- monitoring ongoing activities,
- establishing or approving policies,
- evaluating the assumptions and results of our Services, and
- implementing any findings or recommendations arising from the Services.
4.2 Providing Necessary Information
You shall promptly provide (or ensure others provide on your behalf) the information, resources, and assistance necessary for us to perform the Services. This includes, but is not limited to, records, systems, premises, and personnel as reasonably required.
You shall take all steps necessary, including obtaining any required licenses or consents, to prevent delays in the provision of the Services caused by you.
If our ability to perform our obligations under this Agreement is prevented or delayed by any act or omission by you, your agents, subcontractors, consultants, or employees, Function shall not be considered in breach of its obligations under this Agreement. Furthermore, Function shall not be liable for any costs, charges, or losses incurred by you arising from such prevention or delay.
4.3 Providing Accurate Information
To the best of your knowledge, all information and data you provide or is provided on your behalf for the provision of the Services ("Customer Information") shall be accurate and complete in all material respects.
You represent that providing Customer Information to us does not infringe any copyright, privacy, proprietary, or other third-party rights.
We will rely on Customer Information made available to us and will have no responsibility or requirement to independently evaluate or verify its accuracy or completeness.
5. Acceptable Use
5.1 Service Suspension or Termination
Function may suspend or terminate the provision of the Services and/or access to the Website, in whole or in part, if we reasonably determine that they are being used in a manner that:
- breaches this Agreement,
- creates a risk of personal injury, property damage, or legal liability for us, you, or any third party, or
- jeopardizes our relationships with third-party service providers.
You may use the Services only for lawful purposes and in accordance with these Terms.
You agree not to:
(a) use the Services in any way that violates any applicable federal, state, local, or international law or regulation, including, without limitation, any laws regarding the export of data or software to and from the United States or other countries,
(b) use the Services to exploit, harm, or attempt to exploit or harm minors, including but not limited to exposing them to inappropriate content, requesting personally identifiable information, or otherwise,
(c) send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards set out in these Terms,
(d) transmit, procure, or facilitate the sending of any advertising or promotional material, including but not limited to"junk mail," "chain letters," "spam," or any other similar solicitations,
(e) impersonate or attempt to impersonate Function, a Function employee, another user, or any other person or entity, including but not limited to, by using email addresses or screen names associated with any of the foregoing,
(f) engage in any other conduct that restricts or inhibits anyone’s use of or access to or enjoyment of the Technology, or that, in our determination, may harm Function or its users, or expose them to liability,
(g) use the Technology in any manner that could disable, overburden, damage, or impair the site, or interfere with anyone’s use of the Technology, including their ability to engage in real-time activities,
(h) use any robot, spider, or other automated device or other means to access the Technology for any purpose, including monitoring or copying any material from the Technology,
(i) use any manual process to monitor or copy any of the material from the Technology, or for any other unauthorized purpose, without our prior written consent,
(j) use any device, software, or routine that interferes with the proper functioning of the Technology,
(k) introduce any viruses, Trojan horses, worms, logic bombs, or other malicious or technologically harmful material,
(l) attempt to gain unauthorized access to, interfere with, damage, or disrupt any part of the Technology, its storage servers, or any connected server, computer, or database,
(m) attack the Technology via a denial-of-service (DoS) attack or a distributed denial-of-service attack (DDoS), or
(n) otherwise attempt to interfere with the proper functioning of the Technology.
5.2 Content Standards
Customer Information that is uploaded to our Website and/or Technology (“Customer Content”) must comply with all applicable federal, state, local, and international laws and regulations.
Without limiting the foregoing, Customer Content must not:
(a) contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable,
(b) promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age,
(c) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person,
(d) violate the legal rights of others, including but not limited to publicity and privacy rights, or contain material that could give rise to civil or criminal liability under applicable laws or regulations otherwise may be in conflict with these Terms or our Privacy Policy,
(e) mislead or be likely to deceive any person,
(f) promote or facilitate illegal activity or encourage or assist with unlawful acts,
(g) cause annoyance, inconvenience, or needless anxiety, or be likely to upset, embarrass, alarm, or annoy others,
(h) impersonate any person or misrepresent your identity or affiliation with any person or organization,
(i) involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising, or
(j) give the impression that they are from or are endorsed by Function or any other person or entity if that is not the case.
6. Accessing the Technology
6.1 Use of Technology
To provide the Services, we may grant your designated users (“Users”) access to and use of the Website, certain functionalities through the Website, other websites, cloud-based software, Internal Software, automated forms, and other technologies developed by or for Function (collectively, “Technology”).
We reserve the right to modify, withdraw, or amend any part of the Technology or Services at our sole discretion, without prior notice. We will not be liable if all or any portion of the Technology becomes unavailable at any time or for any duration. From time to time, we may restrict user access, including access for registered users, to some portions or all parts of the Technology.
You are responsible for:
(a) making all necessary arrangements for you to have access to the Technology,
(b) ensuring that all of your Users are aware of and comply with these Terms, the Privacy Policy, and applicable laws,
(c) ensuring that your Users use the Technology responsibly,
(d) ensuring that all Customer Information provided in the Technology is correct, accurate, and complete,
(e) maintaining the confidentiality of usernames, passwords, identifiers, or any other information related to our Technology security procedures (“Credentials”) and not disclosing such information to any unauthorized person or entity, and
(f) establishing appropriate internal roles, permissions, policies, and procedures for the secure use of the Technology and ensuring that no User grants unauthorized access to any portion of the Technology.
6.2 Unauthorized Access
You agree to immediately notify us if you become aware of or reasonably suspect any unauthorized access to or use of any User’s Credentials or any other security breach. You also agree to log out of your account at the end of each session. We retain the right to disable any Credentials, whether chosen by you or provided by us, if we determine that you or any of your Users have violated any provision of this Agreement.
6.3 Function’s Software
Function uses internal tools and technologies developed by or for us to provide the Services. This internal software may include integrations with Third-Party Services, automated software rules, and checklists (collectively, “Internal Software”). You agree to cooperate with us as needed to enable the effective operation of Internal Software and to avoid interfering with its functionality. If you make changes to your existing systems that contain data relevant to the Services or if you switch to new technology systems at any time, you agree to promptly notify us and work with us to ensure the effective operation of Internal Software with the Services.
7. Intellectual Property Rights
7.1 Customer Data
Subject to the limited rights expressly granted in this Agreement, you retain all rights, title, and interest, including all intellectual property rights, in Customer Data. You grant us and our Representatives a limited license to use Customer Data to provide, protect, and improve the Services and to fulfill our obligations under this Agreement.
7.2 Function Intellectual Property
We retain all rights, title, and interest in our Technology. We grant your Users a non-exclusive, limited license to use our Technology solely for the purpose of receiving the Services during the term of this Agreement.
In performing the Services, we may use or develop intellectual property, including but not limited to data, software, designs, templates, works of authorship, utilities, tools, models, systems, general skills, know-how, expertise, concepts, ideas, technology, methods, and techniques (collectively, “Materials”). We retain all intellectual property rights, title, and interest in the Materials, including but not limited to any developments, improvements, or knowledge generated related to the Materials during or as a result of providing the Services and in any working papers compiled in connection with the Services. Upon payment for particular Services, and subject to the other terms of this Agreement, you may use any Materials included in any Service deliverables solely to the extent necessary to use them as expressly permitted by this Agreement.
Any rights to the Services and Technology that are not expressly granted in this Agreement are reserved by Function.
8. Customer Data Use
8.1 Use of Customer Data
Function will use the Customer Information and any reports, summaries, or excerpts of such information prepared as part of the Services (collectively, “Customer Data”), as described in this Agreement and in the Function Privacy Policy. For the avoidance of doubt, industry knowledge, general inferences from Customer Data across customers (without identifying you), Technology, Internal Software, and our work papers and Materials are not Customer Data.
By subscribing to any Services, you expressly consent to:
(a) the use of Customer Data as outlined, including its use by us and by our Service Providers as necessary to provide the Services, and
(b) the sharing of Customer Data across the various Services to which you subscribe (e.g., bookkeeping data used for tax preparation services).
8.2 Sharing with Function Representatives and Service Providers
Unless prohibited by applicable law, we use Customer Data and share it with our officers, directors, employees, contractors, and agents (“Function Representatives”) to facilitate or improve the performance of the Services, comply with regulatory requirements, and support quality and risk management efforts.
We also utilize service providers, such as cloud-based software vendors, to support our operations and enable us to provide the Services to you (“Service Providers”). You agree that Function Representatives and Service Providers may collect, use, transfer, store, or otherwise process Customer Data in the local and foreign jurisdictions where they operate.
All Function Representatives and Service Providers are required to protect the confidentiality of any Customer Data that qualifies as Customer Confidential Information to which they have access in the course of their work. We will not sell Customer Data to anyone.
8.3 Use by Affiliates
We may use Customer Data and share it with our affiliates, and you consent to our and their use of such Customer Data to:
(a) identify additional services that may be of interest to you (e.g., accounting, investment banking, asset management, IT security, and consulting services), and
(b) send newsletters and other communications for general information purposes.
Any Customer Data shared with our affiliates will be treated as confidential by them, consistent with our obligations under this Agreement.
8.4 Aggregated Anonymous Data
We may aggregate Customer Data and any feedback you communicate to us, directly or indirectly, in connection with the Services and/or Technology. We will anonymize such data by excluding any personally identifiable information (“Aggregated Anonymous Data”).
You consent to our use of and grant us an express, irrevocable, royalty-free, and perpetual license to utilize Aggregated Anonymous Data to:
(a) analyze, improve, support, and operate the Services and Technology,
(b) generate industry benchmarks, best practices, guidance, recommendations, or similar reports, and
(c) distribute to our clients and prospects for general information purposes; and
(d) for any business purpose both during and after the term of this Agreement.
We will not identify you as the source of any Aggregated Anonymous Data. Nothing in this Agreement or in the Parties’ dealings restricts our right to use, profit from, disclose, publish, or otherwise exploit Aggregated Anonymous Data without compensating or crediting you.
9. Third Party Services
Services, Internal Software and/or Technology may contain, transfer data to or from, integrate with, or direct you to products, tools, software, websites, or services provided by a third party (“Third Party Services”). You agree and acknowledge that Function does not investigate, monitor, verify accuracy, appropriateness, or completeness, nor does it endorse, represent, warrant, or guarantee any Third Party Services. We are not responsible for any Third Party Services, regardless of whether they are required, recommended for the Service, or included in your Order Form.
If you choose to access, use, or install any Third Party Services, you do so at your own risk, and these Terms do not apply to such use. You are solely responsible for reviewing the applicable terms, policies, privacy practices, and data collection policies of any Third Party Services and for conducting any investigations you deem necessary before using such Services.
You agree to maintain your subscriptions to Third Party Services required for the Services and to comply with the terms of your agreements with such Third Party Services. You agree to indemnify and hold Function harmless from any harm, losses, or damages you may sustain relating to, arising from, or resulting from your use of Third Party Services.
10. Confidentiality
Except as otherwise permitted by this Agreement, neither party may disclose to third parties any information provided by or on behalf of the other party that should reasonably be treated as confidential and/or proprietary (“Confidential Information”). The recipient shall protect and safeguard the discloser’s Confidential Information with a reasonable degree of care and shall not use or disclose the discloser’s Confidential Information for any purpose other than the Services or as otherwise expressly permitted in this Agreement.
The recipient may disclose the discloser’s Confidential Information only to its Representatives who need access to it for the Services and who are legally bound by confidentiality obligations at least as restrictive as those in this Agreement. However, the recipient may disclose Confidential Information to the extent that:
(a) it is or becomes publicly available other than through the act or omission of the recipient in breach of this Agreement,
(b) it is subsequently received lawfully by the recipient from a third party who, to the recipient’s knowledge, has no confidential obligation regarding that information,
(c) it was already known to the recipient at the time of disclosure without an obligation of confidentiality or is later independently developed by the recipient without using or referencing the discloser’s Confidential Information, or
(d) it must be disclosed under applicable law, legal process, or professional regulations, provided that, if legally permitted, the recipient shall use commercially reasonable efforts to notify the discloser before disclosure so the discloser may seek a protective order or other remedy at its own expense.
If you request that we produce documents, act as witnesses, or otherwise provide information related to the Services to a third party, you agree to cover all associated costs, including fees at our then-current standard hourly rates, plus any reasonable expenses.
11. Term, Termination, and Survival
11.1 Effective Date and Initial Term
This Agreement becomes effective on the date you submit the Order Form or otherwise agree to these Terms (the “Effective Date”). Your initial subscription term begins on the Effective Date and continues for the period specified in the Order Form (“Initial Term”), unless terminated earlier in accordance with this Agreement.
11.2 Automatic Renewal
At the conclusion of the Initial Term and any subsequent Renewal Term, your subscription for the respective Services will automatically renew for the same duration as the immediately preceding term (“Renewal Term”) unless either party provides a non-renewal notice.
If you choose not to renew, you must provide written notice of non-renewal at least 10 days prior to the end of the period for monthly subscriptions. For annual subscriptions, you must provide at least 30 days written notice prior to the end of the annual term to prevent automatic renewal.
11.3 Termination of this Agreement
Either of us may terminate this Agreement if the other materially breaches the terms of this Agreement, and such breach is not cured within 30 days of receiving written notice.
Function may also terminate this Agreement or the Services at any time by providing written notice to you at the email address associated with your account.
For the avoidance of doubt, we are not obligated to issue a refund if termination results from your breach of this Agreement, including but not limited to failure to pay fees when due or failure to provide the information, system access, or input reasonably requested for the provision of Services.
You may stop using the Services at any time without cause, however, prepaid subscription fees are not refundable.
11.4 Effect of Termination or Expiration
Upon termination or expiration of this Agreement:
(a) we will assist in transferring “primary administrator” status for the QuickBooks Online account we maintain on your behalf, if applicable. Any additional support or information requests related to the Services will be provided at our sole discretion and at your expense,
(b) you will cease use of the Services and the Technology. We do not guarantee the availability of documents or information after termination. It is your sole responsibility to retain and safeguard your records for potential future use, including but not limited to any requirements for examination by government or regulatory agencies,
(c) no refunds will be provided for any prepaid subscription fees, and
(d) no refunds will be provided if termination was due to your breach of this Agreement.
11.5 Survival of Terms
The rights and obligations in this Agreement that, by their nature, should survive the termination or expiration of this Agreement will remain in effect, including but not limited to Sections 1, 2.6, 2.7, 2.8, 2.9, 3, 4, 5, 6.2, 7, 8.4, and 9 through 16.
12. Warranty Disclaimer
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, FUNCTION, OUR AFFILIATES, THIRD-PARTY SERVICE PROVIDERS, AND OUR AND THEIR LICENSORS, SUPPLIERS, AND DISTRIBUTORS (COLLECTIVELY, THE “PROVIDER ENTITIES”) MAKE NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING SERVICES OR THE TECHNOLOGY. THE SERVICES AND TECHNOLOGY (INCLUDING ANY INTEGRATIONS WITH OTHER APPLICATIONS) ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
YOU AGREE THAT YOUR USE OF THE SERVICES AND TECHNOLOGY IS AT YOUR OWN RISK. NO WARRANTY IS MADE THAT SERVICES OR TECHNOLOGY, OR THE RESULTS OF THE USE THEREOF, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR-FREE, BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, PRODUCE ACCURATE OR RELIABLE RESULTS, OR COMPLY WITH ANY SPECIFIC LAW OR LEGAL REQUIREMENT.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE (DDoS) ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE TECHNOLOGY OR THE SERVICES OBTAINED THROUGH THE TECHNOLOGY, OR YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IF THE EXCLUSION OF IMPLIED WARRANTIES IS NOT PERMITTED 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 OCCURS FIRST.
13. Indemnification
You agree to defend, indemnify, and hold harmless Function, our affiliates, Representatives and Service Providers, and our and their officers, directors, employees, contractors, agents, and affiliates (“Function Entities”), from any claims, damages, losses, liabilities, actions, suits, judgments, settlements, costs, or expenses (including reasonable attorneys’ fees) that arise from or are connected to:
(a) your use of the Services,
(b) your breach of this Agreement,
(c) any Customer Information or Customer Data, or
(d) any infringement of intellectual property or other rights by you, or any third party using your account or identity, in relation to the Services or Technology.
Function reserves the right, at your expense, to assume the exclusive control of any matter for which you are required to indemnify us, and you agree to reasonably assist and cooperate, at your expense, with our defense of such claims.
14. Limitation of Liability
IN NO EVENT WILL FUNCTION ENTITIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF CUSTOMER DATA, IN CONNECTION WITH OR OTHERWISE ARISING OUT OF THIS AGREEMENT WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE COLLECTIVE LIABILITY OF THE FUNCTION ENTITIES TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT PAID TO FUNCTION FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM.
THE FOREGOING LIMITATION DOES NOT APPLY TO LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
15. Governing Law and Dispute Resolution
15.1 Governing Law
This Agreement shall be governed by the laws of the State of Delaware, without giving effect to any conflicts of laws principles.
15.2 Dispute Resolution
If a dispute arises out of or relates to this Agreement and cannot be resolved through negotiation, both parties agree to resolve any and all claims related to this Agreement, the Services, and/or Technology through final and binding arbitration. The arbitration shall be administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules. The arbitration will take place in Delaware or another location mutually agreed upon in writing by both parties.
15.3 Remedies
Function and you agree that any violation or threatened violation of Section 5 (Acceptable Use), Section 7 (Intellectual Property), Section 10 (Confidentiality), or any other unauthorized use of the Services or the Technology may cause irreparable harm to the other party, which may be difficult to ascertain. Therefore, both parties agree that the affected party shall have the right to seek injunctive relief in addition to all other available legal remedies it may have. Notwithstanding Section 15.2, a party may seek such relief in a court of competent jurisdiction in the State of Delaware.
15.4 No Class Actions
The parties waive any right to bring or participate in a class action or representative action against each other, whether in arbitration or in court. Each party may only bring claims against the other in their individual capacity. This waiver does not apply where prohibited by law or if a court determines it to be against public policy.
16. Miscellaneous
16.1 Non-Solicitation
You agree that during the Term of this Agreement, and for one (1) year thereafter, you will not either directly or indirectly solicit or attempt to solicit any employee, independent contractor, or consultant of Function to terminate their relationship with us in order to become an employee, consultant, or independent contractor to or for you or any other person or entity.
16.2 Waiver and Severability
No waiver of any of the provisions of this Agreement shall be effective unless explicitly stated in writing and signed by the waiving party. A waiver of any term or condition of this Agreement shall not be deemed a further or continuing waiver of that term or condition or a waiver of any other term or condition. The failure of either party to assert right or provision under this Agreement shall not constitute a waiver of such right or provision.
If any provision of this Agreement (in whole or part) is held to be illegal, invalid, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect.
16.3 Entire Agreement
The Terms, the Privacy Policy, and this Agreement constitute the sole and entire agreement between you and Function regarding the Services and Technology. This Agreement supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services and Technology.
16.4 Force Majeure
Neither party shall be liable to the other, for any failure or delay in fulfilling or performing any obligation under this Agreement (except for your payment obligations), to the extent such failure or delay is caused by or results from events beyond the impacted party’s reasonable control, including but not limited to, acts of God, flood, fire, earthquake, acts of war or terrorism.
16.5 Assignment
You may not assign any of your rights or delegate any of your obligations under this Agreement. Any attempted assignment or delegation in violation of this provision is null and void and will not relieve you of your obligations under this Agreement. Function may assign this Agreement, along with any of our rights and obligations under this Agreement, at our sole discretion.
16.6 Third-Party Beneficiaries
The Function Entities are intended third-party beneficiaries of Sections 12, 13, and 14 of this Agreement. Except as expressly stated above, no other third parties shall have any rights or benefits under this Agreement.
16.7 No Publicity
Neither party shall make any public statement identifying the other party in connection with this Agreement without prior written consent. However, while you are a customer, we may use your name and logo in customer lists or as agreed to in writing, provided they are displayed on equal footing with other customers.
16.8 Compliance
You represent and warrant that you and any User who uses the Technology, Internal Software or Services are not prohibited from using them under the laws and regulations of the United States ("US") or any other applicable jurisdiction. You agree not to use, export, re-export, import, sell, release, or transfer the Technology, Internal Software, or Services directly or indirectly, except as authorized by US law and any other applicable laws and regulations. Each party represents and warrants that it is not listed on any US government denied-party list. You further agree and certify that you will not allow yourself or any User to use, access, export, re-export, transfer, or release our Services, Internal Software, and Technology:
(a) into any US-embargoed and comprehensively sanctioned jurisdictions, including but not limited to Cuba, Iran, North Korea, Syria, and the regions of Crimea, Zaporizhzhia, and Kherson, the Donetsk People’s Republic (“DNR”) and Luhansk People’s Republic (“LNR”) in Ukraine, and Russia; or
(b) to anyone included in the US Treasury Department’s list of Specially Designated Nationals (SDN) or on any other applicable restricted party lists; or
(c) in violation of any US export or other applicable laws or regulations.
We do not represent or warrant that the Services, Technology, or Internal Software comply with the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”). You are required to notify us of any HIPAA compliance requirements before entering into this Agreement or within 30 days of such requirements becoming applicable to either party.
16.9 Notices and Contact Information
All notices, requests, and other communications from you to us under this Agreement must be in writing and sent to: info@onefunction.com.
We may send notices to you at the email address associated with your account. You are responsible for notifying us if your email address changes. You consent to receive communications from us electronically, and agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email, and on the Website satisfy any legal requirement that such communication be in writing.
