Terms & Conditions
IMPORTANT-READ CAREFULLY: These Terms of Service (“Terms” or “Agreement”) is a legal agreement between you (either an individual or a single entity) and Conway Consulting (“Provider”, “us” or “we”)) for the use of the ClearRec™ online accounting application platform (the “Service”), which includes computer software (“Software”) and may include associated media, printed materials, and “online” or electronic documentation (“Documentation”) through our website, www.clearrec.com (the “Website” or “Site”)).
BY CLICKING ON THE “I ACCEPT” BUTTON DURING THE REGISTRATION FOR USE OF THE SERVICE, YOU EXPRESSLY CONSENT TO THESE TERMS HEREOF. YOU AGREE THAT YOUR USE OF THE SERVICE AND ANY OF ITS COMPONENTS INDICATES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS PROVISIONS. YOU WILL NOT BE GIVEN ACCESS TO THE WEBSITE TO USE THE SERVICE, ATTENDANT SOFTWARE OR DOCUMENTATION UNLESS YOU CLICK THE “I AGREE” BUTTON AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DISAGREE WITH ANY PROVISIONS OF THIS AGREEMENT, PROMPTLY CLICK ON THE BUTTON “DECLINE” OR “I DO NOT ACCEPT”.
- 1. Registration. When you first install Clearrec software, the user will be required to input a license key. For the purposes of this Agreement, “Users” means individuals who are authorized by you to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by you (or by us at your request). Users may include but are not limited to your employees, consultants, contractors and agents; or third parties with which you transact business. You are fully and completely responsible for maintaining the secrecy of any user ID, password, and/or installation key and protecting against unauthorized use of your user ID, password, and/or installation key. The only exception to this is if the installation key you use is one provided under the name and in tandem with “Free Website User”. Once you obtain and install a user key not associated with “Free Website User”, you take responsibility for activities that occur under that installation key. You are also responsible for all activities that occur under user ID, password, and/or installation key, as well as those of any and all Users. You agree to immediately notify us of any unauthorized use of any of your (or your Users’) user IDs, passwords, and/or installation keys or any other breach of security, and employ policies and procedures to ensure that you and/or any Users exit from the Services at the end of each session. We cannot and will not be liable for any loss or damage arising from your failure to comply with this clause or these Terms. In consideration of your use of the Services, you agree to: (a) provide true, accurate, current and complete information about yourself and any Users as prompted by the Services’ registration form and (b) maintain and promptly update such registration information to keep it true, accurate, current and complete. If you (or any User) provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such registration information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account (or those of any User) and refuse any and all current or future use of the Services (or any portion thereof).
- 2. Fees. The fee for Service you select for your Account shall be specified and accepted by you during the initial registration for the Service (the “Service Fee”). By registering for the Service, you authorize Provider to charge your credit card, debit card or draft against your designated bank account (the “Billing Information”) the amount of the Service Fee. Provider retains the right, in its sole discretion, to increase, at any time, the Service Fee upon notice to you as provided through the Website. The Service Fee will be due [on the anniversary of your account activation] [monthly] (the “Billing Date”), unless the account is terminated in accordance with these Terms. You may update your credit card information at any time through your registration profile. If we are unable to process the Service Fee due at the Billing Date, we will notify you by e-mail. You will then have 30 days to update your Billing Information in your account profile. If at the end of 30 days we remain unable to process the Service Fee due, we reserve the right to terminate your access to and use of the Services in accordance with these terms.
- 3. Right to Access & Use the Services; Support. Once you have registered for the Service and provided the subscription payment, we shall make the Service available to you and any Users pursuant to this Agreement during the applicable subscription term. You agree that use of the Service is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Provider regarding future functionality or features. Subject to compliance with these Terms, Provider grants you and any of your Users the right to access and use the Service for internal use only. Failure to pay for the Services shall be a material breach of this Agreement and and subject your account (and those of your Users) to immediate termination. Provider may provide support services related to the Software (“Support Services”). Use of Support Services will be governed by the Provider policies and programs described in the user manual, in “online” documentation, and/or in other Provider-provided materials. Any supplemental software code provided as part of the Support Services shall be considered part of the Software and subject to the terms and conditions of this Agreement. With respect to technical information you provide to Provider as part of the Support Services, Provider may use such information for its business purposes, including for product support and development. Provider will not utilize such technical information in a form that personally identifies you.
- 4. Access to the Services. We shall: (i) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime upon at least 4 hours notice via the Website, or (b) any unavailability caused by circumstances beyond our reasonable control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or any other events of force majeure, and (ii) provide the Services only in accordance with applicable laws and government regulations.
- 5. Acceptable Use of the Services. You are responsible for all compliance with this Agreement. We do not endorse any user-supplied content or guest-supplied content or uploaded material in any records, or any opinion, recommendation, or advice expressed therein (collectively, “Content(s)”), and we expressly disclaim any and all liability in connection with such content. You are solely responsible for the content of all records you store or retrieve from, or attempt to store or retrieve from, the service under your account, and for all transmissions by you from and to the service under your account. You shall be solely responsible for the accuracy, quality, integrity and legality of your data and of the means by which you acquired your data, and shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and where such unauthorized access occurs, notify us promptly of any such unauthorized access or use. You and your Users shall use the Services only in accordance with the Documentation and applicable laws and government regulations, and shall not make the Services available to third parties. You are specifically prohibited from (a) selling, reselling, renting or leasing the Services; (b) using the Software other than by accessing through the Service, or otherwise decompiling, disassembling or reverse engineering the Software; (c) using the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) using the Services to store or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfering with or disrupting the integrity or performance of the Services or third-party data contained therein; (f) attempting to gain unauthorized access to the Services or their related systems or networks; (g) using the Services to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; or (h) using the Software and/or Services tointentionally or unintentionally violate any applicable local, state, national or international law or treaty, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law.
In connection with any Content you provide through the Services, you further agree that you will not: (i) submit material to the Service or distribute material from the Service, whether it by via uploading, email file attachments, or any other feature provided by the Service, that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including but not limited to privacy and publicity rights, unless you are the owner of such rights; (ii) publish falsehoods or misrepresentations that could damage us or any third party; (iii) submit material within Content that is unlawful, obscene, defamatory, libelous, abusive, threatening, vulgar, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any local, state, national, or international law, rule, regulation or judicial order, or is otherwise objectionable and/or inappropriate; (iv) post advertisements or solicitations of business: (v) impersonate another person.Services may be subject to other limitations, such as, by way of illustrations and not limitation, limits on telecommunications bandwidth or availability, processing capacity and/or disk storage space.
- 6. Intellectual Property Rights. ClearRec™ is a trademark of Provider, and cannot be used without the express written permission of Provider according to its then-current trademark usage guidelines. All rights, title and interest in and to the Software, the accompanying Documentation, and any copies of the Software, and all intellectual property rights therein, are owned by Provider and/or its suppliers. Any modifications, enhancements or improvements to the Software, whether or not at your request or that of any Users, shall be the property of Provider and/or its suppliers. Notwithstanding the foregoing, you will execute, and shall require any Users to execute, any and all documents deemed necessary by Provider in its reasonable discretion to ensure such ownership properly vests in Provider and/or its suppliers. The structure, organization and programming code of the Software are also business secrets and confidential information of Provider and/or its license providers. Except for the limited access and use rights expressly granted in this Agreement to you, all other rights in and to the Software and attendant Services remain expressly reserved by Provider. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is only licensed as an application service for your access and use through the Service, and is not sold.
We respect the intellectual property rights of others and does not tolerate infringement of intellectual property rights through use of the Service, and we will remove all such Content or other uploaded material if properly notified that such Content infringes on another’s intellectual property rights. Notwithstanding the foregoing, we reserve the right to remove any Content without prior notice in its sole and absolute discretion. We will also terminate a User’s access to its Website and Service if such User is deemed an infringer in our sole and absolute discretion. We also reserve the right, in our sole and absolute discretion, to decide whether any Content of which we are made aware is appropriate and/or complies with these Terms for violations other than intellectual property infringement and/or misappropriation of trade secrets, such as, but not limited to, pornography, obscene or defamatory material, material that may be offensive, excessive use which puts an excessive load on the servers under the Service, and Content obtained illegally or which itself is illegal. We may remove such uploaded Content and/or terminate a User’s access to the Service for uploading such material in violation of these Terms at any time, without prior notice and in its sole and absolute discretion.
- 7. Notice for Claims of Intellectual Property and Other Violations and Agent for Notice. Any copyright owner or an agent thereof (“Claimant”) that believes that any material uploaded by a user infringes upon such owner’s copyrights, such Claimant may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) to our designated copyright agent (see 17 U.S.C 512(c)(3) for further detail). Such notification must include the following:
- Claimant’s contact information, including your address, telephone number and email address
- A detailed description of the copyrighted work or other intellectual property that Claimant asserts have been infringed or misappropriated
- Include the following statement: “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.”
- Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
- Claimant’s signature
Pursuant to 17 U.S.C. §512(c), notice is hereby given that the person identified below is designated as our agent for receiving complaints concerning this website, including for purposes of receiving notification of any claims of intellectual property infringement:
8910 Wesley St. Suite D
Greenville, TX, 75402
To the extent any third party believes that a User has uploaded Content in violation of such third party’s rights (“Third Party Rights Holder”), such Third Party Rights Holder will follow the same process set forth above to notify us (each a “Third Party Rights Claim”); provided, however, that the detailed description of the alleged violation shall list sufficient detail of the offending Content for us so as to permit us to inform the allegedly offending User of such Third Party Rights Claim and request proof from such User that such Content does not violate such third party rights. If you are contacted by us regarding any such Third Party Rights Claim and fail to (i) respond to our request for further information within the time stated in our request, and/or (ii) provide proof of no violation as determined by us in our sole and absolute discretion, such failure shall be deemed a violation of these Terms and will result in immediate termination of your Account and your access to the Service.
- 8. Forums; Contributions. The Service allows you, your Users and other registrants the opportunity to interact with us through forums or otherwise through the Website. Your comments and feedback regarding our Website, and interaction with the community of registrants, are welcome. By submitting ideas, suggestions, proposals or other Content (collectively, “Contributions”) to us through the Website or otherwise, however, you acknowledge and agree that such Contributions do not contain confidential or proprietary information, and that we are under no obligation whatsoever to keep such information confidential. You further expressly acknowledge that we may have subject matter similar to such Contributions already under consideration or in development. All Contributions disclosed, submitted or offered to us are submitted with the express understanding that such Contributions shall automatically become our property without any compensation, reimbursement or other obligation to you whatsoever.
- 9. NO WARRANTY. AS THE END USER YOU ACKNOWLEDGE THAT THE SOFTWARE AND SERVICES ARE PROVIDED IN “AS IS CONDITION”, WITHOUT AN EXPRESS OR IMPLIED GUARANTEE OF ANY TYPE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, NEITHER THE PROVIDER, ITS LICENSE PROVIDERS NOR COPYRIGHT HOLDERS PROVIDE ANY EXPRESS OR IMPLIED REPRESENTATIONS OR GUARANTEES, IN PARTICULAR NO SALES GUARANTEES OR SUITABILITY FOR A SPECIFIC PURPOSE OR NON-INFRINGEMENT. NO GUARANTEE FROM THE PROVIDER OR ANY OTHER PARTY EXISTS THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR USE OF THE SERVICES WILL COMPLY WITH YOUR REQUIREMENTS OR THAT SOFTWARE’S OPERATION OR USE OF THE SERVICES WILL BE SMOOTH AND FREE OF ERRORS. YOU ASSUME FULL LIABILITY AND RISK FOR SELECTION OF THE SOFTWARE AND USE OF THE SOFTWARE AND/OR SERVICES TO ACHIEVE RESULTS INTENDED BY YOU AND FOR THE INSTALLATION, USE AND RESULTS THAT YOU WILL ACHIEVE WITH THE SOFTWARE AND/OR SERVICES. USE OF THE SOFTWARE AND/OR SERVICES IS AT YOUR SOLE RISK.
- 10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT SHALL THE PROVIDER, ITS EMPLOYEES OR LICENSE PROVIDERS BE HELD LIABLE FOR ANY LOST PROFIT, REVENUE, OR SALES, OR FOR ANY LOSS OF DATA, OR FOR COSTS EXPENDED TO PROCURE SPARE GOODS OR SERVICES, FOR PROPERTY DAMAGE, PERSONAL DAMAGE, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR FOR ANY SPECIAL, DIRECT, INDIRECT, ACCIDENTAL, ECONOMIC, COVERING, CRIMINAL, SPECIAL OR SUBSEQUENT DAMAGE, CAUSED IN ANY MANNER WHATSOEVER, WHETHER ARISING FROM A CONTRACT, WILLFUL MISCONDUCT, NEGLIGENCE OR OTHER FACT ESTABLISHING THE OCCURRENCE OF LIABILITY, INCURRED DUE TO THE USE OF OR IMPOSSIBILITY TO USE THE SOFTWARE AND/OR SERVICES, EVEN IN THE EVENT THAT THE PROVIDER OR ITS LICENSE PROVIDERS HAVE BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. BECAUSE CERTAIN JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF LIABILITY BUT MAY ALLOW THE LIMITATION OF LIABILITY, THE ENTIRE LIABILITY OF THE PROVIDER, ITS EMPLOYEES OR LICENSE PROVIDERS SHALL BE LIMITED TO THE PRICE THAT YOU HAVE PAID FOR THE ACCESS TO AND USEOF THE SOFTWARE AND SERVICES.
- 11. Modifications to the Service; Discontinuance. Provider reserves the right to change or discontinue the Services at any time, with or without notice. Provider shall be in no way liable for any consequence to anyone or anything which results from our decisions regarding continuing, changing, or discontinuing any features of the Service. In the event of discontinuation of the Service, you will be notified by email and Provider will provide a limited time to download or transfer any data from your account through the Services on the Website (the “Transfer Period”). It is your responsibility to download or transfer any such data from the Website during the Transfer Period. Failure to download or otherwise transfer any such data from the Website during the Transfer Period will result in such files being permanently deleted.
- 12. Termination. Provider may suspend or terminate your account and/or access to the Service at any time with or without notice if you fail to comply with these Terms, as determined by Provider in its sole and absolute discretion. If your account is terminated for any reason, you agree that you may not have permission to access your data on the Service, and that your data will be permanently removed from Provider’s servers. In the event of your death, any rights to your account or any data contained within your account terminate shall terminate. Upon receipt of a copy of a death certificate, all contents of your account shall be permanently deleted. Provider is not obligated to give you access to any data which you have transmitted, uploaded or otherwise stored using the Service in any way. You further agree that Provider is not obligated in any way to refund any portion of monies paid for a subscription service period if the account is terminated for any reason whatsoever.
- 13. Governing Law. This Agreement shall be governed in all respects solely and exclusively by the laws of the State of Texas, without regard to its choice of law rules. The parties hereby irrevocably (i) submit to the exclusive jurisdiction of the state and federal courts of Hunt County, Texas, U.S.A., and (ii) waive any objections that they may now or hereafter have as to the venue of any such action or proceeding brought in such court or that such court is an inconvenient forum. The parties agree that service of process upon either party may be made by certified or registered mail, return receipt requested, at such party’s address as provided herein. Nothing in this Agreement shall affect the rights of either party to serve process in any other manner permitted by law.
- 14. Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered by either certified mail, return receipt requested, overnight express courier service, hand delivery or fax to the respective addresses set forth on the cover page of this Agreement or to such other address as either party may designate in writing from time to time. Except as provided herein, notice sent by certified mail or courier shall be deemed given three days after the date mailed; notice sent by courier shall be deemed given the next day after dispatch (provided the courier guarantees overnight delivery, otherwise, upon receipt); notice sent by fax shall be deemed given upon sender’s receipt of confirmation that the fax transmission was completed; notice sent by hand delivery shall be deemed given when delivered.
- 16. Relationship of the Parties. Nothing in this Agreement shall be construed as creating any agency or partnership between the Parties, and neither party shall have any express or implied power or authority to act on or make any representations whatsoever on behalf of the other party.
- 17. No Further Obligations. This Agreement imposes no other obligations on the side of the Provider except for the obligations specifically listed in this Agreement.
- 18. Assignment. You may not assign any of your rights or delegate any of your obligations under this Agreement, whether by operation of law or otherwise, without the prior express written consent of Provider. Assignment without such consent will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
- 19. No Waiver; Severability. No failure or delay by either party in exercising any right or remedy under this Agreement will operate or be deemed as a waiver of any such right or remedy. Any provision of this Agreement that is held to be unenforceable in any jurisdiction will be ineffective only as to that jurisdiction, and only to the extent of the unenforceability of such provision without invalidating the remaining provisions hereof.
- 20. Headings and Numbers. The section headings and numbers appearing in this Agreement are inserted only as a matter of convenience and in no way, by their appearance or order of appearance, define, limit, construe or describe the scope or extent of such section, or in any way affect the meaning or construction of any term of this Agreement.
- 21. Limitations on Actions. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- 22. Entire Agreement. This Agreement constitutes the complete and entire agreement between you and Provider governing your access to and use of the Services. This Agreement supersedes, and the terms of this Agreement govern, any prior version of these Terms with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services from Provider, any affiliate services or third-party software or services.
Effective Date: January 1, 2011