|Swizznet Terms & Conditions|
HOSTING ENTERPRISES, INC DBA SWIZZNET (“SWIZZNET ”)
The terms and conditions set forth herein constitute the full and complete agreement between you and SWIZZNET (“Agreement”). By using SWIZZNET programs, online services, websites, web services, any software developed by SWIZZNET , or any other products or services of SWIZZNET (together the "SWIZZNET Services") you agree to be bound by the terms of this Agreement for use of SWIZZNET Services both past and present. The terms contained herein supersede and replace any other agreement or negotiation between you and SWIZZNET , whether oral, written or otherwise, including any statements made to you by any representative or reseller of SWIZZNET at any time with the sole exception of agreements physically signed by managing partners of SWIZZNET and delivered by hand, mail, or FAX.
YOU SHOULD CAREFULLY READ THE FOLLOWING AGREEMENT BEFORE ACCESSING THE SOFTWARE ON THE WEBSITE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SOFTWARE ON THE WEBSITE.
YOU MAY NOT ACCESS THE WEBSITE OR THE SWIZZNET PROGRAM IF YOU ARE OUR DIRECT COMPETITOR OR ANY AFFILIATES THEREOF, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
1. Site Implementation.
1.2 Services Provided. SWIZZNET shall provide all data transmission capacity (bandwidth), disk storage, server capacity and other hardware and software required to run the SWIZZNET Services and maintain SWIZZNET ’s online Customer Database accessible by you over the internet (“Customer Database”). You shall provide all data transmission capacity (bandwidth) required to connect to and receive information from SWIZZNET using the SWIZZNET Services.
1.3 Non-exclusive Services. You understand that SWIZZNET will provide the SWIZZNET Services on a non-exclusive basis. You acknowledge that SWIZZNET has customized and provided, and will continue to customize and provide, its software and technology to other parties for use in connection with a variety of applications, including account servicing applications.
1.4 Customer Database. SWIZZNET acknowledges that Customer owns all right, title and interest, including without limitation all Trade Secret rights, in and to the Customer Database.
1.5 User Shadowing. . SWIZZNET will provide accountants and bookkeepers with the ability to shadow their client users. You agree to only shadow your client users and shall not attempt to shadow other SWIZZNET system users.
2.1 Service Fees. You shall pay SWIZZNET service fees on a recurring basis on the first day of each month via the credit or debit card (American Express, Visa, MasterCard, and Discover) on file with SWIZZNET , in accordance with the specific pricing and payment procedures set forth on the Price Sheet. All payments shall be made in United States Dollars.
2.2 Pro-rated Service Fees. Service fees will be prorated when users are added to the system mid-month. Pro-rated charges will be itemized per user and charged to the card on file on the date the user is added to the system. All QuickBooks®, PageManager, and MS Office software license rentals as well as the required Intuit hosting $5/user fee for QuickBooks users are not pro-rated and the full monthly rental price and hosting fee will be charged for users or rentals added mid-month.
2.3 Rate Changes. SWIZZNET reserves the right to change the rate charged for any fee under this agreement with 30 days notice.
2.4 Taxes. You shall be responsible for all sales taxes and other similar taxes imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon SWIZZNET 's net income.
2.5 Reseller. If you pay for SWIZZNET Services through a company other than SWIZZNET for the SWIZZNET Services, then the charges and billing terms are as stated by the other company.
2.6 Suspension. If your account is seven (7) days past due, it shall be automatically suspended. Such accounts are subject to a $50.00 reactivation fee which you must pay prior to reactivation of the account. In addition, account reactivation can require several business days. All past due and unpaid balances are subject to collection through collection agencies. In the event of such collection action, you are liable for costs of collection including but not limited to attorney's fees, court costs, and collection agency fees. Once an account has been submitted to a collection agency for collection, such account shall additionally be subject to a $100.00 debt collection fee which you shall pay prior to reactivation of the account.
2.7 Refunds. Unless otherwise provided by law or in connection with any particular service offer, all charges and fees are non-refundable.
3. Acceptable Use.
3.1 Full Compliance. You agree to use the SWIZZNET Services in full compliance with the terms set forth below. You agree that you are solely responsible for the actions and behaviors of your users. Failure to comply may result in termination of your use of the SWIZZNET Services.
3.2 Prohibited Acts. You agree not to:
3.2.1 violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government;
3.2.2 take any action which encourages or consists of any threat of harm of any kind to any person or property;
3.2.3 make or attempt any unauthorized access to any SWIZZNET Services or Customer Database or disclose any such information without authorization;
3.2.4 attempt to install any executable software on any SWIZZNET hosting system without prior written authorization from SWIZZNET;
3.2.5 transmit any unsolicited commercial or bulk email, will not engage in any activity known or considered to be "spamming" and carry out any "denial of service" attacks on any other website or internet service;
3.2.6 infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party;
3.2.8 undertake any action which is harmful or potentially harmful to SWIZZNET or its infrastructure;
3.2.9 allow two or more users to share a single account and set of login credentials;
3.2.11 you will not attent to reverse engineer, decompile or disassemble the Swizznet system and software you have been provided access to.
3.3 Payment and Ownership. Your payment for SWIZZNET Services used by a third party does not constitute your ownership of that party's data and that you will provide a copy of that party's data to that party on their written request as soon as practicable after receipt of such request.
4. Software License Agreements
4.1 You represent and warrant that you have valid licenses to use the versions of QuickBooks® we provide you access to and any other software you use in conjunction with SWIZZNET Services. If you do not own the QuickBooks® licenses you may lease or purchase the required licensing through SWIZZNET. You warrant that you have not violated these third party software license agreements.
4.2 You agree that such third party license agreements are strictly between you and the software manufacturer. You understand and accept that it is your sole responsibility to ensure that your use of the third party licensed software with SWIZZNET is in compliance with all third party software license agreements.
4.3 You grant SWIZZNET the right to share with the software manufacturer of the third party licensed software your respective license information including all license-related keys and numbers for all licensed software and all related services provided by the software manufacturer.
4.4 If renting the MS Office software licenses, you disclaim, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the Software Services.
4.5 If renting the MS Office software licenses, you grant SWIZZNET the right to disclose your information as required for reporting to Microsoft under the terms and conditions required by the Microsoft SPLA program.
QuickBooks® Software is © Intuit Inc. All rights reserved. QuickBooks® software is hosted by SWIZZNET under license from Intuit Inc. SWIZZNET is not affiliated with or endorsed by Intuit Inc. SWIZZNET is solely responsible for the provision of all services on this website. You authorize SWIZZNET to install QuickBooks® software updates at its discretion and understand that the installation of such software updates may result in your need to perform a data file update of your QuickBooks® company file(s).
In addition to all other terms and conditions herein:
5.1. You grant SWIZZNET the right to share your QuickBooks® license information, including all license-related keys and numbers, payroll keys and numbers, number of users, as well as contact names and addresses, with Intuit for verification and tracking purposes.
5.2. You understand and agree that Intuit is not a party to this SWIZZNET User Agreement.
5.3. You disclaim any liability by Intuit for the provision of QuickBooks® hosting by SWIZZNET.
5.4. You disclaim any warranties by Intuit for the provision of QuickBooks® hosting by SWIZZNET.
5.5. You understand and agree that Intuit is responsible solely for Intuit's software and services and is not responsible for any other products or services offered by SWIZZNET or third parties.
5.6. You understand and agree that QuickBooks® software is subject to sunsetting policies from Intuit and upon receipt of notice by Intuit or SWIZZNET that a particular version of the QuickBooks® is being sunsetted that you shall be required to upgrade to the latest version of QuickBooks® or another non-sunsetted version of QuickBooks®.
5.7. You understand and agree that except for those licenses that you bring to SWIZZNET as a new customer, you must either lease QuickBooks® licenses through SWIZZNET, purchase QuickBooks® licenses through SWIZZNET, or obtain new QuickBooks® licenses through Intuit's National Accounts organization, an Intuit accountant sales partner program, or an authorized and currently-participating Intuit Solution Provider Program member rather than through any other means.
5.8. You understand and agree that all QuickBooks® licenses you lease through SWIZZNET are valid only while you are a SWIZZNET customer and that each such license may be disabled at any time after the user account to which they were assigned is no longer paid for through SWIZZNET.
5.9 You understand that if you discontinue use of the SWIZZNET services you must obtain solely and directly from Intuit any physical media copies of the QuickBooks® software to which you are entitled under your license(s).
6. Ownership of Intellectual Property.
6.1 SWIZZNET Technology. You acknowledge that SWIZZNET owns all right, title and interest in and to the SWIZZNET Technology and that you shall not acquire any right, title, and interest in or to the SWIZZNET Technology or any customizations. You shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any SWIZZNET software or documentation.
6.2 Customer Database. SWIZZNET acknowledges that you own all right, title and interest, including without limitation all trade secret rights, in and to the Customer Database. SWIZZNET uses commercially reasonable efforts to backup all your data while on the system. In the event of termination, you take full responsibility for retrieving your data from the SWIZZNET system during the period provided you for retrieval.
7.1 Confidential Information. All information and documents disclosed or produced by either party in the course of this Agreement which are disclosed in written form and identified by a marking thereon as proprietary, or oral information which is defined at the time of disclosure and confirmed in writing within ten (10) business days of its disclosure, shall be deemed the “Confidential Information” of the disclosing party. Notwithstanding the above, the parties agree that any information (in any form, whether tangible or intangible) relating to the SWIZZNET Program, the SWIZZNET Technology, and the Customer Database is considered Confidential Information.
7.3 SWIZZNET makes every reasonable effort to maintain the confidentiality of the Customer Database that is transferred to, created on, and modified on SWIZZNET . These efforts include but are not limited to encryption, username-based authentication, access control lists, and user rights restriction. You are required to password-protect your Customer Database. SWIZZNET will provide access to your Customer Database only to those users you authorize (by username) and to SWIZZNET support staff as necessary. SWIZZNET will not disclose your Customer Database to any other party except as required by law. Ownership of your Customer Database remains exclusively with you and no rights to said data are transferred to SWIZZNET unless so agreed in writing. SWIZZNET will not retain your Customer Database beyond the latter of either the end of the backup retention period (365 days) for said data or the termination of the last account associated with said data. You are responsible for verifying the integrity of your Customer Database at least every 30 days.
7.4 You are solely responsible for ensuring that your login information is utilized only by you when accessing QuickBooks® or otherwise, if applicable, by your authorized employees and agents. Your responsibility includes ensuring the secrecy and strength of your passwords. SWIZZNET shall have no liability resulting from the unauthorized use of your login information. If you use weak passwords or do not change your password frequently, you increase the risk of your password being discovered by unauthorized parties. If login information is lost, stolen, or used by unauthorized parties or if you believe that your Customer Database has been accessed by unauthorized parties, it is your responsibility to notify SWIZZNET immediately to request the login information be reset or unauthorized access otherwise be prevented. SWIZZNET will use commercially reasonable efforts to implement such requests as soon as practicable after receipt of notice.
8. Term and Termination.
The term of this Agreement (the “Term”) shall commence on the date you began to use the SWIZZNET Service and shall continue in force for a period of one year thereafter, unless earlier terminated with 30 days written notice of cancellation of service
For any reason set forth herein or in the event that you breach any term of this agreement, SWIZZNET may suspend or terminate your account by deactivating any access to any information contained on the SWIZZNET servers related to your account. Suspension hereunder shall specifically include the disabling of your access to SWIZZNET Services or any access to information or data related to your account. Service charges will continue to accrue on suspended accounts and you continue to remain responsible for the payment of any such charges during the period of suspension. SWIZZNET reserves the right to terminate your account forthwith and without notice for any breach of this Agreement.
This Agreement and all of its terms shall remain in full force and effect until terminated. Termination shall include the removal of any and all of your information from the SWIZZNET servers. Such information or data may or may not be made available to you by SWIZZNET after any such termination.
Either party may terminate this Agreement immediately and without further notice for cause. Cause for immediate termination exists (a) if any payment for SWIZZNET Services is more than seven (7) days overdue, (b) in case of any material breach of any of the provisions of this Agreement that is not cured within ten (10) days of the breaching party receiving notice thereof from the non-breaching party, or (c) any breach of the provisions of the ACCEPTABLE USE section of this Agreement.
If your use of the Services is paid for by or through a third party, you understand and agree that the third party has the right to have your account suspended or terminated at any time for any or no reason and that their failure to pay for services that you use could result in termination or suspension of your access to the services and/or your hosted data.
In the event of termination, you take full responsibility for retrieving your data from the SWIZZNET system during the period provided you for retrieval.
You shall indemnify, defend and hold SWIZZNET harmless from and against any third party claim brought against SWIZZNET related to the services and information stored in the Customer Database. You shall also indemnify, defend and hold SWIZZNET harmless from and against any third party claim brought against SWIZZNET related to Customer’s failure to secure all software licenses used in conjunction with SWIZZNET Services.
You agree to fully defend and indemnify and hold harmless SWIZZNET , its officers, directors, agents, resellers, and employees, in their official and personal capacities, of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the SWIZZNET Services or any portion thereof. Choice of counsel remains exclusively that of SWIZZNET .
You agree that upon the assignment of your login information such as a username and password, you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your login information. You agree to password protect all QuickBooks databases and ssume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your QuickBooks databases via the use of your login information. You further agree to defend and indemnify and hold harmless SWIZZNET of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential login information. Choice of counsel remains exclusively that of SWIZZNET .
10. Force Majeure/ Withdrawal from Business
Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
In addition to any event of force majeure as described in the foregoing paragraph, SWIZZNET may also terminate this Agreement in the event that SWIZZNET elects, at its sole discretion, to cease doing business in the United States and/or Canada for economic reasons or for any other reason whatsoever. Customers who, at the time SWIZZNET ceases doing business in the United States and/or Canada, are taking advantage of any SWIZZNET offer for free services or any other services that were intended to go beyond the date of cessation may not recover any damages from SWIZZNET (or any of its affiliated entities) in the event that they incur costs and expenses related to the cessation of the services, nor do such customers have, nor may they bring, any claim for repayment of such costs and expenses, including without limitation, fees paid to other hosting services for the balance of time remaining with respect to any SWIZZNET offer of services.
11. Disclaimer of Warranty.
SWIZZNET does not warrant that the SWIZZNET Services will meet all of your requirements or that performance of the SWIZZNET Services will be uninterrupted or error-free. SWIZZNET MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON-INFRINGEMENT.
12. Limitations of Liability.
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OF FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. IN NO EVENT WILL SWIZZNET 'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNT SWIZZNET HAS ACTUALLY RECEIVED FROM YOU UNDER THIS AGREEMENT. THE PARTIES AGREE THAT THIS SECTION 8 REPRESENTS A REASONABLE ALLOCATION OF RISK.
13. Miscellaneous Provisions.
13.1 Full Agreement. This Agreement and exhibits, if any, constitutes the full agreement between the parties and no promises or conditions other than those set forth herein are binding. This Agreement may be modified only by writing signed by both parties hereto.
13.2 Governing Law. This contract shall be governed and interpreted by the laws of the state of Washington.
13.3 Attorneys Fees. If either party brings litigation to enforce any terms of this Agreement, the prevailing party shall be entitled to costs and reasonable attorney's fees.
13.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
13.5 Assignment. Neither party may assign its rights or delegate its obligations under this Agreement without the other party's prior written consent, except to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets, so long as such surviving entity or purchaser shall expressly assume in writing the performance of all of the terms of this Agreement.
13.6 Notices. Any notice required for or permitted by this Agreement, shall be in writing and shall be delivered to the addresses provided by you when at the time this agreement was entered into with SWIZZNET or as subsequently advised to SWIZZNET . You agree that you will notify SWIZZNET of any changes to your contact information with 14 days.
13.7 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
13.8 Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
13.9 Attribution. The initial SWIZZNET Portal Page and all related Pages shall conspicuously display a graphic provided by SWIZZNET that indicates that SWIZZNET's technology is being used.
13.10 Trademark License. SWIZZNET hereby grants you a nontransferable, nonexclusive license under SWIZZNET's trademarks during the Term to display the SWIZZNET icon and to advertise the availability of SWIZZNET software on your Site. You hereby grant to SWIZZNET a nontransferable, nonexclusive license under your trademarks during the Term to advertise that you are using SWIZZNET's Services. Each party will submit advertising materials containing the other party's trademarks to the other party before release to the public for inspection, and such other party will have the right to modify any such advertisements.
13.11 PCI Compliance. Swizznet can facilitate PCI Compliance, but you need to perform additional steps outside of Swizznet in order for your business to be compliant with the security standard. To meet these requirements and ensure the security of your data, we recommend not sharing your login information and regularly reviewing the audit trail report in your QuickBooks file. You can find out more about the PCI Security Standard and your obligations for compliance at https://www.pcisecuritystandards.org/.
Providing Hosting of Customer’s end user client accounting application(s) and all accompanying accounting and data files via the SWIZZNET Program as well as hosting of OpenOffice Calc and Writer and any applicable document management services. All programs will be provided to the Customer using their end user client’s applicable software licenses unless they are renting the software licenses as specified below. End user shadowing will be made available to bookkeepers and accountants for use on their client users only.
Support terms: SWIZZNET will provide free email support and phone support.
Consulting: SWIZZNET will provide additional work for Customers, including software additions and training at $125 per hour. If additional services are on Customer’s location, then Customer must pay all travel costs.
Standard Package - $49.99/month/user
** A $5/user/month Intuit fee will be addded for each user with access to QuickBooks, as required by Intuit of all commercial hosting providers. This user fee will not be pro-rated and will be charged in full for all users added mid-month.
Software License Rentals
Your credit or debit card on file will be charged on the first day of each month. We accept Visa, MasterCard, American Express or Discover card.
You will be billed in advance for the next month’s services, for example on January 1 you will be charged the service fees for the month of January. Service fees will be prorated when users are added to the system mid-month. Prorated charges will be itemized per user and charged to the card on file on the date the user is added to the system. All QuickBooks® , MS Office and PageManager software license rentals and the Intuit-required $5/user fee for QuickBooks hosting are not eligible to be pro-rated and the full amount of the license rental and Intuit fee will be charged for users added to the system mid-month.
**All accounts located in Washington State are subject to sales tax on the hosting and license rental fees.
Updated March 28, 2012.