Bench Accounting, Inc. Terms of Service

Last updated: August 21, 2020

Please read these terms of service (“Agreement”) carefully as this Agreement constitutes a binding contract between the user that accepts this Agreement (“Customer”) and Bench Accounting Inc., a Delaware company having its registered address at 874 Walker Road, Suite C, Dover, Delaware 19904 USA (“Bench”) governing your use of the services available through the Bench website at https://bench.co (“Site”) and any mobile applications (each an “App”) through which they may be made available (the “Services”). By checking an opt-in box, clicking on “I accept” or otherwise accepting this Agreement on the sign-up page, installing the App, or otherwise accessing or using the Services, Customer acknowledges that they have read, understood, and agree to be bound by and comply with the terms of this Agreement. If Customer is using the Services on behalf of an entity, partnership, or other organization, then Customer represents that they: (i) are an authorized representative of that entity with the authority to bind that entity to this Agreement and (ii) such entity agrees to be bound by this Agreement. If Customer does not agree to the terms of this Agreement, then they are not permitted to use the Services.

ARBITRATION NOTICE. Except for certain kinds of disputes described in the Arbitration provision below, Customer agrees that disputes arising under this Agreement will be resolved by binding individual arbitration, and BY ACCEPTING THIS AGREEMENT, CUSTOMER AND BENCH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. CUSTOMER AGREES TO GIVE UP CUSTOMER RIGHT TO GO TO COURT to assert or defend Customer rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a single ARBITRATOR and NOT a judge or jury. See the Arbitration provision below.

BANKING SERVICES: Bench is not a bank and does not itself provide any banking services. The Bench Services are, however, integrated with certain third party servicers, that we call Third Party Servicers. Radius Bank, Member FDIC (“Radius”) is a Third Party Servicer. By applying to open a deposit account through the Services, Customer also hereby agrees to the following additional agreements between Customer and Radius (collectively, the “Radius Agreement”):

Bench recommends that you print a copy of this Agreement and the Radius Agreement for your records. If not defined in the body of this Agreement, capitalized terms used in this Agreement are defined in the glossary at the end of this Agreement.

1. Services.

The Services consist of cloud-based financial tools and services such as (i) bookkeeping, accounting and access to banking services, (ii) financial information storage and reporting and (iii) the service of communicating information to, from and among Third Party Servicers, as per Customer instructions. Customer may make certain selections of Services that they wish to procure through the Application or the Account.

Bench will provide the Services to Customer for the term of this Agreement, subject to the payment of applicable Fees and compliance with the terms of this Agreement. As part of the Services, Bench hereby grants to Customer a non-exclusive, non-transferable, non-assignable right to use the Services, as per the terms of this Agreement. Customer acknowledges that the Services are cloud-based and hosted services and no copies of the Services or Bench System will be delivered to Customer, other than (where available) the App, subject to the End User License Agreement (“EULA”). The Services shall be used by Customer solely for Customer own purposes and Bench does not convey any right, title or interest in the Services or Bench System to Customer. Customer right to use the Services shall terminate upon any termination of this Agreement or any suspension or termination of the supply of the Services to Customer.

Financial Transactions

Bench shall not perform any financial transactions for Customer. Customer may, however, use the Services to communicate Customer instructions to a Third Party Servicer of Customer which Third Party Servicer may perform a financial transaction on behalf of Customer pursuant to the Third Party Servicer Agreement. For example, if Customer opens a bank account with Radius, then a data Transaction through the Services may result in a financial transaction within the Customer account with Radius pursuant to the Radius Agreement. Bench is not liable for any such financial transaction or the results thereof.

Errors

Customer shall immediately notify Bench of any errors by Bench or Customer in the supply or use of the Services. Where practicable, Bench shall use commercially reasonable efforts to investigate errors, but makes no representation as to its ability to correct the error. Customer shall provide Bench with any information necessary to investigate an error in a Transaction. Some payment transactions, such as wire transfers, are irreversible, so Customer agrees to exercise extreme caution when initiating any financial transaction by way of instructions delivered one of its Third Party Servicers through the Services.

2. Bench Account and Customer ID.

Bench shall provide Customer with a unique and private Account accessible through the Service. The Account shall be a record of Customer Transactions and Fees. Bench shall provide Customer with access codes for the Account. Customer shall not disclose such codes or permit any third party to use them. Customer has exclusive responsibility for the use of Customer Account. Bench will invite Customer to enter certain preferences and specifications within the Application or the Account that will apply to the Services; Customer assumes exclusive responsibility for such selections even if they contain errors by Customer or result in losses to Customer. Any additional terms and conditions posted to the Site with respect to the Account or specific Services preferences selected by Customer are incorporated herein by reference.

Except as required to deliver the Services or as otherwise required by law, Bench shall not grant any third party access to Customer Account.

Customer shall notify Bench by email to help@bench.co immediately of any loss or disclosure, whether voluntary or otherwise, of any Account password or access code to a third party.

Upon Customer’s request, Bench will also issue Customer a Customer ID associated with the Account (“Customer ID”). Customer may share their Customer ID only with officers, directors, bookkeepers, accountants or other Customer personnel that are directly employed or engaged by Customer (“Customer Personnel”) provided that Customer binds such third parties to undertakings of confidentiality and to also honor the terms hereof. Customer Personnel may only access and use the Services through the Customer ID and in compliance with this Agreement; Customer will not allow Customer Personnel to share the Customer ID with third parties. Customer is responsible for all activity occurring under its Customer ID whether by Customer Personnel or otherwise. Bench reserves the right to replace the Customer ID in its sole discretion for any reason or for no reason. Any Customer Personnel who accesses the Services does so subject to this Agreement.

Customer shall provide, at Customer’s own expense, all necessary hardware, applications and internet connectivity necessary to access the Services. Customer acknowledges that the internet can be unpredictable in performance, unsecure and may, from time to time, impede access to the Services or performance hereunder. Customer agrees that Bench is not responsible for any internet outages, unsecure WIFI or other connections or any other interference with Customer’s use of or access to the Services or security breaches arising from any Customer Device and Customer waives any and all claims against Bench in connection therewith.

3. Limitations.

Prohibited Customers

The following Persons are prohibited from using the Services: (i) Persons who appear on the U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN); (ii) Persons who are less than 18 years of age; (iii) Persons, or their Affiliates who have procured services from Bench and have been terminated by Bench; and (iv) individual consumers. The Services may not be used for individual consumer use. Customer must be a business, charitable organization or not-for-profit organization to use the Services. Bench reserves the right to decline to provide Services or terminate Services to one or another type of business. Bench shall notify Customer of prohibited business types through the Site, the Account or the App. In any case, any business that is illegal or operates in support of illegal activity is prohibited from using the Services.

Limitations on Use

Customer shall not itself and shall not permit any Customer Personnel or any other third party to: (i) permit any party to access or use the Services other than the Customer Personnel authorized under this Agreement; (ii) modify, adapt, alter or translate any software of Bench Systems underlying the Services; (iii) license, lease, rent, loan, distribute, or otherwise transfer the Services to any third party; (iv) except if, and solely to the extent that, such a restriction is impermissible under Law, reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of any software or Bench Systems underlying the Services; (v) use or copy the any software or Bench Systems underlying the Services except as expressly allowed hereunder; (vi) conduct or promote any illegal activities while using the Services; (vii) use the Services to generate unsolicited email advertisements or spam; (viii) use the Services to stalk, harass or harm another individual; (ix) use any high volume automatic, electronic or manual process to access, search or harvest information from the Services (including without limitation robots, spiders or scripts); (x) except if, and solely to the extent that, such a restriction is impermissible under Law, interfere in any way with the proper functioning of the Services or interfere with or disrupt any servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (xi) attempt to gain access to secured portions of the Services to which it does not possess access rights; (xii) upload or transmit any form of virus, worm, Trojan horse, or other malicious code; (xiii) use any robot, spider, other automatic device, or manual process to extract, “screen scrape”, monitor, “mine”, or copy any static or dynamic web page on the Services or the content contained on any such web page for commercial use without our prior express written permission; (xiv) impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity; (xv) mirror or frame the Services or any content, place pop-up windows over its pages, or otherwise affect the display of its pages; or (xvi) publicly display or publicly perform any part of the Services. Customer may not use the Services for any purpose other than a purpose for which the Services are expressly designed. If Customer is prohibited under Laws from using the Services, Customer may not use them.

4. Bench Intellectual Property Rights.

Bench expressly reserves all Intellectual Property Rights in the Services, Bench System and all materials provided by Bench hereunder. All right, title and interest in the Services and all other materials provided by Bench hereunder, any update, adaptation, translation, customization or derivative work thereof, and all Intellectual Property Rights therein will remain with Bench or its licensors. Bench reserves the right, in its sole discretion, to change, modify, add, or remove portions of the Services without prior notice to Customer or consent of Customer. Certain of the names, logos, trademarks, trade names, service marks, content, visual interfaces, interactive features, information, compilation, computer code, products, services, and other materials displayed on the Services (“Bench Materials”), are protected by Intellectual Property Rights Laws of the United States, Canada, and other jurisdictions.

5. Customer Data Consent.

Customer hereby authorizes Bench to, directly or through third parties, make any inquiries and conduct any investigation to verify Customer identity.

The Services requires certain information concerning Customer, including but not limited to Customer name, address, phone number, email address, Bank Account information and other Third Party Servicer account information. Customer agrees that all information it provides to Bench shall be complete and accurate and Customer shall promptly correct any errors in the information provided to Bench.

Subject to the Bench Privacy Policy, posted at the Site and incorporated herein by reference, Customer and each of Customer Personnel hereby grant Bench the right to collect, store, use and disclose Customer Data for the purpose of providing the Services and its integration with Third Party Servicer Services selected by Customer. Where Customer Data includes data concerning third parties, Customer states that it has obtained the necessary consents for Bench to collect, process, store such data hereunder from the relevant data subjects. Data collected by Bench is subject to the Bench Privacy Policy, posted at the Site and incorporated herein by reference. Subject to Law, where Bench is subject to a subpoena request for Customer Data, Bench shall provide Customer with an opportunity to contest the request, failing which Bench shall cooperate with the request.

Customer hereby authorizes Bench, Radius and each Third Party Servicer to each obtain from the others and disclose to the others Customer Data in so far as is necessary to supply their respective services either hereunder or under their respective Third Party Servicer Agreements.

Where required by Law, Bench will disclose Customer Data to law enforcement agencies. Bench reserves the right to keep Customer Data for the term of this Agreement and for five (5) years thereafter.

6. Customer Data.

Accuracy

Customer has sole responsibility for the accuracy, appropriateness and completeness of all Customer Data. Bench will use the Customer Data it is provided in performing the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Customer Data.

Security

Bench will take reasonable steps to help protect Customer Data. However, Customer understands and agrees that such steps do not guarantee that the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities. Bench reserves the right to cooperate with local, state and federal authorities in investigations of improper or unlawful activities and this may require the disclosure of Customer’s personal information. Bench may also report to other organizations about improper or unlawful user activities and this reporting may include disclosure of personal information relating to those individuals conducting such improper or unlawful activities.

Customer shall secure Customer Data in its possession or under its control. Customer assumes exclusive responsibility for ensuring the security of Customer Device and the Data on it. Bench is not liable for the operation or failure of Customer Devices or those of any third party, including but not limited to processors, hosting services, internet service providers and other Third Party Servicers. Customer shall not operate Customer Device in a manner that does not meet the applicable security requirements of Bench, indicated in the Account or on the Site, or those of Third Party Servicers.

Bench is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Data or other data provided, transmitted, processed, or stored by Customer in or through the Services. It is Customer’s responsibility to back-up onto a Customer Device all Customer Data, including all data and records that Customer submits to Bench.

Sharing

Bench shall disclose Customer Data to those representatives of Customer identified by Customer for such purposes and also to such Third Party Servicers as Customer has selected. Bench has no liability for any collection, processing, storage, use or disclosure of Customer Data by any Third Party Servicer or any other third party. Bench reserves the right to decline to share Customer Data with any third party where Bench believes that such sharing may expose Customer or Bench to excessive security, financial or reputational risk, provided however that Bench shall never be liable for any act or omission of any third party with respect to Customer Data or otherwise. Bench makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility or liability for, the quality, content, nature, veracity or reliability of any Customer Data.

Feedback

In the event that Customer provides Bench any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Services (collectively “Feedback”), Customer agrees that Bench may use the Feedback to modify the Services and that Customer will not be due any compensation, including any royalty related to the product or service that incorporates the Feedback. Customer hereby grants Bench a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether Customer provides the Feedback on the Services or through any other method of communication with Bench.

Limitations

Customer shall not take possession of or enter into the Account any data: (i) that Customer does not have the lawful right to copy, transmit, distribute, and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); (ii) for which Customer does not have the consent or permission from the owner of any personally identifiable information contained in the Customer Data; (iii) that infringes, misappropriates or otherwise violates any Intellectual Property Rights or violates any privacy rights of any third party; (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; (vi) that violates, or encourages any conduct that would violate, any Laws or regulation or would give rise to civil or criminal liability; or (vii) that contains any viruses, trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

Financial Data Storage, Not Advice

The Services enable the storage of Customer Data that is of a financial nature (e.g., bookkeeping, accounting and other financial information). Customer acknowledges, however, that the Services do not include the supply of any accounting, financial, investment, legal or other professional advice. Bench is not an accounting or other professional services firm. Bench does not hold any licenses for the supply of any accounting, financial, investment, legal or other professional advice and none of the Services shall be construed as including any such services. Data presented in the Services, such as financial information, for example, shall not be construed as reflective of the financial status of Customer or any third party nor are they necessarily compatible with any specific accounting standards, such as GAAP (generally accepted accounting principles). Customer shall be exclusively responsible for retaining third party any accounting, financial, investment, legal and other professional advice.

Customer Call Monitoring

Bench may monitor and record support-related and other outbound calls to Customer, as well as inbound calls to Bench by Customer or Customer’s representatives, for compliance, support, training and other purposes. Customer agrees that Bench may record any call between Customer and Bench relating to the Services, and agrees to (i) notify all relevant Customer employees that calls with Bench may be monitored and (ii) indemnify and hold harmless Bench from any claim arising as a result of Bench’s monitoring or recording of calls between Bench and Customer’s representatives.

7. Indemnification.

Customer shall defend, indemnify, and hold harmless Bench, its employees, officers, directors Affiliates, suppliers, licensors, Third Party Servicers and other customers against any and all liability including damages, recoveries, deficiencies, interest, penalties, losses and reasonable attorney’s fees arising out of or relating to: (i) any breach of the terms hereof; (ii) any breach of a Third Party Servicer Agreement; (iii) any violation of any Laws; (iv) any use of Customer Data by Customer or a Third Party Servicer or other third party; (v) Customer use of the Services, including in combination with any third party service; (vi) any Transaction; (vii) any financial transaction occurring as a result of data communicated via the Services; (viii) any act or omission of any Third Party Servicer or Client; (ix) costs incurred by Bench enforcing the terms hereof or responding to any subpoena relating to Customer, Customer Data or a Third Party Servicer; (x) any claim by a governmental taxing authority; or (xi) any dispute between Customer and any third party or Customer Personnel.

8. Term, Termination and Suspension

Term

The term of this Agreement (“Term”) shall begin as of when Customer accepts this Agreement, completes the Application or obtains an Account and shall continue until terminated in accordance with the terms hereof.

Termination

Either party may terminate this Agreement at any time for any reason or for convenience. Customer may terminate by closing their Account or such other means as the Services may provide. Bench may terminate this Agreement by notice to Customer through the Account, by email to the contact information provided in the Application or by other electronic notice to other contact information provided by Customer to Bench.

Suspension

Bench may, at its discretion, suspend Customer access to, or otherwise modify, the Services and any component thereof, without notice in order to: (i) prevent damages to, or degradation of the integrity of, Bench’s internet network; (ii) comply with any Law; (iii) otherwise protect Bench from potential legal liability or harm to its reputation or business; or (iv) because Bench has opted to change the Services. Bench will use commercially reasonable efforts to notify Customer of the reason(s) for such suspension or termination action as soon as reasonably practicable. Nothing contained in this Agreement will be construed to limit Bench’s actions or remedies or act as a waiver of Bench’s rights in any way with respect to any of the foregoing activities. Bench will not be responsible for any loss or damages incurred by Customer as a result of any termination or suspension of access to or use of the Services.

9. Customer Support.

Bench will use commercially reasonable efforts to provide Customer with technical support services relating to the Services via its technical support website, email, or telephone.

Bench may update the Services in its sole discretion which updates may alter, add or remove functionality of the Services. Bench may also, from time to time, schedule downtime for maintenance and upgrades to the Services.

10. Fees.

Fees

Access to the Services may require Customer to pay Fees, as may be further described at https://bench.co/pricing/ or otherwise on the Site, the App or in the Account. All Fees are in U.S. dollars and are non-refundable, unless otherwise provided herein. Bench reserves the right to amend the Fees my posting new Fees on the Site, in the App or in the Account; such changes shall take effect within thirty (30) days unless accepted by Customer earlier or if Customer does not close their Account within such delay.

Payment

Customer shall authorize Bench to collect payment of Fees from a credit card, debit card or other means of payment; Customer authorizes Bench to charge all Fees and other amounts owing hereunder from such payment method. If Customer pays any Fees with a credit card, Bench may seek pre-authorization of Customer’s credit card account prior to Customer’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase.

The Services may include functionality for activating, updating, or canceling recurring payments for periodic charges. If Customer activates or updates recurring payments through the Services, Customer authorizes Bench to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Customer’s account, all accrued sums on or before the payment due date for the accrued sums. If Customer uses the Services to updates or cancels any existing authorized one-time or recurring payment, it may take up to 10 business days for the update or cancellation to take effect.

Without limitation, Bench reserves the right to suspend the Services until all Fees or other amounts owing hereunder are paid in full or terminate this Agreement for late payment.

Fees quoted do not include, and Customer shall hold Bench harmless from all sales, use, gross receipts, value-added, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transaction contemplated herein, other than taxes based on the net income or profits of Bench.

ACH Consent

Customer desires to effect settlement of credits and debits from Customer Bank Account(s) by means of ACH and/or wire transfer in conjunction with the Services for Customer by Bench. In accordance with this desire, Customer authorizes Bench and/or its affiliates to initiate debit and credit entries to Customer Bank Account (the details of which are provided by Customer through the Account or by other means acceptable to Bench). Customer shall maintain sufficient funds in Customer Bank Account to cover such debit transactions. Customer states that Customer has the authority to agree to such transactions and that Customer Bank Account indicated is a valid and legitimate account for the handling of these transactions. This authority is to remain in effect until Bench receives written notice from Customer revoking it. This authorization is for the payment of Fees or any other sums owed to Bench. Customer certifies that the appropriate authorizations are in place to allow Customer to authorize this method of settlement. All changes to the identification of Customer Bank Account under this authorization must be made in writing in accordance with the Agreement. Customer understands that if the information supplied as to the ABA Routing Number and Account Number of the Customer Bank Account is incorrect, and funds are incorrectly deposited, Bench will attempt to assist Customer in the recovery of such funds but has no liability as to restitution of the same. Bench’s assistance in recovering the funds, where available, will be billed to Customer at Bench’s current hourly rate for such work. Customer acknowledges that the origination of ACH transactions to the Customer Bank Account must comply with the provisions of U.S. law.

Refunds

In the event of termination of the Services for any reason except for Customer’s breach of this Agreement, Bench may provide Customer with a refund of any pre-paid, but unused Fees related to such Services, subject to the following: (i) no refund shall be paid for the current month’s Services, regardless of the day on which Customer cancels the Services; (ii) Bench will retain and not be obligated to refund any prepaid Fees up to and including the amount of Fees Customer would have been required under this Agreement to pay for Customer’s use of the Services for the two month period following the effective date of the termination of the Services. Customer is not entitled to any refund for Bench’s termination of the Services based upon Customer’s breach. If Customer purchased access to the Services at a discounted price, any refund will lose the benefit of that discount.

11. Confidential Information.

Each party acknowledges that it may directly or indirectly disclose Confidential Information to the other party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information. Each party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement. Except as otherwise contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of the Agreement. Customer Data shall, without limitation, be Customer Confidential Information. Bench Data shall, without limitation, be Bench Confidential Information.

12. Customer Representations and Warranties.

Customer represents and warrants to Bench that:

  1. Customer has the legal authority to bind Customer organization to this Agreement and to perform hereunder and under each Third Party Servicer Agreement to which Customer is a party. Customer is the exclusive owner of the Account and is not operating the Account on behalf of any third party.

  2. Customer has the legal capacity to enter into this Agreement and perform Customer obligations hereunder.

  3. Customer is a business, charitable organization or not-for-profit organization and shall use the Services for only business purposes and not for individual consumer purposes.

  4. Customer shall immediately advise Bench of defects in the Services or any claim or threatened claim against Bench. Customer shall immediately notify Bench of any defects in a Product for which a Third Party Servicer has been used as a payment method.

  5. Customer use of the Services conforms to all Laws and the terms of this Agreement.

13. No Warranties by Bench.

Content; Third Party Servicers

Content from Third Party Servicers, other users, suppliers, advertisers, and other third parties may be made available to Customer through the Services. Bench does not control such content; Customer agrees that Bench is not responsible for any such content. Bench does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content and Bench assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. The Services may contain links to websites not operated by Bench. Bench is not responsible for the content, products, materials, or practices (including privacy practices) of such websites. Customer understands that by using the Services, Customer may be exposed to third-party websites that Customer finds offensive, indecent or otherwise objectionable. Bench makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink or otherwise from the Site or Services including but not limited to Third Party Servicer Services. Bench provides these links for Customer’s convenience only and does not control such third parties. Bench’s inclusion of links to such links or integrations does not imply any endorsement of the materials on such third party services or any association with their operators. The Services may contain links to sites that are operated by Bench but which operate under different terms. It is Customer’s responsibility to review the privacy policies and terms and conditions of any other site Customer visits. CUSTOMER AGREES THAT IN NO EVENT WILL BENCH BE LIABLE TO CUSTOMER IN CONNECTION WITH ANY WEBSITES, CONTENT, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.

Services

THE SERVICES AND ALL MATERIAL OR CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BENCH HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. BENCH DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE BENCH ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER ASSUMES ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM CUSTOMER’S USE OF OR ACCESS TO THE SERVICES, CUSTOMER’S DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER USES THE SERVICES, AND USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES, AT CUSTOMER’S OWN DISCRETION AND RISK, AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY (INCLUDING CUSTOMER’S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF MATERIAL OR CONTENT.

SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND CUSTOMER MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION

14. Limitation of Liability.

IN NO EVENT WILL BENCH BE LIABLE FOR DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT EXCEEDING FEES PAID IN RESPECT OF THE SERVICES DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL BENCH’S SUPPLIERS OR THIRD PARTY SERVICERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

IN NO EVENT SHALL BENCH BE LIABLE TO CUSTOMER FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFITS, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL BENCH BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.

TO THE EXTENT THAT BENCH MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF BENCH’S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

Bench shall not be liable for any claims, losses or liabilities related to any Product, Client or Third Party Servicer.

15. Notices.

Notices sent to either Party shall be effective when delivered in person or by email, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the official contact designated below and immediately after being received by the other party’s server. Notices must be in writing and addressed as follows:

  • For Bench, addressed to Customer Care at: (i) Bench Accounting Inc., 545 Robson St, Vancouver, BC V6B 2B7 Canada; or (ii) help@bench.co; and

  • For Customer, to the addresses or email address provided by Customer on the Application (as such address or email address may be updated by Customer from time to time in accordance with this Agreement).

Bench may change its contact information by giving notice of such change to the Customer. Customer may change its contact information by using the currently available interfaces on Bench’s website. For contractual purposes, Customer (i) consents to receive communications from Bench in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that Bench provides to Customer electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Customer’s consent to receive Communications and do business electronically, and Bench’s agreement to do so, applies to all of Customer’s interactions and transactions with Bench. The foregoing does not affect Customer’s non-waivable rights. If Customer withdraws such consent, from that time forward, Customer must stop using the Services. The withdrawal of Customer’s consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between Bench prior to the time Customer withdraws its consent.

By providing Bench with Customer’s mobile telephone number, Customer consents to receiving text messages at that number as requested for account verification, invitations, and other purposes related to the Services. While Bench does not charge a fee for text messages, Customer’s carrier may charge standard messaging, data, and other fees. Customer is responsible for these charges. Bench may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. Bench is not responsible for the timeliness or final delivery of the message, as this is out of our control and is the responsibility of the cellular telephone operator or other networks.

16. Governing Law and Arbitration.

PLEASE READ THIS SECTION CAREFULLY, AS IT LIMITS THE MANNER IN WHICH CUSTOMER MAY SEEK RELIEF, AND REQUIRES YOU ARBITRATE DISPUTES WITH BENCH. If Customer has a dispute with Bench, Bench will first seek to resolve such a dispute through our support team.

All disputes arising under or in connection with the Agreement will be submitted to binding arbitration in Wilmington, Delaware, USA pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and the procedures set forth below.

Arbitration. All disputes that cannot be resolved pursuant to the internal issue resolution process identified above will be submitted to and settled by final and binding arbitration. The arbitration will take place in Wilmington, Delaware, USA and will apply the governing law of this Agreement. The final and binding arbitration will be performed by a single arbitrator who is a practicing commercial lawyer in English and in accordance with and subject to the Commercial Arbitration Rules of the AAA then in effect. The decision of the arbitrator will be final and binding, and judgment on the award may be entered in any court of competent jurisdiction. The arbitrator will be bound by the warranties, limitations of liability, and other provisions of this Agreement. Notwithstanding the foregoing, each party may seek injunctive relief in a court of competent jurisdiction, where appropriate, to protect its rights pending the outcome of the arbitration.

Jurisdiction/Venue; Governing Law. With respect to Customers located in the U.S., this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware (irrespective of its choice of law principles). The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in federal or state court in Wilmington, Delaware, USA. Subject to the arbitration provision set out above, each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the exclusive personal jurisdiction and venue of such courts.

NOTICE: BOTH CUSTOMER AND Bench AGREE TO HAVE ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT DECIDED BY NEUTRAL BINDING ARBITRATION AND ARE GIVING UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THOSE MATTERS LITIGATED IN A COURT OR JURY TRIAL. BY AGREEING TO THIS AGREEMENT, BOTH CUSTOMER AND Bench ARE GIVING UP THEIR RESPECTIVE JUDICIAL RIGHTS TO DISCOVERY AND APPEAL EXCEPT TO THE EXTENT THAT THEY ARE SPECIFICALLY PROVIDED FOR UNDER THIS AGREEMENT. IF ANY PARTY REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, THAT PARTY MAY BE COMPELLED TO ARBITRATE UNDER FEDERAL OR STATE LAW. BOTH CUSTOMER AND Bench CONFIRM THEIR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.

17. General Provisions.

  1. E-SIGN CONSENT. Under the Electronic Signatures in Global and National Commerce Act (“E-Sign”), this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when (1) your electronic signature is associated with the Agreement and related documents, (2) you consent and intend to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). This Agreement and all related electronic documents shall be governed by the provisions of E-Sign. You agree (i) that the Agreement and related documents shall be effective by electronic means (ii) to be bound by the terms and conditions of this Agreement and related documents and (iii) that you have the ability to print or otherwise store the Agreement and related documents.

  2. Assignment. Customer may not assign this Agreement or any of its rights or obligations hereunder to any third party without prior written consent of Bench. Any assignment in violation of this section shall be void. Bench may assign this Agreement without restriction and without any notice to Customer. The terms of this Agreement shall be binding upon permitted successors and assigns. Customer agrees that on a sale of all or substantively all of the assets of Bench, Bench may include in the sale the copy of Customer’s payment method (e.g. credit card information) used to pay Fees hereunder.

  3. Right to List as a Customer. Customer agrees that Bench may utilize Customer’s entity name in listings of current customers. Use of Customer’s name in any other marketing materials or press announcements will be submitted to Customer in advance for approval, and such approval will not be unreasonably withheld.

  4. Compliance with Export Regulations. Customer has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Bench harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Customer shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.

  5. European Union Residents. If Customer resides in the European Union (EU) or if any transfer of information between Customer and the Services is governed by the European Union Data Protection Directive or national laws implementing that Directive, then Customer consents to the transfer of such information outside of the European Union to its country and to such other countries as may be contemplated by the features and activities provided by the Services.

  6. Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.

  7. Force Majeure. Customer acknowledges and understands that if Bench is unable to provide Services as a result of a force majeure event Bench will not be in breach of this Agreement and will not be liable for delays caused by such event. A force majeure event means any event beyond the control of Bench.

  8. Severable. NOTHING IN THIS AGREEMENT WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO CUSTOMER. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and the validity, legality, and enforceability of all other provisions shall remain in full force and effect.

  9. Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law in one instance shall not preclude enforcement thereof on future occasions.

  10. Independent Contractors. Customer’s relationship to Bench is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Bench.

  11. Entire Agreement. In the event of any conflict between this Agreement and the information provided during Application or otherwise on the Site, in the App or in the EULA, this Agreement shall control. In the event of any inconsistency between the body of this Agreement and the Bench Privacy Policy, the former shall prevail. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior agreements, negotiations, or other communications, whether written or oral. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

  12. Amendments. Bench reserves the right to change this Agreement at any time and from time to time upon notice by posting revisions to this Agreement (including the description of the Services) on the Site. Continued use of the Services after Customer become aware of any such changes shall constitute Customer’s consent to such changes. Customer is responsible for regularly reviewing the most current version of this Agreement which is available on Bench’s website.

  13. English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

  14. Survival. Upon termination or expiration of this Agreement for any reason: (i) all rights and obligations of both Parties (except for Customer’s payment of all sums then owing), including all licenses granted hereunder, shall immediately terminate except as provided below; (ii) within thirty (30) days after the effective date of termination, each Party shall comply with the obligations to return or destroy all Confidential Information. The following Sections will also survive expiration or termination of this Agreement for any reason: the introductory paragraph, Sections 3 Limitations, 4 Bench Intellectual Property Rights, 5 Customer Data Consent, 7 Indemnity, 10 Fees, 11 Confidential Information, 12 Customer Warranties, 13 No Warranties by Bench, 14 Limitation of Liability, 15 Notices, 16 Governing Law and Arbitration, 17 General Provisions and 18 Glossary.

18. Glossary.

The following words used in this Agreement are defined as follows:

Account means an account made available to Customer through which Customer can transmit instructions or receive information in relation to the Services.

ACH means Automated Clearing House payment transaction.

Affiliate means, in relation to a Person, another Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person’s principal partners, shareholders, or owners of some other ownership interest.

App means an application available for download to certain mobile devices through which Customer can access the Services, subject to the EULA.

Application means the on-line sign-up process on the Site completed by Customer when applying for the Services, all of which is incorporated herein by reference.

Bank Account means Customer account, if any, with Radius or another Third Party Servicer.

Bench Data means information concerning Services or provided to Customer by Bench through the Account or otherwise.

Bench Privacy Policy means the privacy policy of Bench posted at https://bench.co/privacy/, as updated from time to time.

Bench System means a cloud-based system operated by Bench that allows Customer to access Customer Account and initiate Transactions.

Client means a client or customer of Customer.

Confidential Information means all proprietary, secret or confidential information or data relating to either party and its affiliates, operations, employees, products or services, clients, customers or potential customers. Confidential Information shall include customer lists, cardholder account numbers, pricing information, computer access codes, instruction and/or procedural manuals, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by Law.

Customer Bank Account means a bank account of the Customer identified by Customer as being an account from which Bench may debit Fees or other amounts owing hereunder.

Customer Data means any and all non-public identifiable personal information of Customers.

Customer Device means computer system, tablet, phone or other electronic device used by Customer to access the Services or manage Data or Customer business.

Customer means you and if you are using the Services on behalf of a company, entity, or organization, the entity, partnership or organization, then ‘you’ also includes such entity.

Data means Customer Data or Bench Data.

EULA means an end-user license agreement pursuant to which the App is licensed to the Customer for the limited purpose of accessing the Services.

Fees means fees payable by Customer for use of the Services, as disclosed here https://bench.co/pricing/ or otherwise on the Site, the App or in the Account.

Intellectual Property Rights means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress, works of authorship, inventions, discoveries and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

Laws shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.

Party means either Customer or Bench and “Parties” means both Customer and Bench.

Person is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity.

Product means any product or service for sale or provided by Customer or for which a Third Party Servicer is used to make payment or for which Services is used to assist in a payment.

Radius means Radius Bank.

Services has the meaning set out in the preamble hereof.

Site has the meaning set out in the preamble hereof.

Term has the meaning set out in Section 8.

Third Party Servicer Agreement means an agreement between Customer and a Third Party Servicer concerning the supply of Third Party Servicer Services to Customer. The Radius Agreement is a Third Party Servicer Agreement.

Third Party Servicer means a third party that has entered into Third Party Servicer Agreement with Customer pursuant to which the Third Party Servicer provides Third Party Servicer Services to Customer. For each Customer that has entered Third Party Servicer Agreement with Radius Bank, such bank is a Third Party Servicer.

Third Party Servicer Services means the services of a Third Party Servicer provided pursuant to Third Party Servicer Agreement.

Transaction means sending or attempted sending of Data, by way of the Services, between any of Customer, Bench and a Third Party Servicer.

© Bench Accounting Inc., 2020.