Abakus Financial - AI-native financial OS and co-pilot for businesses and accountants

SERVICES AND SUPPORT
1. Abakus Financial, Inc. (“Abakus”) provides its financial services platform, software and related services (collectively “Service(s)”) to you (“Customer”) pursuant to these Terms of Service (the “Agreement”). By registering for, accessing, or using the Services, Customer unconditionally accepts and agrees to all of the terms of this Agreement. If entering into this Agreement on behalf of a company or other legal entity, Customer represents and warrants that it has the authority to bind such entity and its affiliates to the terms of this Agreement and it is duly authorized and empowered to use the Services on behalf of such entity and its affiliates, and, accordingly, the term “Customer” shall refer to you, as well as such entity and its affiliates. If Customer does not have such authority, or Customer does not agree to all of the terms of this Agreement, Customer may not use the Services. Subject to the terms of this Agreement, Abakus will use commercially reasonable efforts to provide Customer (a) the Services solely for Customer’s internal business operations in accordance with the terms and limitations of this Agreement, and (b) reasonable support services, through electronic mail or another online mechanism, in accordance with Abakus’ standard practice. Customer acknowledges that Abakus may update or change features or functionality of the Services from time to time in its sole discretion. In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be posted on the Service from time to time, including, without limitation, the Privacy Policy. All such terms are hereby incorporated by reference into this Agreement.
2. Abakus reserves the right to change or modify portions of this Agreement at any time. If Abakus does so, it will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. Abakus will also notify Customer, either through the Service‘s user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Services or changes made for legal reasons may become effective immediately. Customer’s continued use of the Service after the date any such changes become effective constitutes acceptance of the new Agreement.
3. From time to time, Customer may be invited to try certain Services at no charge for a free trial or evaluation period or if such services are not generally available to customers (collectively, “Evaluation Services”). Evaluation Services will be designated as alpha, beta, pilot, evaluation, trial, limited release, early access, or the like. Evaluation Services are for Customer’s internal evaluation purposes only and not for production use, are not supported, are provided “as is” without warranty of any kind, and may be subject to additional terms. For avoidance of doubt, Evaluation Services and all information and materials relating thereto (including, without limitation, any and all information and data regarding features, functionality, performance, workflows, visual layouts and the like) are highly confidential Proprietary Information, trade secrets and intellectual property of Abakus subject to all of the protections and restrictions of Sections 2 and 3 of this Agreement. Abakus may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available. Abakus may also immediately terminate Customer’s right to use Evaluation Service for any reason and at any time in its sole discretion, including, without limitation, if Customer is not actively using the Evaluation Services or if Abakus suspects that Customer has violated any term or restriction in this Agreement. Abakus will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.
4. Please read this Agreement carefully. This Agreement includes important provisions regarding your right to send, receive, and access funds through Services made available by Abakus through its partnership with First Internet Bank of Indiana.
RESTRICTIONS AND RESPONSIBILITIES
1. Customer will only use the Services as expressly permitted herein and agrees that it will not, and will not permit any third party to, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Abakus or authorized within the Services); use or allow access to the Services or any Software for time-sharing or service bureau purposes or otherwise allow Services’ use or access to or for the benefit of any third party (including, without limitation, any direct or indirect competitor of Abakus); remove any proprietary notices or labels; use or access the Services to develop a product or service that is, directly or indirectly, competitive with the Services or engage in competitive analysis or benchmarking; or modify, adapt or hack the Services, or otherwise attempt to probe, scan, test or gain or allow unauthorized access to the Services or their related systems or networks. With respect to any Software (in any form) that is provided to Customer (if any), Abakus hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software solely internally in connection with the Services and for no other purpose. All Software is Proprietary Information of Abakus and subject to the terms of Section 3.
2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Abakus’ standard published policies and codes of conduct then in effect and all applicable laws and regulations (including, without limitation, those relevant to privacy, spam, intellectual property and the like). Customer hereby agrees to indemnify and hold harmless Abakus against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of any of any term of this Agreement or otherwise from Customer’s use of Services. Although Abakus has no obligation to monitor Customer’s use of the Services, Abakus may do so and may prohibit any use of the Services (or disable content or data) it believes may be (or alleged to be) in violation of the foregoing or any other term of this Agreement.
3. Customer shall have the right to grant users, including its employees, investors, vendors, advisors and agents, access to its account for use of the Services in accordance with this Agreement (“Authorized Users”) and designate which Authorized Users shall have administrative privileges. For clarity, the term “Authorized User” specifically excludes any direct or indirect competitor of Abakus. Customer is solely responsible for ensuring Authorized Users comply with the Agreement. Customer shall be responsible for all activities occurring under Customer’s account, including all activities of its Authorized Users, and for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and Authorized User passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
CUSTOMER DATA; THIRD PARTY SERVICES; PROPRIETARY RIGHTS
1. In order to provide the Services, Abakus requires access to and use of certain of Customer’s and Customer’s clients’ information and data (“Customer Data”), including, without limitation, financial data and information of Customer and Customer’s clients that is hosted by third party services used by Customer, and in connection with Abakus’ provision of the Services, at Customer’s or a Customer’s client’s request or direction, Abakus may transmit or share the Customer Data that is requested or directed to be shared to a third party service and any other information as necessary for such third party service to provide its service to Customer or Customer’s client (any of such third party services described in this sentence, “Third Party Services”). Abakus will access and use Customer Data solely as reasonably necessary to provide the Services and as otherwise expressly permitted in this Agreement. Customer, not Abakus, will have sole responsibility for ensuring the accuracy, quality, integrity, legality and intellectual property ownership of all Customer Data, and Customer shall hold Abakus harmless from and against any claims, damages, losses, liabilities or expenses arising from or relating to any errors, inaccuracies, faults, illegalities or other issues relating to any Customer Data. Customer acknowledges and agrees that it is solely responsible for obtaining any and all consents or approvals necessary for Abakus to access and use the Customer Data to provide the Services to Customer or to transmit or share Customer Data at Customer’s or Customer’s client’s request or direction in connection with the Services. Third Party Services are not under Abakus’ control and Customer acknowledges that Abakus is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such Third Party Services. By providing Abakus with Customer’s credentials or authorization to access Third Party Services, Customer hereby appoints Abakus as its agent to access such Third Party Services (and Customer Data therein) on Customer’s behalf for the purposes contemplated herein.
2. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Abakus includes all Software and other non-public information regarding features, functionality and performance of the Service, including, without limitation, workflows, visual layouts and the like. Proprietary Information of Customer includes Customer Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, which breach would result in irreparable harm to the Disclosing Party, and therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to appropriate equitable relief, without the requirement of posting a bond, in addition to whatever remedies and damages it might have at law.
3. Customer shall own all right, title and interest in and to the Customer Data. Abakus shall own and retain all right, title and interest in and to (a) the Services and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing. Notwithstanding anything to the contrary, Abakus shall have the right to collect and analyze data and information relating to the use and performance of various aspects of the Services and related technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Abakus will be free (during and after the term hereof) to (i) use such information and data to provide, improve and enhance the Services and other Abakus offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Further, if Customer provides or communicates (through the Service or otherwise) any feedback, discoveries, ideas, concepts, terminology, designations, or suggestions relevant to the Services (or improvements, enhancements or modifications thereto) or Abakus’ business, technology or Proprietary Information (“Feedback”), Customer grants Abakus the fully paid-up, irrevocable right and license to use, share, modify, commercialize and otherwise fully exercise and exploit such Feedback and all related intellectual property or other rights (and to allow others to do so) for any purpose. Abakus will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. No rights or licenses are granted except as expressly set forth herein, and Abakus reserves all rights and remedies available at law or in equity regarding any unauthorized use of Abakus’ Services, Software, Proprietary Information or other technology or intellectual property rights. The terms of this Section survive termination of this Agreement in perpetuity.
PAYMENT OF FEES
1. Customer will pay Abakus the then applicable fees for the Services as described in the Service in accordance with the terms therein (the “Fees”). All Fees are non-cancelable and non-refundable regardless of any early termination of this Agreement. If Customer’s use of the Services exceeds any applicable limits set forth in the Service or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. To the extent the Services or any portion thereof is made available for any Fee, Customer may be required to select a payment plan and provide information regarding Customer’s credit card, bank account or other payment method. By providing such information, Customer represents and warrants to Abakus that such information is true and that Customer is authorized to use the payment method. Customer will promptly update Customer’s account information of any changes (for example, a change in Customer’s billing address or credit card expiration date) that may occur. If Customer’s payment plan includes an ongoing subscription that is automatically renewed periodically, Customer hereby authorizes Abakus (through Stripe (as defined below)) to bill Customer’s payment method in advance on such periodic basis in accordance with the terms of the applicable payment plan until Customer terminates the plan, and Customer further agrees to pay any charges so incurred. Customer can terminate a subscription by logging into the Services.
2. Abakus reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service term or then current renewal term, upon thirty (30) days‘ prior notice to 0) days‘ prior notice to Customer (which may be sent by email). Customer’s continued use of the Services after the price change becomes effective constitutes Customer’s agreement to pay the changed amount. If Customer believes that Abakus has billed Customer incorrectly, Customer must contact Abakus no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Abakus’ customer support department.
3. Abakus may also choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Abakus thirty (30) days after the mailing date of the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Abakus’ net income.
4. To facilitate payment for the Services via bank account, credit card, or debit card, Abakus uses Stripe, Inc. and its affiliates (“Stripe”), a third-party payment processor. These payment processing services are provided by Stripe and are subject to the Stripe terms and conditions and other policies available at https://stripe.com/legal and Stripe’s Global Privacy Policy available at: https://stripe.com/privacy (collectively, the "Stripe Agreements"). By agreeing to this Agreement, Customers that use the payment functions of the Services also agree to be bound by the Stripe Agreements, as the same may be modified by Stripe from time to time. Customer hereby authorizes Stripe to store and continue billing Customer’s specified payment method even after such payment method has expired, to avoid interruptions in payment for Customer’s use of the Services. Please contact Stripe for more information. Abakus assumes no liability or responsibility for any payments Customer makes through the Services.
TERMINATION
1. This Agreement shall continue in effect until terminated in accordance with the terms below. Either party may terminate this Agreement for convenience on thirty (30) days’ prior written notice.
2. In addition to any other remedies it may have, either party may also terminate this Agreement upon fifteen (15) days’ prior written notice (or immediately upon notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach is not cured during the notice period. Abakus may also reasonably suspend Customer’s and/or any users’ access to Services at any time in its reasonable discretion if it possesses a good faith belief that Customer’s use of the Service may be in violation of this Agreement or otherwise place Abakus (or its customers or other interests) at risk of harm, damage, loss or liability. Upon termination, Customer’s right to use the Services shall immediately terminate, all outstanding Fees due for the Services for the entire Service Term (regardless of any early termination) shall immediately become due and payable, Customer shall return (or at Abakus’ option destroy) all Software in its possession, Abakus shall delete and/or destroy all Customer Data uploaded to the Services by Customer within thirty (30) days of such termination, and each party shall return to the other all Proprietary Information. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, all rights to payment of Fees, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMERS Abakus shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Abakus or by third-party providers, or because of other causes beyond Abakus’ reasonable control, but Abakus shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, ABAKUS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND ABAKUS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, ABAKUS AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ABAKUS’ REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES RECEIVED BY ABAKUS FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT ABAKUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
GOVERNMENT MATTERS Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
MISCELLANEOUS Abakus shall have the right to use Customer’s name in a factual manner for marketing or promotional purposes on Abakus’ website and in other communication with existing or potential Abakus customers. To decline Abakus this right, Customer must email Abakus (at the email address provided in the Service) stating that Customer does not wish to grant Abakus this right. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Abakus’ prior written consent. Abakus may transfer and assign any of its rights and obligations under this Agreement without consent. Except to the extent the parties have mutually executed and delivered a separate written agreement covering the same Abakus Services (a “Separate Signed Agreement”), this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the terms of this Agreement and the terms of a Separate Signed Agreement, the terms of the Separate Signed Agreement shall supersede and control. However, any different or additional terms of any purchase order, confirmation, or similar pre-printed form will have no force or effect. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Abakus in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in the state or federal courts located in California, and each party irrevocably submits to the jurisdiction and venue of any such court with respect thereto.