CPA Organizer, LLC
Terms of service agreement
This Terms of Service Agreement (“Agreement”) is a contract between you (individual customer(s) and/or accounting firms) and CPA Organizer, LLC (“we,” “us,” and/or “our”). You should carefully read this Agreement before using our website at www.mycpadashboard.com (the “Website”). We are willing to provide you access to our Website expressly conditioned upon your acceptance of all terms and conditions contained herein. By accessing and/or using our Website, in any manner whatsoever, you agree to be bound by this Agreement and all of the terms and conditions herein. If you are using our Website on behalf of your customers, your customers will also be considered a party to and subject to this Agreement.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS HEREIN, DO NOT ACCESS THE WEBSITE, ANY OF ITS SERVICES, AND/OR ANY INFORMATION PROVIDED ON AND/OR THROUGH THE WEBSITE.
Your use of our Website is subject to additional notices that may appear throughout the Website. If you use any of our products and/or services, you shall be subject to any and all applicable agreements (“Supplemental Agreements”) and any and all posted guidelines and/or rules applicable to such products and/or services. All such guidelines and/or rules are hereby incorporated by reference into this Agreement. Where a conflict exists between this Agreement and any of the Supplemental Agreements, the provisions of the applicable Supplemental Agreement shall govern.
Neither CPA Organizer, LLC nor its representatives are engaged in rendering legal services, tax advice, and/or other related advice.
In order to use the Website, you must obtain access to the Internet and pay any service fees associated with such access. System availability and access to the services and/or information available on the Website may be limited or unavailable for reasons that may include, but not limited to, system performance, telecommunications failure, hardware failure, and/or software failure. You are responsible for your use of your Internet browser, the Website, the Application, the services, and information provided on the Website. We are not responsible for deletion of data, timeliness of services, or the failure to store any of your data or personalization settings.
All content on the Website, including, but not limited to, text, graphics, designs, logos, button icons, images, audio clips, trade names, trademarks, service marks, trade dress, digital downloads, data compilations, software, and the compilation of any of the foregoing, is our property, the property of our licensors and is protected by United States and international patent, copyright, and trademark laws. The display and availability of the content on the Website does not convey or create any license or other rights in the content. Any unauthorized copying, reverse engineering, redistribution, reproduction, publication or modification of Website content by any person(s) or entity, without our prior written authorization, is strictly prohibited, may be a violation of federal, state, or common law, trademark, patent and/or copyright laws and may subject such a violator to legal action. The use of content from the Website on any other website or networked computer environment is similarly prohibited. Requests for permission to reproduce or distribute materials found on the Website can be made by contacting us in writing. You are also strictly prohibited from creating works or materials that derive from or are based on the Website content or other materials contained in or on the Website including, without limitation, fonts, icons, link buttons, wallpaper, desktop themes and/or unlicensed merchandise. This prohibition applies regardless of whether the derivative materials are sold, bartered or given away.
Use of the Website will require you to create a user account. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your account. You agree to immediately notify us of any unauthorized use of your password or account and/or any breach of security that you become aware of. You agree to ensure that you properly close out of your account at the end of each session.
You agree that any information you provide to us through the Website will be accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete as of the date the information was provided, or if we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right, without limitation, to suspend or terminate any and/or all of your accounts and to refuse any and all current or future use of the Website (or any portion thereof) and/or services and information provided on the Website.
You agree that you will not disclose our Confidential Information to any person and/or entity, other than as necessary to use the services and/or information provided on the Website. You will not use or permit the use of any Confidential Information except as necessary in connection with the services and/or information. You shall use at least the same degree of care in safeguarding the Confidential Information as you use in safeguarding your own confidential information, but in no event, shall you use less than due diligence and care. “Confidential Information” means all information or material which: (i) is obtained from password protected portions of the Website or (ii) (A) is marked “Confidential,” “Restricted,” or other similar marking, (B) is known by the parties to be considered confidential, or (C) is or should be known or understood to be confidential or proprietary by an individual exercising reasonable judgment.
No unlawful or prohibited use
If you are under the age of 13, you may not use this Website.
As an express condition of your use of this Website, you warrant to CPA Organizer, LLC that you will not use this Website for any purpose and/or manner that violates any federal, state, or local law or regulation or that is prohibited by these terms and conditions. If you violate any of these terms or conditions, your permission to use this Website shall automatically end.
You may not, without our prior written permission, use any computer code, data mining software, “robot,” “bot,” “spider,” “scraper,” or other automatic device, or program, algorithm or other similar or like methodology with similar processes or functionality, or any manual process, to monitor or copy any of the web pages, data or content found on this Website or that may be accessed through this Website. You may not republish content from this Website onto any other website or use in-line or other linking to display such content without our permission. You shall not introduce viruses, spyware and/or other malicious code to this Website. You represent and warrant that you use frequently updated, commercially standard, virus protection software to ensure that the system you use to access our Website is virus free.
No responsibility for third-party services, sites or content
This Website may contain links to third-party Web sites (“Third-Party Sites”) or third-party content (“Third-Party Content”) and may provide third-party services (“Third-Party Services”), including, but not limited to, Add-ons, payment processors, and account aggregation and integration that you may use in connection with your use of the Services. You use Third Party Sites, Third-Party Content (together, the “Third Party Materials”) or Third-Party Services at your own risk.
CPA Organizer, LLC makes no claim or representation regarding Third-Party Materials and Third-Party Services, and provides them or links to them only as a convenience. Inclusion in the Services of Third-Party Materials does not imply endorsement, adoption or sponsorship of, or affiliation with, such Third-party Materials. CPA Organizer, LLC accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of Third-Party Materials, or Web sites linking to the Services. When you leave our Website, our terms and policies no longer govern, and when you use Third-Party Services their terms and policies apply. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Materials and third-Party Services, and you should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
In particular, CPA Organizer, LLC uses Finicity, Inc., (Finicity) for account aggregation and integration. Users of automated bank account feeds enabled by Finicity data gathering service from within the Service agree to the Finicity Term of Use and Minimum End User License Terms (attached hereto in Exhibit “A”). CPA Organizer, LLC has no obligations or liability to you in relation to the Finicity Service or for any other service that Finicity provides to you. If you have questions regarding Finicity Service, refer to Exhibit “B” attached hereto.
Transactions with third parties
Your correspondence or business dealings with and/or participation in promotions of, advertisers or third parties found on or throughout the Website, including without limitation with respect to the payments, messaging, and delivery of related products and/or services and any and all other terms, conditions, warranties and/or representations associated with such dealings, are solely between you and such third parties and are not binding on us.
Links to our website
We grant you a personal, limited, revocable, non-transferable and nonexclusive right to create a hyperlink to the home page of the Website so long as
the link or your linking website does not portray us or any of our services and/or information in a false, misleading, derogatory, or otherwise offensive matter;
your linking website complies with any and all applicable laws and regulations and does not otherwise violate this Agreement and/or the rights of others; and
Changes to website
We may make improvements and/or changes in the information, services, products, and/or other materials on this Website, at any time, without notice.
Notice and procedure for making claims of copyright infringement
If you believe that any material contained on the Website infringes your copyright or other intellectual property rights, you should notify CPA Organizer, LLC of your copyright infringement claim in accordance with the following procedure. CPA Organizer, LLC will process notices of alleged infringement which it receives and will take appropriate action as required by the Digital Millennium Copyright Act (DMCA) and other applicable intellectual property laws.
Pursuant to the DMCA, all notifications of claimed copyright infringement on the Website should be sent to our Designated Agent: Shawn Khoja and can be reached at Shawn@mycpadashboard.com
Under the DMCA, the notification of claimed infringement must include the following:
- An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest.
- Identification of the copyrighted work (or works) that you claim has been infringed.
- A description of the material that you claim is infringing, and the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the page of the web site where it is lawfully posted; the name, edition and pages of a book from which an excerpt was copied, etc.).
- A clear description of where the infringing material is located on our Website, including as applicable, its URL, so that we may locate the material.
- Your name, address, telephone number, and e-mail address.
- A statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
THE DESIGNATED AGENT IS PROVIDED SOLELY FOR NOTIFYING US THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. DO NOT SEND ANY INQUIRIES UNRELATED TO COPYRIGHT INFRINGEMENT (e.g., REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OF E-MAIL ABUSE, etc.) TO THE DESIGNATED AGENT AS YOU WILL NOT RECEIVE A RESPONSE. WE CAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER’S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.
We will, in appropriate circumstances, terminate repeat infringers. If you believe that an account holder or subscriber is a repeat infringer, please follow the instructions above to contact CPA Organizer, LLC and provide information sufficient for us to verify that the account holder or subscriber is a repeat infringer.
- Governing Law. This Agreement shall be governed by the laws of the State of Texas, without regard to conflicts of law provisions. Any legal action or proceeding between CPA Organizer, LLC and you related to this Agreement will be brought exclusively in a federal or state court of competent jurisdiction sitting in the State of Texas, County of Dallas.
- Entire Agreement. This Agreement, along with any Supplemental Agreements, is the entire and exclusive agreement between the parties, and it supersedes all previous communications, representations or agreements, either oral or written, between them with respect to this subject matter. No representations or statements of any kind made by us, which are not included in this Agreement, shall be binding on us.
- Amendments. You may not modify or amend this Agreement in whole or in part without the prior written consent of one of our authorized representatives. We may replace or amend this Agreement from time to time by posting new Terms of Service to this Website. Please check the Terms of Service periodically for changes. Your subsequent use of the Website, or any content, products, services or materials provided through the Website, will be subject in all respects to the Terms of Service in force at the time of such subsequent use.
- Waiver. No waiver of any provision herein shall be valid unless in writing and signed by both our authorized representative and you. Our failure to insist upon or enforce strict performance of any provision of this Agreement or any right shall not be construed as a waiver of any such provision or right.
- Severability. If any provision of this Agreement is deemed to be illegal or unenforceable, the remainder of this Agreement shall be unaffected and shall continue to be fully valid, binding, and enforceable.
- Headings. The headings contained herein are for convenience only and shall have no legal or interpretive effect.
- Other. We may assign our rights and/or duties under this Agreement to any party at any time without notice to you.
MINIMUM END USER LICENSE TERMS
1. LICENSEE ACCESS INFORMATION AND ACCOUNT DATA. You are solely responsible for (a) maintaining the confidentiality and security of your access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, used by you, or anyone you authorize on your behalf, to access the Services and your provider accounts (collectively, “Licensee Access Information”), and (b) preventing unauthorized access to or use of the information, files or data that you store or use in or with the Services (collectively, “Account Data”). You will be responsible for all electronic communications, including account registration and other account holder information, email and financial, accounting and other data (“Communications”) entered using the Licensee Access Information. It is assumed that any Communications received through use of the Licensee Access Information were sent or authorized by you. You agree to immediately notify us if you become aware of any loss, theft or unauthorized use of any Licensee Access Information. We reserve the right to deny you access to the Services (or any part thereof) if we reasonably believe that any loss, theft or unauthorized use of Licensee Access Information has occurred. You must inform us of, and hereby grant to us and our third party vendors permission to use, Licensee Access Information to enable us to provide the Services to you, including updating and maintaining Account Data, addressing errors or service interruptions, and to enhance the types of data and services we may provide to you in the future.
Anonymous, aggregate information, comprising financial account balances, other financial account data, or other available data that is collected through your use of the Services, may be used by our third party vendors to conduct certain analytical research, performance tracking and benchmarking. Our third party vendors may publish summary or aggregate results relating to metrics comprised of research data, from time to time, and distribute or license such anonymous, aggregated research data for any purpose, including but not limited to, helping to improve products and services and assisting in troubleshooting and technical support. Your personally identifiable information will not be shared with or sold to third parties.
2. PROVIDER SERVICES.
2.1 General. In connection with your use of the Services and as part of the functionality of the Services, you may have access to certain online services or information that may be made available by your provider(s) (“Provider Services”), including online banking, online payment, online investment account download, online bill pay, online trading, and other account information available from your provider(s). The Services are designed to allow you to access Provider Services (if and to the extent provided by your provider(s)) to set up banking and other information, schedule the Services to access your account(s), download transactions into the Services and otherwise aggregate information from your account(s) with your provider(s). You acknowledge and agree that we have no control over the provision of Provider Services or provision of access to the Provider Services by your provider(s), do not guarantee that you will be able to use the Services with the Provider Services, and will have no liability whatsoever for any actions or inactions on the part of the provider(s) resulting in your inability to use the Services to access your accounts, obtain data, download transactions, or otherwise use or access the Provider Services.
2.2 Collection of Provider Account Information. You acknowledge that in accessing your data and information through the Services, your provider account access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, and the actual data in your account(s) with such provider(s) such as bank and other account balances, credit card charges, debits and deposits (collectively, “Provider Account Data”), may be collected and stored in the Services. You authorize us and our third party vendors, in conjunction with the operation and hosting of the Services, to use certain Provider Account Data to (a) collect your Provider Account Data, (b) reformat and manipulate such Provider Account Data, (c) create and provide hypertext links to your provider(s), (d) access the providers’ websites using your Provider Account Data, (e) update and maintain your account information, (f) address errors or service interruptions, (g) enhance the type of data and services we can provide to you in the future, and (h) take such other actions as are reasonably necessary to perform the actions described in (a) through (g) above. You hereby represent that you are the legal owner of your Provider Account Data and that you have the authority to appoint, and hereby expressly do appoint, us or our third party vendors as your agent with a limited power of attorney, and appoint us or our third party vendors as your attorney-in-fact and agent, to access third party sites, retrieve and use your Provider Account Data with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person, including, without limitation, accepting any new and/or updated terms and conditions from your provider on your behalf. You further acknowledge that we do not, nor does our third party vendor review your Provider Account Data and agree that we are not responsible for its completeness or accuracy. Any transactions or informational activities performed at any provider’s website are not made through the Services and we assume no responsibility for such transactions or activities. You are solely responsible for any charges associated with your provider(s).
2.3 Information from Providers’ Websites. You acknowledge and agree that (a) some providers may not allow the Services to access the Provider Services, (b) providers may make changes to their websites, with or without notice to us, that may prevent or delay aggregation of information from such websites, and (c) the Services may “refresh” the Provider Account Data by collecting the Provider Account Data nightly, so your most recent transactions may not be reflected in any account balances or other account information presented to you in the Services. If you see a discrepancy in the Provider Account Data, and in any case before making any transactions or decisions based on such account information presented in the Services, you should check the last refresh date for the account and confirm Provider Account Data is correct by following the link back to the applicable provider or otherwise confirm that Provider Account Data is up to date and accurate.
3. SOFTWARE USE, STORAGE AND ACCESS. We shall have the right, in our sole discretion and with reasonable notice, to establish or change limits concerning use of the Services, temporarily or permanently, including but not limited to (a) the amount of storage space you have on the Services at any time, and (b) the number of times (and the maximum duration for which) you may access the Services in a given period of time. We reserve the right to make any such changes effective immediately to maintain the security of the system or Licensee Access Information or to comply with any laws or regulations, and to provide you with electronic or written notice within thirty (30) days after such change. You may reject changes by discontinuing use of the Services to which such changes relate. Your continued use of the Services will constitute your acceptance of and agreement with such changes. Maintenance upon the Services may be performed from time-to-time resulting in interrupted service, delays or errors in the Services. Attempts to provide prior notice of scheduled maintenance will be made, but provider cannot guarantee that such notice will be provided.
4. EXPORT RESTRICTIONS. You acknowledge that the Services and any software underlying such Services are subject to the U.S. Export Administration Regulations (15 CFR, Chapter VII) and that you will comply with these regulations. You will not export or re-export the software or Services, directly or indirectly, to: (a) any countries that are subject to U.S. export restrictions; (b) any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; or (c) any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further acknowledge that this product may include technical data subject to export and re-export restrictions imposed by U.S. law.
5. DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES AND ANY THIRD PARTY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THE THIRD PARTY VENDOR AND ITS LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, AND DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES OR ANY THIRD PARTY SERVICES; IN WHOLE OR IN PART, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. YOU UNDERSTAND AND EXPRESSLY AGREE THAT ANY USE OF THE SERVICES OR THIRD PARTY SERVICES WILL BE AT YOUR SOLE RISK. VENDOR AND ITS (a) LICENSORS AND (b) THIRD PARTY VENDORS DO NOT WARRANT THE COMPREHENSIVENESS, COMPLETENESS, CORRECTNESS, LEGALITY, OR ACCURACY OF THE SERVICES OR THIRD PARTY SERVICES, IN WHOLE OR IN PART, OR THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR FREE. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICES OR THIRD PARTY SERVICES.
6. COMPLIANCE WITH FAIR CREDIT REPORTING ACT
6.1 You acknowledge that applications that use consumer data to generate scores or other reports or that otherwise will be utilized by application users in connection with making a decision as to whether to enter into the following types of transactions or on what terms the transaction will be offered (“Financial Apps”) may be subject to the provisions of the Federal Fair Credit Reporting Act (“FCRA”) and equivalent state laws:
- Extend credit to an applicant.
- Issue an insurance policy to an applicant.
- Employ a job applicant.
- Rent an apartment to a prospective tenant.
- Sell a product to, provide a service to or otherwise enter into a transaction initiated by a prospective customer.
- Accept a check or credit card as payment for a sale.
- Other activities set forth in Section 604 of the FCRA (15 U.S.C. §1681b) and in interpretations of Section 604 by the Federal Trade Commission and the Bureau of Consumer Financial Protection.
6.2 You acknowledge and agree that, in connection with Finicity Corporation’s (“Finicity”) product and services as a third party vendor of ours, data will be transmitted or made available in a mechanical manner by Finicity, and that to the extent Finicity is involved, Finicity will not alter the substance of the data. Finicity will be acting only as a service provider and conduit and not as a consumer reporting agency in connection with the data. Finicity is providing the service of data delivery only as requested by you, the ultimate end-user, as requested and authorized by you, the owner of such information. You acknowledge that Finicity is not a reseller of data but simply provides the service of transferring data as requested and you from one party to the party directed and authorized by you to receive the data.
7. THIRD PARTY BENEFICIARY; INDEMNIFICATION. You agree that Finicity is a third-party beneficiary of the above provisions, with all rights to enforce such provisions as if Finicity were a party to this Agreement. You agree to protect Finicity and their affiliates from any and all third-party claims, liability, damages, expenses and costs caused by or arising from your use of the Services, your violation of these terms or your infringement, or infringement by any other user of your account, of any intellectual property or other right of anyone.
8. LIMITATION OF LIABILITY. YOU AGREE THAT NEITHER WE NOR FINICITY NOR ANY OF THEIR AFFILIATES, ACCOUNT PROVIDERS OR ANY OF THEIR AFFILIATES WILL BE LIABLE FOR ANY HARMS, WHICH LAWYERS AND COURTS OFTEN CALL DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, EVEN IF WE OR FINICITY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES, (iii) ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SERVICE; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANYONE ON THE SERVICE; (vi) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY ACCOUNT PROVIDER SITE, EVEN IF THE PROVIDER HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES; OR (vii) ANY OTHER MATTER RELATING TO THE SERVICE.
FINICITY SERVICES AVAILABILITY, CONFIGURATION, SUPPORT AND MAINTENANCE
1. Finicity Developer Support
Finicity will provide Client technical support through the Finicity Developer Portal. The Portal provides Knowledgebase, Developer Community, FAQs, and an electronic ticket submission mechanism. Developer Support tickets may be submitted 24/7 and must be submitted by designated Client escalation team members as mutually agreed in order to be accepted by Finicity. The Finicity Developer Support team will respond to support queries from 9AM to 5PM Mountain Time, Monday through Friday (except for U.S. Holidays). In the event of unscheduled platform downtime, Client may contact the Finicity Operations Alert System at +1(801) 658-9222 to submit an emergency downtime message. Messages submitted on this system will be routed to our Network Operations Team and launch our emergency incident response and escalation process.
2. Data Source Support
Finicity will use commercially reasonable efforts to restore Data Source connectivity as soon as possible. While Finicity will make commercially reasonable efforts to restore connectivity for the top 40 Financial Institutions within 24 hours and all other Financial Institutions within 48 hours of notification by Client, Data Source availability and repair time cannot be guaranteed due to factors outside of Finicity’s control, including the availability of information provided by the Financial Institutions. In some instances, some Data Sources will not be able to be restored and will be removed pursuant to Section 5.6 of the Master Services Agreement. In addition, Data Source connectivity support ticket requests must be submitted through the Finicity API with the corresponding error information in order to be accepted by Finicity and subject to the commercially reasonable efforts to restore connectivity within the period outlined above.
3. Finicity Platform and API (System) Services Availability
(a) System Availability Calculation: means the ratio of hours found by dividing (i) a numerator consisting of the actual number of hours the Finicity Services is available in any rolling three (3) calendar month period by (ii) a denominator consisting of the total number of hours in the three (3) month period (excluding
(x) Client outages or service issues (y) scheduled maintenance and deploys and (z) Force Majeure Events. Finicity employs a system availability-monitoring tool that operates on a twenty-four hour, seven day a week basis.
(b) If Finicity fails to meet the System Availability standards set forth in Section (c) below during any given rolling three (3) calendar month period, Finicity shall apply the percentage credit set forth in Section (c) below, based on the amount invoiced to Client for the Finicity Services accrued and paid by Client during the three (3) month period. The System Availability standard shall be calculated based on a three (3) month average and a credit applied if the calculated average for the three (3) month period is less than the System Availability standard. Finicity shall apply such credits against any amounts invoiced to Client for the Finicity Services from the next complete billing cycle following the three-month period. Finicity has no obligation to issue any service credit unless (i) Client reports the service failure to Finicity immediately on becoming aware of it; and (ii) requests such service credit in writing within thirty (30) days of the service level failure. This Section 3 sets forth Provider’s sole obligation and liability and User’s sole remedy for any Service level failure.
(c) System Availability Standards during rolling three month period.
(i) System Availability greater than or equal to 99.5%: no credit.
(ii) System Availability greater than or equal to 99.0% and less than 99.5%: credit of 5% of the next month’s invoice as provided above.
(iii) System Availability greater than or equal to 98.0% and less than 99.0%: credit of 7% of the next month’s invoice as provided above.
(iv) System Availability less than 98.0%: credit of 10% of the next month’s invoice as provided
In the event Client has received a credit pursuant to Sections (c)(i) through (c)(iv) above, the calculation of the actual number of hours the Finicity Services is available shall be reset and, the rolling three (3) calendar month period shall begin anew with the following month without regard to the prior months’ system availability statistics.
(d) The System Availability calculation and credit do not apply to any unavailability, suspension, or termination that result from:
(i) Any force majeure event or Internet access or related problems beyond the demarcation point of Finicity Systems.
(ii) That result from any actions or inactions of Client or Users;
(iii) That result from Client’s equipment, software or other technology;
(iv) That result from any maintenance as provided for pursuant to the Agreement; or
(v) Arising from our suspension and termination of your right to use the Finicity Systems in accordance with the Agreement.
4. Disaster Recovery & Business Continuity.
a. Finicity has put in place and will maintain during the term of this Agreement, a disaster recovery plan designed to minimize the risks associated with a disaster affecting Finicity’s ability to provide the Finicity Services under this Agreement that are consistent with industry standard practices. Finicity will test its disaster recovery plan annually.
b. On an annual basis, Finicity shall provide its then-current business continuity plan (“Business Continuity Plan”) to Client. The Business Continuity Plan shall include: (a) services and Protected Information backup and recovery procedures; and (b) fail-over procedures. Finicity shall test its Business Continuity Plan on an annual basis and shall provide the test results not more than once annually to Client upon its request.
c. Finicity’s recovery time objective (RTO) under such Business Continuity Plan is seventy- two (72) hours from the time Finicity declares a disaster. Finicity will maintain adequate backup procedures in order to recover Client’s User data to the point of the last available good backup, with a recovery point objective (RPO) of twenty-four (24) hours, depending on the availability of data. Finicity will test its disaster recovery plan annually. Annually upon request, Finicity will provide a summary of its disaster recovery plan and test results, excluding any proprietary information or member information.
d. As part of the Finicity Services, Finicity will, at its own expense, promptly replace or regenerate from Finicity’s media any Protected Information that Finicity has otherwise lost or damaged, or will obtain at Finicity’s expense a new copy of such lost or damaged Protected Information to the extent such is recoverable. The foregoing notwithstanding, Finicity’s application programming interfaces and any data deleted from User interaction with the Finicity Services are excluded from the requirements herein.
5. Breach/Unauthorized Access.
Finicity will promptly and fully disclose to Client any information related to a breach or unauthorized access of the Protected Information maintained by Finicity and (a) take appropriate action to address any incident of unauthorized access to enable Client to expeditiously implement its security response program as required by applicable federal, state or local laws, rules or regulations, and (b) provide Client with assurances that such action has occurred.
6. Additional Finicity Obligations.
a. Finicity will process and use the Protected Information only pursuant to the terms expressly provided in this Agreement, any applicable Statement of Work and in accordance with Applicable Law. For the avoidance of doubt, Finicity shall not, and shall not permit any third party to, access, use, erase, copy, process, disclose, transfer or transmit Protected Information for any purpose other than to provide the Finicity Services.
b. Finicity will conduct due diligence reviews of its subcontractors related to its processing and use of the Protected Information.
c. Finicity and each of its subcontractor’s processes Protected Information in compliance with data security protocols consistent with this Agreement and Applicable Law, which rules include a provision that prohibits the disclosure of Protected Information to third parties except in accordance with data security protocols consistent with this Agreement and Applicable Law.
Each incident is assigned a priority based on the severity of the support request. The severity is determined by:
The End Users ability to use the software to execute the intended business function; The extent to which the End User is unable to perform that function;
The impact on the business of not being able to perform that function as well as the standard use of the function as designed by Finicity.
Support request priorities are:
8. Resolution Times.
||The Services in the production environment is not available or critically affected, and no acceptable workaround or alternative solution is available.
||The Services in the production environment is seriously affected, and no acceptable workaround or alternative solution is available.
||The Services in the production environment is restricted, but operational, and no acceptable workaround or alternative solution is available.
||The Services in the production environment is generally unaffected, or a request for information, enhancement, product clarification, or documentation is needed.
Response and resolution times for each is set out in the following table:
First Response Time is defined as the time from when an issue is raised with Finicity until an assignment to a specific representative is made and that representative has acknowledged receipt of the issue.
Resolution Time is defined as the time from when an issue is raised with Finicity until a reasonable fix is provided which could be in the form of a recommended workaround to the problem or acknowledgement by the Finicity Product Management department of a required code change, which will be communicated to the Client.
Issues requiring product code changes are not held to the corresponding resolution time standard, however all attempts to supply a valid workaround will be made by Finicity. The response and resolution time targets listed below represent a standard of average response and resolution times for all clients over time, rather than a resolution window for a single issue. This means that often issues may be resolved faster than the target time.
||First Response Time