Terms & Conditions
Thank you for selecting the Software offered by Budgyt Inc. (“Budgyt,” “we,” “our,” or “us”). Review these terms (“Agreement”) thoroughly. This Agreement is a legal agreement between you (“Licensee”, or “you”) and Budgyt. By installing, accessing, or using the Software, you agree to these terms. If you do not agree to this Agreement, then you may not use the Software.
1. AGREEMENT
This Agreement describes the terms governing your use of the Budgyt Software, including content, updates, and new releases (collectively, the “Software”). It includes by reference:
- Budgyt’s Privacy Statement is provided to you in the Software and available on the website or provided to you otherwise;
- Additional Terms and Conditions, which may include those from third parties; and
- Any terms provided separately to you for the Software, including product or program terms, ordering, activation, payment terms, etc.
2. DEFINITIONS
a. "Install" means placing the Software available on a secure server accessible via the Chrome browser.
b. "Use" means Accessing the Software available on a secure server accessible via the Chrome browser.
c. "Subdomain" refers to an access-point on the Licensor's servers where Licensee will have access to their unique platform and data.
d. "Department" means any department in which data is present in more than ten general ledger accounts within the Software.
e. “Effective Date” means the date on which the ordering and activation terms are signed by Licensee.
f. “Initial Term” means the period commencing on the Effective Date and continuing for 12 months unless earlier terminated in accordance with this Agreement. Upon expiration of the Initial Term, this Agreement will automatically renew for additional successive one-year terms (each a “Renewal Term”), unless earlier terminated in accordance with this Agreement or unless either Party provides written notice of non-renewal to the other Party no less than thirty (30) days prior to the end of the then-current term.
g. “Term” means The Initial Term and all Renewal Terms.
3. GRANT OF RIGHTS.
a. Budgyt hereby grants to Licensee a nonexclusive right and license during the Term to access and use the Software for unlimited users and for such number of Departments as designated in the ordering and activation terms. Licensee may exercise this right and license via Authorized Users. “Authorized User” means Licensee, its affiliates, and each of their respective officers, directors, employees, consultants, contractors, and agents who are authorized by Licensee to access and use the Software under the rights granted to Licensee under this Agreement.
b. Budgyt hereby grants to Licensee a non-exclusive license to use the Documentation during the Term. “Documentation” means Budgyt’s user manuals, handbooks, and guides relating to the Software.
4. LICENSE SET UP AND INSTALLATION FEE
a. Development Programming & Design: Budgyt will release general upgrades periodically as we develop more features, address security needs, and improve on current features. The licensee has the right and license to access upgrades to core features and any additional features purchased as detailed in the ordering and activation terms with an active agreement at no extra charge. Some new features may be subject to an additional charge and may be purchased when needed. Fees for any additional features will be prorated to the end of the prevailing subscription period. These will be listed at www.budgyt.com/pricing. All such features and upgrades will become part of the Software hereunder.
b. Integration: Licensee may use the Budgyt import tool to update Licensee’s Data as frequently as desired.
c. Installation & Setup: Setup includes building the initial structure of the Licensee’s chart of accounts and departmental organization based on budget templates provided by the Licensee, import of historical data for 2 years, and initial training.
d. Provided that Licensee has not requested more Departments or additional add-on features, the annual subscription fees for each Renewal Term, if any, may be subject to a maximum annual percentage increase of 7.5% to be determined with reference to the US PPI index detailed at www.budgyt.com/pricing.
e. If Licensee requires additional Departments or add-on features during the subscription term, these may be requested, and any additional fees will be pro-rated to the end of the current subscription period. Rates for additional departments are noted in the ordering and activation terms.
f. Secondary Setup Fees: If Licensee requires assistance from Budgyt after the completion of the initial implementation of the Software in order to make large-scale changes to the original setup (e.g., to completely change the chart of accounts when changing accounting software), a second setup fee may be charged. This fee will be calculated based on the number of hours required to facilitate the changes and will be charged at $275 per hour.
g. Training & Support: Budgyt is designed to be an intuitive program, but training may be required. With a signed agreement, Budgyt will provide remote basic user training via screen share as long as the agreement is active at no additional cost. All users have 24/7 access to our user Community Knowledge Base, which includes a library of over 75 video tutorials and over 350 articles, in addition to access to our chat support feature. Advanced Support that includes access to Budgyt Gurus and customized training can be provided for an additional fee of $275 an hour.
h. Advice: We do not provide accounting advice. Our onboarding and support teams may discuss best practices in relation to budgeting and how best to use the Budgyt platform to help you budget the way you actualize your accounting data. We do not commit to providing advice on accounting rules or techniques.
i. Reports: There are many standard reports that come with the Software. However, if Licensee has additional reporting needs, then Licensee may submit a request for reports, and Budgyt will provide an estimated fee for the development of the report. Typically reports are billed at $275 an hour.
j. Travel & Lodging: to be determined as needed and paid for by Licensee, billed at $275 an hour plus out-of-pocket travel expenses. Currently not expected expense. Licensee is not obligated to reimburse Budgyt for any expenses unless and until Licensee approves such expenses in writing.
5. TERMINATION:
a. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Licensee may terminate this Agreement, for any reason, upon thirty (30) days prior to written notice to Budgyt.
b. Upon termination or expiration of this Agreement, Budgyt will refund to Licensee all subscription fees if the termination notice is received within 30 days of the Effective Date, 50% of subscription fees if the termination notice is received within 90 days of the Effective Date, and shall make no refund if the termination notice is received greater than 90 days from the Effective Date.
c. This Section 5(c) and the following Sections shall survive any termination or expiration of this Agreement: 5(b), 6, 9, 10, 11, 12, 13, and 14.
6. TITLE TO SOFTWARE: Budgyt retains title to and ownership of the Software and all enhancements, modifications, and updates of the Software.
7. MODIFICATIONS AND ENHANCEMENTS: Licensee will make no efforts to reverse engineer the Software or make any modifications or enhancements to the Software without Budgyt’s express written consent.
8. WARRANTY: BUDGYT REPRESENTS AND WARRANTS TO LICENSEE THAT:
a. THE SOFTWARE DOES AND WILL THROUGHOUT THE TERM FUNCTION AND CONFORM IN ALL MATERIAL RESPECTS WITH THE DESCRIPTION AND SPECIFICATIONS SET FORTH IN THE LICENSEE’S INSTANCE OF THE SOFTWARE AND/OR DOCUMENTATION;
b. THE SOFTWARE IS AND, THROUGHOUT THE TERM, WILL BE PROVIDED IN COMPLIANCE WITH ALL APPLICABLE LAWS;
c. THE SOFTWARE DOES NOT AND THROUGHOUT THE TERM WILL NOT CONTAIN ANY VIRUS OR OTHER MALICIOUS CODE;
d. THE SOFTWARE AND LICENSEE’S AND AUTHORIZED USERS’ USE THEREOF DOES NOT AND THROUGHOUT THE TERM WILL NOT VIOLATE ANY LAWS OR MISAPPROPRIATE OR INFRINGE ANY RIGHT OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY INTELLECTUAL PROPERTY RIGHT; AND
e. THROUGHOUT THE TERM, THE SOFTWARE WILL PERFORM ALL SERVICES REQUIRED UNDER OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION IMPLEMENTATION, SUPPORT, AND MAINTENANCE SERVICES, IN A TIMELY, PROFESSIONAL, AND WORK-PERSON-LIKE MANNER CONSISTENT WITH GENERALLY ACCEPTED INDUSTRY STANDARDS. THE WARRANTIES PROVIDED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. INDEMNIFICATION: Budgyt shall indemnify, defend, and hold harmless Licensee, its affiliates, and their respective officers, directors, employees, customers, agents, successors, and assigns, including without limitation Authorized Users, from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) incurred by Licensee resulting from any third-party claim, suit, action, or proceeding arising from or related to:
a. Any actual or alleged breach of this Agreement by Budgyt;
b. Any claim that the Software or any Budgyt intellectual property, or Licensee’s or Authorized User’s use of any of the foregoing, infringes or misappropriates any intellectual property right of any third party; or
c. Budgyt’s actual or alleged gross negligence, willful misconduct, or violation of the law.
10. DAMAGE LIMITATIONS:
a. EXCEPT FOR DAMAGES AND LIABILITIES ARISING FROM (A) OBLIGATIONS UNDER SECTION 9, (2) BREACH OF SECTION 11, (C) BREACH OF SECTION 13, OR (D) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
b. EXCEPT FOR DAMAGES AND LIABILITIES ARISING FROM (A) OBLIGATIONS UNDER SECTION 9, (2) BREACH OF SECTION 11, (C) BREACH OF SECTION 13, OR (D) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE AMOUNT RECEIVED BY BUDGYT FROM LICENSEE AS COMPENSATION FOR THE SOFTWARE DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE TIME SUCH CLAIM AROSE.
11. CONFIDENTIALITY: From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure, is:
(a) in the public domain;
(b) known to the receiving Party at the time of disclosure;
(c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or
(d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required
(i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or
(ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of this Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
12. ATTORNEY FEES: If any legal action is necessary to enforce this Agreement, the prevailing Party shall be entitled to reasonable attorney fees, costs, and expenses in addition to any other relief to which it may be entitled.
13. LICENSEE DATA; WORK PRODUCT:
a. "Licensee Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of the Licensee or an Authorized User through the Software or to be accessed, hosted, processed or stored by Budgyt or the Software.
b. Budgyt acknowledges that, as between Budgyt and Licensee, Licensee owns all right, title, and interest, including all intellectual property rights, in and to Licensee Data. Licensee hereby grants to Budgyt a non-exclusive, royalty-free, limited, revocable license during the Term to reproduce, distribute, and use and display Licensee Data solely to the extent necessary for Budgyt to provide the Software to Licensee. Budgyt will refrain from all uses of Licensee Data not expressly authorized in this Agreement.
c. All reports, works of authorship, and other materials created, authored, or prepared by the Software or Budgyt for Licensee under or related to this Agreement are and will be “work made for hire” to be owned by Licensee, and, in any event, Budgyt hereby assigns all right, title and interest, including without limitation all intellectual property rights, in and to such reports to Licensee.
14. SUSPENSION OF ACCESS FOR NON-PAYMENT Budgyt reserves the right to suspend access to any platform for the failure of processing payment by the agreed due date. Payment in full is required to reinstate access to the platform.
15. GENERAL PROVISIONS:
a. Complete Agreement: This Agreement, together with all schedules and exhibits referred to in this Agreement, including the ordering and activation terms, all of which are incorporated herein by reference, constitutes the sole and entire Agreement between the Parties. This Agreement supersedes all prior understandings, agreements, representations, and documentation relating to the subject matter of this Agreement. Any Confidential Information disclosed by Licensee to Budgyt under a Nondisclosure Agreement prior to the Effective Date is deemed “Confidential Information” hereunder subject to the terms and conditions of this Agreement.
b. Modifications: Modifications and amendments to this Agreement, including any exhibit, schedule or attachment hereto, shall be enforceable only if in writing and signed by authorized representatives of both Parties.
c. Applicable Law: This Agreement will be governed by the laws of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
d. Notices: All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given as follows:
- When delivered personally to the recipient’s address as appearing in the introductory paragraph to this Agreement;
- Three days after being deposited in the United States mail, postage prepaid to the recipient’s address as appearing in the introductory paragraph to this Agreement; or
- When sent by fax, email, or telex to the last fax, email, or telex number of the recipient known to the Party giving notice. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail or the recipient delivers a written confirmation of receipt.
e. Any Party may change its address appearing in the introductory paragraph to this Agreement by giving notice of the change in accordance with this paragraph.
f. No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture, or other forms of joint enterprise between the Parties. The Parties are independent contractors.
g. Severability: If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable, such term or provision in any other jurisdiction.
h. Jury Trial Waiver: To the fullest extent permitted under applicable law, each Party hereby irrevocably waives its right to a trial by jury in connection with any legal suit, action, or proceeding arising out of or related to this Agreement.
i. Injunctive Relief: Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 11 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
j. Counterparts: This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
k. Assignment: Neither Party may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of the other Party, provided, however, that either Party may assign its rights or delegate its obligations, in whole or in part, without such consent and upon thirty (30) days prior written notice to the other Party, to an entity that acquires all or substantially all of the business or assets of such Party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any purported assignment or delegation in violation of this section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. For clarity, Budgyt may not subcontract any portion of its obligations under this Agreement with Licensee’s prior written consent.
l. Cumulative Remedies: No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
