These Terms of Service form part of a contract between FinCEN Report Company, a Georgia limited liability company (“FRC”) and any individual (a “Customer”) who creates an account through any website owned by FRC (the “FRC Site”) to receive services offered by FRC (the “Services”).
A Customer who is an individual, natural person may create an individual account (the “Individual Account”) for free.
A Customer who creates an account for a corporation, limited partnership, limited liability company or other legal entity that is not a natural person (in any such case, a “Company”) represents that the Customer is legally-authorized to create an account on behalf of the Company (the “Company Account”) and agrees to be responsible for the fees for the subscription (the “Subscription”) charged to the Company Account until responsibility is transferred to another Customer through the Company Site. and pursuant to which the Customer subscribes and agrees to pay for the Company’s Services (the “Subscription”).
1 Provisions Applicable to Individual Accounts.
1.1 Customer Representations. The Customer hereby represents, warrants and agrees that (a) the Customer is over 18 years of age and legally capable of entering into this Agreement, (b) all information entered by the Customer into her or her Individual Account is true and correct, (c) any image file uploaded by the Customer to the Individual Account is a true, correct and legitimate image of the authentic document shown in the image file, (d) the Customer will maintain control of the Individual Account and will not permit any other person to use the Customer’s login name or password, and (e) the Customer will use the Services solely for legal purposes.
1.2 No Forged or Altered Documents. The Customer may not upload to the Individual Account any forged or altered document or any image of a forged or altered document.
1.3 No Falsehood or Misrepresentation. If the Customer responds to any question or prompt in the Individual Account, the Customer promises that its answer will be true and correct. If a Customer submits a falsehood or a misrepresentation in response to any question or prompt, the Customer is breaching this Agreement and will be liable to indemnify and defend FRC against any third party claims, costs or expenses resulting therefrom.
1.4 Control of a Company Account. If a Customer creates, or takes control of, a Company Account, the Customer represents, warrants and agrees that (a) the Customer is legally authorized by to create or take control of such Company Account, (b) the Customer will pay the fees charged to the Company Account, and (c) the Customer will maintain control of the Company Account until the Customer either (i) closes the Company Account, or (ii) conveys control of the Customer Account to another Customer. A Customer who controls a Company Account is called a “Company Representative.”
2 Provisions Applicable to Company Accounts.
2.1 Subscriptions. Each Subscription entered into by a Company creates a contract binding on both the Company Representative who controls the Company Account and the Company itself, consisting of the Subscription and these Terms of Service. FRC may offer various types of Subscriptions from time to time, each of which will be described in an applicable Order.
2.2 Service Fees. FRC will provide, and the Company Representative will purchase and pay for, the Services specified in the Subscription for the fees specified therein (the “Service Fees”). The Company Representative in control of the Company Account and the Company itself will be jointly and severally liable for the Service Fees and the obligations of the Company as provided in the Subscription and these Terms of Service.
2.3 Fees, Taxes and Payment. The Company Representative will pay the Service Fees as set forth in the Subscription. The Company Representative must maintain a valid credit card on file with FRC and must authorize FRC to charge the Service Fees to such credit card. All fees are fully earned when due and non-refundable when paid. Any amounts payable to FRC not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less. If FRC retains an attorney or collection agency to enforce its rights under this Agreement, the Company and the Company Representative will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company’s reasonable attorneys’ fees.
2.4 Service Termination. A Company Representative may terminate a Subscription for Services at any time prior to the Subscription renewal date. Company may terminate a Subscription immediately and without any notice if the Company or the Company Representative violates any of these Terms of Service.
2.5 Limited Warranty.
2.5.1 Company represents and warrants that the Services will perform as described on the Company Site.
2.5.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, FRC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND FRC HEREBY EXPRESSLY DISCLAIMS THE SAME. FRC DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
2.5.3 FRC is not providing legal advice to any Customer or any Company. The Services consist of information storage, archiving, communications and document filing services pertaining to beneficial ownership reports under the Corporate Transparency Act and other laws. Each Customer and each Company must obtain legal advice from a licensed attorney with respect to any question of law involving the Services and the parties’ obligations under the Corporate Transparency Act or any other law.
3.1 Company Accounts. The Company Representative will be responsible to identify the individuals whose information must be included in the Company’s beneficial ownership report (the “Company Report”) to be submitted to FinCEN under the Corporate Transparency Act (the “CTA”). The Company Representatives agrees that it is responsible for identifying all of the applicable individuals whose information must be included in the Company Report (the “Covered Individuals”). The Company Representative must accurately identify each Covered Individual by name and email address.
3.2 Individual Accounts. Each Customer who creates an individual Account may receive an Information Request (an “Information Request”) from a Company that identifies that Customer as a Covered Individual. Each Customer agrees to respond promptly to an Information Request submitted by a Company.
3.3 Reported Information. If a Customer agrees to an Information Request from a Company, the Customer agrees that the Company may include that Customer’s personal information that is contained in the Customer’s Individual Account in the Company Report filed by the Company with FinCEN. The Customer understands and agrees that, by agreeing to have the Customer’s personal information included in the Company Report, the Customer represents and warrants that the Customer’s personal information is true and accurate. The Customer acknowledges and understands that the willful submission of false or inaccurate information, or the willful failure to file reports required by the CTA, is a crime.
3.4 Company Intellectual Property.
3.4.1 Except for the Customer’s limited right to utilize the Services, this Agreement does not transfer from FRC to Customer any of FRC’s proprietary technology, including, without limitation, the FRC Site, the services, software tools, algorithms, software (in source code and object code forms), user interface designs, architecture, and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by FRC or licensed to FRC from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of Company Technology conceived, reduced to practice or developed at any time (as applicable, the “FRC Technology”).
3.4.2 FRC Technology, and all rights, titles and interests in and to the FRC Technology shall remain solely with FRC. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the FRC Technology.
3.4.3 FRC’s trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of FRC.
3.4.4 Any feedback, data, answers, questions, comments, suggestions, ideas or the like that Customer sends to FRC relating to the Services will be treated as being non-confidential and non-proprietary. FRC may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever. FRC further reserves the right to collect, store, own, use and commercialize in any manner whatsoever any data or information created by or relating to the use of the Services or the operation of the Company Technology, including transaction data, trends and other data that do not specifically identify the Customer or any Company.
3.5.1 FRC will keep confidential Customer’s name, credit card information and other personal information provided by Customer to FRC Company (collectively, the “Customer Confidential Information”) except for such Customer Confidential Information that the Customer authorizes for submission in a Company Report.
3.5.2 FRC may use the Customer Confidential Information to administer the Customer’s account, collect fees owed by Customer and as reasonably necessary or convenient to facilitate the Services.
3.5.3 FRC may collect information regarding the Customer from sources other than the Customer Confidential Information (including data concerning Customer’s usage of the Services and the Company Site) (“Customer Non-Confidential Information”). FRC may use the Customer Non-Confidential Information for any purpose and may share Customer Non-Confidential Information with any party so long as the Customer Non-Confidential Information cannot be correlated with, or linked to, Customer Confidential Information. The FRC Site may use software cookies or web beacons to track Customer usage of the FRC Site or the Services. Information collected by FRC through such means is Customer Non-Confidential Information.
3.5.4 Notwithstanding Section 3.5.1, the following shall not be considered Customer Confidential Information: (i) any information that FRC can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by Customer; (ii) any information that was in the public domain prior to disclosure by Customer to FRC as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the Customer to FRC, comes into the public domain through no fault of FRC, or (iv) any information that is disclosed to FRC without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure.
3.6 Customer as a Company Representative. When acting as Company Representative, Customer acknowledges that all sales are final and non-refundable.
3.7 Limitation of Liability.
3.7.1 IN NO EVENT WILL FRC’S LIABILITY IN CONNECTION WITH THE SERVICES OR ANY SUBSCRIPTION, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO FRC BY CUSTOMER IN RESPECT THEREOF.
3.7.2 FRC CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. FRC WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
3.7.3 EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY SUBSCRIPTION, OR (EXCEPT AS PROVIDED IN THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
3.7.4 The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations in this Section shall not apply to liability arising on account of Customer’s indemnification obligations provided below.
3.8 Indemnification of FRC. Customer shall defend, indemnify and hold harmless FRC, its affiliates and their respective present, former and future shareholders, officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “FRC Indemnitees”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the FRC Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Customer’s breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Customer Information or any Company’s use of the Customer Information, (iii) violation by Customer or any of its agents of any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use of the Services in combination with hardware, software or content not provided by Company, (v) claims or actions by third parties relating to or arising out of Customer’s use of the Services, and (vi) any damage to FRC’s servers or other hardware caused by Customer.
4.1 Independent Contractor. FRC and each Customer are independent contractors and neither party may make contracts or enter into any agreements in the name of the other party, or obligate or bind the other party in any manner whatsoever.
4.2 Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Georgia, except that all arbitration and related proceedings conducted pursuant to Section 4.3 below, including without limitation confirmation proceedings, shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION BELOW MUST BE BROUGHT IN A GEORGIA STATE OR FEDERAL COURT LOCATED IN FULTON COUNTY, GEORGIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
4.3 Mandatory Arbitration. Notwithstanding Section 4.2 above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), as administered by the AAA in Fulton County, Georgia (or such other recognized provider of arbitration services agreed upon by both parties) before a single arbitrator, appointed in accordance with such rules. Any such dispute shall address only the claims brought by the applicable party and no party may represent a class of similarly situated persons. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds $100,000. Judgment upon the award may be entered in any court having jurisdiction thereof. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
4.4 Headings. The headings herein are for convenience only and are not part of this Agreement.
4.5 Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any Subscription, confirmation, correspondence or other communication of Customer or FRC, the terms and conditions of this Agreement shall control. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by FRC in its sole discretion, which modifications will be effective upon posting to the FRC Site.
4.6 Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
4.7 Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. FRC may give written notice to Customer via e-mail to the Customer’s e-mail address as maintained in FRC’s billing records or through the in-app messaging provided through the FRC Site.
4.8 Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
4.9 Assignment; Successors. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of FRC. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. FRC may assign its rights and obligations under this Agreement and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
4.10 Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than one year after the cause of action has arisen.
4.11 Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, FRC’s records of such execution shall be presumed accurate unless proven otherwise.
4.12 Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
4.13 No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns.
4.14 Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.