Base HQ, Inc. Master Services Agreement
Effective Date: Nov 10, 2022
This Base HQ, Inc. (“Base”) Master Services Agreement (the “MSA”) is comprised of the Terms of Service for the software and/or service that you have ordered, the Order Form for the software and/or service that you have ordered, and the Schedule for the software and/or service that you have ordered. As you order new software and services, the appropriate Schedule will be added to your MSA. The MSA, the applicable Terms of Service, and each Schedule, constitute the sole and entire agreement between you, or your company (or other legal entity) if you are executing this MSA on behalf of a company (or other legal entity), and Base with respect to the subject matter of this MSA, and supersedes all prior and contemporaneous understandings, agreements, representations, warranties, both written and oral, with respect to the subject matter.
Executive Assistant Subscription Services
Base Software as a Service
Executive Assistant Terms of Service
YOU AGREE THAT BY PLACING AN ORDER THROUGH AN ORDER FORM (“ORDER FORM”) THAT INCORPORATES THESE EXECUTIVE ASSISTANT TERMS OF SERVICE (THESE “TERMS”), YOU (“YOUR”, “YOUR”, OR “CLIENT”) AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THE ORDER FORM, THESE TERMS, AND THE MASTER SERVICES AGREEMENT (THE “MSA”). IF YOU ARE PLACING SUCH AN ORDER ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF ANY AGREEMENT, POLICY, OR DOCUMENT REFERENCED IN THESE TERMS, IN SUCH CASE “YOU”, “YOUR”, AND “CLIENT” AS USED IN THESE TERMS SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE THE AUTHORITY, OR IF YOU OR SUCH ENTITY DO NOT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THE ORDER FORM, THESE EXECUTIVE ASSISTANT TERMS OF SERVICE, OR THE MSA, YOU SHALL NOT PLACE AN ORDER OR USE THE SERVICES.
Client has engaged Base as an independent contractor for certain Services, as listed in the MSA. Base, in its sole discretion, may add Services to the MSA at any time with or without notice. To order any Service(s) from Base, Client must submit the applicable Order Form for the Service ordered. Base, in its sole discretion, may accept or reject any Order Form. Upon Base’s acceptance of any Order Form, Client agrees to the applicable terms and conditions for the Services ordered, which are listed in the Schedule for that Service.
Base will invoice Client according to any Order Form which Base accepts. Client shall pay the full amount to Base as indicated on the Order Form for the Service ordered according to the terms and conditions of the applicable Order Form. Services beyond the invoiced Services shall be billed at a variable rate per hour in USD, based on rate of usage, unless an alternative rate is agreed to in writing by both parties. Client authorizes Base to charge the Client’s credit card, or other payment account, for both the pre-payment and additional charges for expenses and Services provided beyond the invoiced amount. Base, in its sole discretion, may choose to pay certain expenses needed to complete the Services. Base will provide an itemized list of such expenses and Client shall reimburse Base for such expenses within thirty days’ notice of such expenses. Should Client fail to reimburse Base for such Services, Base may charge such expenses against Client’s credit card or other payment account. Payment for any Service that does not have a specific payment term listed in the applicable Schedule or Order Form shall be due no later than thirty (30) days after the invoice date for such Service.
Each party acknowledges that in the course of performance of its obligations pursuant to these Terms, it may obtain certain confidential information. Such information shall include, but not be limited to, credit card information, payment accounts, personal information, and account login information. Any information for which a reasonable person would consider confidential shall be considered confidential for the purposes of these Terms. Each party agrees that all such confidential information communicated to it by the other party shall be received and treated in strict confidence, and shall be used only for the purposes of these Terms. The confidential information shall not be disclosed without the prior written consent of the other party, except as may be necessary by reason of legal, accounting or regulatory requirements beyond either party’s reasonable control. The provisions of this Confidential Information section shall survive the termination or expiration of these Terms.
In its performance of the Services, Base may use certain software, patents, copyrights, unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, unpublished patent applications (collectively, “Base IP”), which Client may benefit from. The Terms, nor the performance of the Services, shall in any way act as a license or assignment of any Base IP to Client. Client shall not reverse engineer, disassemble, decompile, or design around Base IP. Client’s access or use of Base IP shall be limited only to enable Base to perform the Services.
Relationship of the Parties
Base is performing the Services under these Terms as an independent contractor. Nothing set forth in these Terms shall be construed to create the relationship of employer and employee between Client and Base. Client shall not be responsible for any Base withholding taxes, health benefits, insurance, workers compensation, disability or other employee benefits of any kind.
Base may engage, in its sole discretion, virtual assistants or other independent contractors to complete the Services. Client shall communicate only with Base employees regarding payment for the Services.
Client agrees that so long as these Terms are in effect, and for three (3) years after the expiration or termination of these Terms, Client shall not make any solicitation to employ or purchase services from Base employees or independent contractors without Base’s written consent to be given or withheld in Base’s sole discretion.
In the event that Client desires to employ or purchase services from a Base employee or independent contractor (a “Direct Placement”), and Client requests Base’s consent according to these Terms through submitting the Direct Placement Order Form (as defined in the applicable schedule), Base will either (i) deny the request, or (ii) accept the request in exchange for a fee of $20,000 (the “Direct Placement Fee”). Direct Placement requests approved on or before the 10th day of any calendar month shall become Direct Placements no sooner than the first day of the next calendar month. Direct Placements approved after the 10th day of any calendar month shall become Direct Placements no sooner than the first day of the second month after the approval month.
In the event that Client solicits, employs, or purchases services from a Base employee or independent contractor without complying with the terms and conditions of this Section, Client shall pay liquidated damages in an amount equal to two times the amount Client would have paid for a Direct Placement should Client have requested and Base approved the Direct Placement in compliance with the terms and conditions of this Section. The parties agree that the liquidated damages are a reasonable assessment of the actual harm that might arise from Client’s noncompliance with this section and are intended as compensation, not a penalty.
The Client authorizes Base to use the Client’s name and/or logo on Base’s website, as well as on print, digital and other marketing materials.
These Terms shall remain in effect according to the Term listed on the Order From. If no Term is listed on the Order Form, these Terms shall remain in effect until the Services ordered through the Order Form are completed. Notwithstanding the foregoing, Base may terminate these Terms with thirty (30) days written notice for any reason. Upon termination, Client shall pay any outstanding balance within thirty (30) days. Base may charge Client’s credit card, or other payment account, if unpaid balance remains unpaid after thirty (30) days of termination. This Termination section shall survive the termination or expiration of these Terms.
The Services are provided as is. Base DISCLAIMS ALL WARRANTIES WITH REGARDS TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION SHALL SURVIVE TERMINATION OR EXPIRATION OF THESE TERMS.
Base will indemnify Client from and against any losses, liabilities, damages, expenses and costs (including reasonable attorneys’ fees) resulting from (i) Base’s breach of any obligations under these Terms or its willful misconduct or gross negligence in its performance under these Terms, (ii) Base’s violation of laws, as finally adjudicated, in connection with its performance under these Terms, or (iii) any finally adjudicated determination that a Base employee or independent contractor is a Client employee. Client will indemnify Base from and against any losses, liabilities, damages, expenses and costs (including reasonable attorneys’ fees) resulting from (i) Client’s breach of any obligations under these Terms or its willful misconduct or negligence in its performance under these Terms, or (ii) Client’s violation of laws.
Limitation of Liability
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PURSUANT TO THESE TERMS FOR AMOUNTS REPRESENTING INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF THE OTHER PARTY ARISING FROM THE PERFORMANCE OR BREACH OF ANY THE TERMS EVEN IF SUCH PARTY HAS BEEN MADE AWARE OF THE POSSIBILITIES OF SUCH DAMAGES. IN NO CIRCUMSTANCE, REGARDLESS OF CAUSE OF ACTION, SHALL BASE BE LIABLE FOR MORE THAN THE AMOUNT PAID FOR THE SERVICES HEREUNDER. IN NO EVENT SHALL BASE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE LESSER OF THE TOTAL AMOUNTS PAID BY CLIENT TO BASE IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1,000.
These Terms, including any agreements or documents referred to in these Terms, constitute the entire and exclusive statement of Terms between the parties with respect to its subject matter and there are no oral or written representations, understandings or agreements relating to these Terms which are not fully expressed herein. The Terms shall be governed by and construed in accordance with the laws of the South Carolina, United States, without giving effect to principals of conflicts of laws and Client hereby submits to the exclusive jurisdiction of the federal and state courts situated in said State and the applicable service or process. Whenever possible, each provision of these Terms shall be interpreted in such a manner as to be effective and valid under the applicable law. In the event that any provision(s) contained in these Terms is held to be unenforceable, these Terms shall be construed without such provision(s). Base may, with or without notice, assign these Terms, and any related agreement or document, to any affiliate company or to any entity that acquires substantially all of the business assets of Base, or the operation of Base that performs the obligations of these Terms, whether by merger, reorganization, acquisition, sale, or otherwise. Base may update these Terms from time to time in its sole discretion. Except as updated by Base, no other amendment to these Terms shall have any effect unless agreed to in a writing signed by both parties. By agreeing to these Terms, Client acknowledges that it has had the opportunity to fully review the Terms and has had an opportunity to seek the advice of legal counsel regarding the provisions hereunder.
Schedule: Executive Assistant Services
This Executive Assistant Subscription Services Schedule (“EA Services Schedule”) is a Schedule to the Base HQ, Inc. Master Services Agreement (the “MSA”) and the Executive Assistant Terms of Service (the “Terms”) referenced by and incorporated into the MSA.
The Services under this EA Services Schedule shall mean certain services, including but not limited to, administrative tasks, presentation development, calendar management, and project management. Before the commencement of any Services under this EA Services Schedule, Base and Client will discuss the specific nature of the Services needed to create a timeline and budget for the completion of such Services. Any timeline is for planning purposes only and shall not be binding upon either party.
Base shall provide an invoice(s) to Client according to the Order Form accepted by Base for the Services. Before the commencement of any Services, Client shall pay Base the full amount owed to Base for the first month of such Services, or any other amount the parties agree will be paid on a pre-pay basis. All other terms and conditions related to payment shall be those listed in the Terms.
The Services under this EA Services Schedule shall be subject to a $1,500 termination fee if the Services are terminated by Client for any reason other than Base’s breach of the Terms.
Schedule: Inbox Reset
This Inbox Reset Schedule (“Inbox Reset Schedule”) is a Schedule to the Base HQ, Inc. Master Services Agreement (the “MSA”) and the Executive Assistant Terms of Service (the “Terms”) referenced by and incorporated into the MSA.
The Services under this Inbox Reset Schedule shall mean certain services which include performing an email audit, organization and automation of the email inbox, and providing a documented plan for Client’s self-led ongoing management of its email inbox, contingent upon Client’s approval of an initial proposal.
Base will communicate the actual payment amount due for Inbox Rest Services prior to Client submitting an Order Form for such Services. Payment for such Services shall be paid in full before any Services are performed.
Schedule: EA Search
This EA Search Schedule (“EA Search Schedule”) is a Schedule to the Base HQ, Inc. Master Services Agreement (the “MSA”) and the Executive Assistant Terms of Service (the “Terms”) referenced by and incorporated into the MSA.
Base shall provide one or more of the following Services described in this section, as ordered by Client through the Order Form.
(a) EA Search: EA Search is a custom search and recruitment service through which Base consults with the Client regarding its executive assistant needs, searches for executive assistant candidates, screens identified candidates for qualifications, and facilitates the placement process from interview through offer.
(b) EA Search Direct Hire: EA Search Direct Hire is a search and recruitment service through which Base introduces the Client to a pool of vetted executive assistants, and the Client screens and interviews candidates for potential hire or engagement as an independent contractor.
(c) Onboarding: Onboarding is a custom offering, that may be further described in the Order Form, that helps newly placed executive assistants integrate into Client’s business environment.
(d) Training & Mentorship: Training & Mentorship is a custom offering, that may be further described in the Order Form, through which Base provides expertise to help newly placed executive assistants learn best practices and tools to increase effectiveness.
(e) Additional Services: Client may request, and Base may offer, additional services, that will be further described in a supplemental Order Form.
(a) Fees for EA Search shall be based on the first-year salary or first-year fees of the executive assistant hired or engaged by Client as a result of EA Search. The non-refundable Introduction Deposit shall be due upon Base’s acceptance of the Order Form for EA Search Services. The Second Installment shall be due upon presentation of the executive assistant candidate finalists. Client shall pay Base a Final Placement Fee for any executive assistant introduced to Client as a result of EA Search upon Client’s hiring of an executive assistant as an employee or engagement of an executive assistant as an independent contractor (a “Placement”). The Final Placement Fee shall equal a percentage of either the Placement’s first-year salary, or first-year fees if the Placement is engaged as an independent contractor, calculated at the independent contractor’s hourly rate multiplied by 2,080 hours minus the Introduction Deposit and Second Installment. For the avoidance of doubt, the calculation of a Placement’s first-year salary or first-year fees shall include any sign-on bonus, incentive bonus, other cash-equivalent compensation, and any other fees or compensation related to the Placement’s work for Client. In the event that Client hires a second EA Search provided executive assistant as an employee, regardless of position, or engages the EA Search provided executive assistant as an independent contractor, regardless of position, within one year of the date Base provided the candidate, Client shall pay Base an additional fee equal to 10% of either (i) the hired employee’s first year salary, or (ii) the amount paid to the independent contractor for the first year of service provided to Client, calculated at the independent contractor’s hourly rate multiplied by 2,080 hours. If Client terminates the independent contractor or employee relationship with the Placement for cause within thirty (30) days of the Placement, Base will reperform the Services to search for and place a suitable replacement.
(b) Fees for EA Search Direct Hire shall be based on the first-year salary or first-year fees of the executive assistant hired or engaged by Client as a result of EA Search Direct Hire. The non-refundable Introduction Deposit shall be due upon Base’s acceptance of the Order Form for EA Search Direct Hire Services. Client shall pay Base a Final Placement Fee for any executive assistant introduced to Client as a result of EA Search Direct Hire upon Client’s hiring of an executive assistant as an employee or engagement of an executive assistant as an independent contractor (a “Placement”). The Final Placement Fee shall equal a percentage of the Placement’s first-year salary, or first-year fees if the Placement is engaged as an independent contractor, calculated at the independent contractor’s hourly rate multiplied by 2,080 hours, minus the Introduction Deposit. For the avoidance of doubt, the calculation of a Placement’s first-year salary or first-year fees shall include any sign-on bonus, incentive bonus, other cash-equivalent compensation, and any other fees or compensation related to the Placement’s work for Client. In the event that Client hires a second EA Search Direct Hire provided executive assistant as an employee, regardless of position, or engages the EA Search Direct Hire provided executive assistant as an independent contractor, regardless of position, within one year of the date Base provided the candidate, Client shall pay Base an additional fee equal to 10% of either (i) the hired employee’s first year salary, or (ii) the amount paid to the independent contractor for the first year of service provided to Client, calculated at the independent contractor’s hourly rate multiplied by 2,080 hours.
(c) Onboarding Fees shall be charged to Client at a custom rate depending on the scope of the Service provided as provided in the Order Form.
(d) Training & Mentorship shall be charged to Client at a custom rate depending on the scope of the Service provided as provided in the Order Form.
(e) Additional Services shall be charged to Client at a custom rate depending on the scope of the Service provided as provided in the Order Form.
(f) In the event payments are not received by Base after becoming due, Base may:
(i) charge interest on any such unpaid amounts at a rate of 1% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
(ii) suspend performance for all Services until payment has been made in full.
The Services under this EA Search Schedule shall be subject to a $4,000 termination fee if the Services are terminated by Client for any reason other than Base’s breach of the Terms.
In addition to the Warranty described in the Terms, Base cannot and does not guarantee that a Placement will be made, in which case, the Final Placement Fee shall not be due.
Schedule: Direct Placement
This Direct Placement Schedule (“Direct Placement Schedule”) is a Schedule to the Base HQ, Inc. Master Services Agreement (the “MSA”) and the Executive Assistant Terms of Service (the “Terms”) referenced by and incorporated into the MSA.
This Direct Placement Schedule shall have no effect unless and until Base accepts an Order Form with Direct Placement services selected (each, a “Direct Placement Order Form”). By submitting a Direct Placement Order Form to Base, Client expressly requests to directly engage the executive assistant listed in the Direct Placement Order Form either as an employee or independent contractor of Client pursuant to the Non-Solicitation section of the Terms. Base may accept or reject the request and the associated Direct Placement Order Form in its sole discretion. In the event that Base accepts the Direct Placement Order Form, Client shall pay Base the Direct Placement Fee listed in the Direct Placement Order Form, and in exchange, Base shall waive its non-solicitation rights solely as it pertains to the executive assistant listed in the Direct Placement Order Form. The Direct Placement Fee shall be due the earlier of (i) Client’s receipt of a Base invoice, or (ii) the Direct Placement’s first day of employment with Client or first day of services should the Direct Placement be engaged as an independent contractor of Client. Base waives no other rights under the Terms, nor its non-solicitation rights as those rights apply to any executive assistant not listed in the Direct Placement Order Form. Except as expressly stated in this Direct Placement Schedule, all other rights and obligations in the MSA, the Terms, and accepted Order Forms remain in full force and effect.
Base Software Terms of Service
YOU AGREE THAT BY PLACING AN ORDER THROUGH AN ORDER FORM (“ORDER FORM”) THAT INCORPORATES THESE BASE SOFTWARE TERMS OF SERVICE (THESE “TERMS”), YOU (“YOUR”, “YOUR”, OR “CLIENT”) AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THE ORDER FORM, THESE BASE SOFTWARE TERMS OF SERVICE, AND THE MASTER SERVICES AGREEMENT (THE “MSA”). IF YOU ARE PLACING SUCH AN ORDER ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF ANY AGREEMENT, POLICY, OR DOCUMENT REFERENCED IN THESE TERMS, IN SUCH CASE “YOU”, “YOUR”, AND “CLIENT” AS USED IN THESE TERMS SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE THE AUTHORITY, OR IF YOU OR SUCH ENTITY DO NOT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THE ORDER FORM, THESE BASE SOFTWARE TERMS OF SERVICE, OR THE MSA, YOU SHALL NOT PLACE AN ORDER OR USE THE SERVICES.
SECTION 1. Definitions.
Words defined in this Section 1 and parenthetically defined elsewhere shall have the same meaning throughout the Terms.
a) “Client Content” means any reports, information, files, documents, data or other content that Client or its end users share with Vendor through the Services.
b) “Effective Date” shall mean the date the Order Form is accepted by Vendor.
c) “Professional Services” means the professional services provided by Vendor to Client under Statement of Work that describes the professional services to be provided by Vendor, which may include, but is not limited to, any implementation, data conversion, set-up, consulting, training, interface, and advisory services.
d) “Services” means the object code form of Vendor software (“Base”), running on one or more computer servers maintained by Vendor or maintained by a third party on behalf of Vendor and made available to Client over the Internet.
e) “Statement of Work” means a document executed by an authorized representative of each party that sets forth the Professional Services being provided thereunder subject to the terms and conditions of the Terms.
f) “Vendor” means Base HQ, Inc.
g) “Vendor Materials” means all patentable and non-patentable subject matter, patent rights, copyrightable subject matter, copyrights, trademarks, trade secrets, know-how, ideas, suggestions, discoveries, designs, processes, computer products, software (both object code and source code), works of authorship, algorithms, formulas, methods, programming, techniques, flowcharts, reports, and all other inventions or developments created during the performance of the Terms, including, without limitation, during the performance of Professional Services.
SECTION 2. Services.
a) License Grant. Provided that Client pays all the required fees under the Terms and complies with all other terms of the Terms, Vendor hereby grants to Client a non-exclusive, terminable, non-transferable right and license to access and use the Services pursuant to the Terms, in and under Vendor’s intellectual property rights. Client shall not use or otherwise access the Services in a manner that exceeds Customer’s authorized use and permitted capacity as set forth in the Terms.
b) Restrictions. Client shall not use the Services beyond the scope of the rights granted in the Terms. Client shall be solely liable for its customers’ access to the Services and any misuse of the Services by such customers. Client shall not directly or indirectly alter, modify, adapt, translate, copy, distribute, reverse engineer, decompile, disassemble, or create any derivative works of the Services. Client shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in the Services. Client shall be responsible for obtaining and purchasing all equipment, Internet access services, modifying its network, and doing all other things necessary in order to use the Services.
SECTION 3. Client’s Obligations.
Client will provide commercially reasonable cooperation with Vendor to assist Vendor in provision of the Services. Vendor shall authorize access to and assign unique passwords and usernames to Client’s end users of the Services (“Client Accounts”). Client shall be responsible for any activity occurring through the Client Accounts, including unauthorized activity. Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall promptly notify Vendor in the event of any unauthorized access or use of the Services and any loss or theft or unauthorized use of any of the Client Accounts. Client shall comply with all applicable local, state, federal, and foreign laws, treaties, and regulations applicable to Client’s use of the Services, including without limitation those related to privacy, electronic communications, and anti-spam legislation.
SECTION 4. Professional Services.
All Professional Services rendered by Vendor shall be governed by the Terms and the applicable Statement of Work.
a) Performance of Professional Services. Professional Services may, at the discretion of Vendor, be performed at: (i) Client’s offices, Vendor’s offices or elsewhere; and (ii) at times mutually agreed upon by Client and Vendor. Client shall provide Vendor with copies of all materials in Client’s possession that Vendor may reasonably request to assist Vendor in rendering Professional Services hereunder. In addition to all other remedies it has available to it at law or in equity, Vendor may suspend the provision of Professional Services during any period when Client has failed to timely pay Vendor any amount due under the Terms and such failure continues for a period of ten (10) or more days following Client’s receipt of notice or a reminder invoice from Vendor concerning such nonpayment.
b) Client Delay and Changes. Vendor shall not be responsible for any delays in the performance of the Professional Services caused by Client. For any Professional Services for which Client’s participation is contemplated, Client and Vendor shall agree upon the dates to perform such Professional Services. Vendor will have no obligation to provide Professional Services other than those specified in any Statement of Work. Client may request additional Professional Services by a separate Statement of Work describing the additional Professional Services to be provided. Unless the Parties agree to other rates set forth in a fully-executed Statement of Work, Client will pay for additional work and/or work that falls outside of the scope of a Statement of Work at Vendor then-current hourly rates.
SECTION 5. Payment Terms.
a) Services Fees. In order to obtain access to the Services for the Initial Term, Client shall pay the subscription fee as listed on the Order Form within ten (10) days of the Effective Date (the “Subscription Fee”). Upon providing notice to Client, Vendor shall be permitted to increase the Subscription Fee on an annual basis for any Renewal Term, if any, by the lesser of either: (i) a five percent (5%) increase over the prior Subscription Fee; or (ii) an increase equal to the percentage increase in the Federal Bureau of Labor Statistics, Consumer Price Index (CPI) for all Urban Consumers, over the previous twelve (12) months. Notwithstanding the foregoing, the Parties may agree in writing to renew the Terms for longer periods at other mutually agreed upon rates. Client shall pay the Subscription Fee for each Renewal Term within ten (10) days after the start of such Renewal Term.
b) Payments for Professional Services. Vendor will invoice Client for Professional Services on a time and materials basis. Client shall pay undisputed invoices, or the undisputed portion of any disputed invoice, within thirty (30) days of the invoice date. In order to dispute an invoice or an amount on an invoice, Client must provide written notice to Vendor of such dispute prior to the applicable due date for the payment of such fee and such dispute must be reasonable and in good faith. On such invoices, Vendor shall charge Client for reasonable travel, lodging and meal expenses, and any other reasonable expenses incurred on behalf of Client in rendering the Professional Services.
c) Taxes. Client shall pay all taxes (including without limitation sales, use, property, excise, value added, and gross receipts) levied on the Terms, except taxes based on Vendor’s income. Vendor reserves the right to suspend Client’s access and/or use of the Services and to cease providing Professional Services for any accounts for which any payment of fees is due and unpaid, provided, however, that Vendor provides Client a delinquency notice of such nonpayment and at least thirty (30) days have passed since the transmission of such delinquency notice without full payment of the unpaid fees by Client. Client also shall pay to Vendor all reasonable expenses incurred by Vendor in connection with exercising any of its rights under the Terms or applicable law with respect to the collection of payment due to Vendor (excluding with respect to amounts reasonably disputed by Client in good faith), including reasonable attorneys’ fees, court costs, and collection agency fees.
SECTION 6. Intellectual Property Rights.
a) Proprietary Rights. Client acknowledges and agrees that Vendor retains sole and exclusive ownership of all right, title, and interest in and to: (i) Vendor Materials; and (ii) the Services, including any modification, improvement, enhancement, or configuration made to the Services, regardless of who creates, suggests, and/or contributes in any such modification, improvement, enhancement, or configuration. Client agrees to assign and hereby does assign all right (including all copyrights, patent rights and other intellectual property rights), title and interest in Vendor Materials to Vendor. Provided that Client complies with all the Terms, Client shall have a nonexclusive, non transferable license to use the Vendor Materials solely to support its business operations under the same terms, conditions and restrictions of the rights granted to the Services under Section 2(a).
b) Client Content. Client acknowledges that Client’s use of the Services may require the processing and transmission of Client Content to Vendor. Client shall own all title and intellectual property rights in and to the Client Content. Notwithstanding the foregoing, when Client or its end users uploads, submits, or stores Client Content through the Services, Client grants Vendor a worldwide license to use, host, store, reproduce, modify, and create derivative works from the Client Content to provide, support, and improve the Services. Vendor is not responsible for any electronic communications and/or Client Content which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third party networks (other than third parties providing computing or storage services under the Terms on behalf of Vendor). Without limiting Client’s rights and remedies under the Terms, Client acknowledges that Client Content and information regarding Client’s account will be processed by Vendor and stored and processed using online hosting services selected by Vendor. Notwithstanding anything to the contrary in the Terms, Client authorizes and agrees that Vendor may collect non-identifiable aggregate data and such non-identifiable aggregate data shall be the property of Vendor. Vendor shall have the right to retain, and utilize such non-identifiable aggregate data for the purpose of ongoing product improvement. Vendor shall use identifiable Client Content solely as needed to provide the Services to Client.
c) Feedback. Vendor encourages Client to provide suggestions, proposals, ideas, recommendations or other feedback regarding improvements to Vendor’s services and related resources. To the extent Client provides such feedback, Client grants to Vendor a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit feedback (including by incorporation of such feedback into the Services) without restriction.
SECTION 7. Warranties.
Vendor represents and warrants that (a) it has the full corporate right, power and authority to enter into the Terms, (b) the execution of the Terms by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is bound, (c) the Terms will constitute the legal, valid and binding obligation of Vendor; and (d) it shall provide the Professional Services in a workmanlike, professional manner. CLIENT ACKNOWLEDGES THAT THE SERVICES AND ANY INFORMATION OR OTHER DATA WITHIN THE SERVICES ARE BEING PROVIDED “AS IS.” EXCEPT AS SPECIFICALLY SET FORTH IN THE TERMS, VENDOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
SECTION 8. Indemnification.
Client shall indemnify and defend Vendor, at Client’s own expense, against any suit or proceeding brought against Vendor by a third party arising from or related to: (a) Client’s violation of any law; or (b) an allegation that the Client Content or Vendor’s use of the Client Content in accordance with the Terms violates any law or regulation or infringes third party intellectual property rights. Vendor shall indemnify and defend Client, at Vendor’s own expense, against any claim, suit or proceeding brought against Client that, if true, would constitute a breach of Vendor’s warranty provided in Section 7 (a “Claim”). To qualify for such defense and payment, Client must (a) give Vendor prompt written notice of any such Claim; (b) allow Vendor to solely control the defense and all related settlement negotiations for any such Claim; and (c) fully cooperate with Vendor in such defense and settlement negotiations.
SECTION 9. Limitation of Liability.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST REVENUE OR LOST PROFITS), EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THE TERMS WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE WILL BE LIMITED TO THE AGGREGATE AMOUNT OF FEES PAYABLE UNDER THE TERMS IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.
SECTION 10. Confidentiality.
a) Definition. “Confidential Information” means any nonpublic information (written, oral or electronic) disclosed by one Party to the other Party and shall be deemed to include the following information of the respective Parties, without limitation: (a) the terms and conditions of the Terms; (b) customer lists, the names of customer contacts, Client Content, business plans, technical data, product ideas, personnel, contracts and financial information; (c) patents, trade secrets, techniques, processes, know-how, business methodologies, schematics, employee suggestions, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements; (d) information about costs, profits, markets and sales; (e) plans for future development and new product concepts; (f) all documents, books, papers, drawings, models sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be disclosed, as well as written or oral instructions or comments; or (g) any data or information stored in the Services.
b) Non-Disclosure. Each Party agrees not to use, disclose, sell, license, publish, reproduce or otherwise make available the Confidential Information of the other Party to any third party, and further agrees not to use the Confidential Information of the other Party except and only to the extent necessary to perform their respective obligations under the Terms. Each Party agrees to secure and protect the other Party’s Confidential Information in a manner consistent with the maintenance of such Party’s own confidential and proprietary rights in the information (and in any event reasonable measures) and to take appropriate action by instruction or agreement with its employees, consultants, affiliates or other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section.
c) Exclusions. The obligation to treat information as Confidential Information shall not apply to information which: (a) is publicly available through no action of the receiving Party; (b) was rightfully in the receiving Party’s possession on a non-confidential basis independent of its relationship with the disclosing Party prior to the first disclosure by the disclosing Party to the receiving Party as evidenced by the receiving Party’s then-existing written records; (c) has been or is developed by or become known to the receiving Party without access to any of the disclosing Party’s Confidential Information and outside the scope of any agreement with disclosing Party with the receiving Party having the burden of proof to demonstrate independent creation; (d) has been obtained rightfully from third parties not bound by an obligation of confidentiality.
SECTION 11. Term and Termination.
a) Term. This initial term of the Terms shall be as listed on this Order Form (the “Initial Term”). Thereafter, the term shall automatically renew for successive one (1) year terms (each, a “Renewal Term”) unless one Party provides written notice to the other Party at least thirty (30) days in advance of the end of the then-existing term that it does not wish to renew the Terms.
b) Termination for Cause. In the event that Client or Vendor breaches any material provision of the Terms and fails to cure such breach within fifteen (15) days after written notice thereof (which notice reasonably details the alleged breach), the non-breaching Party may terminate the Terms immediately by written notice to the other Party. In the event that Client or Vendor (i) becomes insolvent; (ii) files a petition in bankruptcy for Chapter 7 relief, or has such a petition filed against it (and fails to lift any stay imposed thereby within sixty (60) days after such stay becomes effective); (iii) has a receiver appointed with respect to all or substantially all of its assets; (iv) makes an assignment for the benefit of creditors or (v) ceases to do business in the ordinary course, the other Party may terminate the Terms immediately by notice in writing. All notices required by this Section shall be in accordance with the notice requirements.
c) Rights upon Termination. Client acknowledges that in the event of a termination for cause, Vendor may destroy or delete Client Content and other data at Client’s request and shall not be responsible for any damage to or loss of Client Content or other data. In the event the Terms are terminated for any reason, Client shall pay Vendor for all Services provided to Client up to and including the date of termination. Upon termination of the Terms, Client’s access to the Services and the licenses granted herein shall immediately terminate.
SECTION 12. General.
a) Law, Jurisdiction, and Venue. The Terms shall be governed and construed according to the laws of the State of South Carolina, United States of America. The Parties agree that the exclusive jurisdiction or any lawsuit related to or arising under the Terms shall be in the Circuit Court for Greenville County, South Carolina or the United States District Court for the District of South Carolina situated in Greenville, South Carolina.
b) Assignment. Except as otherwise provided in this Section 12(b), neither Party may assign any of its rights or delegate any of its duties under the Terms without the prior written consent of the other Party, which consent will not be unreasonably withheld; any unauthorized assignment or delegation will be null and void. A Party may, without notice to or consent from the other Party, assign the Terms in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction, and the assignee assumes all obligations of the assignor under the Terms. The Terms will be binding upon and inure to the benefit of the Parties’ permitted successors and assigns.
c) Notices. Any notice either Party desires to give the other Party hereunder shall be in writing. All notices shall be given by delivery to the Parties at their physical or email addresses set forth on the Order Form unless such addresses are changed by written notice.
d) Independent Parties. The Terms are by and between independent parties. Nothing in the Terms shall be construed or interpreted to give rise to an agency, partnership, franchise, employment, or joint venture.
e) Force Majeure. Neither Party shall be liable in damages or have the right to terminate the Terms for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, weather and other Acts of God, government restrictions, acts of terrorism, wars, insurrections and/or any other cause beyond the control of the Party whose performance is affected, however, if the duration of the delay caused by such an event shall exceed fifteen (15) days, the Party who was to benefit from the performance of such act shall have the right to terminate the Terms by giving written notice, according to the Terms.
f) General. These Terms, including any agreements or documents referred to in these Terms, constitute the entire and exclusive statement of Terms between the parties with respect to its subject matter and there are no oral or written representations, understandings or agreements relating to these Terms which are not fully expressed herein. Whenever possible, each provision of these Terms shall be interpreted in such a manner as to be effective and valid under the applicable law. In the event that any provision(s) contained in these Terms is held to be unenforceable, these Terms shall be construed without such provision(s). Base may, with or without notice, assign these Terms, and any related agreement or document, to any affiliate company or to any entity that acquires substantially all of the business assets of Base, or the operation of Base that performs the obligations of these Terms, whether by merger, reorganization, acquisition, sale, or otherwise. Base may update these Terms from time to time in its sole discretion. Except as updated by Base, no other amendment to these Terms shall have any effect unless agreed to in a writing signed by both parties. By agreeing to these Terms, Client acknowledges that it has had the opportunity to fully review the Terms and has had an opportunity to seek the advice of legal counsel regarding the provisions hereunder.
Data Security Addendum
This Data Security Addendum (“Addendum”) amends and forms part of the Base Software Terms of Service (the “Terms”). Any capitalized word in this Addendum that is not defined within this Addendum shall have the meaning given to the word in the Terms.
WHEREAS, in the course of providing or performing Services under the Terms, Vendor may acquire, access, or otherwise process Personal Data (defined below);
WHEREAS, Personal Data and the processing of the same may be subject to specific industry or regulatory compliance guidelines;
WHEREAS, Client and Vendor desire to protect Personal Data in accordance with applicable laws; and
WHEREAS, Client and Vendor have each determined that it is in its respective best interest to enter into this Addendum, whereby the Terms will be modified as provided herein.
1. Incorporation of the Recitals.
The Recitals set forth above are hereby incorporated into this section of the Addendum.
2. Defined Terms.
a. “Data Laws” means Laws applicable to data privacy, data security, electronic communications, anti-spam legislation, and/or Personal Data, including any state, and federal laws in the United States pertaining to data breach notification and response.
b. “Personal Data” means any information relating to an identified or identifiable individual. For the avoidance of doubt, Personal Data shall include, but not be limited to, all nonpublic information relating to an identified or identifiable individual including, but is not limited to, addresses, telephone numbers, Social Security numbers, driver’s license numbers, state-issued identification numbers, usernames, passwords, credit or debit card numbers, bank account numbers, other financial account numbers, security codes and passwords that permit access to financial accounts, personal identification numbers, dates of birth, IP addresses, or other unique identification information.
c. “Process, Processed and Processing” means to collect, acquire, use, process, access, retain, store, transmit, disclose and/or dispose of.
d. “Security Incident” means, in connection with the Services, the loss or misuse, by any means, or the inadvertent, unauthorized, and/or unlawful disclosure of Personal Data.
a. Compliance with Applicable Laws.
i. Vendor represents and warrants to Client that all Services shall be delivered in accordance with applicable Data Laws. Vendor agrees to notify Client within seventy-two (72) hours of Vendor becoming aware that any Data Law prevents Vendor from fulfilling its obligations under the Terms.
ii. Client represents and warrants to Vendor that its use of the Services shall be performed in accordance with applicable Data Laws.
b. Data Uses and Disclosures.
i. Vendor shall use and disclose Personal Data solely in connection with the Services, meeting its other obligations under the Terms, and as required by law.
ii. Vendor may only disclose Personal Data to its third party service providers and subcontractors: (1) that are necessary to perform the Services or Vendor’s other obligations under the Terms, and (2) that have agreed to protect the Personal Data according to at least the data security and privacy obligations set forth herein.
c. Access Controls.
i. Vendor shall authorize access to Client’s end users for the Services (“Client Accounts”) using unique user-supplied email addresses and user-defined passwords meeting minimum complexity requirements, or utilizing SAML/SSO where applicable.
ii. Client shall be responsible for any activity occurring through the Client Accounts, including unauthorized activity.
iii. Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall promptly notify Vendor in the event of any unauthorized access or use of the Services and any loss or theft or unauthorized use of the Client Accounts.
iv. Client shall remove Client end-user access immediately upon user separation or role transfer that eliminates a valid business need for continued access.
v. Client must ensure Client’s end users protect the confidentiality of login credentials and change default passwords immediately.
d. Appropriate Safeguards.
i. Vendor represents and warrants that it has in place, and shall maintain, commercially appropriate security safeguards to protect against anticipated threats and hazards to the security of Personal Data, and protect against unauthorized access to or use of Personal Data that could materially harm Client. Such measures include adhering to industry-standard encryption policies, deploying antivirus software, firewalls and intrusion detection and prevention systems, and authentication controls.
ii. Client represents and warrants it has in place, and shall maintain, commercially reasonable security precautions to prevent unauthorized or fraudulent use of Personal Data in connection with the Services.
iii. Client represents and warrants that it has in place, and shall maintain, commercially appropriate physical safeguards, including security barriers and entry controls, to ensure the security of any Client’s offices where Professional Services are being provided by Vendor’s personnel.
iv. Client shall promptly implement any patches or updates to the Services upon notification by Vendor to ensure the protection of Personal Data.
e. Security Incidents.
i. Vendor shall notify Client by email of any security incident resulting in the exposure of Client data, “Security Incident” within forty-eight (48) hours of Vendor becoming aware of such Security Incident. Vendor shall investigate any such Security Incident and take all commercially reasonable steps to eliminate or contain the exposures that led to the Security Incident. Vendor shall, upon request, provide Client with a description of the nature of the Security Incident and any mitigation steps taken by Vendor in response to such Security Incident within ten (10) business days.
ii. Client shall notify Vendor of any unauthorized access to the Services it becomes aware of within forty-eight (48) hours of Client becoming aware of such Security Incident. Client shall furnish, upon request, access logs and other forensic information relating to the unauthorized access in connection with Vendor’s investigation of the incident.
4. Effect of Addendum.
The Parties are entering into this Addendum as a supplement to the Terms. This Addendum shall be attached to, and deemed incorporated by reference into, the Terms. To the extent any term or provision of this Addendum is inconsistent with or in direct conflict with any provision of the Terms, this Addendum shall supersede and control any such provision. Unless otherwise specifically modified herein, all terms and conditions contained in the Terms shall be given full force and effect. Together, this Addendum and the Terms are an integrated contract, constitute the entire agreement between the Parties, and supersede all earlier agreements of the Parties.