This master subscription agreement is a legal agreement between you and base governing your use of the base platform, including any applicable free trials. Please read this agreement carefully.
By signing up to base and completing your registration, or execution of a counterpart signature page hereto, you indicate your acceptance of this agreement and agree to abide by the terms and conditions set forth herein. If you are entering into this agreement on behalf of a business or other legal entity, you hereby represent and warrant that you have the authority to bind such entity and its affiliates to the terms and conditions of this agreement, in which case “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with the terms and conditions of this agreement, you may not accept this agreement nor may you use the base platform or receive services hereunder.
The comments under the title “so basically we mean” provide a short explanation of the Terms of Service and are not legally binding.
In addition to the terms defined in the body of the agreement, the following terms have the following meanings:
“Affiliates” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Base Platform” means the online CRM application provided by Base and the underlying servers and software used to provide such application (collectively the “System”).
“Base Voice” means the voice telephone functionality that may be included in one or more versions of the Base Platform.
“Customization” means any Deliverable that is included in the Base Platform or other Base offering.
“Deliverable” means any software, documentation, or other materials expressly required to be delivered to You pursuant to a SOW.
“End Users” means individuals fifteen years or older who are authorized to access and use the Base Platform under Your Subscription. End Users may include but are not limited to You and Your employees, consultants, contractors, and agents.
“Fees” means Subscription Fees. Services Fees, and any other amounts due to Base and payable by You under this Agreement.
“Order Forms” means the ordering documents that are entered into by You and Base from time to time, in the form provided by Base. Order Forms are deemed incorporated herein. For avoidance of doubt, either: (1) a written document provided by Base and captioned as an “Order Form”; or (2) any online form within the Base Platform, into which you enter a subscription term and number of seats applicable to a Subscription, together with payment information, in accordance with the terms thereof, is deemed an “Order Form” hereunder.
“Residuals” means ideas, concepts, know-how, expertise, methods, methodologies, functional and technical architectures, techniques or skills, writings in which any of the same are fixed (including, without limitation, all reports, computer software systems, routines, data models, technical data, processes, designs, code and documentation and systems, concepts and business information) Base has developed or is developing in connection with the business of creating and offering the Base Platform. Residuals do not include Your Confidential Information or Your Data.
“Services” means the professional services provided to You by Base pursuant to an SOW under this Agreement.
“Services Fees” means the fees set forth in an SOW under this Agreement.
“Statement of Work” or “SOW” means a statement of work to be performed by Base that references this Agreement and has been executed by the parties hereto. Each Statement of Work shall be deemed incorporated herein.
“Subscription” means the right to access the Base Platform during the Term.
“Subscription Fees” means the fees for a Subscription to each version of the Base Platform as set forth on the Base website, or, to the extent that an Order Form provides for Subscription Fees that differ from those on the Base website, the fees set forth in such Order Form.
“Your Data” means any personally identifiable data uploaded by You to the Base Platform that would typically be provided in the normal course of using the Base Platform, as well as all information generated by the End Users during the use of the Base Platform. Your Data includes, without limitation, any financial information of any nature or any other personally identifiable information that could be legally considered private or sensitive.
So basically we mean:
Just a couple of definitions we’ll use later in the document.
Registration. You must be fifteen years or older to register, and must provide complete and accurate information during the registration process, including a valid credit card number that You are authorized to use if You are registering for a paid Subscription.
Free Trial. Base may make all or part of the Base Platform available to You and Your End Users on a trial basis free of charge (the “Free Trial”). The Free Trial shall begin when You submit a registration for the same to Base, and shall terminate on the earlier of (i) the Free Trial expiration date as specified by Base upon receiving your registration, or (ii) the date You execute an Order Form for a Subscription under this Agreement. NOTWITHSTANDING SECTION 11, ACCESS TO THE BASE PLATFORM IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND DURING THE FREE TRIAL. YOUR DATA ENTERED, AND ANY SPECIFIC SETTINGS OR PREFERENCES YOU OR YOUR END USERS MAKE, DURING THE FREE TRIAL WILL BE PERMANENTLY DELETED UNLESS YOU PURCHASE A SUBSCRIPTION OR EXPORT SUCH DATA/SETTINGS PRIOR TO THE EXPIRATION OF THE FREE TRIAL.
Subscription. Base shall make the Base Platform available to You and Your End Users pursuant to this Agreement and all Order Forms during the Term. You agree that your purchase of the Subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Base with respect to future functionality or features.
Support. Support via email and phone is available in connection with a paid Subscription.
So basically we mean:
Our premium accounts include a free trial. If the trial ends and you didn’t subscribe, we may delete your data. Base is provided “as is” and support is guaranteed only to premium accounts.
Base Outlook integration. The Base Outlook Integration (BOI) Application is a windows application that integrates with an End User’s Outlook desktop application and uploads contacts from folders selected by the End User to the Base Platform. BOI requires an active internet connection. The BOI installer (i) requires administrative access; (ii) may download and install additional software required for the proper functioning of BOI; (iii) will modify the Windows system registry; and (iv) may require changing firewall rules in order to let components of BOI communicate with each other. Once installed, BOI may (x) store additional information in the End User’s Outlook data files, including metadata about contacts and emails; (y) modify information in the End User’s Outlook data files, though such modification is limited to folders created and managed by BOI; and (z) collect technical data, including information about application crashes and usage statistics.
Mobile Apps. Base may offer applications that allow You to access the Base Platform on Your mobile device, including, for example, the Windows Phone and devices running the Android or iOS operating system. Mobile devices must be purchased separately and are not included in Your Subscription. Base mobile apps require an active internet connection, and may incur data charges with Your wireless carrier, including roaming charges where applicable. Base mobile apps may collect technical data, including information about application crashes and usage statistics, and may use certain third party libraries or modules. Any such mobile apps offered by Base shall constitute part of the Base Platform, and as such their usage is subject to the terms and conditions of this Agreement.
So basically we mean:
If you use the Outlook Plugin, it will be added to your Windows system. If you plan to use Base on your mobile devices (you should!), you’ll need a device and an internet connection. You may incur data charges when using the app. For Outlook, mobile apps and any other plugins we provide, we might collect technical usage data to make Base better for you.
Ownership of Your Data. You retain all right, title and interest in and to all Your Data. Base shall not access Your Data except to respond to service or technical problems, or at Your request.
Collection of Your Data. You are responsible for all activities that occur in Your account and for Your End User’s compliance with this Agreement. You shall, and shall cause your End Users to, comply with all local, state, federal or foreign law, treaty, regulation or convention applicable to You in connection with the use of the Base Platform, including without restriction, the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), the EU Data Protection Directive and other laws applicable to You related to privacy, publicity, data protection, electronic communications and anti-spamming laws. You are responsible for the collection, legality, protection and use of Your Data that is stored on the System or used in connection with the Base Platform. Base will not be responsible for any loss or disclosure of Your Data (or any damages related thereto) resulting from You or Your End Users’ failure to adequately secure their user identification and passwords or otherwise.
Acceptable Use. You and Your End Users shall use the Base Platform for Your internal business purposes as contemplated by this Agreement and shall not: (i) tamper with the security of the System or tamper with other customer accounts of Base, (ii) access data on the System not intended for You, (iii) log into a server or account on the System that You are not authorized to access, (iv) attempt to probe, scan or test the vulnerability of any System or to breach the security or authentication measures without proper authorization; (v) render any part of the System unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the Base Platform or make the Base Platform available to a third party other than as contemplated in this Agreement; (vii) use the Base Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (viii) provide to third parties any evaluation or Free Trial version of the Base Platform without Base’s prior written consent.
Communications Responsibilities. You shall be responsible for the content of all communications sent through the Base Platform, and shall comply with all applicable laws and regulations in Your use of the Base Platform. You agree that You will not use the Base Platform to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of a third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation. You further agree that You shall not use the Base Platform for the purpose of making emergency calls or providing emergency services.
Base Voice Responsibilities. You are solely responsible for Your operation of Base Voice in compliance with all applicable laws in all jurisdictions governing use of the Base Voice service by You and Your End Users, including but not limited to telephone recording and wiretapping laws.
Breach of Guidelines. In the event You or Your End Users materially breach this Section, Base will endeavor to provide You with the opportunity to remove or disable access to the offending material or content, provided, however, that Base reserves the right to immediately remove, in its sole discretion, any content which is unlawful or offensive without prior notice to You. In addition to any other rights and remedies under the Agreement and in law, Base reserves the right to immediately suspend access to the Base Platform if such breach, in Base’s opinion, is an imminent threat to the System, other customer accounts, or constitutes abusive or threatening behavior.
So basically we mean:
__You are the sole owner of your data! We will access it only in order to help you solve a technical problem or if you request us to. You must comply with all the data laws applicable to the type of data you store in Base. In the case you fail to secure your access passwords, Base will not be responsible for any data breach or data loss.
In the case you use Base Voice or any email integration, you will be responsible for the content of all communications. You also must comply with all applicable laws and regulations related to such communication methods.
If you breach those guidelines, and we conclude that by doing so you are breaking the law or might affect other customers, we will immediately suspend your account until the issue is resolved.
Acquisition of Non-Base Products and Services. You acknowledge that third party products or services may be made available to You from time to time by Base or third parties, and that Your decision to acquire any such products or services is solely between You and the applicable third party provider. Unless warranty or support obligations are specifically set forth on an Order Form, Base does not warrant or support third party products or services.
Third Party Applications and Your Data. You further acknowledge that if You acquire third party applications for use with Your Subscription, Base may allow the providers of such applications to access Your Data in order to allow such applications to interoperate with the Base Platform. Base shall not be responsible or liable for any disclosure, modification or deletion of Your Data resulting from any such access by third party application providers.
So basically we mean:
If you use Base with any other 3rd party integrated product or service, we will not support or warrant that product or service. Also, if by integrating with a 3rd party product, you choose to provide it with access to your data, we will not be liable for any disclosure or breach of data resulting granting such access.
Services. You hereby engage Base to render the Services set forth on each SOW referencing this Agreement. The Services and each SOW are governed by this Agreement. Changes to the scope of the Services or any SOW may be made only in a writing signed by authorized representatives of both parties.
Acceptance of Deliverables. Promptly upon Base’s notice that it has implemented or completed a Deliverable, You will test and evaluate each such Deliverable to determine whether each Deliverable conforms to the specifications for such Deliverable, as provided in the applicable SOW (the “Acceptance Test”). You may deliver a notice of rejection to Base if a Deliverable fails the Acceptance Test, advising Base as to which aspects of the Deliverable failed, with sufficient detail to allow Base to reproduce such failure. Base shall, at no cost to You, promptly remedy such failure and deliver the corrected Deliverable to You. In the event that Base does not receive a notice of rejection from You within two (2) business days (or such other period as may be expressly provided for in the applicable SOW) after delivery of a Deliverable, such Deliverable shall be deemed “Accepted” and the Acceptance Test for such deliverable shall be deemed completed pursuant to any applicable requirements of the relevant SOW or otherwise.
Your Responsibilities. You shall provide suitable equipment, information, and site and system access and facilities as are appropriate and reasonably necessary to enable Base to perform the Services or which are specified in the applicable SOW. You acknowledge and agree that Base’s performance is dependent on and subject to such performance by You or third parties of their responsibilities in a timely manner and subject to any assumptions regarding the Services referred to in the applicable SOW. Base shall be entitled to rely on, and You shall be responsible for, all decisions, instructions and approvals of Your project administrative and other personnel in connection with the Services. You shall procure all consents, licenses, approvals or permissions as may be necessary to enable Base to perform the Services, with such assistance from Base as You may reasonably request.
So basically we mean:
If you purchased our professional services, the services and pricing will be specified in a separate SOW, which adheres to this agreement. It is your responsibility to provide materials needed to perform the services and to let us know if a deliverable is unacceptable within 2 days of its delivery.
Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as Your Data. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party.
Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
Protection. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own confidential information (at all times exercising at least a reasonable degree of care in the protection of Confidential Information).
Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
So basically we mean:
We keep your confidential information secret. You keep our confidential information secret.
Subscription Fees. Except as otherwise provided in an Order Form, Subscription Fees are set forth on the Base website. Use of Base Voice is subject to additional charges, including applicable telecommunications service rates. Except as otherwise provided in the Order Forms, all Subscription Fees are quoted in United States currency; are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and Subscription Fees are non-refundable. Base may modify the Subscription Fees on thirty (30) days’ email notice. In the event you upgrade your Subscription, the Subscription Fees applicable to Your new version of the Base Platform will take effect immediately, with such increased fees calculated on a pro-rated basis, taking into account the number of days remaining in the then-current Subscription. If paying via payment method other than credit card, we will charge you at month end for remainder of your term. If you downgrade, no adjustment will be made during the current Term. A valid credit card that You have the right to use is required for any paid Subscription, unless another form of payment was agreed upon in writing between the parties or in an Order Form. Unless otherwise provided in an Order Form, paid Subscriptions will be billed in advance on a monthly, annual, 2-year or other basis, starting on the Effective Date.
Services Fees. You shall pay to Base all of the fees for Services specified in the SOWs. Except as otherwise provided in the applicable SOW, all fees are quoted in United States currency; payment obligations are non-cancellable; and Services Fees are non-refundable and shall not be subject to setoff or other reduction. Unless otherwise stated in the applicable SOW, Services Fees are due in advance upon execution of the applicable SOW.
Overdue Payments. Any payment not received by the due date shall accrue interest at the lower of 1.5% or the maximum rate permitted by law on the outstanding balance per month (except with respect to charges then under reasonable and good faith dispute) from the date such payment is due until the date paid.
Suspension of Platform Access and Service. If Your account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), Base reserves the right to suspend Your access to the Base Platform and Base’s performance of Services under any applicable SOWs, without liability to Base, until Your account is paid in full.
Taxes. You are responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to Your purchases hereunder, other than Base’s income taxes. If Base pays any such taxes on Your behalf, You agree to reimburse Base for such payment unless You provide Base with a valid exemption certificate authorized by the appropriate taxing authority.
Expenses. If Base is required to incur any additional costs or expenses in providing You Services or support under this Agreement, Base shall first obtain Your written approval.
So basically we mean:
Base is a subscription service. The preferred method of payment for Base is with a Credit Card. If your account is past due, we have the right to suspend it.
Proprietary Rights in the Base Platform. The Base Platform and all intellectual property rights therein and all intellectual property rights relating to the provision of support are owned or licensed by Base. Except for the Subscription granted hereunder, nothing in this Agreement gives You any right, title or interest to the Base Platform or related support.
Base Platform Restrictions. You shall not: (i) modify, translate, or create derivative works based on the Base Platform; (ii) create any link to the Base Platform or frame or mirror any content contained or accessible from the Base Platform, (iii) reverse engineer, de- compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Base Platform; (iv) or access the Base Platform in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Base Platform.
Work Product. Base owns all work product, including Customizations, produced as part of the Services, and all intellectual property in and to such work product. For avoidance of doubt, as between the parties, Base owns and shall own all proprietary or other rights in or to the Base Platform, Residuals, and Deliverables. To the extent that a Customization has been provided under a Statement of Work, Base will support such Customization as part of the Base Platform; provided, however, that Base reserves the right to deprecate, replace, modify, rebuild, or discontinue (collectively, the foregoing shall be referred to as “Replacement”) any such Customization, if in each such case: (I) Base provides and supports substantially equivalent functionality within the Base Platform during the Term of Your Subscription; or (II) You no longer require the functionality provided by such Customization; or (III) You otherwise consent to the Replacement.
Residuals. You acknowledge that Base is in the business of creating and offering the Base Platform. In connection with such business, Base has developed and continues to develop Deliverables and Residuals. To the extent Deliverables or Residuals are made available to You other than through the Base Platform, (i) You shall have a perpetual, irrevocable right to use, copy, modify, and create derivative works of such Deliverable or Residual in connection with your usage of the Base Platform, and (ii) nothing shall restrict Base’s ongoing right to use any such Deliverables or Residuals, except to the extent of restrictions on Base’s usage of Customer Proprietary Deliverables expressly set forth in a Statement of Work.
So basically we mean:
We’re working hard to build the next generation of business software. Don’t copy it or try to reverse engineer it. The product and its intellectual property rights are either licensed or owned by us.
Term of the Agreement. The “Term” of this Agreement commences on the Effective Date and continues until the latest of: (i) the expiration or termination of your Free Trial; (ii) in the case of a monthly Subscription, expiration of such Subscription or termination as provided in 10(b) or 10(c) below; (iii) the expiration of the term (and any applicable renewal terms) set forth or provided for in the applicable Order Form, or termination as set forth in Section 10(c) below; or (iv) expiration or termination of each SOW executed hereunder.
Termination by You. You may cancel a monthly Subscription (but not a subscription for a specific term longer than one month set forth in an Order Form) at any time by providing notice to Base via the account management functions on Base’s website. Upon cancelling your account, Base will allow a 30-day grace period in which you will be able to reactivate your account and restore your data. In the case you wish your data to be completely and permanently removed from Base’s application servers, please send an email to our support team at firstname.lastname@example.org.
Termination for Cause. This Agreement and/or any applicable SOW may be terminated by either party for cause: (a) upon thirty (30) days written notice of breach to the other party, if the other party has materially breached this Agreement and such breach remains uncured at the expiration of such period; (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) immediately upon notice in the event of the other party’s material breach of Section 4 hereof.
Surviving provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 7 to 14.
Base Voice Termination. Base may disable the phone numbers provided to You for the use of Base Voice if, in Base’s sole discretion, such numbers are substantially underused for thirty (30) days, or if Your Subscription is otherwise suspended, terminated or cancelled.
So basically we mean:
This agreement is in effect as long as you use and pay for Base. You can cancel your account or subscription at any time.
Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
Functionality Warranty. Base warrants that the Base Platform will operate in substantial conformity with the then current version of the applicable documentation provided by Base.
Security Warranty. Base or its licensors or hosting providers have implemented commercially reasonable efforts to ensure that Your Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Your Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Base, whether by accident or otherwise.
Services Warranty. Base warrants that it will perform the Services related to each Deliverable in a competent and workmanlike manner and in accordance with applicable industry standards for similar types of services.
Remedy. Base shall, as Your sole and exclusive remedy and Base’s sole and exclusive liability for a breach of the warranties set forth in Section 11 hereunder, (i) use commercially reasonable efforts at its own expense to cause the Base Platform to comply with the warranties in Section 11(b) and (c), and reperform any portion of the Services that are not provided in compliance with the warranty in Section 11(d), provided in each case that such noncompliance is promptly brought to Base’s attention in writing in reasonable detail. No warranty claim may be made more than thirty (30) days after performance or acceptance, as applicable.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE BASE PLATFORM AND SERVICES ARE PROVIDED “AS-IS,” AND BASE DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. Base does not warrant that the Services or the functions contained in the Base Platform will meet Your requirements or that the operation of the Base Platform will be uninterrupted or error- free. Further, Base does not warrant that all errors in the Base Platform can or will be corrected. Base will not be responsible for any loss of Your Data or inability to perform certain tasks resulting from Your decision to downgrade your Subscription.
So basically we mean:
Base performance will be at least as good as industry standards (but in reality - will be much better). We use high quality 3rd party hosting providers and we make sure they put in the right effort to protect Base and your data.
Limitation of Liability. NEITHER YOU NOR BASE, NOR OUR RESPECTIVE SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF (I) FOR CLAIMS BASED ON SERVICES PROVIDED UNDER AN SOW, THE TOTAL SERVICES FEES PAID OR PAYABLE BY YOU UNDER SUCH SOW IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; AND (II) FOR CLAIMS BASED ON THE BASE PLATFORM OR THIS AGREEMENT GENERALLY, THE TOTAL SUBSCRIPTION FEES PAID BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
Exclusion of Consequential and Related Damages. YOU AND BASE AGREE THAT THE CONSIDERATION PAID UNDER THIS AGREEMENT DOES NOT INCLUDE CONSIDERATION FOR THE ASSUMPTION OF THE RISK OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOSS OF DATA, LOST PROFITS OR REVENUE.
The limitations of liability under Sections 12(a) and 12(b) shall not apply to any indemnification provided by You or Base hereunder.
Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to You.
No action against either party arising out of this Agreement may be brought by the other party more than one (1) year after the cause of action has arisen.
So basically we mean:
Our liability is limited to fees you paid for Base in the prior 12 months.
Indemnification by Base. Base shall indemnify and hold You harmless against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against You by a third party alleging that the Base Platform, used as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if Base reasonably believes that Your use of any portion of the Base Platform and/or related support is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then Base may, at its expense: (i) procure for You the right to continue using the Base Platform or support; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities of the Base Platform and/or support as set out herein. Base shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Base Platform or support with other equipment or software not supplied by Base or in a manner not consistent with Base’s instructions.
Indemnification by You. You agree to indemnify and hold Base harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Base by a third party arising from or relating to (i) Your breach of Section 4, or (ii) Your use of Your Data or the Base Platform.
Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
So basically we mean:
We’ll protect each other against certain third party claims.
Entire Agreement. This Agreement, inclusive of the Order Forms, SOWs and any written amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between You and Base with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of this Agreement and the Order Forms or SOWs now or hereafter appended hereto, the terms of the Order Form or SOWs shall govern.
Marketing. Neither party may issue press releases regarding this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendor in accordance with the other party’s standard guidelines.
Relationship of You and Base. You and Base are independent contractors. This Agreement does not create a joint venture or partnership between You and Base; neither party is by virtue of this Agreement authorized as an agent, employee or representative of the other party.
Modifications and Waiver. Base may revise this Agreement from time to time. Notice of any material changes to the Agreement will be provided via a link when logging into the Base Platform. Any waiver of any right or remedy under this Agreement by Base must be in writing and signed by Base. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
Assignment. This Agreement and any rights or obligations hereunder, shall not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party except that either party may assign or transfer this Agreement upon a change of control of a party or by operation of law by providing the non-assigning party with prior written notice thereof provided that any assignee that is a separate entity agrees in writing to be bound by the terms of this Agreement.
Governing Law. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of California, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of Santa Clara County, California, USA, and all courts competent to hear appeals therefrom. THE PARTIES WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Notices. Any notices under this Agreement shall be in writing and shall be deemed to have been delivered: (i) upon personal delivery; (ii) the fifth business day after mailing; (iii) the third business day after sending by confirmed facsimile; or (iv) the third business day after sending by email. Notices to Base shall be addressed as follows:
VP of Finance & Operations
850 N. Shoreline Blvd
Mountain View, CA 94043
Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
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