THIS SOFTWARE-AS-A-SERVICE AGREEMENT, together with the Order Form (if applicable) and the exhibits hereto (collectively, the “Agreement”) is made and entered into between 8base, Inc., a Delaware corporation (“8base”), and you, an 8base customer (“You” or “Your”). Hereinafter, 8base and You may be referred to individually as a “Party” or collectively as the “Parties.”
Subject to the terms of this Agreement, 8base will use commercially reasonable efforts to provide the Services to You as set-forth in a separate Order Form or Your dashboard on the 8base web platform. These Terms and Conditions govern Your use of the Services. You must register to use the Services by first identifying an administrative user by name and password. Thereafter, each subsequent authorized user (i.e., employees or contractors) must create their own username and password to use the Services. 8base reserves the right to refuse registration to persons that violate this Agreement and to cancel passwords it deems inappropriate. For purposes hereof, the term “Services” means the software, hosted services, and support that 8base will provide to You under this Agreement.
1. RESTRICTIONS AND RESPONSIBILITIES
1.1 In using the Services, You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the proprietary 8base software provided as part of the Services, and documentation or data related to the Services (collectively, the “Software”); modify, translate, or create derivative works based on the Services or Software (except as authorized herein to use the Services); use the Services or any Software for timesharing or service bureau purposes or for the benefit of a third party; or remove any proprietary notices or labels. For purposes of clarity, Your use of the Software is permitted under a non-exclusive, non-transferable, non-sublicensable license to use the Services, and shall terminate upon termination or expiration of Your use of the Services. Hereinafter, for ease of reference, mention of the Services shall include the Software unless otherwise specified.
1.2 You represent, covenant, and warrant that You will use the Services only in compliance with this Agreement and all applicable laws and regulations. You agree to indemnify and hold harmless 8base against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Your use of the Services. Although 8base has no obligation to monitor Your use of the Services, it may do so periodically to prohibit any use it believes may violate the terms hereof. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).
1.3 You shall also be responsible for maintaining the security of the Equipment, Your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Your account or the Equipment with or without Your knowledge or consent.
2. CONFIDENTIALITY; PROPRIETARY RIGHTS
2.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of 8base includes non-public information regarding features, functionality and performance of the Services. Proprietary Information includes non-public data provided by You to 8base to enable the provision of the Services (“Your Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect the other’s Proprietary Information, and (ii) not to use the other’s Proprietary Information except in performance of the Services or as otherwise permitted herein. The terms of this Paragraph 3.1 shall not apply after five (5) years following the disclosure of Proprietary Information or as to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known to it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
2.2 You shall own all right, title and interest in and to Your Data. 8base shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.
2.3 8base shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Your Data and data derived therefrom), and 8base will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. For purposes of clarity, 8base does not grant You any rights or licenses except as expressly set forth herein.
3. PAYMENT OF FEES
3.1 8base’s fees for the Services are described in an Order Form or in Your online dashboard (the “Fees”). Fees shall be due on the first of each month. If Your use of the Services exceeds the Platform Usage Limits (the “Service Capacity”) set forth on the Order Form or included in Your pricing plan. You shall be billed for such usage and You agree to pay additional fees. 8base reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon thirty (30) days prior notice to You (which may be sent by email or posted online). If You believe that 8base has billed You incorrectly, You must contact 8base no later than 60 days after the closing date of the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Fee inquiries should be directed to 8base’s customer support department.
3.2 8base may also bill You through an invoice for additional Services for which payment shall be due within thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. If You are delinquent in payment, 8base may also terminate Services without notice. You shall be responsible for all taxes associated with Services other than U.S. taxes based on 8base’s net income.
4. TERM AND TERMINATION
4.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as may be specified in the Order Form, if applicable, or Your online dashboard; and in the absence of any such specification, shall be monthly on a subscription basis (i.e., pay-as-you-go) (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
4.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. You will pay in full for the Services up to and including the last day on which the Services are provided. Upon termination, 8base will make all Your Data available to You for electronic retrieval for a period of thirty (30) days, but thereafter, 8base may, but is not obligated to, delete Your Data. All sections of this Agreement which, by their nature, should survive termination will survive termination including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5. WARRANTY AND DISCLAIMER
8base shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by 8base or by third-party providers, or because of other causes beyond 8base’s reasonable control, but 8base shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, 8BASE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS,” AND 8BASE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6. INDEMNITY
8base shall hold You harmless from liability to third parties resulting from infringement by the Services of any United States patent or copyright, provided it is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; and 8base will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by 8base, (ii) made in whole or in part in accordance with Your specifications, (iii) that are modified after delivery by 8base, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where You continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Your use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by 8base to be infringing, 8base may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for You a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Your rights hereunder, and provide You with a refund of any prepaid, unused fees for the Services.
7. LIMITATION OF LIABILITY
8BASE WILL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE. IN ADDITION, 8BASE WILL NOT BE LIABLE TO YOU OR ANY OF YOUR AUTHORIZED USERS FOR ANY AMOUNT EXCEEDING THE FEES YOU PAID 8BASE DURING THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
8. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by You except with 8base’s prior written consent. 8base may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and You does not have any authority of any kind to bind 8base in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will `be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or when receipt is electronically confirmed if transmitted by facsimile or e-mail; or shall be deemed to have been received the day after it is sent if sent for next day delivery by recognized overnight delivery service. This Agreement shall be governed by the laws of the State of Florida without regard to its conflict of laws provisions. Venue for any disputes related to this Agreement in any manner shall be subject to the mandatory jurisdiction of a court of competent jurisdiction in Miami-Dade County, Florida.
9. EMAIL COMMUNICATIONS
By providing your email address, you consent to receive marketing communications from 8base.These communications may include newsletters, promotional offers, updates, and other marketing-relatedmaterials. You can opt out of receiving these messages by clicking the “unsubscribe" link in thesecommunications. However, you may not opt out of product- or service-related communications (e.g., accountverification, purchase and billing confirmations and reminders, changes/updates to features of the product orservice, technical and security notices).
Updated: February 13, 2024