These “Terms of Service” govern Quickbase’s provision, and any customer’s access to and use, of any Services (as defined below). By (1) signing a copyof these Terms of Service, (2) clicking a consent box on a Quickbase website indicatingacceptance of these Terms of Service, or (3) consenting to an order form with Quickbase or a Quickbase-authorized reseller (an “Authorized Source”) that references these Terms of Service, Customer agrees and becomes a party to theseTerms of Service. These Terms of Service are effective as of the date of consent (in the case of an onlineconsent box) or the date of last signature (in the event the parties exchange physical or digital copies) (“Effective Date”) and are by and between Quickbase, Inc., having its principal place of business at 255 State Street, Boston, MA 02109, USA (“Quickbase”) and the customer indicated in the online consent process, order form or executed copy of these Terms of Service (“Customer”). “Agreement” means these Terms of Service, including any attachments andany documents incorporated by reference herein.
1. DESCRIPTION OF SERVICES. Any Mobile Forms Creation Service, Support Service, Professional Service, or AITool is a “Service.” As used herein, “Intellectual Property” means all registered and unregistered patent, copyright, trademark, trade secret, and other intellectual property.
2. MOBILE FORMS SERVICE.
2.1. Scope. “Mobile Forms Creation Service” means the FastField, powered by Quickbase cloud-based, mobile forms creation tool. Mobile forms created by Customers hosted on the Mobile Forms Creation Service are referred to as “Customer Forms.” Quickbase may update the Mobile Forms Creation Service from time to time and use of new features or functionality may require Customer to elect to use those new features and pay additional fees, as set forth in a new Order (defined below). Mobile Forms Creation Service includes any and all functionalities, features, content, displays, look and feel, and interfaces and/or workflow, which are provided on or through the Mobile Forms Creation Service, excluding any and all Support Services and Professional Services.
2.2. Subscription. Subject to the terms and conditions of this Agreement (including Customer’s timely payment of applicable fees) and the applicable Order, Quickbase grants to Customer during the Term a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right to allow Users to remotely access and use the MobileForms Creation Service, solely for Customer’s internal business purposes (the “MobileForms Creation Service Subscription”). The Mobile Forms Creation ServiceSubscription is limited to the applicable subscription plan, entitlements, and tiers purchased by Customer in, either: (a) the applicable signed order form (for annual subscribers); (b) the billing module (for monthly subscribers); or (c) a written order that Customer has placed with an Authorized Source and which Quickbase has accepted in writing (an “Authorized Source Order”) (each, an “Order”). “User” means Customer’s or its Affiliate’s permanent or temporary employee, consultant, client, external user, contractor or agent, to whomCustomer and Quickbase (or Authorized Source) grants access to the Mobile FormsCreation Service through unique Access Credentials (as defined herein). Customer will be responsible for any and all uses of the Mobile Forms Creation Service by any Users on behalf of Customer or any Affiliates of Customer, or otherwise occurring under Access Credentials assigned to Users of Customer or itsAffiliates, but no Affiliate of Customer will have independent rights under the Agreement unless the Affiliate enters into a separate Order with Quickbase or an Authorized Source, in which case the rights and responsibilities of such Affiliate and its Users will be governed bythe Order or Authorized Source Order with the Affiliate and these Terms ofService. “Affiliate” means any entity that controls, is controlled by, or is under common control with a party to this Agreement, where control means equity ownership of fifty percent or greater interest in the voting shares held by an entity. Customer will also be responsible for any and all uses of the Mobile Forms Creation Service by anyAnonymous Visitor. “Anonymous Visitor” means anyone that accessesCustomer Applications, which applications Customer has configured for access without authentication. Authorized WhiteLabel and Reseller Customers are subject to the additional terms and conditions contained in Exhibit A, attached hereto and incorporated herein by this reference.
2.3. Restrictions. Except as otherwise agreed in writing by the parties, Customer will not:(a) modify or create derivative works of either the MobileForms Creation ; (b) reverse engineer, decompile, disassemble, inspect, or otherwise attempt to reconstruct or obtain the source code to all or any portion of the MobileForms Creation Service, or the code delivered to a web-browser related to the MobileForms Creation Service; (c) sell, lease, sublicense, distribute, resell (except as explicitly agreed to herein), or otherwise commercially exploit the MobileForms Creation Service, (d) interfere with or disrupt the integrity or performance of the Mobile Forms Creation Service or the data contained therein or disrupt any servers or networks connected to the Mobile Forms Creation Service; (e)remove, alter or obscure any proprietary notices associated with the MobileForms Creation Service; (f) provide false, out-of-date, or incomplete information to Quickbase, including in connection with billing or account registration, or fail to promptly update such information; (g) use the Mobile Forms Creation Service in any manner inconsistent with this Agreement; or (h) access or use the Hosted Service or any Deliverable in violation of any applicable laws, including any export laws or regulations. Customer is responsible for all actions of its Users, including any use restriction violations under this Agreement.
2.4. No Sharing of Logins. Each User must use a unique login and password to access the Mobile Forms Creation Service (“Access Credentials”). Sharing of Access Credentials between Users is prohibited. Customer may not revoke and reassign Users on a regular or systematic basis to circumvent fees. Unless specified in an Order, Customer may not provide access to the Mobile Forms Creation Service in a manner that avoids incurring licensing or subscription fees or other charges, including access provided through a separate system, portal or other interface. No User may take actions which result in the User’s access to (including attempts to access) the MobileForms Creation Service from more than one computer at any one time. In limited circumstances, such as managing integrations or workflows, Quickbase allows for the provision of a shared account, sometimes referred to as a service account.These accounts should be appropriately named and tied to a real email address owned by Customer. Customer is responsible for securing accounts in accordance with Customer’s internal security policies and practices.
2.5. Inactive Accounts and Users. If there is no account or user activity (such as a login event or payment) Quickbase may terminate Customer’s inactive account or unconfirmed users, and delete any content contained therein, at its discretion. Quickbase will make commercially reasonable efforts to contact Customer prior to any account or user deletion to provideCustomer with an opportunity to log in to its account or users to demonstrate activity.
2.6. Unauthorized Access. Customer will immediately notify Quickbase if it learns of, or suspects, any unauthorized access to or use of the Mobile Forms Creation Service. Quickbase reserves the right, in its sole discretion and without liability to Customer, to take any action Quickbase deems necessary or reasonable to ensure the security of the Mobile Forms Creation Service and Customer’s Access Credentials, including terminating Customer’s access, requiring password changes, or requesting additional information to authorize activities related to Customer’s account. Customer is solely responsible for: (a) the security and proper use of its AccessCredentials, and must take all steps necessary to ensure that Access Credentials are kept secure, confidential, used properly and not disclosed to unauthorized persons; and (b) all activities and charges incurred in connection with AccessCredentials, and activity taking place under such Access Credentials, where such charges and activities were originated using Access Credentials of theCustomer. Quickbase is authorized to accept Access Credentials as conclusive evidence that the Customer, or its Users, have accessed or otherwise used the MobileForms Creation Service.
2.7. Support Services. During the term of the Mobile Forms Creation Service Subscription, Quickbase will support and maintain the Mobile Forms Creation Service (“Support Services”).
2.8. Convenience Features. Quickbase offers the optional features described in this Section 2.7 (collectively, “Convenience Features”) solely as a convenience to Customer; thus,Convenience Features do not constitute Services. Unless otherwise provided in an applicable Ordering Document (as defined below), Support Services do not include support for any Convenience Features. QUICKBASE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO ANY ASPECT OF ANY CONVENIENCE FEATURE, INCLUDING ANY FUNCTIONALITY RELATED THERETO. CONVENIENCE FEATURES, INCLUDING ALL OF THEIR RESPECTIVE COMPONENTS, ARE OFFERED ON AN “AS-IS,” “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND ANY USE THEREOF IS AT CUSTOMER’S SOLE DISCRETION AND RISK. Customer’s sole and exclusive remedy under this Agreement for any use of a Convenience Feature is to cease use of the feature.
2.8.1. Integrations. Quickbase may allow Customer to integrate the Mobile Forms Creation Service with other third-party services ("Integrations"). While these Integrations may be designed to work with the Mobile Forms Creation Service, Quickbase is not responsible for the third-party aspects of the Integrations, including any application programming interface (“API”) provided by such third-party providers. Customer is responsible for establishing (and continuing) the relationship with, and operating and paying the costs associated with, any third-party services. Customer’s use of any third-party service in connection with the Mobile Forms Creation Service, and any terms and conditions associated with such use, are solely between Customer and such third-party service provider. Quickbase is not responsible for Customer Data (as defined below) once it leaves the Mobile Forms Creation Service.
2.8.2. Beta/Early Access. Quickbase may invite Customer to try new features or functionality for the Mobile Forms Creation Service which are not generally commercially available, and which will be clearly identified as beta, early access, preview or other similar designation (“Early Access Features”). Early AccessFeatures may be subject to additional terms provided to Customer prior to access thereof. Participation in any Early Access Features is at Customer’s sole risk and discretion. Quickbase may modify or discontinue any Early Access Features at any time in its sole discretion and may never make them generally or commercially available. Additional fees may apply for continued use of such features once they are generally or commercially available.
3. OPTIONAL PROFESSIONAL/PROJECT SERVICES
3.1. Personnel. Quickbase may provide Professional/Project Services, as defined below, through its employees, independent contractors and subcontractors or those of an Affiliate (collectively “Personnel”), and will assign Personnel with qualifications suitable for performing the Professional Services. Quickbase may remove, replace or add additional Personnel in its sole discretion, provided that any replacement or additional Personnel are also suitably qualified. Quickbase will not disclose any Confidential Information (as defined below) of Customer to any unaffiliated subcontractor unless and until such subcontractor has agreed in writing to protect the confidentiality of such Confidential Information and be bound by obligations of confidentiality no less restrictive than those in this Agreement and then only to the extent necessary for such subcontractor to perform the Professional Services subcontracted to it. Quickbase will remain responsible for the obligations performed by any of its subcontractors to the same extent as if such obligations were performed by Quickbase’s employees.
3.2. Hours of Operation. Professional Services will be performed during standard local business hours except on national holidays, Quickbase corporate holidays, Customer corporate holidays, or other holidays as mutually agreed. Quickbase will make all decisions, in its sole discretion, concerning any accommodations for Quickbase Personnel to take time off for illness, health and welfare, personal obligations, and vacations.
3.3. Customer Personnel. Customer will ensure that Customer Personnel with the appropriate authority and skill level are available to Quickbase at the applicable points during the engagement or as reasonably requested by Quickbase. Customer will also designate a Customer resource who will manage Customer Personnel, tasks, risks, issues and action items. Customer is responsible for the quality of all components of the engagement that are created by its internal or external development Personnel, and for ensuring that Customer development activities (including Customer’s internal developers and external development Personnel) adhere to a mutually agreed project plan consistent with the implementation and development methodology used by Quickbase.
3.4. Administrative Access. Where the Professional Services require Customer to provide Quickbase with administrative level access to any Customer system or application, Customer agrees to use reasonable commercial efforts to provide access in a timely manner. Customer will continually maintain appropriate access levels, including removing access upon final completion of Professional Services.
3.5. Project Services.
3.5.1. Scope. “Project Services” means optional project services defined under the terms of a statement of work executed by the parties (a “SOW”) with reference to this Agreement. Quickbase will provide the Project Services, including any work products and other deliverables set forth in a SOW (“Deliverables”). Each SOW will set forth the details of the applicable Project Services, including the nature, scope, timetable(s), applicable payments, and any associated Deliverables to be produced. Any and all SOWs will be subject to the terms and conditions of this Agreement.
3.5.2. Hours Balance. Quickbase will have the right to stop performance or delivery of any Project Services if Customer’s hours balance under a current SOW has been expended. Quickbase will inform the Customer when the hours balance is low, with an offer to purchase additional hours through a Change Order. Quickbase will resume any Project Services only after a Change Order securing additional service hours by the Customer has been executed by the parties.
3.5.3. Travel and Expenses. Customer will reimburse Quickbase for pre-approved, reasonable, and necessary expenses (including travel-related expenses) incurred while performing Project Services. Any such fees will be invoiced monthly in arrears and paid according to the SOW.
3.5.4. Changes in Project Services. Either party may submit a request for modification of any Project Services and any associated SOW by email or in writing (a “Change Request”). The appropriate Personnel will review the Change Request and either approve it for further investigation or reject it if the parties cannot mutually agree. Upon the conclusion of the investigation, Quickbase will prepare an estimate, and then deliver to Customer a proposed amendment to change the ProjectServices and any associated SOW (a “Change Order”). The proposed Change Order prepared by Quickbase will describe the requested change, as well as the estimated additional cost and impact on the schedule, if any. Customer may accept the Change Order by signing and returning the Change Order to Quickbase.
3.5.5. Assumptions and Customer’s Responsibilities. Quickbase has relied upon the following terms, general assumptions, and Customer responsibilities in agreeing to perform the Project Services and estimating the number of hours required to perform the Project Services. If the terms and assumptions are incorrect, or if the Customer responsibilities are not performed in a timely manner, the estimated number of hours, fees and expenses may be increased and a change to the scope of work may be required, in addition to any other remedies that may be available to Quickbase under theAgreement. A SOW may include additional assumptions and Customer responsibilities.
3.5.6. Timely Response. Customer agrees to use reasonable commercial efforts to respond to Quickbase’s requestsin a timely manner. Delays in providing timely responses or assistance to Quickbase may result in delays to the SOW estimated timeline.
3.5.7. Cancellations. If Customer cancels a scheduled meeting with less than five (5) business days’ prior written notice to Quickbase, the allocated hours for that meeting will be credited to Quickbase, and Quickbase will bill all such allocated hours as if the meeting had occurred.
3.5.8. Customer Documents. Customer is responsible for creating all documents required by Customer or Quickbase during the performance of the Project Services, unless those documents are listed in the applicable SOW as a Deliverable.
3.5.9. Testing. Where the Project Services include testing, Customer is responsible for: (a) developing integration, system, and user test plans, and performing the testing with such assistance from Quickbase as may be defined in the SOW; (b) providing test data that fully and accurately represents production data to support testing efforts defined in the SOW (if test data includes simulation data, Customer recognizes that simulation data may not expose all defects, and adjustments to the scope and schedule of the project may be required when using simulation data); (c) building, updating, and testing all interfaces to and from any solution, unless interfaces are listed as a Deliverable; and (d) in instances where the Customer has opted to forgo development and testing in a development environment, indemnifying, defending, and holding Quickbase harmless from and against any and all claims, losses, liability, costs, and expenses (including reasonable attorneys’ fees) for any claims arising from or related to any development and Project Services performed in a production environment.
3.5.10. Migration Data. Failure of the Customer to provide any necessary migration data to Quickbase may result in delays and may be subject to additional effort and cost.
3.6. Intellectual Property Rights Related to Professional Services.
3.6.1. Rights in Deliverables. Except as otherwise specifically set out in this Section 3.6 or an applicable SOW, Quickbase shall retain exclusive ownership of all Intellectual Property produced by Quickbase in performing Professional Services and all modifications, enhancements and upgrades thereto and all intellectual property rights therein. Subject to any third-party rights or restrictions and the other provisions of this Section 3.6, upon payment in full, Quickbase hereby grants to Customer a perpetual, non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to use such Intellectual Property solely for use in connection with the Hosted Service.
3.6.2. Pre-Existing IP or Confidential Information. Notwithstanding Section 3.6.1 above, each party will retain exclusive ownership and all intellectual property rights it possessed prior to the date that relevant Professional Services were provided in any and all pre-existing intellectual property, Confidential Information, Customer Data, or Customer Applications of such party, including any general knowledge, concepts, know-how, tools methodologies, techniques or other proprietary information or material of any kind, as well as all rights in any improvement or developments made thereto in performance of the Professional Services or incorporated in theIntellectual Property (the “Pre-Existing IP”).
3.6.3. License in Pre-Existing IP of Quickbase. Subject to the other provisions in Section 3.6, Quickbase hereby grants to Customer a royalty-free, non-exclusive, non-transferable, non-sublicensable, worldwide license in perpetuity to use, modify and reproduce any Pre-ExistingIP of Quickbase that is embedded in the Hosted Service solely for Customer’s internal use of such Intellectual Property in connection with the Hosted Service, for so long as such Pre-Existing IP remains embedded in the HostedService and is not separated therefrom.
3.6.4. License in Pre-Existing IP of Customer. Where Customer Pre-Existing IP is required by Quickbase to perform Professional Services, Customer hereby grants to Quickbase a royalty-free, non-exclusive, transferable (as provided in Section 22.8), non-sublicensable, worldwide license to use, reproduce, distribute, transmit and make derivatives of the Customer Pre-Existing IP in connection with Quickbase’s performance of the Professional Services. Customer represents and warrants to Quickbase thatCustomer: (a) has sufficient rights in all Customer Pre-Existing IP, to hold the Customer Pre-Existing IP and deliver it to Quickbase; (b) has obtained from all individuals, persons, and third parties any required consents, licenses, and authorizations, and has provided all required notices with respect to the collection, retention, disclosure and use of the Customer Pre-Existing IP that are required under applicable foreign, federal and state laws and regulations, including privacy rules and policies; and (c) will only provide CustomerPre-Existing IP to Quickbase that (x) does not infringe or violate any intellectual property rights, publicity, privacy, confidentiality, contractual or other rights, or any foreign, federal, state or local law or regulation, and(y) is not defamatory, offensive, misleading, false, harmful to minors, or obscene.
3.6.5. Quickbase Products. For the avoidance of doubt, nothing in this Agreement will be deemed to provide any ownership, license or other rights to Customer for any of Quickbase’s software, databases, add-ons, plugins, utilities, or other products or services that Quickbase makes commercially available, even if those products or services are configured to work with the Deliverables. Limited rights to use such products or services may be separately obtained by Customer subject to Quickbase’s then-current standard terms.
3.7. Support for Professional Services. Except as specifically set forth in the Enablement Services product description on the Quickbase website, as specifically set forth in an Order, or as set forth in an SOW, all Professional Services are expressly excluded from the SLA and any service credit eligibility set forth in the Agreement, or any other support or maintenance obligations.
3.8. Non-Solicitation. Without Quickbase’s prior written consent, Customer shall not: (a)during the provision of Professional Services and for a period of one (1) year thereafter, solicit for employment any Personnel, or induce or encourage any Personnel to terminate their employment, agency, or individual contractor relationship with Quickbase or an applicable Affiliate of Quickbase; or (b)within one (1) year of any Personnel’s resignation or dismissal, employ or contract with any former Personnel. This Section 3.8, however, shall not prohibit Customer from employing or otherwise engaging any person who has responded to a bona fide recruitment advertisement not specifically targeted to the person employed or otherwise engaged by Customer.
4. OPTIONAL AI TOOLS
4.1. AI Tools. “AI Tools” means optional artificial intelligence and machine learning tools. Quickbase grants Customer a limited, non-exclusive, non-transferable, revocable, subscription to remotely access and use the AI Tools in connection with Quickbase services. In its sole discretion, Customer may disable AI Tools.
5. LICENSE TO CUSTOMER DATA. Customer grants to Quickbase a non-exclusive, royalty-free, fully-paid, worldwide, transferable (as provided in Section 22.8) license to copy, reproduce, transmit, distribute, execute, host, store, display, and use and create derivative works based on the Customer Data and Customer Forms, for the sole purposes of enabling Quickbase to provide the Mobile Forms Creation Service, Support Services, Professional Services, and AI Tools, as applicable. “CustomerData” means information, content, data and other materials transmitted, uploaded, or stored by Customer in the Mobile Forms Creation Service, but does not include “Account Information” or “Service Usage Data.” “Account Information” means information about Customer or its Users that Customer provides to Quickbase in connection with creation or administration of the Customer account, including names, usernames, phone numbers, email addresses, and billing information associated with the Customer account.
6. SERVICE USAGE DATA & ANALYSES.“Service Usage Data” means any data, metadata, or content related to how the Customer and its Users use the Mobile Forms Creation Service, which is collected automatically, manually, or passively whenever Customer or a User interacts with the Mobile Forms Creation Service, including other information related to the performance and operation of the Mobile Forms Creation Service, that does not directly or indirectly identify Customer, Users, or any natural person. FastField may use the Service Usage Data for any lawful purpose, including for compliance and improving FastField’s products and services, to create statistical analyses, and for research and development purposes(collectively, “Service Analyses”). FastField may make Service Analyses publicly available solely for reporting and marketing purposes; provided that such information will be anonymized, de-identified, and/or aggregated so that it: (a) will not identifyCustomer or its Users; and (b) cannot be used, alone or in conjunction with other information, to identify any specific person. Except as expressly set forth in an Order, FastField will have no obligation to provide any Service Usage Data or Service Analyses to Customer or its Users in any form whatsoever.
7. OWNERSHIP OF INTELLECTUAL PROPERTY. Unless otherwise stated in this Agreement: (a) Customer owns all right, title and interest in its name, logo, Intellectual Property, its ConfidentialInformation (including Customer Data), and Customer Forms (to the extent distinct from any Service or Deliverables); and (b) Quickbase owns all right, title, and interest in and to its name, logo, the Services, the ConvenienceFeatures developed by Quickbase, its Intellectual Property, and its Confidential Information (including Service Usage Data). Each party reserves all of its rights not expressly granted in this Agreement.
8. CHANGES TO SERVICES. Quickbase may add, alter, or remove functionality from the Mobile Forms Creation Service at any time without prior notice. Quickbase may also limit, suspend, or discontinue a Service at its discretion. If Quickbase discontinues a Service, it will provide reasonable advance notice to provide Customer with an opportunity to export a copy of Customer Data from the Mobile Forms CreationService.
9. FEES, TAXES, USAGE & AUDIT
9.1. Fees. Customer will pay to Quickbase the fees set forth in each Order, Statement of Work, or Change Order (each, an “Ordering Document”) in accordance with the payment terms set forth in this Agreement and the applicable Ordering Document. Unless otherwise stated on the Order, Customer will pay Fees for subscriptions in advance. Where an Authorized Source Order sets forth any fees that are payable directly to Quickbase by Customer, Customer will pay to Quickbase such fees in accordance with the payment terms set forth in this Agreement. Quickbase reserves the right to change fees for the Service at any time, in its discretion, with notice to Customer, which notice may be provided to the email address on file with Quickbase or through Customer’s Quickbase account; provided, that any increase in fees will take effect on the renewal of the then-current subscription term. Customer will pay all fees to Quickbase on or prior to the due date set forth in the OrderingDocument, as applicable. Customer agrees and acknowledges that an Authorized Source Order may set forth additional fees payable to an Authorized Source by Customer, and Customer agrees to pay all such fees in accordance with an agreement between Customer and an Authorized Source. Late payments, if any, are subject to interest at 1.5% per month or, if lower, the maximum rate allowed by applicable law, from the due date until paid. If Quickbase pursues collection efforts against Customer due to Customer’s failure to pay any fees due under this Agreement, notwithstanding any limitations of liability suggesting otherwise, Customer will pay Quickbase’s reasonable costs of collection, including any attorneys’ fees related thereto. Unless otherwise expressly set forth in the Agreement, all fees will be paid in USD and are nonrefundable, and Customer is responsible for fees associated with all Services purchased, regardless of whether used.
9.2. Taxes. Customer is responsible for paying all applicable taxes in connection with this Agreement (except for taxes based on Quickbase’s income). Fees do not include applicable taxes, and all payments will be made without a deduction for any taxes owed. If Quickbase is required to collect or pay any tax for whichCustomer is responsible, Quickbase will invoice Customer and Customer will pay such taxes and duties directly to Quickbase. If Customer remits taxes on its own, Customer will provide Quickbase with official receipts issued by the appropriate taxing authority, or such other evidence as Quickbase may reasonably request, to establish that such taxes have been paid. If Customer is tax exempt, Customer will promptly provide evidence of such exempt status to Quickbase.
9.3. Additional Usage. Quickbase has the right to monitor Customer’s usage of the Mobile Forms Creation Service. If Customer exceeds any of the usage terms, quantities, or entitlements specified in an applicable Ordering Document and purchased during the Subscription Term (as defined below): (a) Customer may purchase additional usage or Services (“Additional Services”) via a signed Ordering Document; or(b) Quickbase may issue an invoice to Customer for the Additional Services without a separate signed Ordering Document - in either case, the applicable fees for Additional Services will be prorated for the remainder of the then-current Subscription Term. For the avoidance of doubt, if Customer has entered into a multi-year Subscription Term, any Additional Services purchased or billed, and the fees associated therewith, will also be charged for each annual or monthly period remaining for the full Subscription Term. Customer will be responsible for any such Additional Services fees in accordance with the payment terms set forth in this Agreement and any applicable Ordering Document.
10. CONFIDENTIALITY Except for disclosures to employees, agents, or representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those set forth herein, each party agrees not to disclose the other party’s Confidential Information without its prior written consent. “Confidential Information” includes all non-public information provided by one party to the other, including: (a) all intellectual property; (b) financial information (including pricing) and business information; (c) product roadmaps and (d) Customer Data. Confidential Information does not include (x) information that has become publicly known through no breach by Customer or Quickbase of these confidentiality obligations; (y) information that is independently and lawfully developed or obtained without access or reference to, or use of, Confidential Information, as evidenced in writing. If a receiving party is served with any subpoena or other legal process or a court or governmental request or order requiring or purporting to require the disclosure of any Confidential Information of the disclosing party, the receiving party will, unless prohibited by law, promptly notify disclosing party of such fact and cooperate fully (at disclosing party’s expense) with the disclosing party and its legal counsel in opposing, seeking a protective order, seeking to limit, or appealing any such legal process, request, or order to the extent deemed appropriate by the disclosing party. The receiving party will disclose only that portion of the disclosing party’s Confidential Information that is legally required to be disclosed. In the event of a breach or threatened breach of this Section, the disclosing party will be entitled, in addition to any other legal or equitable remedies, to seek an injunction or similar equitable relief against any such breach or threatened breach without the necessity of posting any bond. Upon the disclosing party’s request, the receiving party will, at disclosing party’s election, promptly return or destroy all Confidential Information, including all copies and any derivatives related thereto. Customer Data will be handled in accordance with Quickbase’s data protection addendum, as further described in Section 11 (Security and Privacy). For the avoidance of doubt, the obligations to maintain the confidentiality and non-use of ConfidentialInformation will survive the termination or expiration of the Agreement. Quickbase may retain Account Information after the termination or expiration of theAgreement for the purpose of administering the account, including billing and fulfilling Quickbase’s obligations under the Agreement.
11. SECURITY AND PRIVACY.
11.1. Data Backup. Quickbase will follow its standard archival procedures for storage ofCustomer Data and Customer Forms. In the event of any loss or corruption ofCustomer Data and Customer Forms, Quickbase will use commercially reasonable efforts to restore the lost or corrupted Customer Data and Customer Forms fromthe latest backups maintained by Quickbase in accordance with its archival procedures.
11.2. Privacy and Data Protection. Quickbase processes all personal data for purposes of this Agreement in accordance with the privacy policy (located at https://www.FastFieldforms.com/agreements/privacy-policy.html).
11.3. Data Security. Quickbase will maintain commercially reasonable data security policies intended to prevent unauthorized access, use, modification, deletion, and disclosure of CustomerData, consistent with https://www.FastFieldforms.com/data-protection-agreement.html.Upon request, no more than once per year, Quickbase will provide Customer with confidential reports of third-party examinations or audits (such as SOC 1, SOC 2). Before sharing Customer Data with third-party service providers, Quickbase will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. Quickbase is not responsible for any person or entity accessing, using, modifying, deleting, or disclosing Customer Data without authorization of Customer when: (a) caused by acts or omissions of Customer(including any User); or (b) Quickbase is in compliance with its security policies, procedures, and controls.
12. SUSPENSIONS.
12.1. Suspensions. Quickbase does not pre-screen Customer Data or Customer Forms, but Quickbase will have the right (but not the obligation) to remove any Customer Data and/orCustomer Form that violate this Agreement if Quickbase reasonably believes that a violation exists and the parties have not been able to resolve such violation. Additionally, Quickbase reserves the right to immediately suspend Customer’s access to and use of all or a portion of its account, the Mobile Forms Creation Services, or any particular Customer Data orCustomer Form, as determined by Quickbase in its reasonable discretion: (a) if Customer Data or Customer Form contains illegal or infringing material; (b) is likely to cause significant harm to the Mobile Forms Creation Service or a third party; or (c) as may be required in order to avoid a violation of any applicable law or regulation.
12.2. Excessive Usage. Quickbase may stop usage entirely, or reduce the rate that Customer may make system calls if there is an unexpected spike in Customer’s use of the MobileForms Creation Service compared to customers of a similar size (e.g. a large amount of step runs) or if system calls are returning errors.
12.3. Failure to Pay. Quickbase may suspend the Mobile Forms Creation Service and/or any otherServices if Customer is more than 15 (fifteen) days past due in its payment of fees. Quickbase reserves the right to charge suspended accounts an administrative fee in order to bring Customer’s account out of suspension.
13. TERM. This Agreement commences as of the Effective Date and will remain in effect until all of Customer’s Ordering Documents have expired or been terminated in accordance with the terms of this Agreement (each, the “Term”).Each Ordering Document will start on the date specified in the OrderingDocument and unless earlier terminated in accordance with this Agreement, will continue for the subscription term or duration set forth therein (“SubscriptionTerm”), including any renewals thereof. Unless otherwise set forth in an OrderingDocument, each Subscription Term for Support and Mobile Forms Creation Services will automatically renew for successive 1-year periods, or in the case of monthly customers, successive monthly periods, until terminated as set forth herein or until either party provides to the other party notice of its intention to non-renew or downgrade at least 30 (thirty) days prior to the renewal date. Notwithstanding the foregoing, if the Customer has obtained access to the Services through anAuthorized Source, Customer may be subject to the term and termination provisions contained in Customer’s binding written agreement with an Authorized Source, including any Authorized Source Order.
14. TERMINATION. Unless otherwise prohibited by law, either party may terminate this Agreement and/or any applicable Ordering Documents: (a) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws; (b) upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured within30 (thirty) days after written notice identifying the matter constituting thematerial breach; or (c) by either party providing notice to the other party ofits intention to non-renew or downgrade at least 30 (thirty) days prior to therenewal date. Termination of an individual Ordering Document will not affectany other Ordering Documents then in effect; however, upon an early terminationof this Agreement for any reason, all then-current Ordering Documents willterminate, provided however that termination of this Agreement or an Order for MobileForms Creation Services will cause the termination of all uncompleted SOWs thenbeing performed pursuant to this Agreement. Unless termination of this Agreement or anapplicable Ordering Document resulted from a material, uncured breach of thisAgreement or the applicable Ordering Document by Quickbase, Customer will immediately pay to Quickbase, in addition to any other amounts then due and owing to Quickbase, atermination charge equal to all fees that would have been due for Services thatwould have been provided by Quickbase under the applicable Ordering Documents,had those Ordering Documents not been terminated. Inthe event of the termination or expiration of this Agreement, all licensesgranted under this Agreement will terminate automatically, all Serviceobligations will cease, and Customer will immediately cease using the MobileForms Creation Service and all other Services. Refunds for termination are onlyavailable as set forth in Sections 15.4(ii) & 16.1(c). Any terms which bytheir nature extend beyond the termination of this Agreement will remain ineffect until fulfilled or expired.
15. REPRESENTATIONS AND WARRANTIES.
15.1 General. Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) this Agreement is valid, binding and enforceable in accordance with its terms; (c) the person entering into this Agreement on behalf of an entity has been duly authorized and empowered to enter into this Agreement; and (d) it will perform its obligations or exercise its rights hereunder in conformance with all Applicable Laws and Specified Laws. “Applicable Laws” means all laws and regulations which are generally applicable to the party’s business, without taking into consideration Customer’s specific industry, type of business or data. Customer agrees it is responsible for identifying with specificity and including in each applicable Ordering Document any laws and regulations which are specific to Customer’s industry, business or data (collectively, “Specified Laws”) and which Customer would like Quickbase to comply with when providing Services under that Ordering Document.
15.2 Mobile Forms Creation Service. Quickbase represents and warrants that: (a) the Mobile Forms Creation Service will be provided substantially in accordance with the terms of this Agreement; and (b) it has taken commercially reasonable efforts to prevent a computer virus, worm, time bomb, logic bomb or other such similar computer program from impacting Customer’s use of the Mobile Forms Creation Service. As Customer’s sole and exclusive remedy, and Quickbase’s sole liability, for any breach of the foregoing warranty, Quickbase will use commercially reasonable efforts to modify or reperform the Mobile Forms Creation Service so that it conforms to the requirements of this Agreement. The warranty above will not apply: (i) if the Mobile Forms Creation Service is not used in accordance with this Agreement; (ii) if the non-conformity is caused by third-party products or services; (iii) to any modification of the Mobile Forms Creation Service not performed by Quickbase;or (iv) to any combination by Customer of the Mobile Forms Creation Service with third-party products or services.
15.3 Professional Services. Professional Services will be performed competently in accordance with currently accepted standards and practices for services of a similar nature. Customer must provide Quickbase with written, detailed notice of any alleged breach of this warranty within five (5) days after completion of the applicable Professional Services. Quickbase’s entire liability and Customer’s sole remedy for Quickbase’s uncured breach of this warranty will be for Quickbase to, at its option: (i) use commercially reasonable efforts to correct that breach; or (ii) refund the portion of any fees received under an Ordering Document that corresponds to that breach.
15.4 AI Tools. Quickbase represents and warrants that it has taken commercially reasonable efforts to prevent a computer virus, worm, time bomb, logic bomb or other such similar computer program from impacting Customer’s use of the AITools. As Customer’s sole and exclusive remedy, and Quickbase’s sole liability, upon becoming aware of any breach of the foregoing warranty, Quickbase will use commercially reasonable efforts to modify the AI Tools so that they conform to the requirements of this Agreement. The warranty above will not apply: (i) if the AI Tools are not used in accordance with this Agreement; (ii) if the non-conformity is caused by third-party products or services; (iii) to any modification of the AI Tools not performed by Quickbase; or (iv) to any combination by Customer of the AI Tools with third-party products or services.
15.5 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 15, QUICKBASE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND TO CUSTOMER, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ASTO ANY MATTER OR SERVICE, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, SYSTEM INTEGRATION, SATISFACTORY QUALITY,TITLE, NON-INFRINGEMENT AND SUITABILITY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE OR OTHERWISE, OR THAT ANY SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS ONLY AND QUICKBASE DOES NOT REPRESENT OR WARRANT THAT ANY SERVICE WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS OR THAT IT WILL BE TIMELY, SECURE OR ACCURATE. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM QUICKBASE WILL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. NOTWITHSTANDING ANYTHING TOTHE CONTRARY CONTAINED HEREIN, QUICKBASE MAKES NO REPRESENTATION OR WARRANTY OFANY KIND TO CUSTOMER WITH RESPECT TO ANY FAILURE OF QUICKBASE TO MEET ANY EXPRESS WARRANTIES DUE TO ACTS WITHIN THE CONTROL OF CUSTOMER. QUICKBASE DOES NOT WARRANT RESULTS THAT MAY BE OBTAINED OR ACHIEVED AS A RESULT OF ANY PROFESSIONAL SERVICE OR ASSOCIATED SERVICE PACKAGES, OR THAT PROFESSIONAL SERVICES OR DELIVERABLES WILL WORK IN COMBINATION WITH OTHER SOFTWARE OR EQUIPMENT NOT SPECIFIED IN THE APPLICABLE ORDERING DOCUMENT, OR THAT OPERATION OF ANY DELIVERABLE CONSISTING OF SOFTWARE WILL BE FREE OF NON-MATERIAL ERRORS,BUGS OR MINOR INTERRUPTION, OR THAT ALL SUCH ERRORS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT QUICKBASE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE MOBILE FORMS CREATION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USEOF SUCH COMMUNICATIONS FACILITIES. QUICKBASE IS NOT RESPONSIBLE FOR ANY DELAYS,DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. INDEMNIFICATION.
16.1 Quickbase Indemnification. Quickbase will defend and indemnify Customer, its employees, officers, agents, directors, subsidiaries, successors and assigns against any loss or damage (including reasonable attorneys' fees) incurred in connection with any third-party claims, suits, or proceedings (“Claims”) to the extent arising from an allegation that a Service infringes any copyright, patent, trade secret right, or trademark of a third party arising under United States law. In the event that the Service or any part thereof is likely to, in Quickbase’s sole opinion, or does become the subject of an infringement-related Claim, Quickbase will have the right to: (a) procure for Customer the right to continue using the Service; (b) modify the Service to make it non infringing; or (c) terminate this Agreement and provide Customer with a pro-rata refund of any pre-paid fees.Quickbase will have no liability for any Claim or demand arising from: (i) the use or combination of the Service or any part thereof with software, hardware, or other materials not developed by Quickbase if the Service or use thereof would not infringe without such combination; (ii) where changes were made, or actions taken, by Quickbase upon instructions from Customer and liability would not have arisen but for such instructions; (iii) a breach by Customer of any obligation under this Agreement or a use of the Service by Customer or any User in a manner outside the scope of any right granted herein if the Claim would not have arisen but for such breach or unauthorized use; (iv) modification of theService by or on behalf of Customer; or (v)where Customer continues allegedly infringing activity after being notified thereof in writing or after being informed of or provided with modifications that would have avoided the alleged infringement. The foregoing states Quickbase’s entire liability and Customer’s sole and exclusive remedy for intellectual property rights infringement.
16.2 Customer Indemnification. Customer will defend, indemnify and hold Quickbase, its employees, officers, agents, directors, subsidiaries, successors and assigns harmless from and against any loss or damage (including reasonable attorneys' fees) incurred in connection with Claims arising out of or related to (i) Customer Data, (ii)Customer Forms, (iii) any Integrations by Customer in accordance with Section 2.7.2(Integrations), (iv) an actual or alleged breach or violation by Customer ofSection 2 (Mobile Forms Creation Service), Section 9.1 (Fees), Section 9.2 (Taxes),Section 10 (Confidentiality); or (v) Customer’s failure to comply with all applicable laws and regulations, including privacy regulations.
16.3 Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense at the indemnifying party’s expense; and (c) at indemnifying party’s option, giving sole control of the defense and any related settlement negotiations to the indemnifying party. The indemnifying party will not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such Claim against the indemnified party.
17. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA, LOST PROFITS OR INCOME, LOSS OF BUSINESS, OR LOSS OF GOODWILL, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF QUICKBASE OR CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS AND REGARDLESS OF HOW CAUSED OR FORESEEABLE; AND (II) EITHER PARTY’S ENTIRE LIABILITY HEREUNDER FROM ANY CAUSE WHATSOEVER WILL BE LIMITED TO DIRECT, PROVEN DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNTS PAID OR PAYABLE TO QUICKBASE BY CUSTOMER DURING THE PRIOR 12 (TWELVE) MONTH PERIOD TO WHICH THE APPLICABLE CAUSE OF ACTION AROSE. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING LIMITATION OF LIABILITY IS NOT INTENDED TO LIMIT EITHER PARTY’S LIABILITY FOR WILLFUL MISCONDUCT.
18. INSURANCE. Quickbase will maintain at least the following insurance during the Term: (a) general liability insurance of $1 million per occurrence and $2 million in aggregate; (b) automobile insurance of $1 million per occurrence; (c) umbrella insurance covering (a)-(b) of an additional $3 million; (d) worker’s compensation insurance in accordance with statutory requirements; and (e) technology errors and omissions and cyber insurance of $3 million. All such coverage will be issued by insurers properly authorized to do business in the jurisdictions in which the Service is performed. Upon request, Quickbase will provide Customer with a certificate of insurance evidencing the applicable coverages set forth herein.
19. FEEDBACK. At its option, Customer may provide feedback, suggestions and/or recommendations about the Service to Quickbase (“Feedback”). If Customer provides Feedback, then Quickbase may use such Feedback for itself and other customers, without restriction and without obligation to Customer.
20. PUBLICITY. FastField may publicly refer to Customer as a customer of FastField, including on FastField’s website and in sales presentations, and may use Customer’s name and logo for such purposes, unless Customer opts out of such naming rights by notifying FastField via email to publicity@FastField.com and including “Opt Out” in the subject line of the email.
21. NOTICES. All notices under this Agreement will be in writing; delivered by hand, e-mail, certified mail (return receipt requested, postage prepaid) or a nationally recognized next-day courier service (all delivery charges prepaid) to the addresses indicated either below or on the applicable Ordering Document. All notices will be effective upon: (a) receipt by the party to which notice is given; (b) the first day following sending by electronic mail; or (c) on the third (3rd) day following mailing, whichever occurs first. Each party may change its address for receipt of notice by giving notice of such change to the other party. Notwithstanding the foregoing, Customer acknowledges and agrees that FastField may send service notices to Customer via email or by posting them on one of FastField’s webpages, such as service.FastField.com.
Notice to Quickbase:
By mail:
Quickbase, Inc.
Attn: General Counsel
255 State Street
Boston, MA 02109
By e-mail:
generalcounsel@quickbase.com
Notice to Customer:
By mail or email: To the contact identified in Customer’s most recent Ordering Document.
22. GENERAL.
22.1 Independent Contractors. Quickbase’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other and will not represent to any third party that it has any authority to act on behalf of the other.
22.2 Remote Work. Unless otherwise agreed in writing in an applicable Ordering Document, all Services will be provided by Quickbase Personnel remotely from Quickbase offices or other locations, and travel only as mutually agreed in writing.
22.3 Infrastructure. Except as expressly set forth in an applicable Ordering Document, Customer will provide and is responsible for all Internet connectivity, internal infrastructure, graphics collateral, and hardware and software necessary to use any Services, including any Deliverables, such as any application deployment within the Customer environment.
22.4 Language. Unless otherwise agreed in writing in an applicable Ordering Document, all Services, including all correspondence and documents, and all Deliverables, will be provided in English, and all meetings will be conducted in English.
22.5 Governing Law; Jurisdiction. This Agreement will be governed and interpreted by and under the laws of the Commonwealth of Massachusetts applicable to contracts entered into and wholly performed therein and the parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods, the Convention on the Use of Electronic Communications in International Contracts, and the Uniform Computer Information Transactions Act. Any disputes arising out of or related to this Agreement or performance hereof, shall be exclusively brought in the federal or state courts in the Commonwealth of Massachusetts and the parties waive any objections related thereto.
22.6 Jury Trial. The parties irrevocably waive any right to a trial by jury.
22.7 Statute of Limitations. Notwithstanding any law providing a longer statute of limitations, any Customer claim or cause of action arising out of or related to this Agreement and/or Customer’s use of the Service must be filed within one (1) year after such claim or cause of action arose, without regard to the date such claim or cause of action was discovered, or such claim or cause of action will be forever barred.
22.8 Assignment. Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other, except that Quickbase may assign this Agreement without Customer’s prior written consent in the case of a merger, acquisition or other change of control, and in such event this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Any attempted assignment or transfer in violation of the foregoing will be null and void.
22.9 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, strike, widespread disease, epidemic, pandemic, quarantines, shortage of materials, fire, earthquake, flood, terrorism, failure of utility or telecommunications providers, denial of service attack, failure of suppliers, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
22.10 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
22.11 Federal Government End Use Provisions. If Customer is the U.S. government or any entity acting on its behalf, each Service is licensed as a Commercial Item, as that term is defined at 48 C.F.R. §2.101, and licensed only with those rights as are granted to all other entities or individuals entering into an agreement to use the Service. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Quickbase to determine if there are acceptable terms for transferring such rights, and in such case, enter into a separate addendum signed by both parties specifically conveying such other rights.
22.12 Export; Anti-Corruption. Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing, each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports. Both parties agree to fully comply with the provisions of the United States Foreign Corrupt Practices Act (“FCPA”) and/or the Organization for Economic Cooperation and Development (“OECD”) prohibiting foreign bribery and improper payments.
22.13 Waiver; Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by an authorized representative of each party. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
22.14 Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. A manually or electronically signed copy of this Agreement or any Ordering Document delivered by facsimile, e-mail or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of the Agreement or Ordering Document.
22.15 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
22.16 Future Functionality. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality.
22.17 Miscellaneous; Entire Agreement. Any use of the term “include” or “includes” or “including” will mean “include without limitation,” “includes without limitation” and “including without limitation,” respectively. This Agreement constitutes the entire agreement between the parties as to its subject matter, including all Exhibits, and supersedes all prior agreements, proposals or representations concerning the subject matter of this Agreement. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void, and are hereby rejected. No amendment of any provision of this Agreement (or any Ordering Document) will be effective unless in writing and signed by the parties. In the event of a conflict or inconsistency between the terms of this Agreement and any agreement between Customer and an Authorized Source, the terms of this Agreement will control.
IN WITNESS WHEREOF, this Agreement has been duly executed by the undersigned as of the Effective Date.
EXHIBIT A
Additional Terms and Conditions for White Label and Reseller Customers
The following conditions apply for White Label and Resellers only.
Conditions:
1. No Representation
The Customer does not represent the Company, the FastField powered by Quickbase service, or any other fully incorporated entities. This includes but is not limited to: Employee of Quickbase, Inc., representative of the Quickbase Forms brand, support technician or application developer for the product, etc.
2. IP Ownership Retention
The Customer acknowledges that in providing the Service it is utilizing the Company Technology and proprietary services. As between Customer and the Company, the Company owns all right, title and interest in and to the Service, the Company Technology and the Company IP Rights. Other thanas expressly set forth in this Agreement, no license or other rights in or to the Service, the Company Technology and the Company IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
The Customer shall not create or attempt to create by reverse engineering, disassembly, decompilation or otherwise, the source code from the Service.
3. Protection of End User and Abidance of Laws
The Customer shall be solely responsible for complying with the applicable laws and regulation in the Territory, or any nation, or political subdivision thereof, in which it engages in business in performing its responsibilities hereunder. Reseller shall bear all expenses and costs related to compliance with any such laws and/or regulations such as but not limited to GDPR, CPCA, etc.
The Customer must establish and enforce Privacy Policy and Terms of Use agreements to abide by respective privacy laws for the locations of their end users. The Company may terminate this agreement if it learns of any policy violation by the Customer under App Marketplace provider policies.
4. Compliance with App Marketplace Provider Agreements and Policies
App Marketplace distributors, including Google and Apple, require compliance with their app distribution agreements and review agreements. The Company does not have control over these terms and conditions and they may change at any time.
In the event that any of the App Marketplace providers modify their terms and conditions such that we can no longer permitted to distribute the Company's White Label version of the FastField powered by Quickbase app, the Customer will need to remove the application from the respective App Marketplace.
The Company reserves the right to terminate this agreement if the Customer violates their terms with any App Marketplace agreements, and Customer agrees that it will immediately remove the white labelled app from its developer account(s) and fully indemnify the Company in any action brought against them for such violations.
5. End User Support
The Customer assumes 1st tier support. Including but not limited to: Password Resets, Login Issues, Form Troubleshooting, Calculations/Scripting, etc.
6. Brand Usage
Quickbase makes its best effort to conceal its name and branding through its white labelled services. However, there are certain circumstances that can result in our brand being exposed to the end user. Examples of this include but are not limited to the following:
• iOS White Labels deployed through Apple Business Manager identify Quickbase, Inc. as copyright holder when examined in the Detail view for the App in iTunes Desktop.
• Internet search results in which the search engines have automatically associated Quickbase and Quickbase with the white label brand through common SEO terms and tags.
• Searches or viewing of the raw source code of our Online Portal where names and URL paths-might reflect a name or brand associated with Quickbase.
7. Digital Marketing Limitations
No digital Marketing or SEO engineering by Customer or at Customer's request of another entity is permitted which can compete with Quickbase.
The Customer cannot communicate without written consent from Company regarding future/non-existent Quickbase features. The reseller shall not communicate timelines or expectations to their clients for feature sets, form builds, or any other FastField powered by Quickbase Forms related product or feature without written consent.
The Company will retain the right to engage with any prospective client if contacted directly and will not be barred from doing business directly.
8. Removal of White Label App Upon Termination of Agreement
Upon termination of this agreement, the Company agrees to immediately terminate the use of any installed versions of the FastField app or white labeled versions of the FastField app. In the case of MDM or private distribution, the Customer must remove and delete all copies of the white label App from all App Marketplaces, self-hosted locations, and internally stored copies of the white label APK or IPA binary files.
9. Non-Exclusive Relationship
In no way does this agreement establish an exclusive relationship or territory with the Customer. The Company reserves the right to market to and sell to any industry, target segment, or territory that might overlap with the Customer's field of business.
10. Subaccount Customer Conversion
In the event the Reseller no longer operates or is in breach of this agreement, Company has the right to convert Reseller's sub-accounts or customers using FastField or white labelled versions of FastField into direct Quickbase customers.
11. Pricing Terms
Reseller is free to determine its own resale prices for its customers with the precondition that published or advertised pricing shall not be less than the published retail price of FastField Forms at https://www.FastFieldforms.com/pricing.html. Company shall have the exclusive right, at any time to change its prices or discounts or institute support and maintenance fees related to the Service. It is wholly the responsibility of Customer to maintain pricing consistent with any changes to this published retail price over time.
12. Taxes
Customer shall bear and be responsible for the payment of all taxes in the Territory associated with the purchase or license of any Subscriptions.
