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BUSINESS SERVICES AGREEMENT
Last Updated: 4/5/2023
1. AGREEMENT
This Business Services Agreement establishes the terms and conditions to which you (“you” or “Client”) and Top Step Technology, LLC (“Top Step” or the “Company”) (collectively, the “Parties”) agree with respect to the development, ownership, and/or use of any application(s) that Top Step develops or otherwise works on for Client (the “Product”) and any other software, onboarding, implementation, or other professional services that may be provided by the Company (collectively with Product, the “Services”). This Business Services Agreement, along with the Quickbase Terms of Service (available at quickbase.com/terms-of-service), and any relevant or applicable Services Addenda (defined below), which are incorporated herein, are referred to collectively as the “Agreement”. The Parties acknowledge receipt of and agree to be bound by the Agreement, and Client’s use of the Services shall be subject to the terms of the Agreement. The Agreement is effective immediately upon your first access to the Services. If you access or utilize the Services on behalf of an entity then “you” or “Client” includes both you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to the Agreement, and (b) you agree to the Agreement on that entity’s behalf.
2. IMPLEMENTATION
2. IMPLEMENTATION
2.1. Implementation. Company shall provide professional services to Client which may include, but are not necessarily limited to, application development, onboarding, training, data conversion, integrations, and other consulting services related to Client’s use of the Services, (collectively, the “Implementation Services”), and only as specifically agreed to in writing (a “Services Addendum”). A Services Addendum may also contain additional terms including, but not limited to: pricing; subscription terms and information; and other additional services to be performed and/or deliverables to be provided to Client by Company. Client will be responsible for:
2.1. Implementation. Company shall provide professional services to Client which may include, but are not necessarily limited to, application development, onboarding, training, data conversion, integrations, and other consulting services related to Client’s use of the Services, (collectively, the “Implementation Services”), and only as specifically agreed to in writing (a “Services Addendum”). A Services Addendum may also contain additional terms including, but not limited to: pricing; subscription terms and information; and other additional services to be performed and/or deliverables to be provided to Client by Company. Client will be responsible for:
(a) establishing and maintaining procedures to examine and confirm results prior to use;
(b) adopt procedures to identify and correct Client’s errors and omissions, and any errors and omissions of any employee, contractor, customer, or representative of Client that is authorized by client to access the Services (a “User”);
(c) designate authorized primary and secondary points of contact who will coordinate communication, activities, and make decisions during the Term (as defined in Section 4.2 below); and
(d) the timely completion and fulfillment of all other tasks, duties, and responsibilities as (i) set forth in the Agreement and (ii) as communicated by Company to Client in writing, provided that such tasks, duties, and responsibilities are, in Company’s reasonable opinion, necessary for Company to perform its obligations under the Agreement.
2.2. Client Responsibilities. Client acknowledges and agrees that Company’s ability to meet its obligations under the Agreement is dependent upon the timely, accurate, and complete satisfaction of Client’s responsibilities under the Agreement. Company shall be entitled to rely on all decisions and approvals by Client’s points of contact.
2.2. Client Responsibilities. Client acknowledges and agrees that Company’s ability to meet its obligations under the Agreement is dependent upon the timely, accurate, and complete satisfaction of Client’s responsibilities under the Agreement. Company shall be entitled to rely on all decisions and approvals by Client’s points of contact.
3. USE RIGHTS
3. USE RIGHTS
3.1. Grant of Access. Subject to the terms of the Agreement, Client shall grant to Company all rights, permissions, and credentials to all Client applications and other services, as deemed necessary by Company, for the duration of the Term.
3.1. Grant of Access. Subject to the terms of the Agreement, Client shall grant to Company all rights, permissions, and credentials to all Client applications and other services, as deemed necessary by Company, for the duration of the Term.
4. FINANCIAL TERMS
4. FINANCIAL TERMS
4.1. Billing and Payment. All hourly, one-time charges, and other amounts payable by Client to Company shall be detailed and payable according to the terms set forth in an applicable Services Addendum. Client agrees that all payments are non-refundable and non-transferable except as expressly provided in the Agreement. Client shall reimburse Company for any expenses incurred, including interest and reasonable attorneys’ fees, in collecting amounts due to Company hereunder.
4.1. Billing and Payment. All hourly, one-time charges, and other amounts payable by Client to Company shall be detailed and payable according to the terms set forth in an applicable Services Addendum. Client agrees that all payments are non-refundable and non-transferable except as expressly provided in the Agreement. Client shall reimburse Company for any expenses incurred, including interest and reasonable attorneys’ fees, in collecting amounts due to Company hereunder.
4.2. Term. Unless specified otherwise in the Services Addendum, the Term of the Agreement shall be from the date the Services Addendum is fully executed until such time that the Services, as particularly specified in the Services Addendum, are completed by Company and Company sends notification of such completion to Client.
4.2. Term. Unless specified otherwise in the Services Addendum, the Term of the Agreement shall be from the date the Services Addendum is fully executed until such time that the Services, as particularly specified in the Services Addendum, are completed by Company and Company sends notification of such completion to Client.
4.3. Cancellations. The Agreement is non-cancellable by Client, unless Company agrees to such cancellation in writing.
4.3. Cancellations. The Agreement is non-cancellable by Client, unless Company agrees to such cancellation in writing.
4.4. Late Payments. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection).
4.4. Late Payments. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection).
5. CONFIDENTIALITY
5. CONFIDENTIALITY
5.1. Confidential Information. Confidential Information means nonpublic information that relates to or is provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that the Disclosing Party designates as being confidential or that under the circumstances surrounding disclosure should be treated as confidential (“Confidential Information”). Confidential Information includes, without limitation: information relating to the disclosing party’s software or hardware products that may include source code, API data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations and development methods as well as information relating to the disclosing party’s business or financial affairs, which may include business methods, marketing strategies, pricing, competitor information, product development strategies and methods, customer lists and financial results. Confidential Information also includes information received from third parties that the Disclosing Party is obligated to treat as confidential.
5.1. Confidential Information. Confidential Information means nonpublic information that relates to or is provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that the Disclosing Party designates as being confidential or that under the circumstances surrounding disclosure should be treated as confidential (“Confidential Information”). Confidential Information includes, without limitation: information relating to the disclosing party’s software or hardware products that may include source code, API data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations and development methods as well as information relating to the disclosing party’s business or financial affairs, which may include business methods, marketing strategies, pricing, competitor information, product development strategies and methods, customer lists and financial results. Confidential Information also includes information received from third parties that the Disclosing Party is obligated to treat as confidential.
5.2. Exceptions. Confidential Information shall not include any information that the Disclosing Party can show:
5.2. Exceptions. Confidential Information shall not include any information that the Disclosing Party can show:
(a) is already known to the Receiving Party prior to disclosure pursuant to this Agreement;
(a) is already known to the Receiving Party prior to disclosure pursuant to this Agreement;
(b) is or becomes publicly known through no wrongful act of the Receiving Party;
(b) is or becomes publicly known through no wrongful act of the Receiving Party;
(c) is received by the Receiving Party from a third party without any restriction on confidentiality; or
(c) is received by the Receiving Party from a third party without any restriction on confidentiality; or
(d) is approved for release by prior written authorization of the Disclosing Party.
(d) is approved for release by prior written authorization of the Disclosing Party.
5.3. Confidentiality Obligations. The Receiving Party agrees to maintain the confidentiality of the Disclosing Party’s Confidential Information and to use at least the same care and precaution in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information, but in no event less than a reasonable degree of care. Without limiting the generality of the foregoing, the Receiving Party shall not publish or disclose the Disclosing Party’s Confidential Information to third parties other than its employees, personnel, attorneys, advisors, and potential investors who are bound to keep such information confidential. Either party may only use Confidential Information in order to fulfill its obligations under this Agreement.
5.3. Confidentiality Obligations. The Receiving Party agrees to maintain the confidentiality of the Disclosing Party’s Confidential Information and to use at least the same care and precaution in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information, but in no event less than a reasonable degree of care. Without limiting the generality of the foregoing, the Receiving Party shall not publish or disclose the Disclosing Party’s Confidential Information to third parties other than its employees, personnel, attorneys, advisors, and potential investors who are bound to keep such information confidential. Either party may only use Confidential Information in order to fulfill its obligations under this Agreement.
5.4. Required Disclosures. Notwithstanding the provisions of this Section 5, Receiving Party shall not be in breach of the Agreement if it, or any of its Representatives disclose Confidential Information
5.4. Required Disclosures. Notwithstanding the provisions of this Section 5, Receiving Party shall not be in breach of the Agreement if it, or any of its Representatives disclose Confidential Information
(a) in response to a valid order by a court or other governmental body of competent jurisdiction;
(a) in response to a valid order by a court or other governmental body of competent jurisdiction;
(b) as required by law; or
(b) as required by law; or
(c) if such disclosure was necessary to establish the relative rights of the Parties in a legal proceeding; provided, that Receiving Party promptly notifies Disclosing Party in writing of any such requirement so that Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement.
(c) if such disclosure was necessary to establish the relative rights of the Parties in a legal proceeding; provided, that Receiving Party promptly notifies Disclosing Party in writing of any such requirement so that Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement.
Receiving Party will reasonably cooperate with Disclosing Party so that it can seek a protective order or other appropriate remedy or limitation, and Disclosing Party will reimburse all reasonable costs (including reasonable attorneys’ fees and expenses) incurred by Receiving Party in connection with a written request for specified assistance and cooperation by Disclosing Party.
Receiving Party will reasonably cooperate with Disclosing Party so that it can seek a protective order or other appropriate remedy or limitation, and Disclosing Party will reimburse all reasonable costs (including reasonable attorneys’ fees and expenses) incurred by Receiving Party in connection with a written request for specified assistance and cooperation by Disclosing Party.
6. OWNERSHIP – INTELLECTUAL PROPERTY RIGHTS
6. OWNERSHIP – INTELLECTUAL PROPERTY RIGHTS
6.1. Company Rights. Except as specified in Section 6.2 below, the Services, all materials used in the performance of any Implementation Services (other than any Client Materials (as defined below)) and all deliverables provided in the performance of any Implementation Services will at all times remain the exclusive, sole and absolute property of Company or its licensors. Client does not acquire any right, title, or interest in or to the Services or any deliverables provided as part of the Implementation Services except the limited right to access and use them in accordance with the terms of the Agreement. All rights, title and interest (including all intellectual property rights) in or to the Services not expressly granted under the Agreement are reserved by Company and its licensors. If Client or its Users elect to provide Company with any feedback, comments, or suggestions for improvements of any kind related to the Services (“Feedback”), the Feedback will be the sole and exclusive property of Company and Client hereby assigns all rights in and to the Feedback to Company. Company will have the right to use and disclose such Feedback in any manner and for any purpose, without remuneration, compensation, or attribution to Client or its Users.
6.1. Company Rights. Except as specified in Section 6.2 below, the Services, all materials used in the performance of any Implementation Services (other than any Client Materials (as defined below)) and all deliverables provided in the performance of any Implementation Services will at all times remain the exclusive, sole and absolute property of Company or its licensors. Client does not acquire any right, title, or interest in or to the Services or any deliverables provided as part of the Implementation Services except the limited right to access and use them in accordance with the terms of the Agreement. All rights, title and interest (including all intellectual property rights) in or to the Services not expressly granted under the Agreement are reserved by Company and its licensors. If Client or its Users elect to provide Company with any feedback, comments, or suggestions for improvements of any kind related to the Services (“Feedback”), the Feedback will be the sole and exclusive property of Company and Client hereby assigns all rights in and to the Feedback to Company. Company will have the right to use and disclose such Feedback in any manner and for any purpose, without remuneration, compensation, or attribution to Client or its Users.
6.2. Client Rights. Client retains sole and exclusive ownership to:
6.2. Client Rights. Client retains sole and exclusive ownership to:
(a) the Client Data;
(a) the Client Data;
(b) content, materials or technology supplied by Client to Company in connection with Company’s provision of the Services or the Implementation Services (the “Client Materials”);
(b) content, materials or technology supplied by Client to Company in connection with Company’s provision of the Services or the Implementation Services (the “Client Materials”);
(c) Client’s name, trademarks and logos (the “Client Marks”); and
(c) Client’s name, trademarks and logos (the “Client Marks”); and
(d) any application, documentation, and/or any other intellectual property specified in the Services Addendum as (i) a deliverable created by Company for Client and paid for by Client or (ii) something already or previously owned by Client that Company, per the Services Addendum, is contracted to improve or modify.
(d) any application, documentation, and/or any other intellectual property specified in the Services Addendum as (i) a deliverable created by Company for Client and paid for by Client or (ii) something already or previously owned by Client that Company, per the Services Addendum, is contracted to improve or modify.
Client hereby grants Company a non-exclusive, royalty-free, fully-paid, non-sublicensable (except to Company’s contractors performing services on its behalf) license during the Term to (i) use, copy, display and reproduce the Client Marks and (ii) use, transmit, reproduce, display, distribute and prepare derivative works of the Client Materials, in each case as necessary to provide the Services and any Implementation Services to Client. Client also grants Company a non-exclusive, royalty-free license to use the Client Marks to identify Client as a customer of Company on promotional materials and Company’s website. Any use of the Client Marks shall be in accordance with Client’s standard trademark guidelines, if any such guidelines are provided to Company.
Client hereby grants Company a non-exclusive, royalty-free, fully-paid, non-sublicensable (except to Company’s contractors performing services on its behalf) license during the Term to (i) use, copy, display and reproduce the Client Marks and (ii) use, transmit, reproduce, display, distribute and prepare derivative works of the Client Materials, in each case as necessary to provide the Services and any Implementation Services to Client. Client also grants Company a non-exclusive, royalty-free license to use the Client Marks to identify Client as a customer of Company on promotional materials and Company’s website. Any use of the Client Marks shall be in accordance with Client’s standard trademark guidelines, if any such guidelines are provided to Company.
7. DATA
7. DATA
7.1. Data Processing. Client understands and agrees that the processing of any Client Data (as defined in Section 7.4 below) relating to an identified or identifiable natural person to the extent that such information is protected as “personal data” or “personal information” under applicable Data Protection Laws (“Personal Data”) on behalf of the Client in the course of providing the Services and/or to the extent required by Data Protection Laws, shall be handled by Quickbase in accordance with the policies of Quickbase. Client agrees that Company shall not be held responsible or liable for any failures of Quickbase including, but not limited to: data breaches, security incidents, and loss of data.
7.1. Data Processing. Client understands and agrees that the processing of any Client Data (as defined in Section 7.4 below) relating to an identified or identifiable natural person to the extent that such information is protected as “personal data” or “personal information” under applicable Data Protection Laws (“Personal Data”) on behalf of the Client in the course of providing the Services and/or to the extent required by Data Protection Laws, shall be handled by Quickbase in accordance with the policies of Quickbase. Client agrees that Company shall not be held responsible or liable for any failures of Quickbase including, but not limited to: data breaches, security incidents, and loss of data.
7.2. Company Data. Notwithstanding anything to the contrary in the Agreement, Client acknowledges that Company shall have a right to use and disclose data relating to and/or obtained in connection with the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered “personal data” or “personal information” under Data Protection Laws, Company is the Controller of such data and accordingly shall process such data in compliance with Data Protection Laws.
7.2. Company Data. Notwithstanding anything to the contrary in the Agreement, Client acknowledges that Company shall have a right to use and disclose data relating to and/or obtained in connection with the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered “personal data” or “personal information” under Data Protection Laws, Company is the Controller of such data and accordingly shall process such data in compliance with Data Protection Laws.
7.3. Client Privacy Policy. Client shall implement a privacy policy that clearly and conspicuously explains how Client collects, processes, stores, uses, enhances and/or discloses any data that is provided, uploaded or otherwise submitted through the Services and shall make such privacy policy publicly available to its Users and any other relevant individuals in accordance with Data Protection Laws. Client’s privacy policy shall appropriately reflect Company’s use and processing of Client Data under the Agreement. Client shall ensure that its privacy policy complies with all Data Protection Laws, and Client shall strictly comply with its privacy policy.
7.3. Client Privacy Policy. Client shall implement a privacy policy that clearly and conspicuously explains how Client collects, processes, stores, uses, enhances and/or discloses any data that is provided, uploaded or otherwise submitted through the Services and shall make such privacy policy publicly available to its Users and any other relevant individuals in accordance with Data Protection Laws. Client’s privacy policy shall appropriately reflect Company’s use and processing of Client Data under the Agreement. Client shall ensure that its privacy policy complies with all Data Protection Laws, and Client shall strictly comply with its privacy policy.
7.4. Client Data. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all electronic information, in any form, that Client or any User provides, uploads, or otherwise submits through the Services (the “Client Data”). Client shall only disclose, submit or provide to Company Client Data as necessary for Company to provide the Services to Client. Client hereby grants Company a non-exclusive, royalty-free, fully-paid, worldwide license (with the right to sublicense) during the Term to access, use, reproduce and create derivative works of the Client Data in order to provide the Services for Client and fulfill Company’s obligations under the Agreement. Client hereby represents and warrants that Client has provided all necessary and appropriate notices and opt-outs, and has obtained all necessary and appropriate consents, approvals and rights to collect, process, use, store, enhance and disclose the Client Data and allow Company to use, store, disclose and otherwise process such Client Data as contemplated by the Agreement, including to and from Users wherever required under applicable law. Client shall obtain and retain throughout the Term and for 3 years after its termination records sufficient to demonstrate it has provided all such notices and opt-outs and obtained all such consents, approvals and rights.
7.4. Client Data. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all electronic information, in any form, that Client or any User provides, uploads, or otherwise submits through the Services (the “Client Data”). Client shall only disclose, submit or provide to Company Client Data as necessary for Company to provide the Services to Client. Client hereby grants Company a non-exclusive, royalty-free, fully-paid, worldwide license (with the right to sublicense) during the Term to access, use, reproduce and create derivative works of the Client Data in order to provide the Services for Client and fulfill Company’s obligations under the Agreement. Client hereby represents and warrants that Client has provided all necessary and appropriate notices and opt-outs, and has obtained all necessary and appropriate consents, approvals and rights to collect, process, use, store, enhance and disclose the Client Data and allow Company to use, store, disclose and otherwise process such Client Data as contemplated by the Agreement, including to and from Users wherever required under applicable law. Client shall obtain and retain throughout the Term and for 3 years after its termination records sufficient to demonstrate it has provided all such notices and opt-outs and obtained all such consents, approvals and rights.
8. DISCLAIMERS
8. DISCLAIMERS
8.1. General Warranty Disclaimer. THE SERVICES ARE PROVIDED “AS IS,” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. TOP STEP CANNOT AND DOES NOT PROVIDE ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, SECURITY OR CONTENT OF THE QUICKBASE PLATFORM OR OTHER THIRD PARTY SERVICES, OR ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHERMORE, TOP STEP CANNOT AND DOES NOT WARRANT THAT THE SERVICES WILL BE FREE OF ERROR, VIRUSES OR OTHER MALICIOUS CODE, WILL BE UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CLIENT’S CONTENT OR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY TOP STEP.
8.1. General Warranty Disclaimer. THE SERVICES ARE PROVIDED “AS IS,” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. TOP STEP CANNOT AND DOES NOT PROVIDE ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, SECURITY OR CONTENT OF THE QUICKBASE PLATFORM OR OTHER THIRD PARTY SERVICES, OR ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHERMORE, TOP STEP CANNOT AND DOES NOT WARRANT THAT THE SERVICES WILL BE FREE OF ERROR, VIRUSES OR OTHER MALICIOUS CODE, WILL BE UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CLIENT’S CONTENT OR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY TOP STEP.
8.2. Connections over the Internet. Client acknowledges that use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent security precautions and illegally gain access to the services and customer data. Accordingly, Company cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the internet.
8.2. Connections over the Internet. Client acknowledges that use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent security precautions and illegally gain access to the services and customer data. Accordingly, Company cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the internet.
8.3. Use of Third Party Materials in the Services. Certain Services may display, include, or make available content, data, information, applications, or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, Client acknowledges and agrees that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third Party Materials or websites. Company does not warrant or endorse and does not assume and will not have any liability or responsibility to Client or any other person for any Third Party Materials, or for any other materials, products, services, or websites of third parties.
8.3. Use of Third Party Materials in the Services. Certain Services may display, include, or make available content, data, information, applications, or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, Client acknowledges and agrees that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third Party Materials or websites. Company does not warrant or endorse and does not assume and will not have any liability or responsibility to Client or any other person for any Third Party Materials, or for any other materials, products, services, or websites of third parties.
9. INDEMNIFICATION
9. INDEMNIFICATION
9.1. Company Indemnification. Company shall indemnify, defend and hold harmless Client and Client’s affiliates, and each of their officers, members, shareholders, directors, employees, and agents (collectively, the “Client Indemnified Parties”), from and against all liabilities, obligations, losses, damages, fines, judgments, Settlements, charges, expenses (including reasonable attorneys’ and accountants’ fees and disbursements), and costs arising from a claim, demand, proceeding, suit, or action by a third party (“Third Party Claims”), incurred by or asserted against any of the Client Indemnified Parties, to the extent the Third Party Claims relate to, arise out of, or result from any actual or alleged infringement of any third party’s IP Rights by the Services. Company shall have no obligation under this Section 9.1 or otherwise regarding claims that arise from or relate to:
9.1. Company Indemnification. Company shall indemnify, defend and hold harmless Client and Client’s affiliates, and each of their officers, members, shareholders, directors, employees, and agents (collectively, the “Client Indemnified Parties”), from and against all liabilities, obligations, losses, damages, fines, judgments, Settlements, charges, expenses (including reasonable attorneys’ and accountants’ fees and disbursements), and costs arising from a claim, demand, proceeding, suit, or action by a third party (“Third Party Claims”), incurred by or asserted against any of the Client Indemnified Parties, to the extent the Third Party Claims relate to, arise out of, or result from any actual or alleged infringement of any third party’s IP Rights by the Services. Company shall have no obligation under this Section 9.1 or otherwise regarding claims that arise from or relate to:
(a) the Quickbase platform, codebase, or services;
(b) Client’s or its Users’ use of the Services other than as contemplated by the Agreement;
(c) any modifications made to the Services by any person other than Company or its authorized representative;
(d) any combination of the Services with services or technologies not provided by or expressly authorized by Company;
(e) use of any version other than the latest commercially available version of the Services made available to Client; or
(f) Client’s or its Users’ use of the Services or portion thereof after Company has terminated the Agreement or such portion of the Services in accordance with this Section 9.1.
TOP STEP’S OBLIGATIONS IN THIS SECTION 9.1 SHALL BE ITS SOLE AND EXCLUSIVE LIABILITY TO CLIENT, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS INVOLVING THE PLATFORM OR ANY OTHER SERVICES.
9.2. Client Indemnification. Client shall indemnify, defend, and hold harmless Company and Company’s officers, shareholders, directors, employees and agents (collectively, the “Company Indemnified Parties”), from and against all Third Party Claims incurred by or asserted against any of the Company Indemnified Parties to the extent the Third Party Claims relate to, arise out of, or result from:
9.2. Client Indemnification. Client shall indemnify, defend, and hold harmless Company and Company’s officers, shareholders, directors, employees and agents (collectively, the “Company Indemnified Parties”), from and against all Third Party Claims incurred by or asserted against any of the Company Indemnified Parties to the extent the Third Party Claims relate to, arise out of, or result from:
(a) breach of any representation or warranty of Client contained in the Agreement;
(b) Client’s failure to comply with any federal, state, and local laws applicable to Client in its use of the Services; or
(c) Client’s or its Users’ access and use of the Services and other Services; or
(d) Company’s use of the Client Materials and Client Data in accordance with the terms of the Agreement.
9.3. Indemnification Procedures. Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of any Third Party Claim, the party to be indemnified (the “Indemnified Party”) will notify the other party (the “Indemnifying Party”) of the Third Party Claim in writing; provided, however, that any failure to give this notice will not waive the Indemnified Party’s rights except to the extent that the rights of the Indemnifying Party are actually prejudiced by this failure to give notice. The Indemnifying Party will assume the defense and settlement of the Third Party Claim with counsel reasonably satisfactory to the Indemnified Party at the Indemnifying Party’s risk and expense; provided, however, that the Indemnified Party may join in the defense and settlement of the Third Party Claim and employ counsel at its own expense, and will reasonably cooperate with the Indemnifying Party in the defense and settlement of the Third Party Claim. The Indemnifying Party may settle any Third Party Claim without the Indemnified Party’s written consent unless the settlement:
9.3. Indemnification Procedures. Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of any Third Party Claim, the party to be indemnified (the “Indemnified Party”) will notify the other party (the “Indemnifying Party”) of the Third Party Claim in writing; provided, however, that any failure to give this notice will not waive the Indemnified Party’s rights except to the extent that the rights of the Indemnifying Party are actually prejudiced by this failure to give notice. The Indemnifying Party will assume the defense and settlement of the Third Party Claim with counsel reasonably satisfactory to the Indemnified Party at the Indemnifying Party’s risk and expense; provided, however, that the Indemnified Party may join in the defense and settlement of the Third Party Claim and employ counsel at its own expense, and will reasonably cooperate with the Indemnifying Party in the defense and settlement of the Third Party Claim. The Indemnifying Party may settle any Third Party Claim without the Indemnified Party’s written consent unless the settlement:
(a) does not include a release of all covered claims pending against the Indemnified Party;
(a) does not include a release of all covered claims pending against the Indemnified Party;
(b) contains an admission of liability or wrongdoing by the Indemnified Party; or
(b) contains an admission of liability or wrongdoing by the Indemnified Party; or
(c) imposes any obligations upon the Indemnified Party other than an obligation to stop using any infringing items.
(c) imposes any obligations upon the Indemnified Party other than an obligation to stop using any infringing items.
9.4. Infringement Remedies. If a Third Party Claim exists under Section 9.1, and in addition to Company’s obligations in this Section 9, Company shall, at its expense and in its discretion, take one or more of the following actions:
9.4. Infringement Remedies. If a Third Party Claim exists under Section 9.1, and in addition to Company’s obligations in this Section 9, Company shall, at its expense and in its discretion, take one or more of the following actions:
(a) procure for Client the right to continue use of the infringing portion(s) of the Services;
(a) procure for Client the right to continue use of the infringing portion(s) of the Services;
(b) replace the infringing portion(s) of the Services with functionally equivalent non-infringing the Services; or
(b) replace the infringing portion(s) of the Services with functionally equivalent non-infringing the Services; or
(c) modify the infringing portion(s) of the Services to be non-infringing and functionally equivalent.
(c) modify the infringing portion(s) of the Services to be non-infringing and functionally equivalent.
If Company cannot accomplish any of the foregoing within a reasonable time and at commercially reasonable rates, then Client and Company shall terminate the Agreement and Company shall provide Client a pro-rated refund.
If Company cannot accomplish any of the foregoing within a reasonable time and at commercially reasonable rates, then Client and Company shall terminate the Agreement and Company shall provide Client a pro-rated refund.
10. LIMITATION OF LIABILITY
10. LIMITATION OF LIABILITY
TOP STEP SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF THE SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT OR ANY OTHER THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, COST OF COVER OR OTHER PECUNIARY LOSS, EVEN IF TOP STEP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF TOP STEP TO CLIENT FOR ANY CLAIMS, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE AMOUNT OF FEES PAID TO TOP STEP HEREUNDER IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING ALLOCATION OF RISK AND LIMITATION OF LIABILITY HAS BEEN NEGOTIATED AND AGREED BY THE PARTIES AND FORMS THE BASIS OF THEIR WILLINGNESS TO ENTER INTO THIS BUSINESS SERVICES AGREEMENT AND THE AGREEMENT.
11. ARBITRATION, CLASS-ACTION WAIVER, AND JURY WAIVER
11. ARBITRATION, CLASS-ACTION WAIVER, AND JURY WAIVER
11.1. Arbitration. If Client pursues a legal claim against Company, Client agrees to arbitration (with limited exceptions). Therefore, the exclusive means of resolving any dispute or claim arising out of or relating to the Agreement (including any alleged breach thereof) or the Services shall be BINDING ARBITRATION administered by JAMS under the JAMS Streamlined Arbitration Rules & Procedures. The one exception to the exclusivity of arbitration is that either party has the right to bring an individual claim against the other in a small-claims court of competent jurisdiction, or, if filed in arbitration, the responding party may request that the dispute proceed in small claims court if the party’s claim is within the jurisdiction of the small claims court. If the responding party requests to proceed in small claims court before the appointment of the arbitrator, the arbitration shall be administratively closed, and if requested after the appointment of the arbitrator, the arbitrator shall determine if the dispute should be decided in arbitration or if the arbitration should be administratively closed and decided in small claims court. Whether Client chooses arbitration or small-claims court, Client may not under any circumstances commence or maintain against the Company any class action, class arbitration, or other representative action or proceeding.
11.1. Arbitration. If Client pursues a legal claim against Company, Client agrees to arbitration (with limited exceptions). Therefore, the exclusive means of resolving any dispute or claim arising out of or relating to the Agreement (including any alleged breach thereof) or the Services shall be BINDING ARBITRATION administered by JAMS under the JAMS Streamlined Arbitration Rules & Procedures. The one exception to the exclusivity of arbitration is that either party has the right to bring an individual claim against the other in a small-claims court of competent jurisdiction, or, if filed in arbitration, the responding party may request that the dispute proceed in small claims court if the party’s claim is within the jurisdiction of the small claims court. If the responding party requests to proceed in small claims court before the appointment of the arbitrator, the arbitration shall be administratively closed, and if requested after the appointment of the arbitrator, the arbitrator shall determine if the dispute should be decided in arbitration or if the arbitration should be administratively closed and decided in small claims court. Whether Client chooses arbitration or small-claims court, Client may not under any circumstances commence or maintain against the Company any class action, class arbitration, or other representative action or proceeding.
11.2. Waiver. By using the Services in any manner, Client agrees to the above arbitration agreement. In doing so, CLIENT GIVES UP THE RIGHT TO GO TO COURT to assert or defend any claims between Client and the Company (except for matters that may be taken to small-claims court). CLIENT ALSO GIVES UP THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Client’s rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY, and the arbitrator shall determine all issues regarding the arbitrability of the dispute. Client is entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but Client understands that arbitration proceedings are different from trials and other judicial proceedings, and that decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
11.2. Waiver. By using the Services in any manner, Client agrees to the above arbitration agreement. In doing so, CLIENT GIVES UP THE RIGHT TO GO TO COURT to assert or defend any claims between Client and the Company (except for matters that may be taken to small-claims court). CLIENT ALSO GIVES UP THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Client’s rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY, and the arbitrator shall determine all issues regarding the arbitrability of the dispute. Client is entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but Client understands that arbitration proceedings are different from trials and other judicial proceedings, and that decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
11.3. Enforcement. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against the Company (except for small-claims court actions) may be commenced only in the federal or state courts located in Utah County, Utah. Client hereby irrevocably consents to the jurisdiction of those courts for such purposes.
11.3. Enforcement. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against the Company (except for small-claims court actions) may be commenced only in the federal or state courts located in Utah County, Utah. Client hereby irrevocably consents to the jurisdiction of those courts for such purposes.
12. TERMINATION
12. TERMINATION
12.1. Termination. Either party may terminate the Agreement immediately upon written notice at any time if the other party fails to cure any material breach or provide a written plan of cure reasonably acceptable to the non-breaching party within 30 days of being notified in writing of such breach, except for breach of payment obligations which shall have a 10 day cure period.
12.1. Termination. Either party may terminate the Agreement immediately upon written notice at any time if the other party fails to cure any material breach or provide a written plan of cure reasonably acceptable to the non-breaching party within 30 days of being notified in writing of such breach, except for breach of payment obligations which shall have a 10 day cure period.
12.2. Suspension. Company will be entitled to suspend the Services immediately upon written notice to Client in the event that, in Company’s reasonable judgment, there is a security or other risk created by Client that may interfere with the proper continued provision of the Services or the operation of Company’s network or systems. Client remains obligated for all payment obligations under this Agreement in the event of suspension.
12.2. Suspension. Company will be entitled to suspend the Services immediately upon written notice to Client in the event that, in Company’s reasonable judgment, there is a security or other risk created by Client that may interfere with the proper continued provision of the Services or the operation of Company’s network or systems. Client remains obligated for all payment obligations under this Agreement in the event of suspension.
12.3. Effect of Termination. Upon termination or expiration of the Agreement, all licenses set forth thereunder shall terminate, and Company’s activities under the Agreement shall cease. No termination or expiration of the Agreement shall affect any rights or liabilities of a party that accrued prior to the date of termination or expiration, including any fees accrued or payable to Company prior to the effective date of termination or expiration. Upon any termination or expiration of this Agreement, Company shall have no obligation to maintain or provide any Client Data to Client and may thereafter delete all Client Data in its systems or otherwise in its possession or under its control.
12.3. Effect of Termination. Upon termination or expiration of the Agreement, all licenses set forth thereunder shall terminate, and Company’s activities under the Agreement shall cease. No termination or expiration of the Agreement shall affect any rights or liabilities of a party that accrued prior to the date of termination or expiration, including any fees accrued or payable to Company prior to the effective date of termination or expiration. Upon any termination or expiration of this Agreement, Company shall have no obligation to maintain or provide any Client Data to Client and may thereafter delete all Client Data in its systems or otherwise in its possession or under its control.
12.4. Survival. Sections 1, 4, 5, 6, 7.4, 8, 9, 10, 11, 12.2, 12.3, 12.4, and 13 shall survive termination of this Agreement.
12.4. Survival. Sections 1, 4, 5, 6, 7.4, 8, 9, 10, 11, 12.2, 12.3, 12.4, and 13 shall survive termination of this Agreement.
13. MISCELLANEOUS PROVISIONS
13. MISCELLANEOUS PROVISIONS
13.1. Independent Contractor. Company and Client agree that its relationship with the other party is that of an independent contractor. Neither Company nor Client are, or shall be deemed for any purpose to be, employees or agents of the other and neither party shall have the power or authority to bind the other party to any contract or obligation.
13.1. Independent Contractor. Company and Client agree that its relationship with the other party is that of an independent contractor. Neither Company nor Client are, or shall be deemed for any purpose to be, employees or agents of the other and neither party shall have the power or authority to bind the other party to any contract or obligation.
13.2. Governing Law. Utah law and the Federal Arbitration Act will apply if there is a dispute (except where prohibited by law). Except where this arbitration agreement is prohibited by law, the laws of the State of Utah, excluding Utah’s conflict of laws rules, will apply to any disputes arising out of or relating to the Agreement, the Product, or the Services. Notwithstanding the foregoing, the Arbitration Agreement in Section 11 above shall be governed by the Federal Arbitration Act.
13.2. Governing Law. Utah law and the Federal Arbitration Act will apply if there is a dispute (except where prohibited by law). Except where this arbitration agreement is prohibited by law, the laws of the State of Utah, excluding Utah’s conflict of laws rules, will apply to any disputes arising out of or relating to the Agreement, the Product, or the Services. Notwithstanding the foregoing, the Arbitration Agreement in Section 11 above shall be governed by the Federal Arbitration Act.
13.3. Venue. Any claims that are not submitted to arbitration for any reason must be litigated in Utah County, Utah (except for claims brought in small claims court, or where prohibited by law). Except for claims that may be properly brought in a small claims court of competent jurisdiction in the county or other jurisdiction in which Client resides or in Utah County, Utah, all claims arising out of or relating to this Agreement, to the Services, or to Client’s relationship with Company that for whatever reason are not submitted to arbitration will be litigated exclusively in the federal or state courts of Utah County, Utah, U.S.A. Client and Company consent to the exercise of personal jurisdiction of courts in the State of Utah and waive any claim that such courts constitute an inconvenient forum.
13.3. Venue. Any claims that are not submitted to arbitration for any reason must be litigated in Utah County, Utah (except for claims brought in small claims court, or where prohibited by law). Except for claims that may be properly brought in a small claims court of competent jurisdiction in the county or other jurisdiction in which Client resides or in Utah County, Utah, all claims arising out of or relating to this Agreement, to the Services, or to Client’s relationship with Company that for whatever reason are not submitted to arbitration will be litigated exclusively in the federal or state courts of Utah County, Utah, U.S.A. Client and Company consent to the exercise of personal jurisdiction of courts in the State of Utah and waive any claim that such courts constitute an inconvenient forum.
13.4. Modifications. Company may modify this Business Services Agreement at any time by posting a revised version on the Company website and/or application, which modifications will become effective immediately, and shall apply to any and all Services Addenda entered into after such effective date.
13.4. Modifications. Company may modify this Business Services Agreement at any time by posting a revised version on the Company website and/or application, which modifications will become effective immediately, and shall apply to any and all Services Addenda entered into after such effective date.
13.5. Severability. In the event one or more of the provisions of this Agreement is held to be invalid or otherwise unenforceable by a court of competent jurisdiction for the matter in question, the enforceability of the remaining provisions shall be unimpaired.
13.5. Severability. In the event one or more of the provisions of this Agreement is held to be invalid or otherwise unenforceable by a court of competent jurisdiction for the matter in question, the enforceability of the remaining provisions shall be unimpaired.
13.6. Waiver. The failure of either party at any time to enforce any right or remedy available to it under this Agreement with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.
13.6. Waiver. The failure of either party at any time to enforce any right or remedy available to it under this Agreement with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.
13.7. Assignment. Neither party shall assign the Agreement or any of its rights and obligations hereunder without the prior written consent of the other party; provided, however, that either party may assign the Agreement and all of its rights and obligations hereunder to an affiliate or as part of a merger or sale of substantially all the assets or stock of such party. Any assignment by either party in violation of this section shall be null and void. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and permitted assigns.
13.7. Assignment. Neither party shall assign the Agreement or any of its rights and obligations hereunder without the prior written consent of the other party; provided, however, that either party may assign the Agreement and all of its rights and obligations hereunder to an affiliate or as part of a merger or sale of substantially all the assets or stock of such party. Any assignment by either party in violation of this section shall be null and void. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and permitted assigns.
13.8. Equitable Remedies. The parties agree that (a) the unauthorized disclosure of Confidential Information may cause irreparable harm to the party whose information is disclosed and (b) Client’s breach of Section 3.2 may cause irreparable harm to Company. In such event, the applicable affected party shall be entitled to seek injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of posting any bond.
13.8. Equitable Remedies. The parties agree that (a) the unauthorized disclosure of Confidential Information may cause irreparable harm to the party whose information is disclosed and (b) Client’s breach of Section 3.2 may cause irreparable harm to Company. In such event, the applicable affected party shall be entitled to seek injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of posting any bond.
13.9. Force Majeure. Neither party shall incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the party seeking protection under this section, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, explosions, any law or direction of any governmental entity, pandemics, epidemics, emergencies, civil unrest, viruses or denial of service attacks, telecommunications failure, or failure of the internet or internet service provider. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
13.9. Force Majeure. Neither party shall incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the party seeking protection under this section, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, explosions, any law or direction of any governmental entity, pandemics, epidemics, emergencies, civil unrest, viruses or denial of service attacks, telecommunications failure, or failure of the internet or internet service provider. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
13.10. Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be:
13.10. Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be:
(a) delivered in person;
(a) delivered in person;
(b) sent by first class registered mail, or air mail, as appropriate; or
(b) sent by first class registered mail, or air mail, as appropriate; or
(c) sent by electronic mail.
(c) sent by electronic mail.
Notices shall be considered to have been given upon receipt of confirmation or acknowledgment of delivery, provided in each case that delivery in fact is accomplished. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this section.
Notices shall be considered to have been given upon receipt of confirmation or acknowledgment of delivery, provided in each case that delivery in fact is accomplished. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this section.
13.11. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
13.11. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
13.12. Recordings. Top Step may, without additional or future notice, from time to time record conversations on telephone calls, video calls, online meetings, etc., although Top Step is under no obligation to do so. Unless you specify otherwise on an applicable Services Addendum, you consent to all such recordings.
13.12. Recordings. Top Step may, without additional or future notice, from time to time record conversations on telephone calls, video calls, online meetings, etc., although Top Step is under no obligation to do so. Unless you specify otherwise on an applicable Services Addendum, you consent to all such recordings.
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