Master Subscription Agreement
Master Subscription Agreement
Last updated December 18th, 2017
This master subscription agreement (this “Agreement”) is a legal agreement between you (“You”) and FreeAgent Network, Inc. (“FreeAgent”) governing your use of the FreeAgent Platform, including any applicable free trials.
By signing up for use of the FreeAgent Platform and completing Your registration, You indicate Your acceptance of this Agreement and agree to abide by the terms and conditions set forth herein without modification. This includes any execution or acceptance of an Order Form. If You are entering into this Agreement on behalf of a business or other legal entity, You hereby represent and warrant that You have the authority to bind such entity and its Affiliates to the terms and conditions of this Agreement, in which case “You” or “Your” shall refer to such entity and its Affiliates. If You do not have such authority, or if You do not agree with the terms and conditions set forth herein, You may not accept this Agreement nor may you use the FreeAgent platform.
In addition to the terms defined in the body of this Agreement, the following terms have the following meanings:
“Affiliates” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“FreeAgent Platform” means the online CRM subscription service provided by FreeAgent and the underlying servers and software used to provide such a service.
“FreeAgent Voice” means the voice telephone functionality that may be included in one or more versions of the FreeAgent Platform.
“End Users” means individuals eighteen years or older who are authorized to access and use the FreeAgent Platform under Your Subscription. End Users may include but are not limited to You and Your employees, consultants, contractors, and agents.
“Enhancements” means ideas, concepts, know-how, expertise, methods, methodologies, functional and technical architectures, techniques or skills, writings in which any of the same are fixed (including, without limitation, all reports, computer software systems, routines, data models, technical data, processes, designs, code and documentation and systems, concepts and business information) FreeAgent has developed or is developing in connection with the business of creating and offering the FreeAgent Platform.
“Fees” means Subscription Fees and any other amounts due to FreeAgent and payable by You under this Agreement.
“Order Form(s)” means the ordering documents that are entered into by You and FreeAgent from time to time, in the form provided by FreeAgent. Order Forms are deemed incorporated herein. For avoidance of doubt, either: (1) a written document provided by FreeAgent and captioned as an “Order Form”; or (2) any online form within the FreeAgent Platform, into which you enter a subscription term and number of seats applicable to a Subscription, together with payment information, in accordance with the terms thereof, is deemed an “Order Form” hereunder.
“Statement of Work” or “SOW” means a statement of work to be performed by FreeAgent that references this Agreement and has been executed by the parties hereto. Each Statement of Work shall be deemed incorporated herein.
“Subscription” means the right to access the FreeAgent Platform during the Term.
“Subscription Fees” means the fees for a Subscription to the FreeAgent Platform as set forth on the FreeAgent website, or, to the extent that an Order Form provides for Subscription Fees that differ from those on the FreeAgent website, the fees set forth in such Order Form.
“Your Data” means all electronic data and information submitted by You or the End Users through use of the FreeAgent Platform.
2. Registration and Access
Registration. You must provide complete and accurate information during the registration process, including on any Order Forms. If You are an individual, you must be eighteen years or older to register.
Free Trial. FreeAgent may make all or part of the FreeAgent Platform available to You and Your End Users on a trial basis free of charge (the “Free Trial”). The Free Trial shall begin when You submit a registration for the same to FreeAgent, and shall terminate on the earlier of (i) the Free Trial expiration date as specified by FreeAgent upon receiving your registration, or (ii) the date You execute an Order Form for a Subscription under this Agreement.
Subscription. FreeAgent shall make the FreeAgent Platform available to You and Your End Users pursuant to this Agreement and all Order Forms during the Term. You agree that your purchase of the Subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by FreeAgent with respect to future functionality or features.
Support. The FreeAgent Platform is provided “as is”. However, if You are on a paid Subscription, support via email and phone is made available by FreeAgent in its sole discretion.
3. Acceptable Use; End Users
You are responsible for all activities that occur in Your account and for Your End Users’ compliance with this Agreement. This includes compliance with FreeAgent’s Acceptable Use Policy at https://freeagentcrm.com/acceptable-use (the “AUP”), which is incorporated by reference and made a part of this Agreement. The AUP may be modified from time to time in FreeAgent’s sole discretion, as provided in the AUP.
You and Your End Users shall use the FreeAgent Platform for Your internal business purposes as contemplated by this Agreement and shall not: (i) tamper with the security of the FreeAgent Platform or tamper with other customer accounts of FreeAgent, (ii) access data on the FreeAgent Platform not intended for You, (iii) log into a server or account on the FreeAgent Platform that You are not authorized to access, (iv) attempt to probe, scan or test the vulnerability of any system or to breach the security or authentication measures without proper authorization; (v) render any part of the FreeAgent Platform unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the FreeAgent Platform or make the FreeAgent Platform available to a third party other than as contemplated in this Agreement; (vii) use the FreeAgent Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (viii) provide to third parties any evaluation or Free Trial version of the FreeAgent Platform without FreeAgent’s prior written consent.
Communications Responsibilities. You shall be responsible for the content of all communications sent through the FreeAgent Platform, and shall comply with all applicable laws and regulations in Your use of the FreeAgent Platform.
FreeAgent Voice Responsibilities. You are solely responsible for Your operation of FreeAgent Voice in compliance with all applicable laws in all jurisdictions governing use of the FreeAgent Voice service by You and Your End Users, including but not limited to telephone recording and wiretapping laws.
Breach of Guidelines. In the event You or Your End Users violate the AUP, FreeAgent will endeavor to provide You with the opportunity to remove or disable access to the offending material or content, provided, however, that FreeAgent reserves the right to immediately remove, in its sole discretion, any content which is unlawful or offensive without prior notice to You. In addition to any other rights and remedies under the Agreement and in law, FreeAgent reserves the right to immediately suspend access to the FreeAgent Platform if such breach, in FreeAgent’s opinion, is an imminent threat to FreeAgent or the FreeAgent Platform, other customer accounts, or constitutes abusive or threatening behavior.
Youshall authorize access to and assign unique passwords and user names up to the number of End Users procured by You on the Order Form. User logins are for designated End Users and cannot be shared or used by more than one End User, but any End User login may be reassigned to another End User as needed. You are responsible for the use of End User’s passwords and user names, and their confidentiality. Any communications received under Your or Your End Users’ passwords, user names, and/or account numbers will be deemed to have been sent by You. You shall use commercially reasonable efforts to prevent unauthorized access to or use of the FreeAgent Platform and shall promptly notify FreeAgent of any unauthorized access or use of the FreeAgent Platform and any loss or theft or unauthorized use of Your or any End User’s password or name and/or account number.
4. Third Party Providers
Acquisition of Non-FreeAgent Products and Services. You acknowledge that third party products or services may be made available to You from time to time by FreeAgent or third parties, and that Your decision to acquire any such products or services is solely between You and the applicable third party provider. FreeAgent does not warrant or support third party products or services.
Third Party Applications and Your Data. You further acknowledge that if You acquire third party applications for use with Your Subscription, FreeAgent may allow the providers of such applications to access Your Data in order to allow such applications to interoperate with the FreeAgent Platform. FreeAgent shall not be responsible or liable for any disclosure, modification or deletion of Your Data resulting from any such access by third party application providers.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of FreeAgent includes non-public information regarding features, functionality and performance of the Service. Your Proprietary Information includes Your Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance under this Agreement or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
The foregoing section supersedes any separate confidentiality or non-disclosure agreement previously entered into between You and FreeAgent.
6. Fees and Taxes
Subscription Fees. Except as otherwise provided in an Order Form, Subscription Fees are set forth on the FreeAgent website. Use of FreeAgent Voice is subject to additional charges, including applicable telecommunications service rates. Except as otherwise provided in the Order Forms, all Subscription Fees are quoted in United States currency; are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and Subscription Fees are non-refundable. FreeAgent may modify the monthly Subscription Fees on thirty (30) days’ email notice. In the event you upgrade your Subscription, the Subscription Fees applicable to Your new version of the FreeAgent Platform will take effect immediately, with such increased fees calculated on a pro-rated basis, taking into account the number of days remaining in the then-current Subscription. If you downgrade, no adjustment will be made during the current Term. The accepted methods of payment are set forth in the Order Forms or on the FreeAgent website, as applicable. Unless otherwise provided in an Order Form, paid Subscriptions will be billed in advance on based on the Term, starting on the Effective Date.
Overdue Payments. Any payment not received by the due date shall accrue interest at the lower of 1.5% or the maximum rate permitted by law on the outstanding balance per month (except with respect to charges then under reasonable and good faith dispute) from the date such payment is due until the date paid.
Suspension of Platform Access. In the event of late payments, in addition to any other rights and remedies (including the termination rights set forth in this Agreement), FreeAgent reserves the right to suspend Your access to the FreeAgent Platform without liability to FreeAgent, until Your account is paid in full.
Taxes. You are responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to Your purchases hereunder, other than FreeAgent’s income taxes. If FreeAgent pays any such taxes on Your behalf, You agree to reimburse FreeAgent for such payment unless You provide FreeAgent with a valid exemption certificate authorized by the appropriate taxing authority.
Expenses. If FreeAgent is required to incur any additional costs or expenses in providing You support under this Agreement, FreeAgent shall first obtain Your written approval.
7. Proprietary Rights
Proprietary Rights in the FreeAgent Platform. As between the parties, FreeAgent owns and shall own all proprietary or other rights in or to the FreeAgent Platform and Enhancements, including all intellectual property rights relating to the provision of support. In addition, FreeAgent shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the FreeAgent Platform any suggestions, enhancement requests, recommendations or other feedback provided by You or Your End Users relating to the operation of the FreeAgent Platform. Except for the subscription rights granted hereunder, nothing in this Agreement gives You any right, title or interest to the FreeAgent Platform, Enhancements, or other intellectual property rights of FreeAgent.
FreeAgent Platform Restrictions. You shall not: (i) modify, translate, or create derivative works based on the FreeAgent Platform; (ii) create any link to the FreeAgent Platform or frame or mirror any content contained or accessible from the FreeAgent Platform, (iii) reverse engineer, de- compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the FreeAgent Platform; (iv) or access the FreeAgent Platform in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the FreeAgent Platform.
Except with the express written permission of FreeAgent, You may not use any name, logo, tagline or other mark of FreeAgent, or any identifier or tag generated by the FreeAgent Platform, including without limitation: (a) as a hypertext link to any website or other location (except as provided for or enabled expressly by FreeAgent); or (b) to imply identification with FreeAgent as an employee, contractor, agent or other similar representative capacity. You also agree not to remove or alter any of these items as FreeAgent may have provided or enabled.
8. Your Data.
As between You and FreeAgent, You retain all right, title and interest in and to all Your Data.
Notwithstanding anything to the contrary, FreeAgent shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the FreeAgent Platform and related systems and technologies (including, without limitation, Your Data and information and data derived therefrom). FreeAgent may (during and after the Term) (i) use such information and data (including Your Data) to improve and enhance the FreeAgent Platform and for other development, diagnostic and corrective purposes in connection with the FreeAgent Platform and other FreeAgent offerings, (ii) use and/or disclose such data in aggregate or other de-identified form in connection with its business and (iii) provide and deliver content to Your End Users with information that FreeAgent determines to be personally relevant to such End Users. FreeAgent may utilize third parties with respect to its rights under this section; provided, that such third parties are contractually obligated with respect to the use and confidentiality of Your Data to the same extent as provided herein.
9. Term and Termination
Term of Agreement. The “Term” of this Agreement commences on the Effective Date and continues until (i) the expiration or termination of your Free Trial; or (ii) the expiration of the Term (and any applicable renewal terms) set forth or provided for in the applicable Order Form, or termination as set forth below.
Termination for Cause. This Agreement may be terminated by either party for cause: (a) upon thirty (30) days written notice of breach to the other party, if the other party has materially breached this Agreement and such breach remains uncured at the expiration of such period; (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) immediately upon notice in the event of the other party’s material breach of Sections 3, 5 or 7 hereof.
Effect of Termination. Upon termination other than by FreeAgent for cause, FreeAgent may, in its sole discretion, provide a grace period in which you will be able to reactivate your account and restore your data. In the case you wish your data to be completely and permanently removed from FreeAgent’s application servers, You must notify FreeAgent as provided herein.
Termination of Free Trial. FreeAgent may terminate the Free Trial in its sole discretion at any time.
FreeAgent Voice Termination. FreeAgent may disable the phone numbers provided to You for the use of FreeAgent Voice if, in FreeAgent’s sole discretion, such numbers are substantially underused for thirty (30) days, or if Your Subscription is otherwise suspended, terminated or cancelled.
Surviving provisions. The provisions of this Agreement that by their nature are intended survive any termination or expiration of this Agreement shall survive.
10. Warranties and Disclaimers
Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
Functionality Warranty. FreeAgent warrants that the FreeAgent Platform will operate in substantial conformity with applicable documentation provided by FreeAgent.
Security Warranty. FreeAgent or its licensors or hosting providers will use commercially reasonable efforts to ensure that Your Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Your Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by FreeAgent, whether by accident or otherwise. However, You understand that the technical processing and transmission of communications and Your Data is fundamentally necessary to use of the Service. You consent to FreeAgent’s interception and storage of your communications and/or Your Data, and acknowledge that your use of the FreeAgent Platform will involve transmission over the Internet, and over various networks, that may be out of the control of FreeAgent. You understand that such communications and Your Data be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. FreeAgent is not responsible if any communications and/or Your Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned, controlled, and/or operated by FreeAgent, including, but not limited to, the Internet and Your local networks.
Remedy. FreeAgent shall, as Your sole and exclusive remedy and FreeAgent’s sole and exclusive liability for a breach of the warranties set forth in this section, use commercially reasonable efforts at its own expense to cause the FreeAgent Platform to comply with the warranties under Functionality Warranty, provided in each case that such noncompliance is promptly brought to FreeAgent’s attention in writing in reasonable detail. No warranty claim may be made more than thirty (30) days after performance or acceptance, as applicable.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE FREEAGENT PLATFORM IS PROVIDED “AS-IS,” AND FREEAGENT DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. FreeAgent does not warrant that the functions contained in the FreeAgent Platform will meet Your requirements or that the operation of the FreeAgent Platform will be uninterrupted or error- free. Further, FreeAgent does not warrant that all errors in the FreeAgent Platform can or will be corrected. FreeAgent will not be responsible for any loss of Your Data or inability to perform certain tasks.
11. Limitation of Liability
Limitation of Liability. NEITHER FREEAGENT, NOR ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS OR AGENTS SHALL BE LIABLE FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE TOTAL SUBSCRIPTION FEES PAID BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
Exclusion of Consequential and Related Damages. YOU AND FREEAGENT AGREE THAT THE CONSIDERATION PAID UNDER THIS AGREEMENT DOES NOT INCLUDE CONSIDERATION FOR THE ASSUMPTION OF THE RISK OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOSS OF DATA, LOST PROFITS OR REVENUE.
The limitations of liability in this Section above shall not apply to any indemnification obligations, or any breach of Sections 3, 5 or 7, or the AUP.
Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to You.
No action arising out of this Agreement may be brought by You more than one (1) year after the cause of action has arisen.
You agree to indemnify and hold FreeAgent harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against FreeAgent by a third party arising from or relating to (i) Your breach of this Agreement, including the AUP, or (ii) Your use of Your Data or the FreeAgent Platform.
13. General Provisions
Entire Agreement. This Agreement, inclusive of the Order Forms and any written amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between You and FreeAgent with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of this Agreement and the Order Forms now or hereafter appended hereto, the terms of the Order Form shall govern.
Relationship of You and FreeAgent. You and FreeAgent are independent contractors. This Agreement does not create a joint venture or partnership between You and FreeAgent; neither party is by virtue of this Agreement authorized as an agent, employee or representative of the other party.
Modifications and Waiver. With respect to Free Trials, FreeAgent may revise this Agreement from time to time in its sole discretion. Notice of any material changes to this Agreement will be provided as set forth in this Agreement Any waiver of any right or remedy under this Agreement by FreeAgent must be in writing and signed by FreeAgent. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
Assignment. This Agreement and any rights or obligations hereunder, shall not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party except that either party may assign or transfer this Agreement upon a change of control of a party or by operation of law without prior written consent; provided that any assignee that is a separate entity agrees in writing to be bound by the terms of this Agreement.
Governing Law. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of the state of California, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement.
The parties irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of Santa Clara County, California, USA, and all courts competent to hear appeals therefrom. THE PARTIES WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to FreeAgent shall be addressed as follows:
20665 4th Street, #204
Saratoga, CA 95070
Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.