This Coverbase Master Subscription Agreement (MSA) is effective as of the effective date of an applicable signed order form (Order Form and such date the Effective Date) and is by and between Coverbase Inc., a Delaware corporation with a place of business at 1374 Natoma St, San Francisco, CA 94103 (Coverbase), and (i) the customer set forth on the Order Form or (ii) who registers for the Services on a free trial basis (Trial Services) and accepts this MSA (each, Customer or you). If Customer is provided access to the Services on a free trial basis, the negotiation of conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form control. If Customer is provided access to the Services on a free trial basis, the section entitled Trial Services will govern such access, unless as otherwise indicated on an applicable Order Form, certain of Coverbase's obligations under this MSA may not apply, as set forth below.
Section 1. Services.
The Services mean the products and services that are ordered by Customer from Coverbase in an Order Form referencing this MSA or, if applicable, the Trial Services that are made available to Customer. Services include software, products provided by Coverbase, and related services to the Services. Subject to the terms and conditions of this MSA, Coverbase will make the Services available to Customer during the Term.
Section 2. Fees and Payment.
Fees. Customer will pay the fees specified in the Order Form (the Fees).
Payment. Those fees shall be paid using the payment method on file with Coverbase (Method of Payment). Coverbase will invoice Customer for Fees, either within the Services or directly, within thirty (30) days of the Effective Date, the start of the Renewal Term (as defined below), or the start of any new Services. Customer is responsible for Fees, either (i) charged automatically via the payment method associated with your Coverbase Account or (ii) if agreed otherwise in writing by you and us, via receipt of such invoice. If Customer fails to pay any invoice by the due date of such invoice, Customer's access to the Services may be immediately suspended and Customer must pay the entire remaining balance of Fees for the Initial Term or Renewal Term (each as defined below), plus any applicable state, or federal taxes or duties of any kind and any such taxes will be assumed and paid by Customer, except for taxes based on Coverbase's net income. Coverbase may change the pricing for the Services from time to time, in its sole discretion. Any price changes will be effective upon the commencement of Customer's next Order Form; provided, that Coverbase may provide reasonable advance notice of such fee increase prior to the expiration of the Term or any Renewal Term.
Discounts and Promotional Pricing. Prices and Promotional Pricing (Promotional Pricing) are subject to change at Coverbase's sole discretion. Promotional Pricing amounts may be temporary and may expire upon the commencement of a Renewal Term, without additional notice. Coverbase reserves the right to discontinue or modify any promotion, or change pricing at any time, in its sole discretion.
Free Trial Services. If Customer is granted access to Trial Services, Coverbase will make the applicable Trial Services available to Customer pursuant to this MSA and (a) as approved for such Trial Services until the earlier of: (a) the end of the Trial Services period communicated to Customer, (b) the start date of any Order Form purchased by Customer for Services for such Trial Services, or (c) termination by Coverbase in its sole discretion.
ANY CUSTOMER INFORMATION THAT CUSTOMER PROVIDES OR MAKES AVAILABLE TO COVERBASE DURING THE TRIAL SERVICES PERIOD MAY BE PERMANENTLY DELETED, AT COVERBASE'S DISCRETION, UNLESS CUSTOMER PROCURES AN ORDER FORM FOR THE SAME SERVICES AS THOSE COVERED BY THE TRIAL SERVICES PRIOR TO THE END OF THE TRIAL SERVICES PERIOD. NOTWITHSTANDING THE REPRESENTATIONS, WARRANTIES AND DISCLAIMERS SECTION OF THIS MSA AND THE INDEMNIFICATION SECTION BELOW, TRIAL SERVICES ARE PROVIDED AS IS AND AS AVAILABLE AND COVERBASE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY OF ANY TYPE WITH RESPECT TO THE TRIAL SERVICES UNLESS CAUSED BY COVERBASE'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN WHICH CASE COVERBASE'S LIABILITY WITH RESPECT TO THE TRIAL SERVICES SHALL NOT EXCEED $1000.00. NOTWITHSTANDING ANYTHING TO THE CONTRARY, SECTION 10 OF THIS AGREEMENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO COVERBASE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER'S USE OF THE TRIAL SERVICES, BREACH OF SECTION 10 OF THIS AGREEMENT AND ANY OF CUSTOMER'S INDEMNIFICATION OBLIGATIONS HEREUNDER.
Section 3. Term and Termination.
Term and Renewal. This MSA commences on the Effective Date and will remain in effect through the specified Term (the Initial Term). In the case of an Order Form (collectively the Term), the Initial Term will be for the period of time as agreed upon between Coverbase and Customer), and will renew, as specified in the Order Form unless otherwise terminated in accordance with this MSA. If the Initial Term will not automatically renew for successive one-year periods unless Customer provides Coverbase with notice of termination at least sixty (60) days prior to the end of the then-current Term.
Termination for Cause. Either Party may terminate this MSA for cause (a) upon notice to the other Party of a material breach if such breach remains uncured after thirty (30) days from the date of such notice, (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) if termination is required by applicable law.
Effect of Termination. Upon termination or expiration of the Prohibited Uses below. Non-payment of Fees by Customer for sixty (60) days after issuance of an invoice, and any violation of the Prohibited Uses clause below will be considered material breaches of this MSA. Effect, Survival. Upon termination of an Order Form or this MSA (a) with respect to termination of the entire MSA, all terminated or cancelled Order Forms and Coverbase will remove Customer's access to same, and (c) unless otherwise agreed in writing, Customer will not be entitled to any refund of fees paid. The following sections will survive termination: Section 2 (Fees and Payment), Section 4 (Ownership), Section 5 (Confidentiality), Section 7.3 (Disclaimers), Section 8 (Indemnification), Section 9 (Limitation of Liability), and Section 10 (Miscellaneous). Termination of this MSA will not limit a Party's liability for obligations accrued as of or prior to such termination or for any breach of this MSA.
Section 4. Ownership, License, and Use of the Services.
Ownership. Each Party will retain all rights, title and interest in any of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property rights or proprietary rights (Intellectual Property Rights). Coverbase will retain all Intellectual Property Rights in the Services and all components of, or used to, provide the Services or created by the Services or by Coverbase in the course of providing the Services (including but not limited to all Intellectual Property Rights in all information it provides to Coverbase as part of the MSA (other than Feedback as described below), including but not limited to in the course of the use of the Services (the Customer Information).
Feedback. Customer may provide Coverbase with comments, information, Feedback, enhancements, requests, recommendations about the Services or other feedback to Coverbase (the Feedback). Customer provides Coverbase a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services, or otherwise use any Feedback. Coverbase also reserves the right to seek patent protection for any features, functionality or other components that may be based on or that were initiated by such Feedback.
Licenses. Coverbase hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services as set forth in the Order Form or on a Trial Services basis all subject to the terms and conditions of this MSA and the Order Form if applicable. Customer hereby grants Coverbase a non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to use the Customer Information solely to provide the Services to Customer.
Authorized Users. Customer may designate and provide access to the Services to employees, agents, or authorized contractors (each an Authorized User). Customer is responsible for all use and misuse of the Services by Authorized Users and of any adherence to all terms of this MSA by any Authorized Users, and references to Customer herein will be deemed to apply to Authorized Users as necessary or applicable. Customer is responsible to promptly notify Coverbase of any unauthorized access or use of Customer becomes aware. Authorized Users are strictly prohibited from sharing their credentials or accounts with third parties and from logging in to a Coverbase account using another Authorized User's credentials.
Prohibited Uses. Customer and Authorized Users will not: (a) frame, distribute, resell, or permit access to the Services by any third party other than to Authorized Users for the features and functionality of the Services; (b) use the Services in violation of applicable laws; (c) interfere with, disrupt, or gain unauthorized access to the Services; (d) successfully or otherwise, attempt to: decompile, disassemble, reverse engineer, discover the underlying source code or structure of, or copy the Services; (e) provide Coverbase with information or Feedback that is unlawful, defamatory, discriminatory, or infringing of third party intellectual property rights; (f) transfer to the Services or otherwise use on the Services any software, materials, or data that is designed to evade, disable, deactivate, interfere with, or otherwise harm or provide unauthorized access to the Services; (g) use any robot, spider, data scraping, or extraction tool or similar automated tool in respect to the Services; (h) provide access to the Services to an Individual associated with a Coverbase Competitor (defined below); (i) extract information from the Services in furtherance of competing with Coverbase; (j) encumber, sublicense, transfer, rent, lease, time-share, or use the Services for any arrangement or otherwise for the benefit of any third party; (k) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services; (l) introduce into the Services any software containing viruses, worms, Trojan horse or similarly harmful code; or (m) permit any party to engage in any of the foregoing prohibited acts. A Coverbase Competitor is any entity that provides the same or similar goods and services as Coverbase, as would be commercially reasonable individual. Customer will promptly notify Coverbase of any violations of the above prohibited uses by an Authorized User or a third party to which Customer provided the Customer Information or third party to which Customer provided the Customer Information or third party in breach of this MSA. Coverbase reserves the right to suspend Customer and/or Authorized User's access to the Services in the event Coverbase suspects Customer or an Authorized User is in breach of this MSA.
Section 5. Confidentiality.
If the parties have a separate mutual nondisclosure agreement, that agreement will control (the Separate MNDA). Otherwise, as used herein, the Confidential Information of a Party (the Disclosing Party) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential or that the time of disclosure to the other Party (the Receiving Party) that the Receiving Party should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. Services Information and Customer Information are Confidential Information under this MSA, or confidential under the Separate MNDA, as applicable. Except as expressly permitted in this MSA, the Receiving Party will not disclose, use, copy, or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party's prior written consent. The Receiving Party will use the Disclosing Party's Confidential Information except to perform its obligations under this MSA, obligations including, in the case of Coverbase, to provide the Services. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prompt written notice of such disclosure as is afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (to the extent not prohibited by applicable law); (b) uses reasonable efforts to obtain confidential treatment and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party.
Section 6. Privacy Practices.
Coverbase operates the Services and handles Customer information, pursuant to the privacy policy available at https://coverbase.ai/privacy (the Privacy Policy).
Section 7. Representations, Warranties, and Disclaimers.
Authority. Each Party represents that it has validly entered into this MSA and has the legal power to do so.
Warranties. Coverbase warrants that during an applicable Term (a) the Security Statement accurately describes the protection of the security, confidentiality, and integrity of Customer Information; and (b) the Services will perform materially in accordance with the applicable documentation provided to Customer; (c) and a warranty that the Services will be performed in a professional, workmanlike manner. If a breach of this section, Customer's exclusive remedies are those described in Section 3 (Term and Termination) herein.
Disclaimers. Except as specifically described in this Section, all Services and components, are provided on an as is and as available basis, without any warranties of any kind to the fullest extent permitted by law. Coverbase expressly disclaims any and all warranties, whether express or implied, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Customer acknowledges that Coverbase does not represent that the Services will be uninterrupted, timely, secure, error-free, or free from viruses or other malicious software, and no information or advice obtained by Customer from Coverbase or through the Services shall create any warranty not expressly stated in the MSA. Coverbase also makes no warranty that the Services, to the extent applicable, are only tools for assessing internal or internal compliance obligations for which it is solely responsible.
Section 8. Indemnification.
Indemnification by Coverbase. Coverbase will indemnify and hold Customer harmless from any third party claim against Customer arising out of Customer's use or purchase of the Services as permitted hereunder and that such Services infringe or misappropriate a third party patent, copyright, trademark, or trade secret. Coverbase will, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, or pay the reasonable fees and expenses of counsel retained by Customer in connection with such defense, provided that (a) Customer promptly notifies Coverbase of the threat or notice of such claim; (b) Coverbase will have sole control and authority to select defense attorneys, and to defend, settle any such claim (however, Coverbase will not settle or compromise any claim that results in liability or admission of any liability by Customer without prior written consent, such consent not to be unreasonably withheld); and (c) Customer fully cooperates with Coverbase in connection therewith. If use of a Service by Customer has become, or in Coverbase's opinion, is likely to become, the subject of any such claim, Coverbase may, at its option and expense, secure for Customer the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable, terminate this MSA and repay, on a pro-rata basis, any Fees previously paid to Coverbase for the corresponding unused portion of the related Services. Notwithstanding the foregoing, Coverbase will have no obligation with respect to any claim if such claim is caused, in whole or in part by (x) compliance with designs, data, instructions or specifications provided by Customer; (y) modification of the Services by anyone other than Coverbase; or (z) the combination, operation or use of the Services with other than Coverbase software where the Services would not otherwise be infringing. The provisions of this Section state the sole, exclusive, and entire liability of Coverbase to Customer and Coverbase's sole remedy with respect to any reason for use of a Service by Customer or Authorized Users. Notwithstanding anything to the contrary herein. Coverbase shall have no obligation under Section 8.1 with respect to any infringement or misappropriation claim arising out of (a) Prohibited Uses in breach of this MSA; (b) any modification of the Services that Coverbase did not make; (c) any combination of the Services with other software or hardware that Coverbase did not provide; (d) Customer's failure to install or use the most current version of the Services; or (e) any valid patent, copyright, trademark, or trade secret; provided (i) Coverbase promptly notifies Customer of the threat or notice of such claim; (ii) Customer will have the sole control and authority to select defense attorneys, and to defend and/or settle any such claim (however, Customer will not settle or compromise any claim that results in liability or admission of any liability by Coverbase without prior written consent, such consent not to be unreasonably withheld); and (c) Coverbase fully cooperates with Customer in connection therewith.
Section 9. Limitation of Liability.
To the maximum extent permitted by applicable law, under no circumstances and under no legal theory (whether in contract, tort, negligence, strict liability, or otherwise) will either party or its affiliates, officers, directors, employees, agents, service providers, suppliers or licensors be liable to the other party or any affiliate for any lost profits, lost sales or business, lost data (being data lost in the course of transmission via customer's systems) or over the internet through no fault of Coverbase, interruption of use, cost of cover or replacement, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or any other type of or damages incurred by the other party arising out of or in connection with this MSA or the Services regardless of whether such party has been advised of the possibility of or could have foreseen such damages. Notwithstanding the contrary in this MSA, Coverbase's aggregate liability to Customer for any claim arising out of or relating to this MSA or the Services will in no event exceed the fees paid by customer over the three (3) months preceding the event or events giving rise to such liability; provided that liability under the parties' indemnification obligations, for breaches of confidentiality, or for damages due to prohibited uses will not be limited to such amount. For clarity, nothing in this MSA will limit or exclude either party's liability for gross negligence or intentional misconduct of a party. Customer acknowledges and agrees that the essential purpose of this Section is to allocate the risks under this MSA between the parties and limit potential liability given the fees, which would have been substantially higher if Coverbase were to assume any further liability other than as set forth herein. Coverbase has relied on these limitations in determining whether to provide customer with the rights to access and use the Services provided for in this MSA. The disclaimers, exclusions, and limitations of liability under this agreement will not apply to the extent prohibited by applicable law.
Section 10. Miscellaneous.
10.1. Entire Agreement. This MSA, any active Order Forms, and the Separate MNDA, if applicable, constitute the entire agreement, and supersedes all prior agreements, between Coverbase and Customer regarding the subject matter hereof.
10.2. Assignment. Either party may, without the consent of the other party, assign this MSA to any affiliate or in connection with any merger, change of control, or the sale of all or substantially all of such party's assets provided that (a) in the case of any other party, such party provides written notice of such assignment and (2) all such successor and assigns obligations pursuant to this MSA. Subject to the foregoing restrictions, this MSA will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
10.3. Severability. If any provision in this MSA is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA will remain in effect.
10.4. Relationship of the Parties. The parties are independent contractors. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.5. Notices. All notices provided by Coverbase to Customer under this MSA may be delivered in writing (a) by nationally recognized overnight delivery service (Courier) or U.S. mail to the contact mailing address provided by Customer on the Order Form or via electronic mail to the electronic mail to the contact email address provided by Customer on the Order Form; or (b) if Customer is an account owner, Customer must give notice to Coverbase either in writing by Courier or U.S. mail to 1374 Natoma St, San Francisco, CA 94103 Attn: Legal Department or by email to legal@coverbase.ai. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise given upon receipt or (2) business days after being deposited in the mail or with a Courier as permitted above.
10.6. Governing Law. Jurisdiction. Venue. This MSA will be governed by the laws of the State of California, without reference to conflict of law principles. Any disputes under this MSA will be resolved in the state and federal courts of jurisdiction in San Francisco County, California. Customer hereby expressly agrees to submit to the exclusive personal jurisdiction and venue of such courts for the purpose of resolving any dispute relating to this MSA or access to or use of the Services by Customer, its agents, or Authorized Users.
10.7. Export Compliance. The Services and other software or components of the Services that Coverbase may provide or make available to Customer are subject to U.S. export control and economic sanctions laws and are administered and enforced by the Office of Foreign Assets and Control of the United States Department of Treasury. Customer will not access the Services or use the Services if Customer or any Authorized User is located in any jurisdiction in which the provision of the Services, software, or other components is prohibited under U.S. or other applicable laws or regulations (a Prohibited Jurisdiction) and Customer will not provide access to the Services to any government, entity, or individual located in a Prohibited Jurisdiction, or included in any list of parties prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) it is not a Prohibited Jurisdiction, or named on any U.S. government list of persons or entities prohibited or restricted under its control to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) it will comply with all applicable laws regarding the transmission of technical data exported from the United States and the countries in which it and Authorized Users are located.
10.8. Anti-Corruption. Customer represents and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Coverbase's employees or agents in connection with this MSA. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly give notice to Coverbase.
10.9. Publicity and Marketing. Coverbase may use Customer's name, logo, and trademarks solely to identify Customer as a client of Coverbase on Coverbase's website and other marketing materials and in accordance with Customer's trademark usage guidelines. If Coverbase may need to identify Customer as a client, Coverbase may internally use and disclose aggregated and/or anonymized information to a third party in a manner that would not identify Customer or an identifiable individual as the source of the information.
10.10. Amendments. Coverbase may amend this MSA from time to time, in which case the new MSA will supersede prior versions. Coverbase will notify Customer not less than thirty (30) days prior to the effective date of any such amendment and Customer's continued use of the Services following the effective date of any such amendment may be relied upon by Coverbase as consent to any such amendment.
10.11. Waiver. Coverbase's failure to enforce at any time any provision of this MSA does not constitute a waiver of that provision or of any other provision of this MSA.