This Subscription Agreement is entered into between Customer and BassHead Software. This agreement consists of: (1) the below terms and conditions; (2) the Terms of Service and SLA’s applicable to a Product licensed under this agreement; and (3) the pricing and payment terms available via the HoursTracker Cloud Website. This agreement is effective on the date BassHead Software provides Customer with the Order confirmation for its first Order under this agreement.
Terms and Conditions
- "Affiliate" means any legal entity that a party owns, that owns a party, or that is under its common ownership. "Ownership" means, for purposes of this definition, control of more than a 50% interest in an entity. If Customer is an agency of a state, provincial, or local government, "Affiliate" means (1) any government agency, department, office, instrumentality, division, unit or other entity, of Customer’s state, provincial or local government that is supervised by, or is part of, Customer, or which supervises Customer or of which Customer is a part, or which is under common supervision with Customer; (2) any county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of governmental instrumentality established by the laws of Customer’s state or province and located within Customer’s state’s or province’s jurisdiction and geographic boundaries; and (3) any other entity in Customer’s state or province expressly authorized by the laws of Customer’s state or province to purchase under state or provincial contracts; provided that a state or province and its Affiliates shall not, for purposes of this definition, be considered to be Affiliates of the federal government or its Affiliates. Notwithstanding the forgoing, provincial Crown corporations are not Affiliates for the purposes of this definition. If Customer is an agency of the U.S. government, "Affiliate" means any other agency of the U.S. government. If Customer is an agency of the Canadian government, "Affiliate" means any other agency of the Canadian government, except for a federal Crown corporation.
- "Client Software" means software provided to Customer as part of the Services and which is specifically used with the Services to enable certain functions of the Services.
- "Committed Offering" means the offer for a Product as described below in Section 2e.
- "Consumption Offering" means the offer for a Product as described below in Section 2e.
- "Customer" means the entity that has entered into this agreement.
- "License" means the rights granted by BassHead Software to Customer to copy, install, use, access, display, run and/or otherwise interact with the Product, as applicable, and as may be further described in the Terms of Service.
- "Licensed Software" means any full version of software, as offered on a standalone basis or as a component of the Services, available under this agreement.
- "BassHead" means BassHead Software.
- "HoursTracker Cloud Website" means www.hourstrackercloud.com or an alternate website BassHead Software identifies.
- "Service" means any online service that may include either Client Software or Licensed Software, available under this agreement as offered on the HoursTracker Cloud Website.
- "Terms of Service" means the use rights for each Product published at Terms of Service.
- "Order" means an order for a Product on the HoursTracker Cloud Website. An Order may include multiple Subscriptions to a Product.
- "Product" means the Services (including any Client Software and Licensed Software) and any Licensed Software offered on a standalone basis as described on the HoursTracker Cloud Website.
- "SLAs" means service level agreements representing commitments BassHead Software makes with regard to a Product, if applicable. SLAs for each Product, if applicable, can be accessed via their respective Product descriptions.
- "Subscription" means the part of the Order identifying the specific Product being ordered and may include the quantity, ship-to address, or other information.
- "Term" means the duration of a Subscription.
License grant — what Customer is licensed to use.
- General. BassHead Software grants Customer a License to the Products ordered by Customer subject to Customer’s obligation to pay and any rights and limitations described in this agreement and the Terms of Service. This License is non-exclusive, non-perpetual (unless specifically allowed), and is not transferable (unless specifically allowed). The ability to use Products may be affected by minimum system requirements or other factors. BassHead Software reserves all rights not expressly granted.
- Client Software. In some cases, Customer may need to install Client Software to access and use a Service. Rights and restrictions for the Client Software are described in the Terms of Service. Customer may make copies of the Client Software solely to support the applicable Service for its users and as permitted by the Terms of Service. Copies must be complete copies (including copyright and trademark notices) and be made from a BassHead Software approved media or a network source. Customer may use a third party to make and install these copies, but Customer agrees that it will be responsible for that third party’s actions. Customer agrees to use reasonable efforts to make its employees, agents and other individuals that it allows to use the Client Software aware that it is licensed from BassHead Software and subject to the terms of this agreement.
Licensed Software. This agreement grants Customer Licenses for the number of copies of each Licensed Software that Customer ordered through the HoursTracker Cloud Website and the right to use a prior (older) version in place of a Licensed Software version Customer Licenses if specified in the Terms of Service.
- When Licenses become perpetual. Unless Customer obtains perpetual licenses under an available buy-out option if indicated on the HoursTracker Cloud Website, Licensed Software obtained under this agreement lasts only for the term of the applicable Subscription. Any references in the Terms of Service to running Licensed Software on a perpetual basis apply only if Customer obtains perpetual Licenses under an applicable buy-out option.
- License confirmation. All of the following, when taken together, are proof of Customer’s License, or if the buy-out option is available and exercised, perpetual License: (a) this agreement, (b) the order confirmation, if any, (c) for any transfers allowed by this agreement, the documentation evidencing the License transfers, and (d) proof of payment.
- License rights are not related to fulfillment of software media. The rights applicable to Licensed Software obtained under this agreement are not related to any order of fulfillment of software media. Licensed Software is licensed to Customer, not sold.
- Copies necessary for internal deployment. Customer may make as many copies of the Licensed Software as necessary solely to distribute them for use by its users as outlined in this agreement. Copies must be complete copies (including copyright and trademark notices) and be made from media or a network source acquired from or made available by a BassHead Software approved fulfillment source for that Licensed Software. Customer may use a third party to make and install these copies, but Customer agrees that it will be responsible for that third party’s actions. Customer agrees to use reasonable efforts to make its employees, agents and other individuals that it allows to use the Licensed Software aware that the Licensed Software is licensed from BassHead Software and subject to the terms of this agreement.
Right to re-image. In certain cases, re-imaging is permitted using the Licensed Software media. If the Licensed Software is licensed (a) from an original equipment manufacturer (OEM), (b) as full packaged Licensed Software through a retail source, or (c) under another BassHead Software program, then media provided under this agreement may be used to create images for use in place of copies provided through that separate source. This right is conditional upon the following:
- Customer must have a valid license for each Licensed Software that is re-imaged;
- The Licensed Software, language, version, and components of the copies must be identical to the Licensed Software, language, version, and all components of the copies they replace and the number of copies or instances of the re-imaged Licensed Software permitted remains the same.
- Except for copies of Licensed Software licensed under another BassHead Software program, the Licensed Software type (e.g., upgrade or full License) must be identical to the Licensed Software type from the separate source.
- Any specific requirements for re-imaging identified in the Terms of Service
Re-images made under this subsection remain subject to the terms and use rights provided with the License from the separate source.
This subsection does not create or extend any warranty or support obligation.
Transferring Licenses to Affiliates or third parties.
- Right to transfer. Customer may only transfer Licenses for Licensed Software under this agreement after it exercises an available buy-out option. Customer may transfer fully-paid perpetual Licenses to: (1) an Affiliate; or (2) to an unaffiliated third party in connection with a merger or transfer of ownership of its enterprise. No License transfer will be valid unless Customer provides this agreement to the party who is receiving the Licenses and that party accepts it in writing. Any transfer not made in compliance with this section will be void. A transfer of Licenses will not relieve the assigning party of its obligations under this agreement. The resale of Licenses, including any transfer by a Customer or its Affiliate with a primary purpose to enable the transfer of those Licenses to an unaffiliated third party, is expressly prohibited.
Certain transfers not permitted. Customer may not transfer any of the following:
- Licenses on a short-term basis (90 days or less);
- temporary rights to use Licensed Software;
- Software Assurance coverage, if any;
- perpetual Licenses for any version of any Licensed Software acquired through Software Assurance separately from the full version License; or
- Limitations on use. Customer shall not reverse engineer, decompile or disassemble any Product, except where applicable law permits it despite this limitation. Customer shall not rent, lease, lend, resell, or host to or for third parties any Product, except as expressly permitted for a given Product in the Terms of Service. Customer must not separate and use the components of a Product on two or more computers, upgrade or downgrade components at different times, or transfer components separately, except as provided in the Terms of Service.
Product Offerings. BassHead Software provides multiple options to obtain Products, which can generally be categorized as follows:
- Committed Offerings: Customer commits in advance to purchase a specific quantity of Products for use during a Term. Customer pays for the Products on a periodic basis during the Term in advance.
- Consumption Offerings: Customer pays based on actual usage in the preceding month with no upfront commitment. Payment is on a periodic basis in arrears.
Combination Offerings: Customer may have a Subscription that is a combination of Committed Offerings and Consumption Offerings. For such combination offerings, the Committed Offering portion of the offering will be governed by Section 2(e)(i) and the Consumption Offering portion will be governed by Section 2(e)(ii).
The HoursTracker Cloud Website provides the available options for each Product.
Ordering, Pricing, Payments, Renewals, and Taxes.
Ordering. Customer shall place an Order for each Subscription via the HoursTracker Cloud Website. Customer may need to activate a Service prior to use.
- For Committed Offerings, Customer may increase, but not decrease, the quantity of Product for each Subscription. Any Product added to a Subscription will expire at the end of the Term. Each Subscription shall be for a defined Term (e.g., 30 days or 12 months).
- Customer may place Orders for its Affiliates under this agreement and grant its Affiliates administrative rights to manage their Product. Affiliates may not place Orders under this agreement. To the extent Customer grants any rights to Affiliates, such Affiliates shall be bound by the terms and conditions of this agreement, the Terms of Service and any other applicable documentation. Customer also may assign a License for a Product to a third party if such third party needs such a License as part of Customer’s internal business needs. Customer agrees that it is jointly and severally liable for any Product purchased for or other actions taken by any of its Affiliates or any third party to which it provides rights under this agreement.
Prices. Pricing and payment terms for Products are available via the HoursTracker Cloud Website. Payments are due and must be paid in accordance with Customer’s selection of available payment options for each Product on the HoursTracker Cloud Website.
- For Committed Offerings, the price level may be based on Customer’s aggregate purchase of a given Product. Customer’s price level may be adjusted if the size of the Subscription is increased during the Term and Customer qualifies for a different price level. Price level changes are not retroactive. Any resulting change in the payment due for that Subscription will be pro-rated. Prices for each price level are fixed at the time the Subscription is first placed and shall apply throughout the Term. Prices and price levels are subject to change at the beginning of any Subscription renewal.
- For Consumption Offerings, the pricing and rate schedules will be based on actual usage and subject to change at any time on notice.
Subscription renewal. Pricing and payment terms for Products are available via the HoursTracker Cloud Website. Payments are due and must be paid in accordance with Customer’s selection of available payment options for each Product on the HoursTracker Cloud Website.
- For Committed Offerings, Customer may choose to have a Subscription (a) automatically renew upon the expiration of the Term, or (b) not renew at the conclusion of the Term. Customer can change this selection during the Term using the HoursTracker Cloud Website. If Customer elects to have the Subscription automatically renew, BassHead Software will provide Customer with written notice of the automatic renewal prior to the expiration of the Term. If Customer elects to automatically renew a Subscription, the quantity for each Subscription, including any quantities added during the Term, are automatically renewed.
- For Consumption Offerings, renewal is unnecessary because Customer’s ability to use the Product will continue until the applicable Product is cancelled.
- New agreement. Prior to placing new Orders, renewing any Subscriptions, or further use of a Product, and upon notice, BassHead Software may require that Customer enter into an updated agreement to govern Orders, renewal Subscriptions, or usage from that date forward.
- Taxes. The prices and rate plans do not include any taxes. Customer is responsible for any taxes it is legally obligated to pay including, but not limited to, paying BassHead Software any applicable value added, sales or use taxes or like taxes that are permitted to be collected from Customer by BassHead Software under applicable law. If any taxes are required by law to be withheld on payments made by Customer to BassHead Software, Customer may deduct such taxes from the amount owed BassHead Software and pay them to the appropriate taxing authority; provided, however, that Customer shall promptly secure and deliver to BassHead Software an official receipt for any such taxes withheld or other documents necessary to enable BassHead Software to claim a Foreign Tax Credit. Customer will make certain that any taxes withheld are minimized to the extent possible under applicable law. For Canadian Customers, this may include the self-assessment and remittance of all applicable Provincial Sales Taxes and Federal Goods and Services Taxes.
- Ordering. Customer shall place an Order for each Subscription via the HoursTracker Cloud Website. Customer may need to activate a Service prior to use.
Term, Suspension, Cancellation and Termination.
- Agreement term and termination. This agreement will remain in effect unless it is terminated by Customer in writing with 30 days’ prior written notice and subject to the terms of this Section. For Committed Offerings, termination will only terminate the right to renew Subscriptions under an existing Order or place new Orders for additional Products under this agreement. Termination will not affect any Subscription not otherwise cancelled or terminated and this agreement shall remain in effect for such Subscription for the remainder of the Term. For Consumption Offerings, termination will end Customer’s right to use the Product.
Cancellation of a Subscription by Customer. Customer may cancel a Subscription as follows:
- For Consumption Offerings, Customer may cancel at any time.
For Committed Offerings, if Customer cancels a Subscription within 30 days of the date on which the Order was submitted, Customer shall be relieved from any obligation to make payments for the remainder of the Subscription with the exception that Customer must pay for the initial 30 days of the Subscription. If Customer chooses to terminate a Subscription after the initial 30-day cancellation period but before the end of the initial Term, Customer must pay for the remainder of the Term.
After the initial Term, renewed Subscriptions must be cancelled at least 30 days before the monthly anniversary of the Order submittal. For example, if Customer’s Subscription renewed on July 10th and Customer cancelled the Subscription on September 20th, the Subscription would terminate on November 9th. Customer must pay amounts due for the Subscription until the Subscription termination is effective.
Notwithstanding the foregoing, for HoursTracker Committed Offerings, Customer may cancel the Services within 30 days of the initial Term and within 30 days of the beginning of any renewal Term. If Customer cancels within the initial 30 day cancellation period, Customer will pay for only the initial 30 day period. If Customer chooses to cancel a Subscription after the initial 30-days of any Term, Customer must pay for the full Term.
- Effect of Cancellation or Expiration on Licensed Software. Customer must contact BassHead Software customer service (see contact information on the HoursTracker Cloud Website) to terminate the agreement or cancel a Subscription. If the agreement or an applicable Subscription is terminated or expires, and Customer does not exercise an available buy-out option, then all copies of Licensed Software licensed under this agreement and its associated media must be deleted and destroyed. BassHead Software may request written certification of the deletion and destruction.
BassHead Software and Customer shall treat the terms and conditions of this agreement as confidential and shall not disclose them to any third party except in the furtherance of the parties’ business relationship with each other or as required by law. For government Customers, this Section is subject to the requirements of applicable trade secret, public records, or similar laws.
Limited warranty. BassHead Software warrants that the Products will conform substantially to the description of them contained in the applicable HoursTracker user documentation. This limited warranty is subject to the following limitations:
- this limited warranty applies only during the Term, including any renewals ("Warranty Period");
- any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last only during the Warranty Period;
- this limited warranty does not cover problems caused by accident, abuse or use of the Products in a manner inconsistent with this agreement or the Terms of Service, or resulting from events beyond BassHead Software’s reasonable control;
- this limited warranty does not apply to problems caused by the failure to meet minimum system requirements; and
- this limited warranty does not apply to downtime or other interruption in access to a Product, or any other performance metrics that are addressed in an applicable SLA.
- Remedies for breach of limited warranty. If Customer notifies BassHead Software within the Warranty Period that a Product does not meet the limited warranty, then BassHead Software will, at its option, either (1) return the amount paid for the Product during the (a) Term or (b) 12 months prior to delivery of notice to BassHead Software, whichever is less, or (2) update such Product to make it conform. These are Customer’s only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law.
- Disclaimer of other warranties. Other than this limited warranty, BassHead Software provides no other express or implied warranties. BassHead Software disclaims any implied representations, warranties or conditions, including warranties of merchantability, fitness for a particular purpose, satisfactory quality, title or non-infringement. These disclaimers will apply unless otherwise required by applicable law.
- Limited warranty. BassHead Software warrants that the Products will conform substantially to the description of them contained in the applicable HoursTracker user documentation. This limited warranty is subject to the following limitations:
Limitation of liability.
Limitation on liability. Except as otherwise provided in this Section, to the extent permitted by applicable law, the liability of BassHead Software and of BassHead Software’s contractors to Customer arising under this agreement is limited to direct damages up to the amount Customer paid BassHead Software for the Product giving rise to that liability during the (1) Term or (2) twelve months prior to the filing of the claim, whichever is less. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to:
- liabilities arising out of any breach by BassHead Software of its obligations under the Section entitled "Confidentiality"; or
- liability for personal injury or death caused by BassHead Software’s negligence or that of its employees or agents or for fraudulent misrepresentation.
- Exclusion of certain damages. To the extent permitted by applicable law, whatever the legal basis for the claim, neither party, nor any of its affiliates or suppliers, will be liable for any indirect damages (including, without limitation, consequential, special or incidental damages, damages for lost profits or revenues, business interruption, or loss of business information) arising in connection with this agreement, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable. However, this exclusion does not apply to either party’s liability to the other for violation of its confidentiality obligations or of the other party’s intellectual property rights.
- Limitation on liability. Except as otherwise provided in this Section, to the extent permitted by applicable law, the liability of BassHead Software and of BassHead Software’s contractors to Customer arising under this agreement is limited to direct damages up to the amount Customer paid BassHead Software for the Product giving rise to that liability during the (1) Term or (2) twelve months prior to the filing of the claim, whichever is less. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to:
During the Term of any Subscription and for three years thereafter, Customer must keep all usual and proper records relating to the Subscription(s) and Customer’s use of Products under this agreement. BassHead Software may request that Customer conduct an internal audit of all Products in use throughout Customer’s organization, comparing the number of Licenses in use to the number of Licenses issued to and/or paid for by Customer. By requesting an audit, BassHead Software does not waive its rights to enforce this agreement or to protect BassHead Software’s intellectual property by any other means permitted by law.
If verification or self-audit reveals any unlicensed use, Customer must promptly order sufficient Licenses to cover its past and present use. If material unlicensed use is found, Customer must reimburse BassHead Software for the costs BassHead Software has incurred in verification and acquire the necessary additional Licenses at retail license cost within 30 days.
- Notices to BassHead Software. Notices, authorizations, and requests in connection with this agreement must be sent by regular or overnight mail, or express courier, to the address listed below. Notices will be treated as delivered on the date shown on the return receipt. Termination of the agreement, a Subscription, or cancellation of a Subscription should be via the BassHead Software customer service contact identified on the HoursTracker Cloud Website.
- Assignment. Customer may not assign this agreement. BassHead Software may assign this agreement.
- Severability. If a court holds any provision of this agreement to be illegal, invalid or unenforceable, the rest of the document will remain in effect and this agreement will be amended to give effect to the eliminated provision to the maximum extent possible.
- Waiver. A waiver of any breach of this agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.
- Applicable law. This agreement is governed by the laws of the State of Texas without regard to its conflict of laws principles, except that (1) if Customer is an entity of the U.S. Government, this agreement is governed by the laws of the United States, and (2) if Customer is an entity of a state or local government in the United States, this agreement is governed by the laws of that state. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this agreement. The Products are protected by copyright and other intellectual property rights laws and international treaties.
- Dispute resolution. Any action to enforce this agreement must be brought in Austin, Texas, . This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. If Customer is an entity of the U.S. Government or an entity of a state or local government, this Section does not apply and jurisdiction and venue will be determined by applicable law.
- In the event of any litigation involving this agreement or the product which was purchased, the prevailing party shall recover from the non-prevailing party reasonable and necessary attorney’s fees and expenses incurred.
- This agreement is not exclusive. Customer is free to enter into agreements to license, use or promote non-BassHead Software software or services.
- Entire agreement. This agreement, the Terms of Service, any SLAs, and the pricing and payment terms available via the HoursTracker Cloud Website constitute the entire agreement concerning the subject matter and supersede any prior or contemporaneous communications.
- Survival. Provisions regarding fees, Terms of Service, restrictions on use, transfer of licenses, export restrictions, defense of infringement and misappropriation claims, limitations of liability, confidentiality, compliance verification, obligations on termination and the provisions in this Section entitled "Miscellaneous" will survive termination of this agreement.
- Customer consent to partner fees. When Customer places an Order for certain Products, it may have the opportunity, at its sole discretion, to identify a BassHead Software "Partner of Record" associated with its Subscriptions. By identifying a Partner of Record, directly or by authorizing a third party to do so, Customer consents to BassHead Software paying certain fees to the Partner of Record. The fees are for pre-sales support to BassHead Software and may also include post-sales support to Customer. The fees are based on, and increase with the size of, Customer’s order.
- No transfer of ownership. BassHead Software does not transfer any ownership rights in any Products. BassHead Software reserves all rights not specifically granted. BassHead Software Products are protected by copyright and other intellectual property rights laws and international treaties.
- Force majeure. Neither party will be liable for any failure in performance due to causes beyond either party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of the Services)). This Section will not, however, apply to Customer’s payment obligations under this agreement.
- Apple ID. Customer agrees that it is responsible for protecting the confidentiality of any Apple IDs associated with this agreement.
- U.S. export jurisdiction. The Products are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
- Natural disaster. In the event of a natural disaster, BassHead Software may post information or provide additional assistance or rights on www.hourstrackercloud.com.
- Company may use equipment and servers provided by other companies unaffiliated with company. Company is not responsible for failures of equipment not under its direct control and in its possession.