1. DEFINITIONS

1. “Customer” or “you” or “your” means the entity that has entered into this Agreement with Airbase to use the Services.
2. “Airbase Platform” means the platform that Airbase provides to its Customers whereby it enables its Customers to
3. (i) create an overview over Customer’s expenses
4. (ii) pay for Customer’s expenses for the running of its business
5. (iii) keep the general ledger updated.
6. “Authorized User” means any designated person authorized by the Business Administrator to use the Services on Customer’s behalf.
7. “Business Administrator” means any designated person authorized by the Customer to administer the Airbase account and/or act on Customer’s behalf in connection with this Agreement, including without limitation, designating Authorized Users.
8. “Services” means the services provided by Airbase through the Airbase Platform;
9. “Vendors” means any individual or business that Customer is paying for Customer’s business expenses.
10. “Implementation Services” means the implementation, set up and training services for the Airbase Platform.
11. “Account Owner” is defined in Exhibit A attached to this Agreement.

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2. SAAS SERVICES AND SUPPORT

1. Subject to the terms of this Agreement, Airbase will use commercially reasonable efforts to provide the Services. As part of the registration process, Customer will identify a Business Administrator for Customer’s Airbase account. Airbase reserves the right to cancel individual user accounts it deems inappropriate.
2. Subject to the terms hereof, Airbase will provide Customer with reasonable technical support services in accordance with Airbase’s standard practice.

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3. PAYMENTS

1. The Airbase Platform provides ways for Customers to pay for company expenses such as cloud hosted software subscriptions, office supplies, marketing spend etc.
2. Depending on the availability of funds and specific tier of the product selected by you, Customers can pay company expenses through the Airbase platform in various ways, including but not limited to the following ways:
3. (i) payment through virtual prepaid cards
4. (ii) payment through bank transfer
5. iii) checks and others.
6. Airbase is a technical service provider that provides a platform for Customers to connect to and pay Customer’s Vendors. Customers initiate payments to Vendors through the Airbase platform. Airbase never initiates payments. Should Airbase need to be authorized to process payment in the back end, Customer hereby authorizes Airbase accordingly. Customer acknowledges that the rights granted by Customer (“Account Owner”) to Sutton Bank in the Airbase Card Program Agreement are also granted by Customer to Airbase to the extent Airbase requires any rights granted to the bank to provide Services. Any funds flowing to Vendors through Airbase partners, are at all times Your funds until Vendor receipt.
7. With regard to bank transfers (“ACH payments”) you acknowledge that
8. (i) Airbase will act as a third party sender on your behalf within the NACHA network and
9. (ii) there is a risk of the reversal or chargeback of a payment (“ACH Returns”) due to insufficient funds in your account or other reasons. You expressly acknowledge and consent to being liable for any ACH Returns that may occur, including any fees associated therewith.

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4. RESTRICTIONS AND RESPONSIBILITIES

1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Airbase or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3. Customer represents, covenants, and warrants that Customer, including all Authorized Users and the Business Administrator, will use the Services only in compliance with all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Airbase against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of any applicable laws and regulations. Although Airbase has no obligation to monitor Customer’s use of the Services, Airbase may do so and may prohibit any use of the Services in violation of the foregoing. Airbase will provide Customer with written notice of any such violation and thirty (30) days in which to cure it. Customer acknowledges that to the extent Airbase requires any rights granted to the bank to provide the Services, your permissions in the Airbase Virtual Card Program Agreement will be equally applicable to Airbase.
4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the its Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

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5. CONFIDENTIALITY; PROPRIETARY RIGHTS

1. 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 Airbase includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Airbase to enable the provision of the Services (“Customer Data”). The Receiving Party agrees:
2. (i) to take reasonable precautions to protect such Proprietary Information, and
3. (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
4. 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
5. (a) is or becomes generally available to the public, or
6. (b) was in its possession or known by it prior to receipt from the Disclosing Party, or
7. (c) was rightfully disclosed to it without restriction by a third party, or
8. (d) was independently developed without use of any Proprietary Information of the Disclosing Party or
9. (e) is required to be disclosed by law.
10. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Airbase shall own and retain all right, title and interest in and to
11. (a) the Services and Software, all improvements, enhancements or modifications thereto made by Airbase,
12. (b) any software, applications, inventions or other technology developed by Airbase in connection with Services or support, and
13. (c) all intellectual property rights related to any of the foregoing.
14. Notwithstanding anything to the contrary, Airbase shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Airbase will be free (during and after the term hereof) to
15. (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Airbase offerings, and
16. (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

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6. PAYMENT OF FEES

1. Customer will pay Airbase the then applicable fees as laid out on the Order Form and/or the fee arrangement in Exhibit B as agreed between the parties for the Services and Implementation Services in accordance with the terms therein (the “Fees”). After the Initial Term, Airbase reserves the right to change the Fees and to institute new charges and Fees upon written notice to Customer (which may be sent by email) at least thirty (30) days prior to the end of the Initial Term or Renewal Term. If Customer believes that Airbase has billed Customer incorrectly, Customer must contact Airbase no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Airbase’s customer support department.
2. Airbase may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Airbase thirty (30) days after the Customer’s receipt of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Airbase’s net income.

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7. TERM AND TERMINATION

1. The Agreement will continue in place for the term specified in the Order Form above (“Initial Term”). At the end of the Initial Term this Agreement will renew for the same duration (“Renewal Term”) unless either party terminates the Agreement with at least 30 days’ written notice to the other party.
2. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

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8. WARRANTY AND DISCLAIMER

Airbase shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Airbase or by third-party providers, or because of other causes beyond Airbase’s reasonable control, but Airbase shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Airbase does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. ****EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND AIRBASE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

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9. INDEMNITY

Airbase shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Airbase is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Airbase will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service

1. (i) not supplied by Airbase,
2. (ii) made in whole or in part in accordance with Customer specifications,
3. (iii) that are modified after delivery by Airbase,
4. (iv) combined with other products, processes or materials where the alleged infringement relates to such combination,
5. (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or
6. (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Airbase to be infringing, Airbase may, at its option and expense
7. (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality,
8. (b) obtain for Customer a license to continue using the Service, or
9. (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

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10. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, AIRBASE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY:

1. (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS;
2. (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES;
3. (C) FOR ANY MATTER BEYOND AIRBASE’S REASONABLE CONTROL; OR
4. (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO AIRBASE FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT AIRBASE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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11. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Airbase’s prior written consent, except in the event of a change of control of Customer, in which case consent shall not be required. Airbase may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Airbase in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. 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. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Customer agrees to reasonably cooperate with Airbase to serve as a reference account upon request.

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