MSA
This Master Services Agreement (“MSA”), the terms set forth at myfirm360.com/terms (“Terms of Use”) and any accompanying ordering document (an “Order Form”) (collectively the “Agreement”), sets forth the terms and conditions under which Firm Software, Inc. (hereafter “we”, “us” or “Firm360”) provides its software and related services to the subscribing customer (“Customer” or “you”). This Agreement contains important limitations on warranties, liabilities, and remedies. By executing an Order Form that references this Agreement, you agree to be legally bound by its terms.
If you are entering into this Agreement on behalf of an entity, you represent and warrant that you are authorized to bind that entity, and that such entity has the legal authority to enter into this Agreement. If you do not agree to these terms, do not use the Services.
In the event of any conflict between this Agreement and the terms of an applicable Order Form or a separately signed agreement between the parties, the terms of the Order Form or the signed agreement shall control.
You agree that any additional terms and conditions provided by you in any purchase order or similar documentation shall not be binding on Firm360.
Firm360 may update the terms of this MSA from time to time. Any such updates will become effective at the start of the next renewal term of any applicable Order Form, provided Firm360 notifies Customer of the updated terms at least ninety (90) days prior to the end of the then-current term of the applicable Order Form. If Customer does not provide written notice of non-renewal of such Order Form in accordance with this Agreement, continued use of the Services during any renewal term will constitute acceptance of the updated terms.
1. DEFINITIONS
“Contract Start Date” means the effective date of the first Order Form entered into and made effective by the parties under this Agreement, which shall be the date such Order Form is fully executed or otherwise takes effect in accordance with its terms.
“Customer Data” means all data submitted by Customer or its users into the Services.
“Order Form” means a document executed by the parties specifying the services, fees, terms, and other transaction-specific terms.
“Services” means access to and use of Firm360’s cloud-based practice management platform and any onboarding, implementation, or related services.
“Users” means individuals authorized by Customer to access the Services.
2. TERM AND TERMINATION
2.1 Term. This Agreement begins on the Contract Start Date of the first Order Form and continues until all Order Forms have expired or are terminated.
2.2 Renewal. Each Order Form automatically renews for successive one-year periods upon expiration of its initial term at Firm360’s then-current applicable rates unless either party provides written notice of non-renewal at least ninety (90) days prior to the end of the then-current term.
2.3 Termination for Cause. Either party may terminate this Agreement if the other party materially breaches and fails to cure within thirty (30) days of written notice. Notwithstanding the foregoing, the parties have no other right of early termination unless mutually agreed in writing. For the avoidance of doubt, the following shall be deemed material breaches: (a) Customer’s failure to make timely payment of undisputed fees; and (b) either party’s breach of Section 5.2 or Section 6.2.
3. SERVICES AND RESPONSIBILITIES
3.1 Provision of Services. Firm360 shall provide access to the Services as specified in the Order Form. For the Term (as defined in Section 2.1), Firm360 grants Customer a non-exclusive, non-transferable, non-sublicensable license to access and use the Services made available by Firm360 to Customer on a remote-access, subscription basis via the Internet solely in support of Customer’s operations.
3.2 Access and Maintenance. The Firm360 shall (i) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime for maintenance of more than 15 minutes (for which the Firm360 shall give reasonable notice via the Services or via the Firm360 status page) and which the Firm360 shall schedule, to the extent practicable, during non-peak usage hours; and (ii) provide the Services only in accordance with applicable laws and government regulations. The Services support the latest two (2) major versions of the supported web browsers as set forth in the Firm360’s online support center.
3.3 Support. Firm360 shall provide standard business hours support (M-F, 9 a.m. to 5 p.m. ET) via our Support Portal or support@myfirm360.com.
3.4 Security. Firm360 maintains a SOC 2 type 2 compliant environment and implements industry-standard technical and organizational safeguards.
4. FEES, PAYMENT AND TAXES
4.1 Fees. Fees are stated in each Order Form and are due annually in advance unless otherwise stated. All fees are non-refundable. Firm360 expressly reserves the right to change the fees payable under any Order Form with respect to any renewal of Services, subject to Section 4.3 below, by providing Customer with 30 days’ advance notice of such change prior to the expiration of the then-current term.
4.3 Payment Method. We accept the following forms of payment:
- Visa
- Mastercard
- Discover
- American Express
Payment shall be submitted upon execution of the applicable Order Form and prior to accessing the Services.
4.2 Late Payments. Unpaid amounts may accrue interest at 1.5% per month or the maximum rate allowed by law.
4.3 Services are subsequently invoiced on the anniversary date of the Contract Start Date and the fees are subject to an increase that shall not exceed 8% per annum of the amount paid over the prior year.
4.4. Taxes. Unless expressly provided in an Order Form, the fees hereunder do not include any sales, use, excise, import or export, or similar tax or interest, or any costs associated with the collection or withholding thereof, or any government permit fees, license fees or customs or similar fees (“Taxes”) levied on the delivery of the Services by Firm360 to Customer. Customer shall be responsible for payment of all Taxes associated with purchases hereunder. If Firm360 has the legal obligation to pay or collect Taxes, Customer will be responsible for any such additional amount in respect of the Taxes and Customer will pay within thirty (30) days after the date of notification by Firm360 unless Customer has provided a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by Law to withhold any amounts, then Customer shall timely pay the amount to the relevant tax authority and provide acceptable documentation evidencing such payment.
4.5. Purchase Orders. Customer agrees that if your internal procedures require that a purchase order be issued as a prerequisite to payment of any amounts due, Customer will timely issue such purchase order (the terms of which shall not control) and inform Firm360 of the number and amount thereof. Customer agrees that the absence of a purchase order, other ordering document or administrative procedure may not be raised as a defense to avoid or impair the performance of any of your obligations under the Agreement, including payment of amounts owed under the applicable Order Form. Firm360 reserves the right to collect payment for the value of the annual fees for any subsequent renewal period, even in the absence of an issued purchase order, where use of the Services continues beyond the then-contracted term.
4.6. Out-of-Pocket Costs. In the event on on-site services are performed, prices quoted for the Services do not include travel and out-of-pocket expenses. To the extent applicable, Customer shall reimburse Firm360 for reasonable expenses, including, without limitation, costs of travel (air and cab fare, lodging, auto rental or local mileage, standard per diem, etc., based on M&I standard U.S. Government per diem rates, and subject to any other guidelines mutually agreed upon by both parties) and reasonable out-of-pocket costs for photocopying, overnight courier, long-distance telephone and the like (collectively, “Travel and Expenses”). Firm360 will maintain records of Travel and Expenses, and upon Customer’s reasonable request, will provide copies of hotel and airfare records.
4.7 User License Adjustments and Renewal Minimums. Customer may add additional Users at any time through the administrative section of the Services. Any additional Users added during the Term will be billed at Firm360’s then-current per-User rate, prorated for the remainder of the Term, and such fees shall be payable in accordance with Section 4.1. Additional Users will be deemed added to the applicable Order Form upon activation, and all such User license fees are non-refundable.
The number of User licenses may only be reduced at the time of annual renewal, and any such reduction must be reflected in a new, mutually executed Order Form prior to the renewal date. Notwithstanding the foregoing, upon renewal of any Order Form, the number of User licenses for the renewal term will be no less than the highest number of active User licenses at any time during the current Term, unless otherwise agreed in writing by Firm360.
5. INTELLECTUAL PROPERTY
5.1 Ownership. Firm360 retains all rights to its platform, software, and technology. Customer owns its Customer Data.
5.2 Restrictions. Customer shall not, and shall not permit any third party to: copy, modify, adapt, translate, or create derivative works of the Services or any portion thereof; reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying structure, ideas, know-how, or algorithms related to the Services, except to the extent such activities are expressly permitted by applicable law notwithstanding this restriction; access or use the Services in order to build or benchmark a competing product or service, or for any other competitive purpose; use the Services for any purpose not expressly permitted under this Agreement; or remove, alter, or obscure any proprietary notices on or in the Services.
Customer shall be responsible for any breach of this Section by its employees, contractors, or agents. Any unauthorized use of the Services may result in suspension or termination of access, in addition to any other remedies available at law or in equity.
6. DATA AND CONFIDENTIALITY
6.1 Data Ownership. Customer retains ownership of its data. Firm360 will not access, use, or disclose Customer Data except to provide the Services or as required by law. You may export the data via the UI or request an export of your data 30 days prior to the termination of the subscription.
6.2 Confidentiality.
(a) Definition. “Confidential Information” means any non-public information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement, whether orally, in writing, or in any other form, that is designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, business plans, product roadmaps, financial data, technical information, pricing, customer data, trade secrets, and the terms of this Agreement.
(b) Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available without breach of this Agreement by the Receiving Party; (ii) was lawfully known to the Receiving Party without restriction on use or disclosure prior to disclosure by the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is lawfully received from a third party without restriction and without breach of any obligation owed to the Disclosing Party.
(c) Obligations. The Receiving Party shall (i) protect the Disclosing Party’s Confidential Information using the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable standard of care; (ii) not use the Confidential Information for any purpose outside the scope of this Agreement; and (iii) not disclose the Confidential Information to any third party, except to its affiliates, employees, contractors, and professional advisors who have a need to know such information and are bound by confidentiality obligations at least as protective as those set forth herein.
(d) Compelled Disclosure. If the Receiving Party is legally compelled by law, regulation, or court order to disclose any Confidential Information, it shall, to the extent legally permitted, provide the Disclosing Party with prompt written notice and reasonably cooperate with the Disclosing Party in seeking a protective order or other appropriate remedy.
(e) Injunctive Relief. The Receiving Party acknowledges that unauthorized disclosure or use of the Disclosing Party’s Confidential Information may cause irreparable harm for which monetary damages may be an inadequate remedy. Accordingly, the Disclosing Party shall be entitled to seek injunctive relief, in addition to any other remedies available at law or in equity.
(f) Duration. The obligations under this Section shall survive for a period of three (3) years following the termination or expiration of this Agreement; provided, however, that Confidential Information that constitutes a trade secret under applicable law shall be protected for so long as it remains a trade secret.
7. WARRANTIES AND DISCLAIMERS
7.1 Services Warranty. Firm360 warrants the Services will conform materially to its documentation.
7.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (A) THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND FIRM360 MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ACCURACY AND (B) FIRM360 DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FIRM360 OR ITS REPRESENTATIVES SHALL CREATE ANY WARRANTY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR ITS USE OF THE SERVICES AND RELIANCE ON ANY OUTPUT OR RESULTS OBTAINED THEREFROM.
SOME JURISDICTIONS MAY NOT ALLOW THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, IN WHICH CASE SUCH DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8. INDEMNIFICATION
8.1 Firm360 will defend and indemnify Customer from claims that the Services infringe third-party intellectual property rights. If a third party brings a claim, suit, or proceeding against you alleging that the Services infringe a U.S. patent or a copyright under Law of any jurisdiction in which you are using the Services, you must promptly notify Firm360 in writing and make no admission in relation to such claims. Provided that you have fulfilled all of the foregoing obligations, Firm360 shall at its own expense indemnify, defend, and hold harmless, and in the above case of alleged infringement, at Firm360’s own expense and option (a) procure for you the right to use the Services, (b) modify or replace the Services to avoid infringement without materially decreasing the overall functionality of the Services; or (c) refund the applicable fee paid for the Services for the current term and you shall cease using the Services. Firm360 shall have the sole and exclusive authority to defend and/or settle any such claim or action and you will provide assistance as Firm360 may reasonably request, at its expense, provided that Firm360 will keep you informed of, and will consult with any independent legal advisors appointed by you at your own expense regarding the progress of such defense.
8.2 Customer shall defend, indemnify, and hold harmless Firm360 and its affiliates, and their respective officers, directors, employees, and agents (collectively, the “Firm360 Indemnitees”) from and against any third-party claims, demands, suits, or proceedings (“Claims”) and any related damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Customer’s misuse of the Services or breach of the use restrictions set forth in this Agreement; (b) any allegation that the Customer Data, or the use of Customer Data by Firm360 as authorized under this Agreement, infringes, misappropriates, or otherwise violates the intellectual property rights or other rights of a third party; or (c) Customer’s violation of applicable law in connection with its use of the Services or in the provision of Customer Data. Firm360 will use reasonable efforts to notify Customer promptly of any Claim for which it seeks indemnification under this Section, provided that failure to provide timely notice shall not relieve Customer of its obligations except to the extent Customer is materially prejudiced thereby. Firm360 reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter subject to indemnification by Customer hereunder, and Customer agrees to cooperate, at its own expense, with Firm360 in the defense of such Claims. Customer may not settle any Claim without Firm360’s prior written consent, unless such settlement (i) includes a full and unconditional release of all liability for the Firm360 Indemnitees and (ii) does not impose any admission of fault or affirmative obligations on Firm360.
8.3 Exclusion for Security Notifications and any other mobile messaging program: Notwithstanding any other provision in these Terms, the indemnification obligations set forth in this section do not apply to any consumer’s participation in, or use of, our SMS/MMS Security Notifications, or any other mobile messaging program, (including Short Code services). Furthermore, no indemnification obligations under this Agreement shall extend to, or be enforceable against, any wireless telecommunications carriers, network operators, or mobile service providers.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY, THEIR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND SUBJECT TO ANY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE LESSER OF THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE TWELVE (12) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING OR $25,000.00 USD. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
10. PUBLICITY
Customer grants Firm360 the right to use Customer’s name and logo in its customer lists and marketing materials. Any press release requires mutual approval.
11. GENERAL
11.1 Governing Law. This Agreement is governed by the laws of the State of North Carolina, without regard to conflict of law principles.
11.2 Entire Agreement. This Agreement, including all applicable Order Forms, constitute the entire agreement between the parties and supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties, and the Agreement prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter. For clarity, the terms of this Agreement shall prevail over any terms posted on Firm360’s website, including any online Terms of Use, unless otherwise expressly stated in this Agreement.
11.3 Assignment. Neither party may assign this Agreement in whole or in part, by operation of law or otherwise, without the other party’s prior written consent, except in connection with a merger or sale of all or substantially all of its assets or business to which this Agreement relates. Notwithstanding the foregoing, Firm360 may assign or transfer this Agreement, in whole or in part, without Customer’s consent, to any affiliate of Firm360. Any attempted assignment in violation of this Section shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
11.4 Force Majeure. Neither party is liable for failure to perform due to events beyond their control (“Force Majeure Event”), including without limitation, acts or omissions of government or military authority, acts of God, materials shortages, transportation delays, internet or other telecommunication delays, fires, floods, labor disturbances or work stoppages, riots, wars, or hostilities, terrorist acts, epidemics, pandemics, a substantial change in market conditions, or other global or local health emergencies, or Center for Disease Control advisories. The non-performing Party shall notify the other Party of such force majeure within ten (10) days after such occurrence by giving written notice to the other Party stating the nature of the event, its anticipated duration, and any action being taken to avoid or minimize its effect. The suspension of performance shall be of no greater scope and no longer duration than is necessary and the non-performing Party shall use commercially reasonable efforts to remedy its inability to perform; provided, however, that in the event the suspension of performance continues for one hundred and eighty (180) days after the date of the occurrence, and such failure to perform would constitute a material breach of this Agreement in the absence of such force majeure, the non-performing Party may terminate this Agreement pursuant by written notice to the other Party.
11.5 Notices. Notices must be in writing and delivered to the address listed in the Order Form or, in the case of Firm360, by email to contact@myfirm360.com.