Klient – MSA (Master Services Agreement)
July 2021

 

MASTER SUBSCRIPTION AGREEMENT

This Agreement governs Your acquisition and use of Our Services. Any capitalized terms or expressions have the definitions set forth herein. If You register for a Free Trial of Our Services or for Free Services, the provisions of this Agreement will also govern that Free Trial or those Free Services.

By accepting this Agreement, either by (i) clicking a box indicating acceptance, (ii) executing an Order Form that references this Agreement, or (iii) using the Free Services, You agree to the terms and conditions set forth in this Agreement.

If You are entering into this Agreement on behalf of a company or any other legal entity, You represent, by accepting this Agreement, that You have the legal authority to bind such entity and its Affiliates to these terms and conditions. If You do not have such authority, or do not agree with these terms and conditions, You must not accept this Agreement and may not use Our Services.

The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Klient’s direct competitors are prohibited from accessing the Services, except with Klient’s prior written consent.

This Agreement was last updated on July 1st 2021. It is effective between You and Klient as of the date on which You are accepting this Agreement (the “Effective Date”).

 

1. DEFINITIONS

 

Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. The term “Control” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Agreement” means this Master Subscription Agreement.

Beta Services” means Our services that may be made available to You for trial and evaluation purposes, at no additional charge, and are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

Content” means information obtained by Us from our publicly available sources or its third-party content providers and made available to You through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.

Documentation” means Our online user guides and policies, documentation, and help and training materials for the Services, as updated from time to time, which are available at www.klient.com or any other website indicated by Us.

Free Services” means Services that We make available to You free of charge. Free Services exclude Services offered as a free trial and Services.

“Free Trial” refers to a trial for Services free of charge in accordance with section 2.5 herein.

Klient”, “Our”, “We” or “Us” means the Klient company as described under Section 13.1 below.

Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, including, for example, the AppExchange at http://www.salesforce.com/appexchange, or the Heroku add-ons catalog at https://elements.heroku.com/, and any successor websites.

Non-Klient Application” means online or offline software products or other applications that interoperates with a Service, that is not provided by Klient.

Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

Purchased Services” means Services that You or Your Affiliate purchases under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.

Services” means the products and services that are ordered by You under an Order Form or online purchasing portal, or provided to You free of charge (if applicable) or under a Free Trial, and made available online by Us, including associated Klient offline or mobile components, as described in the Documentation. Services exclude Content and Non-Klient Applications.

User” means an individual who is authorized by You to use a Service, for whom You have ordered a Service (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, We at Your request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with whom You transact business.

You”, “Your” or “Yourself” means Yourself, in the case of You accepting this Agreement on Your own personal behalf. In the case of You accepting this Agreement on behalf of a company or any other legal entity, the terms “You” or “Your” shall refer to such legal entity and its Affiliates (for so long as they remain Affiliates).

Your Data” means electronic data and information submitted or processed by You or for You using the Services, excluding Content and Non-Klient Applications.

 

2. OUR RESPONSIBILITIES

 

2.1.   Provision of Services.

In addition to all other provision set forth herein, We shall:

(i) provide the Services and Content to You pursuant to this Agreement and the applicable Order Forms and Documentation;

(ii) provide You with Our standard support for the Purchased Services, in accordance with our support Policy, at no additional charge;

(iii) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for planned downtime (of which We shall give advance electronic notice), and any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Non-Klient Application, or denial of service attack, and

(iv) provide the Services in accordance with applicable laws and regulations and subject to Your use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.

 

2.2.   Protection of Your Data.

We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation.

Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access, storage, disclosure or any other unauthorized use of Your Data, except:

(i)  to provide technical support, address any technical problems, or to assist You in the implementation or configuration of the Services; or

(ii)  as otherwise compelled by law.

 

2.3.   Personnel.

We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.

 

2.4.   Beta Services.

From time to time, We may make Beta Services available to You, free of charge. You may choose to try such Beta Services or not at Your sole discretion. We may discontinue or modify the Beta Services at any time at Our sole discretion.

Since Beta Services are provided for trial and evaluation purposes only (and not for production uses), such Beta Services are provided “as-is” and are not covered by any warranty or support whatsoever. Your use of the Beta Services is carried out at Your own risk and peril and Klient shall not be held liable for any damages that may be caused by such use of the Beta Services. You understand that Beta Services are services not yet approved for commercial use and that they may contain errors and not perform as expected.

 

2.5.   Free Trial.

If You register for a Free Trial on Our website or on any of Our Affiliate’s website, We will make the applicable Services available to You on a trial basis, free of charge, until the earlier of :

(i) the end of the Free Trial period for which You registered to use the applicable Services;

(ii) the start date of any Purchased Service subscriptions ordered by You for such Services; or

(iii) the termination of the Free Trial by Klient, in its sole discretion.

Any data You enter into the Services, and any customizations made to the Services by or for You during Your Free Trial will be permanently lost unless You:

(i)  purchase a subscription to the same Services as those covered by the Free Trial;

(ii)  purchase applicable upgraded Services; or

(iii)  exports such data before the end of the trial period.

You cannot transfer data entered or customizations made during the Free Trial to a Service that would be a downgrade from the ones covered by the Free Trial; therefore, if You purchase a Service that would be a downgrade from the one covered by the Free Trial, You must export Your Data before the end of the Free Trial period or Your Data will be permanently lost.

Notwithstanding Section 8 and Section 9.1 below, during the Free Trial, Services are provided “as-is” without any warranty whatsoever and We shall have no indemnification obligations nor liability of any type with respect to the Services provided during the Free Trial period, unless such exclusion of liability is not enforceable under applicable law, in which case Our liability with respect to the Services provided during the Free Trial shall not exceed $1,000.00. It is Your responsibility to ensure that You are not exposed to damages in excess of $1,000.00 during the Free Trial period.

Without limiting the foregoing, Klient and its Affiliates and its licensors do not represent or warrant to You that:

(i)  Your use of the Services during the Free Trial period will meet Your needs or requirements;

(ii)  Your use of the Services during the Free Trial period will be uninterrupted, timely, secure or free from any error; and

(iii)  usage data provided during the Free Trial period will be accurate.

Notwithstanding anything to the contrary in Section 10 below, You shall be fully liable under this Agreement to Klient and its Affiliates for any damages arising out of Your use of the Services during the Free Trial period and any breach of Your obligations under this Agreement.

You are responsible to review all relevant Documentation applicable to the Services offered during the Free Trial period to familiarize Yourself with the features and functions of the Services before making a purchase.

Additional Free Trial terms and conditions may appear on the Free Trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

Free Services.

We may make Free Services available to You. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion or Section of this Agreement, this Section shall prevail.

Free Services are provided to You without any charge, up to certain limits as described in the Documentation. For greater certainty, some Free Services may require the purchase of additional resources or Services beyond a certain usage limit.

You agree that Klient, in its sole discretion and for any or no reason, may terminate, limit or otherwise alter Your access to the Free Services or any part thereof. You also agree that such termination, limitation or alteration of Your access to the Free Services may be done without any prior notice, and You agree that We will not be held liable to You or any third party for such termination, limitation or alteration.

You are solely responsible for exporting Your Data from the Free Services prior to the termination of Your access to the Free Services, provided that if We terminate Your account, except as required by law, We will provide You with a reasonable opportunity to retrieve Your Data.

Notwithstanding Section 8 and Section 9.1 below, the Free Services are provided “as-is” without any warranty whatsoever and We shall have no indemnification obligations nor liability of any type with respect to the Free Services, unless such exclusion of liability is not enforceable under applicable law, in which case Our liability with respect to the Free Services shall not exceed $1,000.00. It is Your responsibility to ensure that You are not exposed to damages in excess of $1,000.00 while using Free Services.

Without limiting the foregoing, Klient and its Affiliates and its licensors do not represent or warrant to You that:

(i)  Your use of the Free Services will meet Your requirements;

(ii)  Your use of the Free Services will be uninterrupted, timely, secure or free from error; and

(iii)  usage data provided through the Free Services will be accurate.

Notwithstanding anything to the contrary in Section 10 below, You shall be fully liable under this Agreement to Klient and its Affiliates for any damages arising out of Your use of the Free Services and any breach of Your obligations under this Agreement.

 

3. USE OF SERVICES AND CONTENT

 

3.1.   Subscriptions.

Unless otherwise provided in the applicable Order Form or Documentation:

(i)  Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal;

(ii)  subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and

(iii)  any added subscriptions will terminate on the same date as the underlying subscriptions.

(iv)  your purchases are not contingent on the delivery of any future functionalities or features, or dependent on any oral or written public comments made by Us regarding future functionalities or features.

 

3.2.    Usage Limits.

Services and Content are subject to usage limits specified in Order Forms and Documentation. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 5.2 below.

 

3.3.   Your Responsibilities.

In addition to all other provisions set forth herein, You shall:

(i)  be responsible for Users’ compliance with this Agreement, Documentation and Order Forms;

(ii)  be responsible for the accuracy, quality and legality of Your Data, the means by which You acquired Your Data, You use of Your Data with the Services, and the interoperation of any Non-Klient Applications with which You use Services or Content;

(iii)  use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use;

(iv)  use Services and Content only in accordance with this Agreement, the Order Form, Documentation and applicable laws and regulations, and

(v)  comply with terms of service of any Non-Klient Applications with which You use Services or Content.

Any use of the Services in breach of the foregoing by You or the Users that in Our judgment threatens the security, integrity or availability of Our services may result in immediate suspension of the Services. However, We will use commercially reasonable efforts under the circumstances to provide You with a notice and an opportunity to remedy such violation or threat prior to any such suspension.

 

3.4.   Usage Restrictions.

In addition to all other provisions set forth herein, You will not:

(i) make any Service or Content available to anyone other than You or Users, or use any Service or Content for the benefit of anyone other than You or Your Affiliates, unless expressly stated otherwise in an Order Form or the Documentation;

(ii) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering;

(iii) use a Service or Non-Klient Application to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;

(iv) use a Service or Non-Klient Application to store or transmit Malicious Code;

(v) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein;

(vi) attempt to gain unauthorized access to any Service or Content or its related systems or networks;

(vii) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation;

(viii) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof;

(ix) copy Content except as permitted herein or in an Order Form or the Documentation,

(x) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation;

(xi) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to build a competitive product or service, build a product or service using similar ideas, features, functions or graphics of the Service, copy any ideas, features, functions or graphics of the Service, or determine whether the Services are within the scope of any patent.

 

3.5.   Removal of Content and Non-Klient Applications.

If You receive notice that Content or a Non-Klient Application must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, You will promptly do so. If You do not take required action in accordance with the above, or if in Our judgment continued violation is likely to reoccur, We may disable the applicable Content, Service and/or Non-Klient Application. If requested by Us, You shall confirm such deletion and discontinuance of use in writing and We shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable.

In addition, if We are required by any third-party rights holder to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may discontinue Your access to Content through the Services.

 

4. NON-KLIENT PRODUCTS AND SERVICES

 

4.1.   Non-Klient Products and Services.

Klient or third parties may make available third-party products or services, including, for example, Non-Klient Applications and implementation and other consulting services. Any acquisition of such products or services by You, and any exchange of data between You and any Non-Klient provider, are solely between You and said Non-Klient provider.

We do not warrant nor support Non-Klient Applications or other Non-Klient products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided otherwise in an Order Form. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-Klient Application or its provider.

 

4.2.   Integration with Non-Klient Applications.

The Services may contain features designed to interoperate with Non-Klient Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation if, for example, the provider of a Non-Klient Application ceases to make the Non-Klient Application available for interoperation with the corresponding Service features in a manner acceptable to Us. We are not liable for any damage You may suffer as a result of any interoperability issue arising from any modification to the Non-Klient Application or its failure to respond to any modification to a Service.

 

5. FEES AND PAYMENT

 

5.1.   Fees.

You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form:

(i)  fees are based on Services and Content subscriptions purchased and not actual usage;

(ii)  payment obligations are non-cancelable and fees paid are non-refundable; and

(iii) quantities purchased cannot be decreased during the relevant subscription term.

 

5.2.   Invoicing and Payment.

You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11 below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance or as provided in the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date.

You are responsible for providing complete and accurate billing and contact information to Us and to notify Us of any changes to such information.

5.3.   Overdue Charges.

If any invoiced amount is not paid by You by the due date, then without limiting any of Our rights or remedies, those charges will accrue late interest at the rate of 1.5% of the outstanding balance per month (18% per year), and We then may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 above.

5.4.   Suspension of Service and Acceleration.

If charges owed by You under this or any other agreement for services is 30 days or more overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers or clients paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue before suspending services.

5.5.   Payment Disputes.

We will not exercise Our rights under Section 5.3 or Section 5.4 above if You are disputing the applicable charges reasonably and in good faith and You are cooperating diligently to resolve the dispute.

5.6.   Taxes.

Unless otherwise specified, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, We will invoice You and You shall pay said Taxes, unless You provides Us with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

6. PROPRIETARY RIGHTS AND LICENSES

 

6.1.   Reservation of Rights.

Subject to the limited rights expressly granted hereunder, Klient, its Affiliates, its licensors and Content providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

 

6.2.   License by You to Us.

You grant Us, Our Affiliates and providers a worldwide, limited-term license to host, copy, use, transmit, and display (i) any Non-Klient Applications and program code created by or for You using a Service and  (ii) Your Data, each as appropriate for Us to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement.

If You choose to use a Non-Klient Application with a Service, You grant Us permission to allow the Non-Klient Application and its provider to access Your Data and information about Your usage of the Non-Klient Application, as appropriate for the interoperation of that Non-Klient Application with the Service. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-Klient Application or such program code.

 

6.3.   License by You to Use Feedback.

You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Klient’s or its Affiliates’ services.

6.4.   Use and display for marketing purposes

You hereby agree that We may use and display Your name and logo on Our website and/or on any other appropriate platform or resource for the purpose of marketing or promoting Our Services.

 

7. CONFIDENTIALITY

 

7.1.   Definition of Confidential Information.

Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), either orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.

However, Confidential Information does not include any information that:

(i)  is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;

(ii)  was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;

(iii)  is received from a third party without breach of any obligation owed to the Disclosing Party; or

(iv)  was independently developed by the Receiving Party.

For the avoidance of doubt, the non-disclosure obligations set forth in this Section 7 apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Klient services.

7.2.   Protection of Confidential Information.

As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to:

(i)  not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and

(ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.

Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Klient Application Providers to the extent necessary to perform Our obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

 

7.3.   Compelled Disclosure.

The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

 

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

 

8.1.   Representations.

Each party represents that it has validly entered into this Agreement and has the legal power to do so.

8.2.   Our Warranties.

We warrant that during an applicable subscription term (i) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (ii) We will not materially decrease the overall security of the Services, (iii) the Services will perform materially in accordance with the applicable Documentation, and (iv) subject to section 4.2 above, We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in Section 11.3 and Section 11.4 below.

8.3.   Disclaimers.

Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. Content, Beta Services and Free Services are provided “as-is,” and as available exclusive of any warranty whatsoever and at your own risk and peril.

 

9. MUTUAL INDEMNIFICATION

 

9.1.    Indemnification by Klient.

We will defend You against any claim, demand, lawsuit or proceeding made or brought against You by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You :

(i)  promptly give Us a written notice of the Claim Against You;

(ii)  give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability); and

(iii)  give Us all reasonable assistance, at Our expense.

If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You:

(i)  modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under Section 8.2 above;

(ii)  obtain a license for Your continued use of that Service in accordance with this Agreement; or

(iii)  terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions.

The above defense and indemnification obligations do not apply if (i) the allegation does not state with specificity that the Services are the basis of the Claim Against You, (ii) a Claim Against You arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Us, if the Services or use thereof would not infringe without such combination; (iii) a Claim Against You arises from Services under an Order Form for which there is no charge; or (iv) a Claim Against You arises from Content, a Non-Klient Application or Your breach of this Agreement, the Documentation or applicable Order Forms.

9.2.   Indemnification by You.

You will defend Us and Our Affiliates against any claim, demand, lawsuit or proceeding made or brought against Us by a third party alleging (i) that any of Your Data or Your use of Your Data with the Services, (ii) a Non-Klient Application provided by You, or (iii) the combination of a Non-Klient Application provided by You and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against Us”),

You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (i) promptly give You written notice of the Claim Against Us, (ii) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (iii) give You all reasonable assistance, at Your expense. The above defense and indemnification obligations do not apply if a Claim Against Us arises from Our breach of this Agreement, the Documentation or applicable Order Forms.

9.3.   Exclusive Remedy.

This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this Section.

 

10. LIMITATION OF LIABILITY

 

10.1.  Limitation of Liability.

In no event shall the aggregate liability of each party together with all of its Affiliates arising out of or related to this Agreement exceed the total amount paid by You and Your Affiliates hereunder for the Services giving rise to the liability in the twelve months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit Your and Your Affiliates’ payment obligations under Section 5 above.

10.2.  Exclusion of Consequential and Related Damages.

In no event will either party or its Affiliates have any liability arising out of or related to this Agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party or its Affiliates have been advised of the possibility of such damages or if a party’s or its Affiliates’ remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.

 

11. TERM AND TERMINATION

 

11.1.   Term of Agreement.

This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.

11.2.   Term of Purchased Subscriptions.

The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

11.3.   Termination.

A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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.

11.4.   Refunds or Payment upon Termination.

If this Agreement is terminated by You in accordance with Section 11.3 above, We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination.

If this Agreement is terminated by Us in accordance with Section 11.3 above, You will pay Us any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law.

In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

 

11.5.    Surviving Provisions.

Sections 2.6, 5, 6, 7, 8.3, 9, 10, 11.4, 11.5 and 12 will survive any termination or expiration of this Agreement, and Section 2.2 will survive any termination or expiration of this Agreement for so long as We retain possession of Your Data.

 

12. GENERAL PROVISIONS

 

12.1.    Export Compliance.

The Services, Content, other Klient technology, and derivatives thereof may be subject to export laws and regulations of Canada, the United States and other jurisdictions. We and You each represent that it is not named on any Canadian or U.S. government denied-party list. You will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Russia, Sudan, Syria) or in violation of any U.S. export law or regulation.

12.2.    Anti-Corruption.

Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

12.3.    Entire Agreement and Order of Precedence.

This Agreement is the entire agreement between Us and You regarding Your use of the Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a purchase order or in any other order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.

12.4.     Relationship of the Parties.

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

12.5.     Third-Party Beneficiaries.

There are no third-party beneficiaries under this Agreement.

12.6.     Waiver.

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

12.7.     Severability.

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

12.8.     Assignment.

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund You any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

 

13.  Klient Contracting Entity, Notices, Governing Law, and Venue.

 

13.1.      General

The Klient entity entering into this Agreement is Klient Inc, a Canadian corporation, located at 305,5 Blvd St-Martin W., 5th floor, Laval, Quebec, Canada, H7T 0J3. The preceding address is where You should direct notices under this Agreement.

13.2.      Manner of Giving Notice.

Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (i) personal delivery, (ii) the second business day after mailing, or (iii), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email.

Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.

 

13.3.      Agreement to Governing Law and Jurisdiction.

This Agreement shall be governed by and construed in accordance with the laws of the province of Quebec (Canada).

The courts of the judicial district of Montreal, Province of Quebec, Canada shall have exclusive jurisdiction to hear any legal proceeding related to this agreement, to the exclusion of all other courts that may also have jurisdiction.

Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.