Keatext Subscription Agreement

THIS KEATEXT SUBSCRIPTION AGREEMENT (the “AGREEMENT”) GOVERNS ALL ACCESS TO AND USE OF KEATEXT SUBSCRIPTION SERVICES (AS DEFINED BELOW), WHETHER ON A FREE TRIAL OR PURCHASED SUBSCRIPTION BASIS.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BUTTON TO INDICATE ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT INCORPORATES THIS AGREEMENT BY REFERENCE, THE CUSTOMER (“CUSTOMER”) AGREES TO A LEGALLY BINDING CONTRACT WITH KEATEXT INC. (“KEATEXT”), A CANADIAN CORPORATION, OWNER OF KEATEXT, AND AGREES TO BE BOUND BY ALL TERMS HEREOF.

IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.

This Agreement was last updated on May 30th, 2016.

    1. Definitions
      1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
      2. “Authorized Users” means Customer’s or its Affiliates’ employees, consultants, contractors, agents, suppliers or other stakeholders who are authorized by Customer or its Affiliates to access and use the Services and who have been supplied user identifications and passwords for such purpose.
      3. “Customer Data” means all data submitted, stored, posted, displayed, transmitted or otherwise used together with the Services.
      4. “Disclosing Party” has the meaning set out in Section 7.1.
      5. “Documentation” means the online user instructions and help files made available by Keatext as part of the Services, as may be updated from time to time by Keatext.
      6. “Order Form” means the Keatext ordering documents, provided by Keatext, may they be paper, .pdf or web based, for Services purchased from Keatext, that are accepted hereunder by the parties from time to time. Unless specifically provided otherwise, Order Forms will be deemed to incorporate the terms of this Agreement. Customer Affiliates may purchase Services subject to the terms of this Agreement by executing Order Forms hereunder.
      7. “Receiving Party” has the meaning set out in Section 7.1.
      8. “Services” means the use and availability of the online, web-based analytics tool and associated technologies known as KeatextTM for unstructured Salesforce data and provided by Keatext, including: (a) all proprietary technology (software, hardware, algorithms, code, processes, user interfaces, know-how, techniques, templates, designs and other tangible or intangible technical material or information) of Keatext, its licensors and service providers used by Keatext to provide the Services, (b) system administration, system management, and system monitoring activities performed by Keatext in connection with the software applications made available by Keatext; and (c) associated technical support and maintenance services, as may be applicable.
      9. “Subscription Term” has the meaning set out in Section 11.1.
      10. “Third Party Offerings” means services delivered or performed by third parties independently of Keatext related to the Services, or other online, web-based services or other business application subscription services, that interoperate with the Services.
    2. Free Trial Services
      1. Provision of Free Trial Services. If Keatext has made the Services available to Customer on a free trial basis (“Trial Services”), Keatext will make such Trial Services available to Customer until: (a) the end of the then-current Trial Services period offered by Keatext, unless otherwise extended by Keatext in its discretion, (b) the start date of any paid Services ordered by Customer, or (c) the date on which Keatext elects in its sole discretion to terminate Customer’s access to Trial Services (“Trial Services Term”). Customer acknowledges and agrees that the features and functionality of the Services may be limited during the Trial Services Term. Except as specifically set forth in this Section 2, this Agreement shall apply to Customer’s use of the Services during the Trial Services Term.
      2. Customer Data for Trial Services. ANY CUSTOMER DATA ENTERED INTO THE SUBSCRIPTION SERVICES DURING THE TRIAL SERVICES TERM AND ANY CHANGES MADE TO THE CUSTOMER DATA BY OR FOR CUSTOMER DURING THE TRIAL SERVICES TERM MAY BE PERMANENTLY LOST UNLESS CUSTOMER: (A) PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED DURING THE TRIAL SERVICES TERM, (B) PURCHASES UPGRADED SERVICES.
      3. AS-IS USE. NOTWITHSTANDING ANYTHING TO THE CONTRARY THIS AGREEMENT, INCLUDING WITHOUT LIMITATION SECTIONS 4.1.3, 8.1, AND 9.1, DURING THE TRIAL SERVICES TERM, THE TRIAL SERVICES ARE PROVIDED BY KEATEXT “AS-IS” WITHOUT ANY WARRANTY, SUPPORT OR INDEMNIFICATION OF ANY KIND.
    3. Purchased Services
      1. Provision of Services. Keatext will make any purchased Services available to Customer pursuant to this Agreement and the relevant Order Form during the Subscription Term. Keatext may bring minor modifications to the Services at any time with or without prior notice to Customer. Customer agrees that Keatext shall not be liable to Customer or any third party for any modification of the Services.Customer agrees that its purchase of Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Keatext regarding future functionality or features. Customer’s use of the Services includes the right to access all functionality available in the purchased Services in accordance with the package(s) chosen on the Order Form as of the effective date of such Order Form. However, new features, functionality or enhancements to the Services may be marketed separately by Keatext and may require the payment of additional fees.
    4. Use of the Services
      1. Keatext Obligations.
        1. Availability. Keatext will use commercially reasonable efforts to make the Services available with minimal downtime 24 hours a day, 7 days a week.
        2. Provisioning of the Services. Keatext will host the Services and may update the functionality and user interface of the Services from time to time in its sole discretion as part of its ongoing improvement of the Services. The Services may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data, a maximum number of concurrent users or of page views by Authorized Users or visitors, and any such limitations will be specified either in the Order Form or in the Documentation.
        3. Technical Support. Keatext will provide Customer with the level of support described in Schedule A, which is attached/below this Agreement.
        4. Privacy and Personal Information. Customer represents and warrants that all data it provides Keatext by virtue hereof have been the subject of consent by persons concerned, as provided for by applicable law protecting personal information. Keatext undertakes to process the data in accordance with applicable law in its place of business, the province of Quebec, Canada. It is however understood that Keatext may need to store or process data outside of the Province of Quebec and Customer hereby represents and warrants that he has obtained all relevant authorizations for Keatext to do so.Should Customer fail to comply with the representations and warranties of the preceding paragraph, Customer shall defend and indemnify Keatext, should Keatext receive a claim brought by a third party alleging the disclosure, use or retention of the personal information as being inconsistent with the provisions of applicable privacy legislation. Customer shall also indemnify Keatext from any monetary condemnation in capital and interest as well as all judicial and extrajudicial costs that it may incur as a result.
      2. Use and Protection of Customer Data. Subject to this Agreement, including Keatext’s confidentiality obligations, Customer hereby grants Keatext a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary, and only as may be necessary, for Keatext to provide the Services to Customer. To the extent that receipt of the Customer Data requires Keatext to utilize any account information from a third party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and Keatext hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in this Agreement. As between Keatext and Customer, Customer is solely responsible for the accuracy, quality, integrity, and reliability of all Customer Data. Customer represents and warrants that it has obtained all rights, permissions, and consents necessary to use and transfer the Customer Data within and outside of the country in which Customer is located in conjunction with Keatext’s provision of the Services.Keatext will maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data; however, Customer recognizes that no technical safeguard offers complete protection and that a significant number of risks exist on the Internet.
      3. Customer’s Responsibilities. Customer shall provide Keatext with any and all information which is necessary or useful for Keatext to provide the services described in this Agreement.Customer shall name an authorized representative, with sufficient authority to interact and give instructions or answers to Keatext.Customer may not use, or encourage, promote, facilitate or instruct others to use, the Services for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive. Prohibited activities or content include:
        1. Illegal Activities. Any illegal activities, including advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography.
        2. Harmful or Fraudulent Activities. Activities that may be harmful to others, our operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices.
        3. Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.
        4. Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts.
        5. Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.

        If Keatext reasonably believes that any of Customer Data violates the foregoing, Keatext will notify Customer and may request that such content be removed from the Services or access to it be disabled. If Customer does not remove or disable access to such content within two business days of Keatext’s notice, Keatext may remove or disable access to such content or suspend the Services to the extent Keatext is not able to remove or disable access to such content.

        Customer shall not allow access to or use of the Services by anyone other than Authorized Users. Customer is responsible for its Authorized Users’ compliance with this Agreement, for its Authorized Users’ use of the Services, and for ensuring that Authorized Users maintain the confidentiality of their passwords and user names; Customer shall be responsible for any use of the Services for which proper usernames and passwords have been entered. If Customer suspects any unauthorized use of its passwords or User accounts or any other possible security breach with respect to the Services, Customer must immediately notify Keatext by sending an email to: support@keatext.ai.

        Customer agrees that it will not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the Services or make the Services available to any third party, other than to Authorized Users or as otherwise contemplated by this Agreement; (b) interfere with or disrupt the integrity or performance of the Services; (c) attempt to gain unauthorized access to the Services or their related systems or networks; (d) use or knowingly permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services; (e) access the Services for the purpose of building a similar or competitive product; (f) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services.

        Customer is responsible for any telecommunications or information technology equipment or services which it uses to contact Keatext servers in order to use the Services.

        Customer undertakes, during the term of this Agreement and for a period of twenty-four (24) months after the termination of this Agreement, not to employ or attempt to employ an employee of Keatext. Should Customer be in default with respect to the aforementioned obligation, and should Customer not cure this default within three (3) days of the reception of a written notice by Keatext, Keatext, at its discretion, may file the appropriate proceedings to prevent such solicitation, or require Customer to pay to Keatext, as anticipated damages and not as a penalty, a sum equivalent to the employee’s total remuneration, including benefits, during the twelve (12) months preceding its employment by Customer.

      4. Suspension of service. Keatext may monitor all use of the Services for security and operational purposes, but has no obligation to do so. Keatext may temporarily or permanently suspend Customer’s or its Authorized Users’ access to the Services in the event that either Customer or its User is engaged in, or Keatext in good faith suspects Customer or its User is engaged in, any unauthorized conduct (including any violation of this Agreement, any applicable law or third party right, including the terms of any Third Party Offering on which Customer’s use of the Services relies). Keatext will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Keatext’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. Customer agrees to (i) notify Keatext immediately of any unauthorized use of any password or account or any other known or suspected breach of security related to the Services; (ii) report to Keatext immediately, and use reasonable efforts to immediately stop, any copying or distribution of Customer Data that is known or suspected by Customer or its User as being unlawful or unauthorized; and (iii) not impersonate another User or provide false identity information to gain access to or use the Services or Keatext Application. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include Affiliate and/or Authorized Users sub-accounts, if any. Customer agrees that Keatext will not be liable to Customer or to any Affiliate or Authorized User or any other third party if Keatext exercises its suspension rights as permitted by this Section. The suspension of the access to Services does not prevent the payment of the applicable fees for the Services as per Section 5.
      5. Third-Party Web Sites, Products and Services. The Services may rely on or require that Customer access Third Party Offerings. Keatext has the right to export and import Customer Data to and from such Third Party Offerings for purposes of delivering the Services purchased by Customer. Customer’s or its Authorized Users’ use of third party websites and services must at all times comply with the terms of service governing such websites and services. Customer understands and agrees that the availability of the Services, or certain features and functions thereof, is dependent on the corresponding availability of Third Party Offerings or specific features and functions of Third Party Offerings. Keatext will not be liable to Customer or any third party in the event that changes in Third Party Offerings cause the unavailability of the Services or any feature or function thereof. Keatext does not make any representations or warranties regarding any such Third Party Offerings, whether or not such Third Party Offerings or services are designated by Keatext as “certified,” “approved,” “recommended” or otherwise, or the services are provided by a third party that is a member of a Keatext partner program. To the extent that Keatext requires that Customer grant Keatext authorizations, passwords or other user credentials to a Third Party Offering (“Keatext Access Codes”) to retrieve Customer Data or to enable interoperability with the Services, Customer shall promptly provide such Keatext Access Codes. Keatext shall not share, reassign, divulge or disclose any Keatext Access Codes except to Keatext employees or authorized contractors specifically engaged in the performance of the Services. Keatext Access Codes shall constitute Customer’s Confidential Information under this Agreement.
      6. Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as neceAgreementry for Keatext to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes.
    5. Fees and Payment Terms
        1. Fees. Customer agrees to pay all fees specified in all Order Forms using one of the payment methods Keatext supports. Customer agrees to pay Keatext in the currency specified on the Order Form. Except as otherwise specified in this Agreement or in an Order Form, (i) fees are based on Services purchased, regardless of usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the Services purchased cannot be decreased during the relevant Subscription Term on the Order Form. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
        2. Invoices and Payment. All Services fees will be either
          • payable automatically in advance by credit card; or
          • invoiced in advance and paid within thirty (30) days from their issue

      in accordance with the applicable Order Form.

      Except as otherwise set forth in the applicable Order Form, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.

      1. Overdue Charges. If Keatext does not receive fees by the due date, Keatext shall notify Customer of such default and, at Keatext’s discretion, such charges may accrue late interest at the rate of 1.5% per month or 18% per annum, calculated on a monthly basis on the outstanding balance, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
      2. Suspension of Service. If any amounts owed by Customer for the Services are thirty (30) or more days overdue, Keatext may, without limiting Keatext’s other rights and remedies, suspend Customer’s and its Authorized Users’ access to the Services until such amounts are paid in full. The suspension of the access to the Services does not prevent the payment of the applicable fees for the Services.
      3. Payment Disputes. Keatext agrees that it will not exercise its rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
      4. Taxes. The amount of all fees specified in an Order Form are exclusive of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”).
    6. Proprietary Rights
      1. Services. Keatext, its licensors and its service providers (together the “Keatext Parties”) own all right, title and interest in and to the Services, including all related intellectual property rights. Keatext reserves all rights not expressly granted to Customer under this Agreement. Neither Customer nor any Authorized User will delete or in any manner alter the copyright, trademark, and other proprietary notices of Keatext appearing on the Services or any portion thereof. Additionally, Keatext shall exclusively own all right, title and interest in and to any and all suggestions, enhancement requests, recommendations or other feedback provided by Customer and its Authorized Users relating to the Services (“Feedback”), and Customer hereby assigns to Keatext all of its right, title, and interest in and to the Feedback, including all intellectual property rights therein or relating thereto. At Keatext’s reasonable request and expense, Customer will execute neceAgreementry documents and take such further acts as Keatext may reasonably request to assist Keatext to acquire, perfect and maintain such Intellectual Property Rights in the Feedback.
      2. Customer Data. As between Keatext and Customer, Customer exclusively owns all right, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement.
      3. Deliverables. At all times, Customer shall exclusively own all right, title and interest in and to Customer Data in the format in which it is entered when using the Services. As through the use of the Services, Customer Data will be structured into a database which is in a proprietary format owned by Keatext, Keatext shall also own, as a compilation, the database resulting from the use of the Services, without owning Customer Data. Subject to this Agreement, Keatext hereby grants Customer a limited, non-exclusive, non-transferable (except as permitted in connection with an assignment under Section 12.7 of this Agreement) license during the Subscription Term to use the Deliverables solely in connection with Customer’s authorized use of the Services..
      4. Statistical Information. Keatext may monitor Customer’s use of the Services and use data related to Customer’s use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services or to support benchmarking or similar features of the Services. Customer agrees that Keatext may make such information publicly available, provided that such information does not incorporate any Customer Data and/or identify Customer or its Confidential Information. Keatext retains all intellectual property rights in such statistical and performance information.
    7. Confidentiality
      1. “Confidential Information” means all confidential or proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether 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. Without limiting the coverage of these confidentiality obligations, the parties acknowledge and agree that: (a) Customer Confidential Information shall include the Customer Data, and (b) Confidential Information of each party shall include Agreement pricing and other financial terms set forth in this Agreement and all Order Forms, as well as marketing plans, budgets, financial information, technology, technical information, product roadmaps, development strategies, methods, processes, techniques, designs, computer programs and other business information disclosed by such party.
      2. Treatment of Confidential Information. The Receiving Party shall: (a) use the same degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information (but in no event less than reasonable care); and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s permission.
      3. Exceptions. Confidential Information shall not include information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
      4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal process. The Receiving Party must, however: (i) provide the Disclosing Party with prompt written notice of the requirement to disclose, (ii) provide the Disclosing Party with reasonable assistance in the event the Disclosing Party wishes to oppose or contest such disclosure, and (iii) limit its disclosure to that strictly required by law, regulation or legal process.
      5. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
    8. Warranties; Disclaimers
      1. Warranties. Each party warrants that it has the legal authority to enter into this Agreement. Keatext warrants to Customer that the Services will materially conform with the relevant Documentation.
      2. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, KEATEXT MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KEATEXT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITING THE FOREGOING, ANY WARRANTIES OF QUALITY OR AGAINST LATENT DEFECTS AS DEFINED BY THE QUEBEC CIVIL CODE, OR WARRANTIES OF NON-INFRINGEMENT, MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. KEATEXT DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED; (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR G) THE SUBSCRIPTION SERVICES SHALL BE AVAILABLE AT ALL TIMES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. KEATEXT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
      3. ALL WARRANTIES MENTIONED ABOVE APPLY ONLY TO THE SERVICES AS THEY ARE PROVIDED TO CUSTOMER; THERE IS NO WARRANTY REGARDING ANT MODIFICATION MADE BY OR FOR CUSTOMER.
    9. Indemnification
      1. Indemnification by Keatext. Keatext, at its expense, will defend and pay any settlement amounts and damages, costs and expenses (including reasonable attorneys’ fees) awarded by a court of final jurisdiction in Canada arising out of any third party claim, suit or proceeding alleging that Customer’s use of the Services in accordance with this Agreement infringes a third party’s copyright or patent issued as of the Effective Date. The foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data (ii) use of the Services in combination with any software, hardware, network or system not supplied by Keatext where the alleged infringement relates to such combination, (iii) any modification or alteration of the Services other than by Keatext, (iv) Customer’s continued use of the Services after Keatext notifies Customer to discontinue use because of an infringement claim, or (v) Customer’s violation of applicable law.If any claim in which Keatext defends or may defend a Customer, in any country, because of an Intellectual Property Infringement claim, or in the case where, in Keatext’s determination, a claim is likely to occur, Keatext may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the allegedly infringing item, (b) substitute a functionally equivalent, non-infringing replacement for such item, (c) modify such item to make it non-infringing and functionally equivalent, or (d) terminate this Agreement and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Services due to such claim and the remaining days in the then-current Subscription Term.
      2. Indemnification by Customer. Customer, at its expense, will defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (i) alleging that the Customer Data infringes any trade secret, trademark, copyright, or patent issued as of the Effective Date; or (ii) arising from occurrence of the conditions set forth in Section 9.1 (i)-(v) above.
      3. Conditions. The parties’ obligations under this Section 9 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim under this Section, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 9 are subject to the limitations and exclusions set forth in Section 10 below and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable third party claim.
      4. Audit or investigation. Customer shall indemnify Keatext for any loss of time or loss of business, or inconvenience due to an audit, a seizure or an investigation of Customer Data by a third party or a government authority, in particular, but without limiting the foregoing, when a court ordered seizure or investigation takes place.
    10. Limitation of Liability
      1. Limitation of Liability. EXCEPT AS SET FORTH IN SECTIONS 9.2 OR 10.3, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED: (A) WITH RESPECT TO A SINGLE INCIDENT, THE AMOUNTS PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT, AND (B) IN AGGREGATE, THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT TERMS).
      2. Exclusion of Consequential and Related Damages. EXCEPT AS SET FORTH IN SECTION 9.2 OR 10.3 BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE AND/OR THIS Agreement, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF KEATEXT AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM.
      3. Exceptions. THE LIMITATIONS AND EXCLUSIONS OF SECTIONS 10.1 AND 10.2 ABOVE SHALL NOT APPLY TO CUSTOMER’S BREACH OF KEATEXT’S INTELLECTUAL PROPERTY RIGHTS.
      4. Backup copy. CUSTOMER MUST BACKUP ALL DATA ENTERED INTO OR PROCESSED BY KEATEXT.
    11. Term and Termination
      1. Term of Subscriptions to the Services. Customer’s right to use the Services begins on the start date specified in the Order Form and continues for the period set forth therein (each a “Subscription Term”).
      2. Termination for Cause. This Agreement and applicable Order Forms may be terminated by either party for cause as follows: (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this Agreement and does not cure such breach prior to the end of such thirty (30) day period, (ii) effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted hereunder. Keatext may temporarily cease performance of its obligations during any cure period.
      3. Retrieval of Customer Data. In the event of termination or expiration of the Subscription Term under an Order Form, upon Customer’s request made within 30 days after the effective date of applicable termination or expiration, Keatext shall make Customer Data available for download by Customer in CSV format. Such availability is conditional upon all amounts due by Customer to Keatext having been paid to Keatext.Keatext may also make Customer Data available for download by Customer in another format upon agreement between Customer and Keatext as to the choice of such format and as to additional fees for the conversion to such format.After such 30-day period, Keatext shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
      4. Survival. Except to the extent expressly provided to the contrary herein, Section 5 through 12 shall survive the termination of this Agreement.
      5. Full term. Customer recognizes that the amounts of all fees established in relation to this agreement have been set by taking into account the full duration of each term. Therefore the Customer waives his right to terminate the agreement at any time as provided in section 2125 of the Quebec Civil Code.
    12. General
        1. Relationship. Keatext and Customer are independent contractors, and this Agreement does not create a partnership, joint venture, employment or agency relationship between the parties. This is a non-exclusive arrangement.
        2. Entire Understanding; Modifications. This Agreement, including all Order Forms, constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, oral or written, regarding the subject matter covered by this Agreement. Except as set forth in this Agreement, no modifications, amendments or waivers shall be effective unless mutually agreed by the parties in writing. To the extent of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or in any other ordering documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
        3. Waiver. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement, unless such waiver is confirmed in writing. The written waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
        4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of any provision shall not affect any of the other provisions of this Agreement.
        5. Governing Law and Venue. This Agreement shall be governed by and construed under the laws in force within the Province of Quebec, Canada, excluding its conflict of laws rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The state and federal courts located in Montreal, Province of Quebec, Canada will have exclusive jurisdiction to adjudicate any dispute relating to this Agreement. Each party hereby irrevocably consents to the exclusive jurisdiction of such courts.
        6. Publicity. Keatext may reference and use Customer’s name in Keatext business development and marketing efforts, including without limitation its web site.
        7. Assignment. Customer may not assign this Agreement, or Order Forms to any third party without the prior written consent of Keatext, such consent not to be unreasonably withheld. Any purported assignment in violation of this Section by Customer shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. There are no third party beneficiaries to this Agreement. Keatext may assign this Agreement to a Company capable of assuming Keatext’s obligations described in this Agreement.
        8. Notices. Keatext may give notice to Customer by means of a general notice through the Services interface, electronic mail to Customer’s e-mail address on record in Keatext’s account information, or by written communication sent by registered postal mail or nationally recognized overnight delivery service to Customer’s address on record in Keatext’s account information. Customer may give notice to Keatext by written communication sent by postal mail or nationally recognized overnight delivery service addressed to Keatext Inc., 505 de Gaspé, Suite 108, Montreal (Quebec), Canada, H2T 2A4, Attention: Legal Department.

      Notice shall be deemed to have been given upon receipt or, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the French or English languages, at the option of the Customer.

      1. Force Majeure. Except for performance of a payment obligation, neither party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, unability to obtain or receive data from Salesforce.com, governmental actions, shortages of equipment or supplies, Internet attacks or hacking, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Agreement for convenience upon written notice to the other party.

 

Schedule A

Support Services

    1. Support servicesThe Customer undertakes to implement and maintain an adequate support structure to offer first level support within its organization, with regards to the Services. To that end, without limiting the foregoing, the Customer shall ensure that a minimum of its employees or agents having received sufficient training from Keatext are appointed to assume responsibility of all communications with Keatext for support purposes. Only these persons, or their duly appointed and adequately trained replacements (the “Customer’s Liaison Personnel”), may contact Keatext to require support in relation with any given problem. Keatext may require a member of the Customer’s Liaison Personnel to be trained or replaced if needed. The maximum and minimum number of Liaison Personnel is specified in this Schedule.The Customer’s Liaison Personnel shall receive the calls and direct them according to the nature of the problems. Should Keatext’s intervention be required, the Customer’s Liaison Personnel shall have access to Keatext’s Customer Service Center. The Customer’s Liaison Personnel placing the call or sending an email shall thereafter provide Keatext with the description of the problem, its location, the name of the person to contact, and any other information Keatext may reasonably request. It shall be the Customer’s responsibility to provide Keatext with sufficient information so as to allow a proper diagnosis of the problem;Help Desk Response and Resolution Times. Help desk response time and resolution of problems shall be measured for service calls (email or web-based helpdesk system) placed by Customer to Keatext’s help desk each calendar month. Keatext’s response time to service calls to the help desk shall be measured as the time between the reception of a call or email and the acknowledgement of its reception by Keatext during regular business hours (Monday to Friday, except Holidays in the province of Quebec, Canada, 9am to 5pm Eastern Time – GMT-5). Keatext’s resolution time of problems reported in a service call shall be measured as the time between the acknowledgement of the reception of the service call by Keatext and the implementation by Keatext of a resolution to the problem reported. The Service Level for response and resolution times to service calls:For the purposes of this Section, the severity level and corresponding description referred to in the table above have the following meanings:
      1. Severity 1 – High – A Severity 1 Problem arises when the Service cannot be accessed or is unable to function properly and no workaround is immediately available.
      2. Severity 2 – Medium – A Severity 2 Problem arises when a major feature or functionality is not available or not functioning properly and use of the Service is severely reduced or impacted.
      3. Severity 3 – Low – A Severity 3 Problem arises when a minor problem exists with the Software and a workaround is available or when the problem is cosmetic.