Keatext Subscription Agreement
Section 1: Definitions
- In this Agreement or any offer, acceptance, rejection, notice, consent, request, authorization, permission, direction or other instrument required or permitted to be given hereunder, the following words and phrases shall have the following meanings, respectively, unless the context otherwise requires:
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For the purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “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.
- “Confidential Information” has the meaning set out in section 6.1.
- “Customer Data” means all data submitted, stored, posted, displayed, transmitted or otherwise used together with the Services.
- “Disclosing Party” has the meaning set out in section 6.1.
- “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.
- “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 or its Affiliates may purchase Services subject to the terms of this Agreement by executing Order Forms hereunder.
- “Receiving Party” has the meaning set out in section 6.1.
- “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.
- “Subscription Term” has the meaning set out in section 10.1.
- “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.
Section 2: Purchased Services
- 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 and Customer agrees that Keatext shall not be liable to it or any third party for such modifications. Customer agrees that its purchase of Services is neither contingent on the delivery of nor any oral or written public comments made by Keatext regarding any 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. New features, functionality or enhancements to the Services may be marketed separately by Keatext and may require the payment of additional fees.
Section 3: Use of the Services
- Keatext Obligations.
- Availability. Keatext will use commercially reasonable efforts to make the Services available with minimal downtime 24 hours per day, 7 days per week.
- Provisioning of the Services. Keatext will host the Services and may update the functionality and user interface of the Services from time to time at 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 or a maximum number of concurrent users or page views by Authorized Users or visitors. Any limitations will be specified either in the Order Form or in the Documentation.
- Technical Support. Keatext will provide Customer with the level of support described in Schedule A, attached herein.
- Privacy and Personal Information. Customer represents and warrants that it is authorized to provide Keatext with any personal information included in Customer Data, including by obtaining consent from concerned individuals where applicable, pursuant to the applicable laws and regulations protecting personal information and privacy. 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 and if Customer has failed to comply with such representations and warranties, Customer shall defend and indemnify Keatext from any resulting monetary condemnation in capital and interest as well as all judicial and extrajudicial costs afferent thereto.
- 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, only as may be necessary for Keatext to provide the Services. 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. Customer is solely responsible for the accuracy, quality, integrity, and reliability of all Customer Data. Keatext undertakes to process the Customer 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 it has obtained all relevant rights, permissions, authorizations and consents necessary to use and transfer the Customer Data within and between countries, including the country in which Customer is located. 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.
- 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.
- Prohibited Use. Customer may not use, or encourage, promote, facilitate or instruct others to use, the Services for any use prohibited under this Agreement, or to transmit, store, display, distribute or otherwise make available content that is prohibited under this Agreement. Prohibited activities or content include:
- Illegal Activities. Any illegal activities, including advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography.
- 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.
- Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.
- 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.
- 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.
- Pornographic or Exploitative Content. Sexually explicit content primarily designed to induce sexual arousal, content exploiting sexuality for financial gain or content promoting sexual services.
- Removing and/or Disabling Access. If Keatext reasonably believes that Customer’s use of the Services or 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 (2) 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.
- Authorized User Access. 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 and 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.
- Notification of Unauthorized Conduct. 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 Authorized User as being unlawful or unauthorized; and (iii) not impersonate another Authorized User or provide false identity information to gain access to or use the Services or Keatext Application. Notification is to be done by sending an email to: firstname.lastname@example.org.
- Prohibited Activities. 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; or (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.
- Other Equipment. 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.
- Non-Solicitation. 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.
- Suspension of service. Keatext may monitor all use of the Services for security and operational purposes. Keatext may temporarily or permanently suspend Customer’s or its Authorized Users’ access to the Services in the event that either Customer or its Authorized User is engaged in, or Keatext in good faith suspects Customer or its Authorized User is engaged in, any unauthorized conduct (including any violation of this Agreement, 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; however, Keatext’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account, which includes Affiliate and/or Authorized User sub-accounts. 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. Should Customer’s account be suspended, Customer remains responsible for payment of the applicable fees for the Services as per Section 4.
- 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. Customer shall provide authorizations, passwords or other user credentials to a Third-Party Offering (“Keatext Access Codes”) to Keatext where necessary for the retrieval of Customer Data or to enable interoperability with the Services. 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.
- Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary 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.
Section 4: Fees and Payment
- Fees. Customer agrees to pay all fees specified in all Order Forms using one of the payment methods Keatext supports and in the currency specified on the Order Forms. 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.
- 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, except as otherwise set forth in the applicable Order Form; the whole in accordance with the applicable Order Form.
- 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.
- 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 its access to the Services does not prevent Customer’s payment of the applicable fees for the Services.
- Payment Disputes. Keatext agrees that it will not exercise its rights under Sections 4.3 and/or 4.4 if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. The 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.
Section 5: Proprietary Rights
- Services. Keatext, its licensors and its service providers 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 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 necessary 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.
- Customer Data. As between Keatext and Customer, Customer exclusively owns all right, title and interest in and to all Customer Data in the format in which it is entered when using the Services. Customer Data is deemed Confidential Information under this Agreement.
- Deliverables. Customer Data used in the Services will be structured into a database in a proprietary format owned by Keatext. Keatext shall also own, as a compilation, the database of Customer Data resulting from the use of the Services (“Deliverables”), without owning the Customer Data itself. Subject to this Agreement, Keatext hereby grants Customer a limited, non-exclusive, non-transferable (except as permitted in connection with an assignment under Section 11.7 of this Agreement) license during the Subscription Term to use the Deliverables solely in connection with Customer’s authorized use of the Services.
- 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.
Section 6: Confidentiality
- Definition. “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.
- 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.
- 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.
- 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.
- 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.
Section 7: Warranties: Disclaimer
- 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.
- Disclaimers. Except as expressly set forth in section 7.1, 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 7.1, 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 Civil Code of Quebec, 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 and/or 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 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.
- Limitation. All warranties mentioned in section 7.1 apply only to the Services as they are provided to Customer; there is no warranty regarding any modification made by or for Customer.
Section 8: Indemnification
- 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 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 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, at 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 to 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.
- 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 8.1(i)-(v) above.
- Conditions. The parties’ obligations under this Section 8 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 8 are subject to the limitations and exclusions set forth in Section 9 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.
- 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.
Section 9: Limitation of Liability
- Limitation of Liability. Except as set forth in sections 8.1, 8.2 or 9.3, 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 4.
- Exclusion of consequential and related damages. Except as set forth in section 8.2 or 9.3, 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 Services 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.
- Exceptions. The limitations and exclusions of sections 9.1 and 9.2 shall not apply to Customer’s breach of Keatext’s intellectual property rights.
- Backup copy. Customer must backup all data entered into or processed by Keatext.
Section 10: Term and Termination
- 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”).
- 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; or (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.
- 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 thirty (30) days after the effective date of applicable termination or expiration, Keatext shall make Customer Data available for download by Customer in CSV format or any other format agreed upon between the parties, subject to any additional fees for the conversion to such format. Such availability is conditional upon all amounts due by Customer to Keatext having been paid. 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.
- Survival. Except to the extent expressly provided to the contrary herein, sections 4 through 11 shall survive the termination of this Agreement.
- 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 Customer waives its right to terminate this Agreement at any time as provided in section 2125 of the Civil Code of Quebec.
Section 11: General
- 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 Agreement is a non-exclusive arrangement.
- Entire Understanding; Modifications. This Agreement, including all Order Forms, constitutes the entire agreement between the parties and supersedes 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.
- 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, 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.
- 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.
- 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.
- Publicity. Keatext may reference and use Customer’s name in Keatext business development and marketing efforts, including, without limitation, its website.
- 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.
- 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., 5605 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 Customer.
- 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, inability 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, either party may terminate the Agreement upon written notice to the other party.
Section 1: Support Services
- Support services. Customer undertakes to implement and maintain an adequate support structure to offer first level support within its organization, with regard to the Services. To that end, without limiting the foregoing, Customer shall ensure that a minimum of its employees or agents having received sufficient training from Keatext (“Customer’s Liaison Personnel”) are appointed to assume responsibility of all communications with Keatext for support purposes. Keatext may require a member of Customer’s Liaison Personnel to be trained or replaced if needed. The maximum and minimum number of Customer’s Liaison Personnel is specified in this Schedule. Should Keatext’s intervention be required, Customer’s Liaison Personnel shall have access to Keatext’s Customer Service Center and shall 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 Customer’s responsibility to provide Keatext with sufficient information to allow a proper diagnosis of the problem.
Section 2: Obligations of Keatext
- Systems Availability. Keatext Service Level for availability of the System is based on a ninety-nine point nine (99.9%) percent uptime in any given month during the Term. This uptime is based on the availability of the reporting application for all users and excludes scheduled maintenance windows or downtime related to software integration issues, change requests or errors in Customer data to the extent caused by or originating from the Customer.
- Systems Responsiveness. Keatext shall maintain page responsiveness at Keatext’s web server level of within five (5) seconds, while running a report with no more than 2 weeks data. This will be based on a rolling month average.
- Browser Support. Keatext shall ensure that the Services can be viewed without modification using the browsers as specified by Keatext.
- Data Integrity. Keatext shall establish and maintain backup procedures to ensure that the Services can be restored within a commercially reasonable period after becoming unavailable. These backup procedures will be included in the Business Continuity Plan that will be provided to Customer.
- Scheduled Maintenance. Keatext may perform scheduled maintenance between 00:01 and 04:00 data centre local time. Keatext will provide not less than seven (7) days advance notice to Customer of any unscheduled downtime exceeding four (4) hours of Keatext Services, except under exceptional circumstances requiring time-sensitive or highly critical updates to address any newly discovered security vulnerabilities (e.g., Amazon Web Services critical security updates).
Data Centre Primary Time zone Daylight Saving London UTC BST (UTC +1 from late March to October) Toronto ET (UTC -5) EDT (UTC -4 mid March to early November) Vancouver PT (UTC -8) PDT (UTC -7 mid March to early November)
Section 3: Corrective Maintenance
- System Support – Acknowledgement of Software and Services Failures. Keatext will provide System support (“System Support”) services twenty-four hours a day, seven days a week. System Support will include, without limitation, guaranteed acknowledgement of Priority Level 1 and 2 problems within the time frames defined in section 4 herein below for problems reported by Customer. Such acknowledgement may be by phone or e-mail to Customer’s designated support contact. All System Support services will be provided from Keatext’s facility. Keatext shall provide at least a temporary correction for all service requests in accordance with the procedure and within the time frame specific to the Priority Level as set out in Section 3.
- User Support. Keatext will provide User Support on a normal business hours basis, defined as Monday to Friday 9am – 5:00 pm ET local time. User Support will include reasonable consultation on the operation and utilization of the software and problem resolution for technical performance problems and failures of the Services reported by Customer other than Priority Level 1 and 2 problems as defined below.
- Response and Resolution. Problems with the software will be addressed in accordance with the following escalation procedure tables. Keatext will monitor the performance of the Services regularly to identify and correct any technical problems. During the business day, Keatext will confirm by notification to Customer that it has assigned all necessary resources to the correction of each reported or otherwise detected problem within the following “Response Time” periods and will use all commercially reasonable efforts to correct each reported or otherwise detected problem within the following “Resolution Time” periods:
Priority Level Response Time Action Plan Delivery Support Mode Resolution Target Time Resolution Time 1 1 hour 12 hours Continuous, dedicated until restored. Thereafter, in accordance with the Agreement. As quickly as possible, with updates every 2 hours Within 72 hours after notice* 2 4 hours 48 hours Continuous, dedicated until restored. Thereafter, in accordance with the Agreement. As quickly as possible, with updates every 2 hours Within 120 hours after notice** 3 Next business day 5 days Non-dedicated, non-continuous Included within the next two maintenance releases Within 30 days after notice 4 1 business day Mutually Agreed Non-dedicated, non-continuous None, unless escalated Within 60 days after notice
* Priority Level 1: Keatext to use all commercially reasonable efforts to provide: a temporary correction within twenty-four (24) hours of notification. If a temporary correction is provided, then a plan for correction of the error will be provided within forty-eight (48) hours of notification, with a target for completion within five (5) business days.
** Priority Level 2: Keatext to use all commercially reasonable efforts to provide: a temporary correction within forty-eight (48) hours of notification. If a temporary correction is provided, then a plan for correction of the error will be provided within seventy-two (72) hours of notification, with a target for completion within ten (10) business days.
- Escalation procedure. In the unlikely event that a Priority Level 1 or 2 service request is not solved within the maximum Resolution Time defined above, Keatext will provide an action plan to correct the problem within a mutually acceptable time frame for Customer. Keatext’s failure to meet a Response Time or a Resolution Time does not constitute a material breach of this Agreement.
Customer has the right to escalate this problem to a designated senior executive of Keatext if one of the following conditions is met:
- No action plan is provided in time;
- No mutually acceptable action plan can be determined; or
- The action plan is not respected by Keatext.