This Master Services Agreement ("Agreement") is a legal agreement between You (the "Licensee") and Klipfolio Inc., a corporation incorporated under the laws of Ontario ("Klipfolio"), with its principal place of business at 176 Gloucester Street, Suite 200, Ottawa, Ontario, K2P 0A6, Canada.
If You register for a free trial for our Software or Services, this agreement will also govern that free trial.
By accepting this Agreement, either by clicking a box indicating Your acceptance or by executing a Purchase Order that references this Agreement, You agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms "You," "Your," or "Licensee" shall refer to such entity and its Affiliates. If You do not have such authority, or if You do not agree with these terms and conditions, You must not accept this agreement and may not use the Software or Services.
This Agreement was last updated on March 30, 2011. It is effective between You and Klipfolio as of the date of Your accepting this Agreement.
1.1 "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
1.2 "Purchase Order" means Klipfolio's standard order form for Software, Services, and support;
1.3 "Software" or "Services" means any of Klipfolio's products or Services, including Klipfolio Dashboard Software and related programs, whether under a trial or Purchase Order, installed or used by You, including Updates, and corresponding documentation, associated media, printed materials, and online or electronic documentation;
1.4 "Updates" means a bug fix, patch, error correction and/or other enhancements to the Software or Services;
1.5 "User" means an employee, independent contractor, consultant or agent of the Licensee identified and authorized by the Licensee to use the Software or Services;
1.6 "Licensee," "You," or "Your" means the company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity; and
1.7 "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") 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.
2.1 Subject to the terms and conditions of this Agreement, You are hereby granted a non-exclusive, non-transferable license for the number of Users set out in the applicable Purchase Order to use the Software or Services solely for Your own business purposes. Your use of the Software or Services may be subject to additional terms and conditions set out in the applicable Purchase Order, including the duration of the term of license.
2.2 You may not re-license, sub-license, sell, assign, or otherwise transfer the Software or Services. You agree that the Software or Services will only be used in accordance with the provisions of this Agreement.
2.3 Klipfolio will retain all right, title, copyright, trade secrets, patents, trademarks, and other proprietary and intellectual property rights in the Software or Services. You do not acquire any rights, express or implied, in the Software or Services, other than those specified in the Agreement. You will not remove any copyright, patent, trademark, design right, trade secret or any other proprietary rights legends from the Software or Services.
2.4 You will not modify, resell for profit, distribute, or create derivative works based upon the Software or Services or any part thereof.
2.5 You will take appropriate steps, both before use and at all times thereafter, to copy and protect Your own data and programs that may be lost, harmed or destroyed and to protect Your equipment from any damage. You will be responsible for reconstruction, replacement, repair or recreation of lost programs, data or equipment in the event of hardware, Software, or Services failure. Klipfolio will not, under any circumstances, be responsible for any such losses or damages.
2.6 Klipfolio shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Software and Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the Software or Services.
3.1 Your Confidential Information shall include Your data; Klipfolio's Confidential Information shall include the Software and Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Purchase Orders, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your data) shall 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.
3.2 The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to 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, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Purchase Order to any third party other than its Affiliates and their legal counsel and accountants without the other party's prior written consent.
3.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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 such Confidential Information.
4.1 Klipfolio warrants that (i) we have validly entered into this Agreement and have the legal power to do so, (ii) the Software and Services shall perform materially in accordance with the documentation included with the Software or Service, (iii) the functionality of the Software and Services will not be materially decreased during a subscription term. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 6.2 below.
4.2 You warrant that You have validly entered into this Agreement and have the legal power to do so.
4.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
4.4 From time to time Klipfolio may invite You to try, at no charge, Software or Services that are not generally available to Klipfolio customers ("Trial Services"). You may accept or decline any such trial in Your sole discretion. Trial Services will be clearly designated as alpha, beta, pilot, limited release, developer preview, or non-production, or by a description of similar import. Trial Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. We may discontinue Trial Services at any time in Klipfolio's sole discretion and may never make them generally available. TRIAL SERVICES ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY.
5.1 NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL KLIPFOLIO (OR ITS EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS) BE LIABLE TO THE LICENSEE, OR ANY THIRD PARTY CLAIMING THROUGH THE LICENSEE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWSOEVER CAUSED (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, INCREASED COSTS OF OPERATION, LITIGATION COSTS, AND THE LIKE), WHETHER BASED UPON A CLAIM OR ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IN CONNECTION WITH THE SUPPLY, USE, OR PERFORMANCE OF THE SOFTWARE OR SERVICES, REGARDLESS OF WHETHER KLIPFOLIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.2 KLIPFOLIO'S AGGREGATE LIABILITY TO THE LICENSEE, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION, OR OTHERWISE WILL, IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES, BE LIMITED TO DIRECT DAMAGES AND WILL IN NO CIRCUMSTANCES EXCEED, IN THE AGGREGATE, THE FEES PAID TO KLIPFOLIO BY THE LICENSEE IN RESPECT OF THE SOFTWARE OR SERVICES.
6.1 This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Software or Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
6.2 Klipfolio, in its sole discretion, has the right to suspend or terminate this Agreement and use of the Software or Service and refuse any and all current or future use of the Software or Service, or any other Klipfolio product or service, for any reason at any time. Klipfolio will use all reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account.
6.3 Licensed User subscriptions commence on the purchase date, or the start date specified in the applicable Purchase Order, and continue for the subscription term specified therein. Except as otherwise specified in writing, all Licensee terms shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal before the end of the relevant subscription term.
6.4 Upon termination of this Agreement, the Licensee will cease using the Software and Services.
6.5 The Software or Service is billed in advance on a monthly, one-year, or two-year basis and is non-refundable. There will be no refunds or credits for partial periods of service.
6.6 All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
6.7 For monthly payment plans, any increase or decrease in number of users, will result in Your credit card that You provided being automatically charged the new rate on your next billing cycle.
6.8 For one-year or two-year payment plans, any increase or decrease in number of users, or changes from a monthly payment plan, will result in your credit card that You provided being automatically charged on the day of the change.
6.9 You are solely responsible for properly cancelling the Service or deleting your account. For Klipfolio Dashboard web and mobile, if you are an Administrator, You can cancel the Service or delete Your account at any time by clicking on the Account link in the navigation bar at the top of the screen, and selecting the Company tab. The Billing section of the Company screen provides a link to cancel Your Service and the Company Info screen provides a link to delete Your account.
6.10 The Software or Service will immediately be inaccessible upon deletion of your Account, and inaccessible at the end of Your current billing cycle upon cancellation of the Service. Specifically when deleting Your account, for Klipfolio Dashboard web and mobile, after 48 hours, all of the settings and Your data held in Klipfolio Dashboard for web and mobile will be permanently deleted. During the 48 hours after Your deletion request, Your account may be reactivated by calling us.
6.11 If You cancel or delete Your account before the end of your current paid up period, You will not be charged again.
7.1 Software distributed to or on behalf of the United States of America, its agencies or instrumentalities ("U.S. Government") is provided with Restricted Rights. Use, duplication, or disclosure of Software by the U.S. Government is subject to the restrictions in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraphs (c) (1) and (2) of the Commercial Computer Software - Restricted Rights at 48CFR52.227-19, as amended or applicable, or such other applicable rules and regulations.
8.1 Governing Law. This Agreement will be governed by, interpreted, and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. Each party irrevocably attorns to the jurisdiction of the courts of the Province of Ontario. The parties expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods, and any legislation implementing such Convention will not apply to this Agreement nor to any dispute arising therefrom.
8.2 Relationship of Parties. The parties are not agents or legal representatives of each other. The parties to this Agreement are independent contractors. No relationship of principal to agent, master to servant, employer to employee, or franchisor to franchisee is established hereby between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.
8.3 Survival. The provisions in Articles 4, 5, and 8 and Sections 2.3, 2.4, and 6.4 will survive termination of this Agreement.
8.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.
8.5 Entire Agreement. This Agreement and any applicable Purchase Order constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations or warranties, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorised representative of each party; no other act, document, usage, or custom will be deemed to modify this Agreement.
8.6 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable laws, such provisions will be modified to the minimum extent necessary to comply with applicable law and the intent of the parties.
8.7 Notice. All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by first class mail or personal delivery (including overnight mail by private carrier) for Klipfolio to the address first above written and for the Licensee to such address as listed in the applicable Purchase Order (which addresses may be altered upon written notice to each party).
8.8 Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Except for actions for breach of Klipfolio's proprietary rights in the Software or Services, no action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the cause of action has arisen.
8.9 Export Administration. To the extent applicable to the Licensee, You agree to comply fully with all relevant export laws and regulations of Canada and the United States ("Export Laws") to ensure that neither the Software, Services, nor any direct product thereof is: (a) exported, directly or indirectly, in violation of Export Laws; or (b) is intended to be used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
8.10 Language. The parties have requested that this Agreement be drafted in English. Les parties aux présentes ont exigé que le présent contrat soit rédigé en langue anglaise.
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