1.1 Subject to the terms and conditions of this Agreement, Keebo will provide Customer with use of the Software in the Hosting Environment (as defined below) for the Subscription Term (the “Subscription Service”).  The Subscription Service is subject to modification from time to time at Keebo’s sole discretion, for any purpose deemed appropriate by Keebo.  Keebo will use reasonable efforts to give Customer prior written notice of any significant modification.

1.2 Keebo will make the Subscription Service available in accordance with Keebo’s then-current Service Level Agreement for such Subscription Service, if any. .

1.3 Subject to the terms hereof, Keebo will provide reasonable support to Customer for the Subscription Service from Monday through Friday during Keebo’s normal business hours.

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). 

3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to  take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information.  The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it [without restriction] prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it [without restriction] by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Keebo may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes.

3.3 Customer acknowledges that Keebo does not wish to receive any Proprietary Information from Customer that is not necessary for Keebo to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Keebo may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.

3.4 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

Keebo alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services, the Software or any other Keebo Technology or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services, the Software and/or any other Keebo Technology, which are hereby assigned to Keebo.  Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.  This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, the Software or any other Keebo Technology, or any intellectual property rights. 

Keebo owns all right, title, and interest in all inventions, developments, works of authorship, creations and discoveries conceived, reduced to practice or made by Keebo or its employees, contractors or other representatives in performing the Services, including without limitation any custom applications, reports, configurations, interfaces, integrations, features, functionality, enhancements, modifications, add-ons and similar software improvements or additions to the Software developed by Keebo or its employees, contractors or other representatives for Customer pursuant to Professional Services (“Customizations”).  Customer acknowledges that it neither own nor acquire any additional rights in and to the foregoing not expressly granted by this Agreement.  Any Customizations developed by Keebo for Customer pursuant to Professional Services shall be considered part of the Software and Customer’s right to access and use the Software and the other  terms and conditions hereof that apply to the Software shall apply to such Customizations. 

Subject to the terms and conditions of this Agreement, Customer hereby grants to Keebo a royalty-free, non-exclusive license to use its trademarks, service marks, trade names and/or logos solely for the purposes of the Marketing Activities and for such other marketing and promotional uses as Customer approves in advance in writing (email acceptable), which approval shall not be unreasonably withheld, delayed, or conditioned.

The Software may process certain content/data stored in Customer’s database systems or otherwise  provided by or on behalf of Customer (“Content”).   As between Customer and Keebo, Customer shall have sole responsibility with respect to Content. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content processed through the Services and the intellectual property rights with respect to that Content.  If Keebo receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party, Keebo may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify Keebo from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such notice or claim, as incurred.

Keebo shall hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Software of any United States patent or any copyright or misappropriation of any trade secret, provided Keebo is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Keebo will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Keebo, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Keebo, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Keebo from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Keebo’s indemnity obligation by the preceding sentence.

5.1 Customer will pay Keebo the applicable fees as set forth on the Order Form (the “Fees”).  All Fees will be invoiced and paid in accordance with the Payment Schedule and the Method of Payment.  If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable.

5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any.  Customer agrees to pay such taxes (excluding US taxes based on Keebo’s net income) unless Customer has provided Keebo with a valid exemption certificate.  In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Keebo on account thereof.

6.1 Subject to earlier termination as provided below, this Service Agreement is for the Subscription Term as specified in the Order Form.

6.2 In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement prior to the end of the Subscription Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period.  Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.

6.3 All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.