Enterprise Terms and Conditions
Updated: January 23, 2024 | Archived Versions
These Enterprise Terms and Conditions (these “Terms”) are a binding contract between you or the entity you represent (“Customer”) and Keebo, Inc. (“Keebo”). You represent and warrant that you are authorized to bind Customer. As used herein, this “Agreement” means these Terms and each Order Form executed by the parties in writing referencing these Terms. This Agreement governs Customer’s access and use of the Hosted Services.
1. Definitions.
The following capitalized terms shall have the meanings set forth below (and the following provisions are hereby agreed to by the parties):
1.1 “Authorized Users” means designated individuals authorized by Customer to access the Hosted Services on behalf of Customer under this Agreement and who have agreed to comply with the applicable terms and conditions of this Agreement. Authorized Users may include Customer’s employees, contractors and agents but may not include competitors of Keebo.
1.2 “Customer Data” means the (a) contact information of Company’s Authorized Users, and (b) information, data, content and other materials uploaded or transmitted by Company into the Hosted Services.
1.3 “Customer Portal” means Keebo’s web-based portal through which Customer may manage its account and access other features and functionality made available thereon from time to time.
1.4 “Documentation” means the applicable training, support, and other documentation relating to the use of and access to the Hosted Services provided by Keebo and any Updates thereto.
1.5 “Hosted Services” means Keebo’s hosted artificial intelligence enterprise warehouse optimization and query acceleration solution and any Updates thereto. Customer may purchase subscriptions to the Hosted Services as described on an Order Form executed by the parties.
1.6 “Intellectual Property Rights” means all patent rights, copyright rights, utility models rights, trade secret rights, trademark rights (including all goodwill associated therewith), rights of publicity, authors’ rights, mask work rights, rights in databases, rights in URLs, industrial rights, and all other intellectual property, proprietary or other rights, as may exist now and/or hereafter come into existence, including without limitation, (a) all rights, whether existing now or in the future, whether statutory or common law, whether subject to protection under statute, regulation or common law, in any jurisdiction in the world, together with all national, foreign and all applications therefor and state registrations, applications for registration and all renewals and extensions thereof (including, without limitation, any continuations, continuations-in-part, divisionals, reissues, re-examinations, renewals and extensions thereof); (b) all benefits, privileges, causes of action and remedies relating to any of the foregoing, whether before or hereafter accrued (including, without limitation, the exclusive rights to apply for and maintain all such registrations, renewals and extensions); and (c) all rights to sue for all past, present and future infringements or other violations of any of the foregoing rights, and the right to settle and retain proceeds from any such actions.
1.7 “Liability” means any and all damages (including punitive damages), losses, expenses (including reasonable attorneys’ fees and litigation costs), claims, demands, suits, causes of action, settlements, payments, awards, judgments, liens, fines, fees, penalties, interest and other liability.
1.8 “Order Form” means each order form executed by the parties for the Hosted Services.
1.9 “Service Fees” means the fees payable by Customer under this Agreement as set forth in the applicable Order Form.
1.10 “Subscription Term” means the term described in the applicable Order Form for the subscription for the Hosted Services purchased by Customer thereunder.
1.11 “Term” has the meaning set forth in Section 10.1.
1.12 “Updates” means error corrections, bug fixes, enhancements, improvements, new releases, maintenance releases and updates made available by Keebo to Customer under this Agreement.
2. Licenses and Obligations.
2.1 Hosted Services. Keebo will provide the Hosted Services described in each Order Form, which shall be governed by the terms and conditions of this Agreement and are hereby incorporated into this Agreement. The parties may execute, from time to time, Order Forms for the purchase of subscriptions to the Hosted Services by Customer. Each Order Form will describe the specified Hosted Services purchased by Customer, the Subscription Term (which may include renewal terms), the Service Fees, payment terms, and other terms agreed by the parties. Each Order Form will become effective and binding upon the parties upon mutual execution thereof.
2.2 License. Subject to the terms and conditions of this Agreement, Keebo grants to Customer a personal, non-exclusive, non-transferable (except as permitted under Section 12.2), non-sublicenseable license, during the Subscription Term of the applicable Order to access and use the Hosted Services, and to internally use and reproduce the Documentation to support Customer’s use of the Hosted Services.
2.3 Authorized Users. Subject to the terms and conditions of this Agreement, Customer may permit Authorized Users to exercise the licenses granted to Customer in Section 2.2 on Customer’s behalf and for the sole benefit of Customer in compliance with the terms and conditions of this Agreement, provided that all actions and omissions of Authorized Users in accessing and using the Hosted Services and Documentation shall be deemed the actions and omissions of Customer under this Agreement. Customer will be responsible for and liable to Keebo for any breach of the applicable terms of this Agreement by any of its Authorized Users. Customer acknowledges that even if Authorized Users are required to agree to the terms and conditions applicable to Authorized Users generally in their access and use of the Hosted Services, such terms and conditions between Authorized Users and Keebo shall not affect the obligations or liability of Customer to Keebo under this Agreement.
2.4 Restrictions and Obligations. Customer agrees (on behalf of itself and its Authorized Users) not to: (a) access or use the Hosted Services, Documentation or any portion of the foregoing, in any way not expressly permitted under permitted Section 2.2 hereof; (b) sell, rent, lease, sublicense, pledge, assign (except as permitted under Section 12.2) or otherwise transfer Customer’s rights, in whole or in part, to access and use the Hosted Services, Documentation or any portion of the foregoing to any third party or otherwise make the functionality of the Hosted Services available to third parties; (c) modify, adapt, translate or create derivative works based on the Hosted Services, Documentation or any portion of the foregoing; (d) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the Hosted Services or Documentation, and Customer agrees to reproduce all such notices, legends, symbols and labels on copies of the foregoing; (e) use or access the Hosted Services, Documentation or any portions of the foregoing in any manner that violates applicable law; (f) use or access Hosted Services, Documentation or any portion of the foregoing to create a product or service which is similar to or competitive with any portion of the Hosted Services or other offerings of Keebo; (g) decompile, disassemble or otherwise reverse engineer, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in, any portion of the Hosted Services; or (h) interfere with or disrupt the integrity, security features or performance of the Hosted Services or third-party data contained therein or otherwise attempt to gain unauthorized access to the Hosted Services or any associated systems or networks by penetration testing or otherwise. Customer will not permit or encourage any third party to do any of the foregoing.
2.5 Customer’s Third Party Accounts. Customer acknowledges that in using the Hosted Services, Customer may elect (but is not required to elect) to use the Hosted Services to access and use the services or offerings of third parties (“Third Party Services”) through Customer’s accounts for such Third Party Services (“Third Party Accounts”), including through APIs and other mechanisms. Access to Customer’s Third Party Accounts may include permitting the Hosted Services to generate and transmit information, files and data from and to such Third Party Accounts and to make changes to such Third Party Accounts. Customer acknowledges and agrees that: (a) allowing the Hosted Services to access and use Customer’s Third Party Accounts does not violate the governing terms and conditions governing Customer’s Third Party Accounts, (b) Customer will not provide access to such Third Party Accounts except through Customer’s own current valid account access credentials, (c) Keebo is not liable for the operation or availability of Third Party Services, and understands that the unavailability or failure of performance of such Third Party Services may affect Customer’s use of the Hosted Services, and (d) Customer will indemnify and hold Keebo harmless from any and all Liability arising from the Hosted Services’ authorized access to and use of Customer’s Third Party Accounts. Customer acknowledges and agrees that Keebo does not provide, makes no warranties, and will have no liability with respect to, the Third Party Services accessed or used by the Hosted Services through Customer’s Third Party Accounts.
2.6 Access to Customer Portal. During the Term of this Agreement, Customer may permit its Authorized Users to access and use the Customer Portal on behalf of Customer. Customer agrees (on behalf of itself and its Authorized Users) that: (a) in registering to access the Customer Portal, Customer and Authorized Users will provide true, accurate and complete information; (b) Customer and Authorized Users will maintain the confidentiality and security of the login credentials used to access the Customer Portal (“Login Credentials”); (c) Customer and Authorized Users will not transfer, share, disclose or resell such Login Credentials or otherwise share or transfer access to the Customer Portal to any third party; and (d) Customer and Authorized Users will promptly notify Keebo of any unauthorized use of such Login Credentials or unauthorized access to the Hosted Services through Customer’s account with Keebo. Keebo will not have any Liability arising from Customer’s failure to comply with the foregoing, and Customer is entirely responsible for all activities taking place through Customer’s Login Credentials and any other actions or omission by its Authorized Users.
2.7 Feedback. With respect to comments, suggestions, enhancement requests, recommendations or other feedback provided by Customer and its Authorized Users (“Feedback”), Customer hereby grants (on behalf of itself and its Authorized Users) to Keebo a non-exclusive, perpetual, irrevocable, world-wide, royalty-free, fully paid up, sublicenseable, transferable, right and license, with full rights to grant sublicenses, to use, make, have made, offer for sale, sell, license, import, copy, create derivative works of, distribute, perform, transmit, and display and otherwise exploit such Feedback for any and all purposes whatsoever, without restriction and without any obligation of accounting for profit. Customer and Authorized Users are not required to provide any Feedback.
2.8 Use of Customer Data. Customer hereby grants to Keebo a worldwide, non-exclusive, royalty-free, fully paid up, non-transferable (except as permitted under Section 12.2) right and license, during the Term, to use Customer Data for the sole purposes of providing the Hosted Services, performing its obligations under this Agreement and complying with applicable law or legal requirements.
2.9 Primary Contact. Customer will identify in writing the individual designated to act as Customer’s main point of contact under this Agreement (“Customer Contact”). The Customer Contact shall have the power to appoint, change and replace the Authorized Users of Customer under this Agreement. Customer will provide to Keebo with prior written notice in the event of a change of the Customer Contact.
2.10 Transmitting Customer Data. Customer represents, warrants and agrees that it has complied with applicable law, including the laws of the territories from which any Customer Data is obtained, in providing and/or transmitting (or enabling or permitting the transmission of) any Customer Data into, and use and processing thereof by, the Hosted Services as contemplated under this Agreement.
2.11 Changes to the Hosted Services. Customer understands and agrees that Keebo may, from time to time, in Keebo’s sole discretion, improve, enhance, modify and/or expand the features and functionality of the Hosted Services during and after the Term. Keebo warrants that any changes made to the Hosted Services during the Term shall not materially degrade the existing features of the Hosted Services, except to the extent reasonably necessary for security purposes.
2.12 Order of Precedence. In the event that any terms or conditions contained in an Order Form contradict or are inconsistent with the terms and conditions of this Agreement, then the terms and conditions of this Agreement will prevail and control; provided that Section(s) in this Agreement may be expressly modified for the purposes of a specific Order Form, provided that, to be effective, the modification must specifically state that it amends and modifies the specific Section(s) in this Agreement. Any such expressly agreed modifications will apply only for purposes of such Order Form and will not be deemed to modify this Agreement or any other Order Form.
3. Support Services.
Keebo will provide to Customer its standard support and maintenance services for the Hosted Services in accordance with Keebo’s support policy.
4. Customer Data.
4.1 Data Security Program. Keebo represents and warrants that it has implemented an information security program as required by all applicable laws and regulations governing the collection, use and disclosure of Customer Data transmitted to, processed and stored by the Hosted Services, to the extent applicable to the Hosted Services provided by Keebo under this Agreement. Such program shall include appropriate administrative, technical, environmental, logical, and physical safeguards reasonably designed to: (a) maintain the security and confidentiality of Customer Data; (b) protect against reasonably anticipated threats or hazards to the security or integrity of Customer Data; and (c) protect against unauthorized access to or use of Customer Data that could result in substantial harm to the applicable data subject, if any. For purposes of this section, a “Data Breach” means the material unauthorized access, use or disclosure of Customer Data verified by Keebo as originating from Keebo’s systems. Unless notification is delayed by a law enforcement agency or otherwise prohibited by law, Keebo shall notify Customer of any Data Breach within one (1) business day after discovery thereof. In addition, Keebo shall provide any additional information reasonably requested by Customer for purposes of investigating the Data Breach and any other available information that Customer may be required to provide to data subject(s) or others under applicable laws. Keebo shall use all commercially reasonable efforts to assist and cooperate with Customer concerning the investigation of the causes and scope of such Data Breach as well as any disclosures to affected entities or individuals, government or regulatory bodies, and other remedial measures undertaken by Customer. Keebo shall reasonably cooperate with Customer in Customer’s response to regulatory inquiries, litigation, and other similar actions arising from such Data Breach.
4.2 Privacy Laws. As between Customer and Keebo, Customer shall have sole responsibility for ensuring that its use of the Hosted Services to access, manage, generate, receive, process, transmit and otherwise use Customer Data complies with any and all laws, rules, and regulations applicable thereto, including (but not limited to) those concerning any privacy rights of individuals. Without limiting the generality of the foregoing, Customer shall comply with all applicable laws, regulations, privacy guidelines and agreements governing the collection, use and disclosure of all Customer Data.
4.3 Aggregated Data. Keebo shall have the right to use Aggregated Data for its internal business purposes (such as improvement, enhancement, diagnostic, forecasting, planning and corrective purposes and to further develop the Hosted Services) and to disclose Aggregated Data in Keebo’s public statements and marketing materials describing and/or promoting the Hosted Services. “Aggregated Data” means any data/information (including data/information about usage/performance of the Hosted Services, data/information derived from Customer Data, and machine learning resulting from prompts or inputs made into, and outputs generated by the use of, the Hosted Services) that: (a) has been anonymized, (b) does not identify an individual and cannot be used to identify an individual (including through re-identification methods), and (c) is not attributable to Customer. Aggregated Data may be combined with other data. For clarity, Keebo may use inputs used in connection with the Hosted Services to train or otherwise improve the Hosted Services.
5. Fees and Payment.
5.1 Service Fees. Customer agrees to pay the Service Fees under this Agreement. Unless other payment terms are set forth in an Order Form, Service Fees will be due and payable by Customer within thirty (30) days after the date of an invoice from Keebo. Any amounts not paid by the due date thereof will bear interest at the lower of one percent (1.0%) per month or the highest rate permitted by applicable law. Additionally, Keebo reserves the right to suspend any and all Hosted Services under this Agreement if Customer’s payment of Service Fees is delinquent, and Customer fails to pay any delinquent amounts within ten (10) days after receipt of notice of such delinquency from Keebo. Keebo is entitled to recover any reasonable sums expended in connection with the collection of Service Fees or other amounts not paid when due, including reasonable attorneys’ fees. If Customer, in good faith, disputes any portion of an invoice, Customer will, on or before the due date of such invoice (a) pay all undisputed amounts and (b) provide Keebo with written notice of the disputed amounts and provide supporting details and documentation. Customer waives any right to dispute an invoice if it does not notify Keebo of any disputed amounts by the due date of the applicable invoice. The parties agree to work diligently and in good faith to resolve all billing disputes. Any disputed amount found to be properly owed to Keebo shall be paid within five (5) business days following resolution of the dispute, together with the applicable interest on such amount accrued from the original due date for such amount. Except for any refunds expressly provided in this Agreement, all payments made to Keebo are non-refundable.
5.2 Taxes. The Service Fees payable by Customer to Keebo under this Agreement are exclusive of any and all taxes, levies or duties imposed by any local, state, federal or international taxing authority, including any applicable, sales, VAT, use, excise, and withholding taxes based on the transactions or payments made by Customer to Keebo under this Agreement (other than taxes based on Keebo’s net income or payments made to employees) (collectively, “Taxes”). In the event that Keebo is required to collect any Taxes for which Customer is responsible, Customer will pay such tax directly to Keebo. Customer shall pay and be responsible for all such Taxes and will indemnify Keebo from and against any and all such Taxes. Keebo will reasonably cooperate with Customer to minimize such Taxes.
6. Confidentiality.
6.1 Confidential Information. Each party to this Agreement acknowledges that, in the course of performing under this Agreement, each party (as a receiving party) may obtain or otherwise learn the Confidential Information of the other party (as the disclosing party). “Confidential Information” means any information relating to a disclosing party, its business, technology, suppliers, licensors, resellers, distributors, customers, and third parties to whom the disclosing party has an obligation of confidentiality, whether in tangible or intangible form, which is either marked or designated as “confidential” or “proprietary,” or disclosed under circumstances indicating its confidential or proprietary nature, or otherwise would be known to be confidential or proprietary by a reasonable person. The Confidential Information of a disclosing party shall be owned exclusively by the disclosing party. The parties acknowledge and agree that the Documentation and pricing and fees charged to Customer is Keebo’s Confidential Information. The parties agree that this Section 6 shall not, but that the terms and conditions set forth in Section 4 shall, govern the use and disclosure of Customer Data between the parties.
6.2 Obligations. The receiving party agrees: (a) to protect the Confidential Information from unauthorized dissemination and use; (b) to use the Confidential Information solely for performing its obligations and exercising its rights hereunder; (c) not to disclose any Confidential Information, or any part or parts thereof, except to the receiving party’s employees and contractors who are aware of the confidentiality obligations imposed by this Section 6.2 and have agreed to comply with the requirements of this Section 6.2; and (d) not to disclose or otherwise provide to any other third party, without the prior written consent of the disclosing party, any Confidential Information or any portion thereof. The receiving party shall remain liable for any non-compliance of such employee or contractor with the terms of this Section 6.2. The receiving party shall take the same degree of care that it uses to protect its own highly sensitive confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized dissemination, disclosure or use of the Confidential Information.
6.3 Exclusions. The foregoing restrictions pertaining to the Confidential Information shall not apply to any Confidential Information that: (a) was or becomes publicly known through no fault of or breach of this Agreement by the receiving party; (b) was known by the receiving party before receipt from the disclosing party; (c) is disclosed to the receiving party without confidential or proprietary restriction; or (d) is independently developed by the receiving party without the use of or reference to the Confidential Information of the disclosing party. In addition, the receiving party may disclose the Confidential Information if the receiving party is legally compelled to do so, provided that prior to any such compelled disclosure, the receiving party shall (to the extent legally permitted) notify the disclosing party of such compelled disclosure, shall cooperate with the disclosing party (at the cost of the disclosing party) in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information, and shall disclose solely the portion of the Confidential Information compelled to be disclosed solely to the party entitled to receive it. Notwithstanding any such compelled disclosure by the receiving party, such compelled disclosure shall not otherwise affect the receiving party’s obligations hereunder with respect to Confidential Information so disclosed.
6.4 Injunctive Relief. Each receiving party agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information may cause irreparable harm and significant injury to the disclosing party, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, each receiving party agrees that the disclosing party, in addition to any other available remedies, shall have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of the obligations under this Section 6, without the necessity of posting any bond or other security. The receiving party shall promptly notify the disclosing party in writing upon becoming aware of any such breach or threatened breach.
7. Warranty; Representations and Warranties; Disclaimers.
7.1 Hosted Services. Keebo warrants that, during the Term, the Hosted Services will conform in all material respects to the applicable specifications contained in the Documentation (“Specifications”). In the event that the Hosted Services do not conform in all material respects to the applicable Specifications, Keebo will make commercially reasonable efforts to correct such non-conformity by correcting or replacing the portion of affected Hosted Services within thirty (30) days after Customer’s written notice specifying such non-conformity. If correction or replacement of the portion of the affected Hosted Services is not commercially practicable, Keebo will so notify Customer, and upon Customer’s request, Keebo will (a) refund the unused portion of any prepaid Service Fees paid by Customer for the portion of the affected Hosted Services, (b) suspend and/or deactivate the portion of the affected Hosted Services for which a refund was given, and (c) terminate the corresponding licenses granted to Customer for the portion of the affected Hosted Services. This Section 7.1 constitutes Keebo’s exclusive liability, and Customer’s sole remedy, in the event of a breach of the warranty in this Section 7.1.
7.2 Mutual Representations and Warranties. Each party hereby represents and warrants that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required hereunder; and (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is bound or any obligation of such party.
7.3 Disclaimers. CUSTOMER UNDERSTANDS AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE HOSTED SERVICES, DOCUMENTATION AND OTHER MATERIALS AND SERVICES PROVIDED BY KEEBO UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” KEEBO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. KEEBO DOES NOT WARRANT THAT THE HOSTED SERVICES OR OTHER MATERIALS AND SERVICES PROVIDED BY KEEBO WILL MEET CUSTOMER’S REQUIREMENTS OR WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED.
8. Indemnification.
8.1 By Keebo. Subject to Customer’s compliance with Section 8.3, Keebo shall defend and hold Customer harmless from and against any claim brought against Customer by an unaffiliated third party alleging that Customer’s authorized use and access of the Hosted Services under this Agreement infringes or misappropriates such third party’s United States patents, trade secrets, copyrights or trademarks (“Infringement Claim”). Keebo shall pay any settlement of such Infringement Claim consented to by Keebo or any damages finally awarded to such third party by a court of competent jurisdiction as the result of such Infringement Claim. If an Infringement Claim occurs, or in Keebo’s opinion is reasonably likely to occur, Keebo may, at its expense and at its sole discretion, in addition to its indemnification obligations under this Section 8.1: (a) procure the right to allow Customer to continue to use the Hosted Services (or infringing portions thereof), or (b) modify or replace the Hosted Services (or infringing portions thereof) to become non-infringing without materially degrading the functionality thereof, or (c) if none of the two (2) foregoing options is commercially feasible, terminate Customer’s right to use the affected portion of the Hosted Services and refund the unused portion of any prepaid Service Fees paid by Customer for the affected portion of the Hosted Services. Notwithstanding the foregoing, Keebo shall have no obligations under this Section 8.1 or otherwise with respect to any Infringement Claim to the extent any Infringement Claim is based upon or arises out of: (a) any modification or alteration of the Hosted Services (or portion thereof) not made or authorized by Keebo that results in such infringement; (b) any unauthorized access or use of the Hosted Services (or any portion thereof) or any breach of this Agreement by Customer and/or its Authorized Users; (c) any combination or use of the Hosted Services (or any portion thereof) with other services, software, products, equipment, methods or services not provided by Keebo that results in such infringement; and/or (d) any specifications or requirements supplied by Customer.
8.2 By Customer. Subject to Keebo’s compliance with Section 8.3, Customer shall indemnify, defend and hold Keebo harmless from and against any claim brought against Keebo by an unaffiliated third party: (a) alleging that any Third Party Account or Customer Data accessed or used by Keebo in accordance with this Agreement infringes or misappropriates any intellectual property right, data privacy right or other right of such third party; and (b) arising out of Customer’s and/or its Authorized Users’ unauthorized access or use of the Hosted Services and/or any Customer Data (including any breach by Customer of Section 2.9). Customer will pay any settlement of such claim(s) consented to by Customer or any damages finally awarded to such third party by a court of competent jurisdiction as the result of such claim(s).
8.3 Procedure. The party seeking indemnification under this Section 8 will: (a) provide notice of the applicable indemnified claim to the indemnifying party within a reasonable time after becoming aware of such claim (unless the indemnified party is legally precluded from providing such notice); (b) provide reasonable assistance to the indemnifying party in the defense of the indemnified claim; and (c) tender the control of the defense and settlement of the indemnified claim to the indemnifying party, who will promptly assume and conduct (at its own expense) the full defense and/or settlement of any indemnified claim. The indemnifying party shall not have the right to settle any indemnified claim, without the prior written consent of the indemnified party, which contains an admission of liability or wrongdoing on the part of indemnified party or imposes a material obligation (including payment obligation) on indemnified party that is not wholly discharged by the indemnifying party. The indemnified party may participate in the defense and settlement of any claim for which it is entitled to indemnification at its sole expense, which shall not affect the indemnifying party’s right to control the defense and/or settlement of the claim.
8.4 Remedies. The remedies set forth in this Section constitute each indemnified party’s sole and exclusive remedies, and each indemnifying party’s entire liability, with respect to infringement, violation or misappropriation of third party Intellectual Property Rights.
9. Ownership.
9.1 By Customer. As between the parties, Customer owns and shall retain all right, title and interest (including without limitation all Intellectual Property Rights) in and to the Customer Data, and Customer’s systems and networks. Customer reserves all rights not expressly granted to Keebo under this Agreement.
9.2 By Keebo. As between the parties, Keebo owns and shall retain all right, title and interest (including without limitation all Intellectual Property Rights) in and to the Hosted Services, Documentation and any modifications, improvements, derivative works of, and enhancements thereof. Keebo reserves all rights not expressly granted to Customer under this Agreement.
10. Term and Termination.
10.1 Term of this Agreement. The term of this Agreement (the “Term”) will commence on the Effective Date and, unless sooner terminated as provided herein, will continue in effect for as long as there is an applicable Order Form in effect (the “Term”). Each Order Form will continue for the Subscription Term specified thereon, unless earlier terminated.
10.2 Termination of Order Form. Either party shall have the right to terminate an Order Form by written notice to the other party in the event that the other party materially breaches this Agreement as it pertains to such Order Form, or materially breaches such Order Form, and fails to cure such breach within fourteen (14) days after receipt of written notice from the non-breaching party. Neither party will have the right to terminate an Order Form for convenience. Upon the effective date of termination or expiration of an Order Form, the rights and licenses granted to Customer under the Order Form will terminate, and Customer will no longer have the right to access the Hosted Services, the Documentation or Customer’s account with Keebo under such Order Form. The termination or expiration of an Order Form will not affect or otherwise terminate this Agreement or any other Order Form in effect at such time.
10.3 Termination of Agreement. Either party shall have the right terminate this Agreement by written notice to the other party in the event: (a) the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days (or fourteen (14) days for payment breaches) after receipt of written notice from the non-breaching party; (b) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, composition, or comparable proceeding or any assignment for the benefit of creditors; or (c) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, composition, or comparable proceeding or any assignment for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing (to the extent permissible by law).
10.4 Effect of Termination. Upon any termination of this Agreement:
(a) all outstanding Order Forms under this Agreement shall automatically be terminated on the effective date of termination of this Agreement;
(b) the rights and licenses granted to Customer under this Agreement will terminate, and Customer will cease to access or use the Hosted Services, Documentation, and Customer will no longer have the right to access the Hosted Services, the Documentation or Customer’s account with Keebo;
(c) each party will promptly and permanently destroy and delete all Confidential Information of the other party in its possession or control, other than an archival copy for compliance, enforcement, and defense purposes, provided that any such retained copies shall remain subject to Section 6 of this Agreement for so long as they are retained. Upon request from the other party, each party will provide the other party with a written certification, signed by one of its officers certifying the destruction of all such Confidential Information;
(d) Sections 1, 2.7, 4.2, 4.3, 5, 6, 7, 8, 9, 10.4, 11 and 12 shall survive. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Termination of this Agreement by a party shall be without prejudice to any other right or remedy of such party under this Agreement or applicable law. Neither party shall be liable to the other party due to termination of this Agreement in accordance with this Section 10 or any other express termination rights under this Agreement, whether for compensation, reimbursement or damages on account of the loss of prospective profits in connection with the business or goodwill of either party.
11. Limitation of Liability.
KEEBO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, REVENUE, BUSINESS, SAVINGS, DATA OR USE, OR THE COST OF SUBSTITUTE PROCUREMENT, EVEN IF KEEBO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, KEEBO’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER BASED ON NELIGENCE, CONTRACT, TORT, INDEMNIFICATION, STRICT LIABILITY OR ANY OTHER THEORY, AND REGARDLESS OF THE NUMBER OF CLAIMS MADE BY CUSTOMER, WILL NOT EXCEED THE SERVICE FEES RECEIVED BY KEEBO DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH A CLAIM IS MADE. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT.
12. General.
12.1 Relationship of Parties. Both parties are, and shall remain at all times, independent contractors, and nothing in this Agreement will be construed to create an agency, employment, fiduciary, representative or any other relationship between the parties.
12.2 Assignment. Neither party shall assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, a party may assign this Agreement without the prior written consent of the other party solely in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of such party’s assets, sale of stock, change of name or like event, provided that the assigning party provides reasonable notice of such assignment to the other party. Any attempted assignment other than in accordance with this Section 12.2 shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
12.3 Governing Law; Exclusive Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, U.S.A., without reference to its conflicts of law provisions. The parties disclaim the application of the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act to this Agreement. The federal and state courts sitting in Washtenaw County, Michigan, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.
12.4 Compliance with Law. In performing its obligations and exercising its rights and licenses under this Agreement, each party will comply with all applicable laws, rules and regulations as may be applicable to such party. In performing under this Agreement, Customer agrees to comply fully with all applicable laws, including export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations and the export laws of international countries to which Customer is subject (collectively “Export Controls”). Without limiting the generality of the foregoing, Customer will not, and will require its agents and representatives not to, export, direct or transfer the Hosted Services, Documentation, technical information, or any direct product thereof, to any destination, person or entity restricted or prohibited by Export Controls.
12.5 No Third Party Beneficiary. This Agreement is made and entered into for the sole protection and benefit of the parties hereto and is not intended to convey any rights or benefits to any third party, nor will this Agreement be interpreted to convey any rights or benefits to any person except the parties hereto.
12.6 Force Majeure. Neither party will be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from Force Majeure Events. The party affected by the Force Majeure Event will promptly notify the other party and will resume performance when the Force Majeure Event is no longer effective. “Force Majeure Events” means events beyond a party’s reasonable control, including without limitation acts of nature, labor disputes, the stability or availability of the Internet or a portion thereof, actions by a governmental authority (such as a moratorium on any activities related to this Agreement or changes in government codes, ordinances, laws, rules, regulations, or restrictions), telecommunication or Internet network failures or brown-outs, failures or unavailability of third party systems, networks or software, flood, earthquake, fire, lightning, epidemics, war, acts of terrorism, riots, civil disturbances, sabotage, power grid failures, and denial of service attacks and other hacking attacks.
12.7 Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement shall be in writing to be effective and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
12.8 Severability. Any determination that any provision of this Agreement or any application thereof is invalid, illegal or unenforceable in any respect in any instance shall not affect the validity, legality and enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provision of this Agreement.
12.9 Captions and Section Headings. The captions and Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
12.10 Notices. Any notice required to be given under this Agreement shall be in writing and reference this Agreement and the applicable Order Form(s). All notices will be delivered to Keebo at 3599 Century Trail, Ypsilanti, MI 48197, with a copy to contracts@keebo.ai and to Customer at the contact information on file for Customer’s account with Keebo. Notices shall be deemed effective: (a) on the date of delivery if delivered personally; (b) on the date of email transmission, if sent by email and a response email or other confirmation by the recipient of the receipt of such email is provided by the receiving party; or (c) one (1) business day after deposit, if sent by express overnight courier, with written confirmation of receipt.
12.11 Entire Agreement; Amendment. This Agreement contains the complete understanding between Keebo and Customer with respect to the subject matter hereof and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No changes, amendments, or alterations to this Agreement shall be effective unless signed by duly authorized representatives of both parties, except as expressly provided herein. No terms on purchase orders, invoices or like documents exchanged between the parties shall modify or supplement the terms of this Agreement and shall be deemed void and shall have no effect.
12.12 Counterparts. This Agreement may be executed and delivered in one or more counterparts (including facsimile, PDF or other electronic counterparts), with the same effect as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.
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