MASTER SAAS AGREEMENT
This Master SaaS Agreement (this “Agreement”) is entered into by and between YiloSoft, LLC, a New Mexico limited liability company DBA KLER (“KLER”) with a place of business at 4850 E. Baseline Rd. Suite 107, Mesa, AZ, 85206 and the undersigned customer (“Customer”). KLER and Customer may be referred to collectively as the “Parties” and each a “Party.”
RECITALS
WHEREAS, Customer desires to obtain access to and use of the Services (defined below) with respect to certain of its information technology needs; and
WHEREAS, KLER is a provider of a hosted cannabusiness management software and wishes to provide the Services to Customer, each on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS.
“Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by KLER in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Authorized User” means Customer and its employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement.
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
“Documentation” means KLER’s applicable manuals, instructions, specifications, and end user documentation provided by KLER from time to time relating to the Services available at https://KLER.io/support/, or any additional information included in this document.
“Professional Services” means any and all implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management, as described here within.
“Services” means the hosted seed-to-sale ERP management software-as-a-service offering for certain software applications described here within, together with any programming and user interfaces therewith.
“Third-Party Products” means any third-party products provided with or incorporated into the Services as detailed in each Order Form.
“KLER IP” means the Services, the Documentation, and any and all intellectual property used by KLER to provide the Services. For the avoidance of doubt, KLER IP includes Aggregated Statistics and any information, data, or other content derived from KLER’s monitoring of Customer’s access to or use of the Services but does not include Customer Data.
2. SERVICES.
2.1. Purpose. This Agreement sets forth the terms and conditions under which KLER agrees to provide certain Services to Customer and its Authorized Users, and if applicable, any Professional Services related to Customer’s access to, and use of, such Services.
2.2. Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, KLER hereby grants Customer, during the Term, a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12.7) license to access and use the Services during the Term, solely for use by its Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal business use. KLER shall provide to Customer the necessary credentials and instructions to allow Customer to access the Services.
2.3. Documentation License. Subject to the terms and conditions contained in this Agreement, KLER hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12.7) license to use any supporting Documentation during the Term solely for the purposes described herein and in connection with its use of the Services.
2.4. Subscription Services. The Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, each applicable platform, additional user limitations, fees, subscription term, supplemental terms and other applicable terms and conditions.
2.5. Professional Services. Specifies and describes the Professional Services, if any, to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, limitations, milestones, fees, supplemental terms and any other applicable terms and conditions.
2.6. Modification to Service. KLER may, in its sole discretion, make any modifications to the Service that it deems necessary or useful to: (i) maintain or enhance (a) the quality or delivery of KLER’s Service to its customers, (b) the competitive strength of, or market for, KLER’s Service, or other products or services, or (c) such Service’s cost efficiency or performance; or (ii) to comply with applicable law.
2.7. Use Restrictions. Customer shall not use the Service for any purpose beyond the scope of the access granted in this Agreement. Customer will not at any time, directly or indirectly, nor permit or encourage any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or Documentation; (ii) modify, translate, or create derivative works based on the Service or Documentation; (iii) use the Service or Documentation for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; (v) use any Service or Documentation in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Service; (vi) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service or Documentation other than to Authorized Users; (vii) use the Service or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. For the avoidance of doubt, the Services, including all user-visible aspects of the Service, are the Confidential Information of KLER, and Customer will comply with Section 5 with respect thereto.
2.8. Reservation of Rights. KLER reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the KLER IP.
2.9. Suspension. Notwithstanding anything to the contrary in this Agreement, KLER may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) KLER reasonably determines, in its sole discretion, that (A) there is a threat or attack on any of the KLER IP; (B) Customer’s or any Authorized User’s use of the KLER IP disrupts or poses a security risk to the KLER IP or to any other customer or vendor of KLER; (C) Customer, or any Authorized User, is using the KLER IP for fraudulent or illegal activities other than the restrictions under Federal law of cannabis, provided that Customer is compliant in all material respects with applicable state laws; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) KLER’s provision of the Service to Customer or any Authorized User is prohibited by applicable law; or (ii) any vendor of KLER has suspended or terminated KLER’s access to or use of any third-party services or products required to enable Customer to access the Service (any such suspension a “Service Suspension”). KLER shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. KLER shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. KLER will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
2.10. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, KLER may monitor Customer’s use of the Service and collect and compile Aggregated Statistics. As between KLER and Customer, all rights, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by KLER. Customer acknowledges that KLER may compile Aggregated Statistics based on Customer Data input into the Service. Customer agrees that KLER may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer, Authorized Users or either of their Confidential Information.
3. AUTHORIZED USER.
3.1. Administrative Users. During the configuration and set-up process for the Service, Customer will identify an administrative user name and password for Customer’s KLER account. KLER reserves the right to refuse registration of or cancel user names and passwords it deems inappropriate.
3.2. Authorized Users. Customer may allow such number of Customer’s employees and/or independent contractors as is indicated on an Order Form to use and/or access the Service. Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User but may be reassigned to a new Authorized User replacing a former Authorized User who no longer requires ongoing use of the Service.
3.3. Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its KLER account, passwords (including but not limited to administrative and user passwords) and files. KLER is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
4. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES.
4.1. General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Service and shall cause Authorized Users to comply with such provisions.
4.2. Third Party Products. KLER may from time to time make Third-Party Products available to Customer, which Third-Party Products may be embedded within the Services or separate from the Services. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions will be made available per Order Form.
4.3. Cooperation. Customer shall provide all cooperation and assistance as KLER may reasonably request to enable KLER to exercise its rights and perform its obligations under, and in connection with, this Agreement, including providing KLER with such access to Customer’s premises and its information technology infrastructure as is necessary for KLER to perform the Service or Professional Service in accordance with this Agreement.
4.4. Training and Education. Customer shall use commercially reasonable efforts to cause Authorized Users to be, at all times, educated and trained in the proper use and operation of the Services utilized by such Authorized User, and to ensure that each Service is used in accordance with the Documentation.
4.5. Customer Systems. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use the Service, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
4.6. Restrictions on Export. The Service utilizes software and technology that may be subject to United States of America (“U.S.”) export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Service or the underlying software or technology to, or make the Service or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Service or the underlying software or technology available outside the U.S.
4.7. DFARS. Service and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to Defense Federal Acquisition Regulation Supplement, codified under Chapter 2 of Title 48, United States Code of Federal Regulations, Section 227.7202, and Federal Acquisition Regulation, codified in Title 48 of the United States Code of Federal Regulations, Section 12.12. Any use, modification, reproduction, release, performance, display, or disclosure of the Service or Documentation by the U.S. Government is governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
5. CONFIDENTIALITY.
5.1. Confidential Information. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) during the Term has been, and may be, exposed to or acquired information about the Disclosing Party’s business affairs, products, confidential intellectual property, pricing metrics or analytics, financial information, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) information which at the time of disclosure or acquisition is in the public domain, or which after disclosure or acquisition becomes part of the public domain without violation of this Section 5; (b) known to the Receiving Party at the time of disclosure; (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; (d) information that the Receiving Party develops independently without any use of or reference to the Confidential Information of the Disclosing Party, as evidenced by contemporaneous written records; or (e) is required to be disclosed to governmental agencies having regulatory authority or other authority of the Receiving Party, or (f) is required by a court order to disclose or to provide such Confidential Information, provided that Receiving Party shall use its best efforts, to the extent permitted by law to do so, to promptly give Disclosing Party written prior notice to any disclosure under this clause (e) or (f) so that Disclosing Party can seek a protective order by any court orders to provide access to, or copies of, such information. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of this Agreement, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
5.2. Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
5.3. Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
6. PROPRIETARY RIGHTS.
6.1. KLER IP. Customer acknowledges that KLER owns all right, title, and interest, including all intellectual property rights, in and to the KLER IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
6.2. Customer Data. KLER acknowledges that, as between KLER and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to KLER a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for KLER to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
6.3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to KLER by mail, email, telephone, or otherwise, suggesting or recommending changes to the KLER IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), KLER is free to use such Feedback without any other or limitation between the Parties governing such Feedback.
7. FEES & PAYMENT.
7.1. Fees. Customer will pay all fees specified on each applicable Invoice in accordance with this Section 7 without offset or deduction (“Fee(s)”). Except as otherwise specified herein, payment obligations are non-cancelable, and Fees are non-refundable. Customer shall make all payments hereunder in U.S. dollars on or before the due date mutually agreed to by the Parties in writing.
7.2. Suspension for Non-Payment. If Customer fails to make any payment of Fees when due, without limiting KLER’s other rights and remedies, if such failure continues for ten (10) days or more, KLER may suspend Customer’s and its Authorized Users’ access to any portion or all of the Service until such amounts are paid in full.
7.3. Invoicing and Payment. Customer will provide KLER with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to KLER. If Customer provides credit card information to KLER, Customer authorizes KLER to charge such credit card for all Fees associated with the Services and Professional Services identified in this document. Such charges shall be made in advance, monthly or in accordance with any different billing frequency stated in the applicable Invoice. Unless otherwise stated here within, invoiced Fees are due within thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to KLER and notifying KLER of any changes to such information.
7.4. Overdue Charges. If any invoiced amount is not received by KLER by the due date detailed on the applicable Order Form, then without limiting KLER’s other rights or remedies, those overdue Fees may accrue late interest at the rate of 1.5% per month of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
7.5. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on KLER’s income.
7.6. Reimbursable Expenses. In addition to the Fees, if applicable, Customer shall reimburse KLER for reasonable out-of-pocket expenses incurred by KLER in connection with performing any Professional Services.
7.7. No Deductions or Setoffs. All amounts payable to KLER hereunder shall be paid by Customer to KLER in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
7.8. Subpoena Expenses. If KLER has to provide information in response to a subpoena related to Customer’s account, then KLER may charge Customer for KLER’s costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents and participating in depositions or other legal process as well as other costs incurred in complying with such legal processes.
8. TERM AND TERMINATION.
8.1. Term. This Agreement shall begin on the Effective Date and shall terminate as set forth in the applicable Exhibit A (the “Term”).
8.2. Termination. In addition to any other express termination right set forth in this Agreement:
(a) KLER may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after KLER’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2.7 or Section 5;
(b) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
(c) either Party may terminate this Agreement, effective immediately, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
8.3. Effect of Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the KLER IP and Services and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the KLER IP and certify in writing to KLER that the KLER IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. In the event KLER terminates this Agreement pursuant to Section 8.2(b) or if Customer terminates pursuant to Section 8.2(d)(i), then all Fees for the entirety of the Term shall become due and payable upon termination.
8.4. Survival. This Section 8.4 and Sections 1, 5, 6, 7, 9.2, 10, 11, and 12 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
9. WARRANTY AND DISCLAIMER.
9.1. Warranties. KLER represents and warrants that it will perform the Professional Services in a professional and workmanlike manner. Each Party represents and warrants that it has the legal power to enter into this Agreement.
9.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN AN ORDER FORM, THE SERVICES AND KLER IP ARE PROVIDED “AS IS” AND KLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. KLER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. KLER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, KLER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
INDEMNITY. Customer shall indemnify, hold harmless, and, at KLER’s option, defend KLER from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (collectively, “Loss”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s U.S. intellectual property rights and any Loss resulting from Customer’s or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by KLER or authorized by KLER in writing; or (iv) modifications to the Services not made by KLER. Customer may not settle any Third-Party Claim against KLER unless KLER consents to such settlement, and further provided that KLER will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL KLER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER KLER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL KLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO KLER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
11. GENERAL PROVISIONS.
11.1. Publicity. By execution of this Agreement, Customer agrees that KLER may identify Customer as a customer and use Customer’s name and logo in KLER’s promotional materials. Customer may request that KLER cease use of its name and logo for promotional activities by submitting an email to support@KLER.io. Customer acknowledges that it may take KLER up to thirty (30) days to process such request.
11.2. Entire Agreement. This Agreement, together with the Order Form, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and the Order Form, the following order of precedence governs: (i) first, the Order Form; (ii) second, this Agreement; and (iii) third, any other documents incorporated herein by reference.
11.3. Notice. All notices, requests, consents, claims, demands, waivers, and other communications between the Parties hereunder (each, a “Notice”) must be in writing and be addressed to the Parties at the addresses set forth on the signature page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (support@KLER.io) (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
11.4. Force Majeure. In no event shall KLER be liable, or be deemed to have breached this Agreement, for any delays or failures in performance caused by any circumstance beyond its reasonable control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, riot or civil unrest, strikes, labor stoppages or slowdown or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.
11.5. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.6. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.7. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of KLER; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve Customer of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
11.8. Dispute. This Agreement is governed in all respects by the laws of the State of Arizona, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the Parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either Party may send a notice to the other Party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in Phoenix, Arizona by a single arbitrator knowledgeable in government contracting matters and the commercial aspects of “software as a service” arrangements and intellectual property. The Parties will mutually appoint an arbitrator within thirty (30) days of the Arbitration Notice. If the Parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing. Regardless of outcome, each Party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.
11.9. Headings; Interpretation. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” are references to a section of this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.
11.10. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
11.11. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2.7, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
11.12. Security. KLER may, from time to time, host and/or maintain a platform using a third-party technology service provider and Customer acknowledges that KLER cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
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