Master Subscription Agreement

THIS TEKION MASTER SUBSCRIPTION AGREEMENT – UNITED STATES ("AGREEMENT") IS BETWEEN TEKION CORP ("WE," "US," "OUR," OR "TEKION") AND THE ENTITY LISTED IN THE ORDER FORM, INCLUDING ANY AFFILIATES USING THE PRODUCTS ("YOU") AND SETS FORTH THE TERMS AND CONDITIONS GOVERNING ORDERS PLACED UNDER THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGE RECEIPT OF OUR PRIVACY NOTICE. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE ACCEPTED BY YOU ("EFFECTIVE DATE").

PROFESSIONAL SERVICES, INCLUDING BUT NOT LIMITED TO IMPLEMENTATION SERVICES, ARE NOT GOVERNED BY THIS AGREEMENT. ALL PROFESSIONAL SERVICES WILL BE GOVERNED BY A PROFESSIONAL SERVICES AGREEMENT EXECUTED BETWEEN YOU AND US.

1. DEFINITIONS
   1. Any capitalized terms that are not specifically defined in this Agreement can be found in the supplemental terms and conditions available here.
   2. "Affiliate" means any Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a Party.
   3. "Content" means information obtained by Us from publicly available sources or Our third-party content providers, including but not limited to Third Party Forms, and made available to You through the Products, or pursuant to an Order Form, as more fully described in the User Documentation.
   4. "Confidential Information" shall have the meaning ascribed to it in Section 8.1.
   5. "Data Processing Agreement" shall mean the data processing agreement between the parties, which is available at https://tekion.com/legal/privacy/dpa.
   6. "Data Protection Laws" shall have the meaning ascribed to it in the Data Processing Agreement.
   7. "Equipment" means the hardware and other equipment (proprietary and/or third party) provided by Us to You as listed in the Order Forms.
   8. "Feedback" shall have the meaning ascribed to it in Section 6.5.
   9. "Force Majeure Event" means circumstances beyond either party’s reasonable control, including without limitation (a) acts of God, (b) acts of government, such as any changes in law or regulations or any action taken by a governmental or public authority including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, (c) acts or omissions of third parties, (d) civil unrest, wars, acts of terror, invasions, riots or other civil unrest, epidemics or pandemics, or strikes or other actions taken by labor organizations, (e) computer, telecommunications, transportation, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within an impacted party’s possession or reasonable control, (f) network intrusions or denial of service attacks, or (g) any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the impacted party’s reasonable control.
   10. "Intellectual Property" means patents, patent applications, utility models, statutory invention registrations, trademarks, trade names, service marks, trade dress, logos, domain names or any other identifiers of source or goodwill, trade secrets, designs, industrial designs, copyrights and copyrightable works (including copyrights in software), database rights, moral rights, inventions whether or not capable of protection by patent or registration, techniques, technical data and know-how, in each case whether registered or unregistered and including applications, registrations and renewals in connection there-under for the grant of any such assets or rights of the foregoing descriptions and all rights or forms of protection having equivalent or similar effect.
   11. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
   12. "Order Form" means an ordering document specifying the Products to be provided hereunder that is entered into between You and/or Your respective Affiliates and Us, including any addenda and supplements thereto.
   13. "Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
   14. "Personal Information" has the meaning given to it in the Data Processing Agreement.
   15. "Products" means any cloud-based products offered by Us on a subscription basis that You order under an Order Form or gain access to in connection with a pilot or free trial, including any associated offline and mobile components. "Products" exclude Content and Third Party Applications.
   16. "Product Terms" means the supplemental terms and conditions that may apply to certain Products, and which can be found here
   17. "Term" shall have the meaning assigned to it in Section 12.1.
   18. "Territory" means the United States of America (unless otherwise specified in an Order Form).
   19. "Third Party Application" means a web-based or offline software application that is provided by a third party and which may interoperate with the Products.
   20. "Third Party Forms" means forms and marketing materials that are developed or licensed by a third party to You or to Us and used by motor vehicle dealers to (i) sell, lease, or finance motor vehicles and (ii) sell insurance and warranty products.
   21. "User" means an individual who is authorized by You to use a Product, for whom You have purchased a subscription (or in the case of any Products provided by Us without charge, for whom a Product has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with whom You transact business.
   22. "User Documentation" means the applicable Product’s technical and functional documentation (including product guides in any form or medium, including training videos) and its usage guides and policies, as updated from time to time (subject to the terms of this Agreement).
   23. "Your Data" means any data or information that is submitted by or for You or Your Users in relation to the Products, excluding (i) Content and (ii) Third Party Applications. For the avoidance of doubt, Your Data includes any Personal Data (as defined in the Data Processing Agreement).
2. PROVISION OF PRODUCTS
   1. Provision of Products. We will make the Products available to You in accordance with this Agreement and any applicable Order Forms. Certain Products may be subject to supplemental terms and conditions that can be found here ("Product Terms"). These Product Terms will apply to You as part of this Agreement if Your Order Form includes such Products.
   2. Provision of Equipment. We will provide You the Equipment listed in an Order Form to support Your use of the Products. You will provide, and be responsible for, any hardware, software, connectivity or licenses necessary to access and use the Products. You will ensure that Your Internet connectivity meets the minimum requirements specified by Us. You will also provide a suitable installation environment for the Equipment, and provide and install all site-specific wiring, cabling, electrical and other utilities required for installing the Equipment.
3. USE OF PRODUCTS, EQUIPMENT, AND CONTENT
   1. Subscription. Unless otherwise provided in the applicable Order Form, (a) Products are purchased as subscriptions for the term stated in the applicable Order Form, (b) subscriptions for additional Products may be added during a subscription term, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
   2. Security. You must keep Your registration information accurate and complete during the term of the Agreement. You are responsible for the security of passwords of all Users, for all activities that occur in User accounts, and for Your Users' compliance with this Agreement, the User Documentation, Order Forms and applicable laws and regulations. You must use commercially reasonable efforts to prevent unauthorized use of, or access to, the Products and must promptly notify Us: (a) of any unauthorized use of, or access to, a User’s account; or (b) if any password is lost, stolen, disclosed to an unauthorized party or otherwise compromised, of which You become aware.
   3. Authorized Use. You must not, and will ensure that Your Affiliates do not: (a) make the Products or Content available to, or use the Products or Content for the benefit of, anyone other than You; (b) modify, copy or create derivative works based on the Products; (c) disassemble, reverse engineer, or decompile the Products or part thereof; (d) copy any ideas, features, content, functions, user interface or graphics of the Products; (e) use the Products in a way intended to work around the Product’s technical limitations, recurring fees calculation, or usage limits; (f) use the Products to store or transmit malicious code or infringing, libelous, offensive, unlawful or tortious material, or material in violation of applicable law; (g) interfere with or disrupt the integrity or performance of the Products; (h) modify, delete or remove any ownership, title, trademark, patent or copyright notices from the Products; (i) unless otherwise set forth in this Agreement, sell, distribute, rent, lease, sublicense, display, modify, time share, outsource or otherwise provide the Products or Content to any third party or use it in a service bureau or outsourcing environment; (j) use the Products in violation of this Agreement, the Order Form, or User Documentation. We reserve the right, but have no obligation, to investigate any violation of this provision or misuse of the Products and take appropriate actions as reasonably needed (including but not limited to immediate suspension of the Products).
   4. Your Legal Compliance. You are responsible for complying with all applicable federal, state, and local laws, rules and regulations applicable to You and Your use of the Products, such as, without limitation, those related to advertising, electronic communications and solicitations, telemarketing, "do not call" and "do not contact" compliance, call recording, privacy and consumer protection Laws, including but not limited to, Section 5 of the FTC Act (15 U.S.C. Section 45), the CAN-SPAM Act (15 U.S.C. Sections 7701-7713), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. Sections 1601-1608), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. 310.1, et seq.), and the Federal Communications Commission telemarketing regulations (47 C.F.R. 64.1200 et seq.) and any other applicable Data Protection Laws.
   5. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
4. THIRD PARTY PROVIDERS
   1. Integration with Third Party Applications. The Products may contain features designed to interoperate with Third Party Applications. These Third Party Applications are not part of the Products and the Agreement does not apply to them. We cannot guarantee the continued availability of such Product features and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Application ceases to make the Third Party Application available for interoperation in a manner acceptable to Us.
   2. Third Party Applications and Your Data. If You choose to use a Third Party Application with a Product, You grant Us permission to allow the Third Party Application and its provider to access Your Data as required for the interoperation of that Third Party Application with the Product. We are not responsible for any use, disclosure, modification or deletion of Your Data resulting from access by such Third Party Application or its provider. Additionally, We are not responsible for any use, disclosure, modification or deletion of Your Data once it is exported from systems and databases within Our control.
   3. Third-Party Content. Any third-party Content, including the Third Party Forms, we make accessible is provided on an "as-is" and "as available" basis without any warranty of any kind. You acknowledge and agree that We are not responsible for, and have no obligation to control, monitor, or correct, third-party Content. We disclaim all liabilities arising from or related to third-party Content.
   4. Mobile Access to Products. You or Your Users may access certain Products through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.
5. FEES AND PAYMENT
   1. Subscription Fees. You will pay all fees specified in Order Forms. Except as otherwise specified in an Order Form, subscription fees are based on Products purchased and not actual usage.
   2. Invoicing and Payment. All fees will be invoiced monthly in advance and must be paid net 30 days from the invoice date, unless otherwise stated in the Order Form. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
   3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by applicable law, whichever is lower, and/or (b) We may condition future renewals and Order Forms on payment terms shorter than those specified in Section 5.2. For all past due invoices, You agree to pay all costs of collection (including collection agency fees), reasonable attorney fees and court costs. You agree to submit any disputes regarding fees in writing to Us within thirty (30) days of the disputed invoice, otherwise the dispute will be waived and the fees therein will be final and not subject to challenge.
   4. Suspension of Service and Acceleration. If any amount owed by You under this Agreement is sixty (60) or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least ten (10) days’ prior written notice that Your account is overdue, before suspending services to You.
   5. No Offset. All amounts that You owe to Us under this Agreement must be paid in full without any set-off, counterclaim, deduction, or withholding.
   6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. PROPRIETARY RIGHTS AND LICENSES
   1. Reservation of Rights. We or Our licensors retain all ownership and Intellectual Property rights in and to the Products and Content, derivative works thereof, and anything developed or delivered by or on behalf of Us under this Agreement. Except as expressly granted to You under this Section 6, all rights to Our assets and properties, including all Intellectual Property, are hereby reserved by Us.
   2. Your Data. As between You and Us, You retain ownership of Your Data. You are responsible for the accuracy, quality, integrity, legality and reliability of Your Data. Subject to the terms and conditions of this Agreement, You grant Us a limited, worldwide, non-exclusive non-transferable and royalty-free license to access, use, process, copy, distribute, disclose, make derivative works of, perform, export and display Your Data, and any Third Party Products created by or for You: (a) to provide, maintain and improve the Products; (b) to prevent or address service, security, support or technical issues; (c) as required by applicable law; (d) to the maximum extent permitted under the terms of any consents/license received with respect to Your Data; and (d) as expressly permitted in writing by You. Notwithstanding the foregoing and anything to the contrary in the Agreement (including the Data Processing Agreement), and to the extent permitted by applicable Data Protection Laws, You acknowledge that We may anonymize or de-identify Your Data for Our own legitimate business purposes, including as provided in Section 6.2.
   3. Consents. You represent and warrant that You have secured all rights in and to Your Data and all consents as may be necessary: (a) to grant Us the licenses contained in this Section 6; and (b) for the use of Your Data by Us and our service providers pursuant to the terms of this Agreement.
   4. AI Usage and Data Consent. We use artificial intelligence ("AI") capabilities to enhance the functionality and performance our products and services. The AI components may adapt over time to improve user experience, optimize product features, and provide personalized insights. By using our products and services, You consent to Our use of Your Data, including but not limited to, operational data, performance data, and usage statistics, to train and improve the AI components within Our products. Such use shall be in accordance with applicable Data Protection Laws, Our Data Processing Agreement, and Our Privacy Policy.
   5. Feedback. You may from time to time provide suggestions, comments, or other feedback to Us with respect to the Products. You grant to Us a worldwide, perpetual, irrevocable and royalty-free license to use and incorporate into Our products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users.
7. DATA PROTECTION
   1. Protection of Your Data. We will maintain reasonable administrative, physical, and technical safeguards that are designed to protect the security, integrity and confidentiality of Your Data. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Your Data as described in Our Data Processing Agreement. You are responsible for properly configuring and using the Products in a manner that will provide appropriate security and protection, for taking reasonable steps to secure Your Data. You and We will each comply with applicable Data Protection Laws and the Data Processing Agreement.
8. CONFIDENTIALITY
   1. Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data and any Personal Data contained therein; Our Confidential Information includes the Products and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party; provided that none of the foregoing exclusions will apply to Your Data, including without limitation any Personal Data.
   2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access to perform obligations under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this "Confidentiality" section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form under terms of confidentiality materially as protective as set forth herein: (a) to a subcontractor or Third Party Application provider to the extent necessary to perform Our obligations to You under this Agreement, or (b) in connection with a merger, acquisition, bankruptcy, dissolution, reorganization, sale of some or all of Our assets, financing, sale of all or a portion of Our business, a similar transaction or proceeding, or steps in contemplation of such activities.
   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by applicable law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by applicable law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. WARRANTIES AND DISCLAIMERS
   1. Mutual Warranties. Each party represents that (a) it is duly organized and in good standing under the laws of the state or country of its incorporation or formation; (b) it has the right and power to enter into and perform this Agreement; and (c) to the best of each party’s respective knowledge, the execution, delivery, and performance of the Agreement by each party does not materially conflict with any agreement that party has with a third party. A party’s electronic signature or transmission of any document by electronic means will be deemed to bind such party as if signed and transmitted in physical form.
   2. Our Warranties. We warrant that during the term of this Agreement, (a) We will employ commercially reasonable efforts in accordance with industry standards to prevent the transmission of malware or malicious code via the Products; and (b) the Products will perform materially in accordance with the applicable User Documentation.
   3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1 AND SECTION 9.2, THE PRODUCTS AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND AND AT YOUR OWN RISK. WE DO NOT WARRANT THAT THE PRODUCTS WILL PERFORM TIMELY, ERROR-FREE OR UNINTERRUPTED, THAT WE WILL CORRECT ALL ERRORS, OR THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. WE ALSO EXPRESSLY DISCLAIM ANY AND ALL LIABILITY FOR ANY ISSUES RELATED TO THE PERFORMANCE AND OPERATION OF THE PRODUCTS THAT ARISE FROM YOUR DATA OR THIRD PARTY CONTENT (INCLUDING THIRD PARTY FORMS), THIRD PARTY APPLICATIONS OR PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES.
   4. Exclusive Remedies. FOR ANY BREACH OF THE WARRANTY IN SECTION 9.2(A), YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY SHALL BE AS DESCRIBED IN SECTION 11 BELOW.
   5. No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY, REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM COURSE OF DEALING, USAGE, TRADE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY, REPRESENTATION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ANY PRODUCTS OR SERVICES PROVIDED FREE OF CHARGE, CONTENT AND BETA SERVICES ARE PROVIDED "AS IS," AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
10. INDEMNIFICATION
    1. Indemnification by Us. We will indemnify and defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Product infringes or misappropriates such third party’s Intellectual Property rights (a "Claim Against You"), and will indemnify You from any damages, including actual and statutory damages, fines, and penalties, reasonable attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (x) promptly give Us written notice of the Claim Against You, (y) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (z) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Product, We may in Our discretion and at no cost to You (i) modify the Products so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Your continued use of that Product in accordance with this Agreement, or (iii) terminate Your subscriptions for that Product upon thirty (30) days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (I) the allegation does not state with specificity that the Products are the basis of the Claim Against You; (II) a Claim Against You arises from the use or combination of a Product or any part thereof with software, hardware, data, or processes not provided by Us, if the Products or use thereof would not infringe without such combination; (III) a Claim Against You arises from Products under an Order Form for which there is no charge; (IV) a Claim against You arises from Content, a Third-Party Application, products or services (including integrations) provided by third parties or Your breach of this Agreement, the User Documentation or applicable Order Forms or (V) to the extent a Claim Against You arises from the use of Your Data outside of our products or services.
    2. Indemnification by You. You will indemnify and defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party (a) arising out of Your violation of this Agreement or Your use of the Product in violation of Applicable Laws; (b) Your breach of Your warranty in Section 6.3; or (c) resulting from Our transfer of Your Data to a third-party at Your request (each a "Claim Against Us"), and You will indemnify Us from any damages, including actual and statutory damages, fines, and penalties, reasonable attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (x) promptly give You written notice of the Claim Against Us, (y) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (z) give You all reasonable assistance, at Your expense.
    3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in Section 10.
11. LIMITATION OF LIABILITY
    1. Limitation of Liability. SUBJECT TO SECTION 11.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR (OR OUR AFFILIATES’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE PRODUCT FROM WHICH THE CLAIM AROSE (OR, FOR A CLAIM ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT PAID OR PAYABLE FOR THE FIRST TWELVE (12) MONTH PERIOD) OR ONE MILLION DOLLARS ($1,000,000) WHICHEVER IS LOWER.
    2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, LOSS OR CORRUPTION OF DATA, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
    3. Exceptions. SECTION 11.1 WILL NOT APPLY TO OR IN ANY WAY LIMIT: (i) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, (ii) PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF A PARTY, ITS EMPLOYEES OR AGENTS; (iii) FRAUD OR FRAUDULENT MISREPRESENTATION; (iv) A PARTY’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT; OR (v) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS
12. TERM AND TERMINATION
    1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Products under an Order Form have expired or have been terminated. Termination of one or more of the Products does not automatically terminate the entire Agreement unless all Products have expired or been terminated.
    2. Term of Products. The term of each Product subscription shall be as specified in the applicable Order Form and may be terminated as set forth in the Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for a twelve (12) month term unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. Unless otherwise specified in an Order Form, all renewals will be at Our applicable list price in effect at the time of the renewal. Upon the renewal of any Product and unless otherwise agreed, the term for which any Equipment associated with that Service are provided to You shall automatically renew for an additional period corresponding to the renewed Product subscription term.
    3. Termination. A party may terminate this Agreement only: (i) upon thirty (30) days written notice to the other party of a material breach of this Agreement by such other party if such breach remains uncured at the expiration of such period; (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; or (iii) as provided in the applicable Order Form. We may terminate this Agreement upon thirty (30) days’ prior written notice following Your receipt of a notice that You are delinquent in the payment any fees pursuant to Section 5.
    4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3, We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the termination date. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination. Except for termination by You under Section 12.3(i), if You terminate the Agreement prior to the end of the Term, You must pay Us all fees owed to Us for remainder of the Term within five (5) business days of the delivery of Your termination notice failing which We may invoke the provisions of Section 5.3.
    5. Your Data Portability and Deletion. We will make Your Data available for export or download in a commercially usable format upon Your request within thirty (30) days of termination or expiration of this Agreement. After this 30-day period, We will have no obligation to maintain or provide Your Data and will delete all copies of Your Data, except for (i) backup copies, which will be deleted within one hundred and eighty (180) days from termination, and (ii) any retention obligations imposed on Us by applicable Law. We will continue to protect Your Data as required by this Agreement and applicable Law until Your Data is entirely removed from Our systems. Notwithstanding the foregoing, in the event of termination of this Agreement by Us due to a breach by You, including but not limited to non-payment of fees owed, We may condition performance of Our obligations upon (i) payment of fees then owed, (ii) prepayment of fees for further services, and (iii) receipt by Us of an officer’s certificate from You certifying ongoing compliance with the terms of this Agreement.
    6. Transition Period before Final Termination. Upon any termination of the Agreement, We shall, upon Your request, continue to provide the Products to You pursuant to the terms of this Agreement for a transitional period of up to three (3) months (the "Transition Period"), unless the parties agree to a longer period. Access to the Products during the Transition Period will be subject to the fees set out in the applicable Order Form, prorated on a monthly basis and payable in advance, based on the annual fees for the Products during the calendar period of the Transition Period if the Order Form has fees for such calendar period. During the Transition Period, We will provide cooperation and assistance as You may reasonably request to support an orderly transition to another provider of similar software or services. Such cooperation and assistance will be limited to consulting regarding Our Products and will be subject to a fee based on Our then-current rates for professional services and such services will be set out in a separate professional services agreement and statement of work agreed between the parties. Notwithstanding the foregoing, in the event of termination of this Agreement by Us due to a breach by You, We may withhold the provision of services during the Transition Period and condition further performance upon (i) payment of fees then owed, (ii) prepayment of fees for further services, and (iii) receipt by Us of an officer’s certificate from You certifying ongoing compliance with the terms of this Agreement during the Transition Period.
    7. Surviving Provisions. Sections 1, 5, 6, 7, 8, 9, 10, 11, 12.4, 12.5, 12.6, 12.7 and 13 will survive any termination or expiration of this Agreement.
13. INSURANCE
    1. Tekion Insurance Policies. We will maintain, at no cost to You, commercially appropriate insurance coverage given the nature of the Our business and Our obligations under this Agreement. Such insurance will be in an industry standard form with licensed insurance carriers with A.M. Best ratings of A-VII or better, and will include commercially appropriate cyber liability insurance coverage.
14. MISCELLANEOUS PROVISIONS
    1. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Products and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (1) this Agreement, (2) Tekion Product Terms, which are incorporated by reference here, and (3) the applicable Order Form; provided, however, that in the event of a conflict or inconsistency involving fees owed under an Order Form, the applicable Order Form shall take precedence. This Agreement may be executed in counterparts and by electronic signatures.
    2. Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement, except for notices of termination or an indemnifiable claim ("Legal Notices") which shall clearly be identifiable as Legal Notices and sent to Our Legal Department at legal@tekion.com, will be in writing and will be effective upon: (a) personal delivery, (b) the second business day after mailing, or (c) the day of sending by email. Legal Notices will be effective the day of sending by email as required above. Billing-related notices to You will be addressed to the relevant billing contact designated by You.
    3. Modifications. As Our business evolves, we may change the terms of this Agreement (except any Order Forms). If we make a material change to this Agreement, we will provide You with reasonable notice prior to the change taking effect, either by emailing the email address associated with Your account, notifying You through Our website, and/or by notifying You through the Products. You can review the most current version of the Agreement at any time by visiting https://tekion.com/legal. The revised Agreement will become effective on the date set forth in our notice. Your access or use of a Product after the effective date of any modification will be deemed acceptance of the modified terms.
    4. Withdrawals. We may withdraw a Product by posting a notice at least 12 (twelve) months prior to the effective date of the withdrawal. Upon withdrawal of a Product: (a) all support services relating to that Product will automatically stand withdrawn on the effective date of the withdrawal; and (b) We will continue to provide You the Product until the effective date of the withdrawal.
    5. Governing Law. This Agreement, and any disputes arising out of or related to this Agreement, its formation, interpretation or enforcement, or in any way related to Your Data or Your use of the Products, will be governed exclusively by the Laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
    6. Venue; Waiver of Jury Trial; Fees. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement, its formation, interpretation or enforcement, or in any way related to Your Data or Your use of the Products. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement, its formation, interpretation or enforcement, or in any way related to Your Data or Your use of the Products. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
    7. Assignment. Neither party may assign any of its rights or obligations hereunder to any other party, including a corporate affiliate, parent, or subsidiary, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) except that We may assign this Agreement (together with all Order Forms) without Your consent to the surviving entity in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Our assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    8. Third Party License Terms (MarketScan). Lease, Finance and Cash purchase option calculations are provided to Your dealership by our technology partner, Market Scan. It is Market Scan’s responsibility to ensure the accuracy of the data utilized to calculate the payments options that are reflected in Your Tekion subscription. While Market Scan’s database contains most manufacturer and lender offerings, it might not contain information specific to Your dealership. You agree to be responsible to provide to Market Scan Information Systems, Inc. ("Market Scan"), on a timely, basis all regional and non-regional data regarding manufacturer and vehicle rebate, incentive, lease and or retail finance information as it becomes available. You further agree to provide Market Scan with Your electronic access to rebate, incentive, lease and retail finance data by providing Market Scan with valid login credentials to all applicable manufacturer and lender portals. Every Market Scan customer has a unique account and a unique database. You are providing this login information strictly to allow Market Scan to populate the information contained in Your unique, individual Market Scan database on Your behalf. You also agree to the Data Access Agreement with MarketScan.
    9. Relationship of the Parties; Third Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries under this Agreement.
    10. Force Majeure. Neither party will be liable for a delay or failure to perform this Agreement, due to and to the extent such failure or delay is caused by or results from a Force Majeure Event. However, this Section does not excuse a party’s delay or failure to perform because of a change in economic conditions or an increase in that party’s costs to perform. Additionally, this Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery or business continuity procedures or either party’s payment obligations (unless that is prevented by a Force Majeure Event).
        
        The affected party must notify the other party in writing within ten (10) business days of the Force Majeure Event's occurrence, providing details of the event and its anticipated impact on performance. Affected performance deadlines (other than payment obligations) will be extended for a period equal to the time lost due to the delay.
        
        Upon cessation of the Force Majeure Event, the affected party shall promptly resume performance under this Agreement.
    11. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@tekion.com.
    12. Publicity. You grant Us the right to use Your company name and logo as a reference for marketing or promotional purposes on Our website and in other public or private communications with Our existing or potential customers subject to Your standard trademark usage guidelines as provided to Us from time-to-time. In addition, upon request, You consent to participating in a case study regarding Your experiences with our Products and services ("Case Study"), and inclusion of the Case Study in public-facing materials.
    13. Severability. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
    14. No Waiver. A waiver of any breach of the Agreement is not deemed a waiver of any other breach. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
    15. No Joint and Several Liability. Only We are responsible and liable for Our obligations to You under this Agreement, and nothing in this Agreement should be interpreted to create joint or joint and several liability between Us and Our Affiliates for any of Our obligations to You or Your Affiliates.

Master Subscription Agreement

THIS TEKION MASTER SUBSCRIPTION AGREEMENT – UNITED KINGDOM ("AGREEMENT") IS BETWEEN TEKION UK LIMITED (COMPANY NUMBER 14329429, WITH ITS REGISTERED ADDRESS AT 5 NEW STREET SQUARE, LONDON, UNITED KINGDOM, EC4A 3TW) ("WE", US", "OUR", OR "TEKION"), AND THE ENTITY LISTED IN THE ORDER FORM, INCLUDING ANY AFFILIATES USING THE PRODUCTS ("YOU") AND SETS FORTH THE TERMS AND CONDITIONS GOVERNING ORDERS PLACED UNDER THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGE RECEIPT OF OUR PRIVACY NOTICE. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE ACCEPTED BY YOU ("EFFECTIVE DATE").

PROFESSIONAL SERVICES, INCLUDING BUT NOT LIMITED TO, IMPLEMENTATION SERVICES, ARE NOT GOVERNED BY THIS AGREEMENT. ALL PROFESSIONAL SERVICES WILL BE GOVERNED BY A PROFESSIONAL SERVICES AGREEMENT EXECUTED BETWEEN YOU AND US.

1. DEFINITIONS
   1. Any capitalized terms that are not specifically defined in this Agreement can be found in the supplemental terms and conditions available here.
   2. "Affiliate" means any Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a Party.
   3. "Content" means information obtained by Us from publicly available sources or Our third-party content providers, including but not limited to Third Party Forms, and made available to You through the Products, or pursuant to an Order Form, as more fully described in the User Documentation.
   4. "Confidential Information" shall have the meaning ascribed to it in Section 8.1.
   5. "Data Processing Agreement" shall mean the data processing agreement between the parties, which is available at https://tekion.com/legal/privacy/dpa.
   6. "Data Protection Laws" shall have the meaning ascribed to it in the Data Processing Agreement.
   7. "Equipment" means the hardware and other equipment (proprietary and/or third party) provided by Us to You as listed in the Order Forms.
   8. "Feedback" shall have the meaning ascribed to it in Section 6.5.
   9. "Force Majeure Event" means circumstances beyond either party's reasonable control, including (a) acts of God, (b) acts of government such as any changes in law or regulations or any action taken a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, (c) acts or omissions of third parties, (d) civil unrest, wars, acts of terror, invasions, riots or other civil unrest, epidemics or pandemics, or strikes or other actions taken by labor organizations, (e) computer, telecommunications, transportation, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not withing an impacted party’s possession or reasonable control, (f) network intrusions or denial of service attacks, or (g) any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the impacted party’s reasonable control.
   10. "Intellectual Property" means patents, patent applications, utility models, statutory invention registrations, trademarks, trade names, service marks, trade dress, logos, domain names or any other identifiers of source or goodwill, trade secrets, designs, industrial designs, copyrights and copyrightable works (including copyrights in software), database rights, moral rights, inventions whether or not capable of protection by patent or registration, techniques, technical data and know-how, in each case whether registered or unregistered and including applications, registrations and renewals in connection there-under for the grant of any such assets or rights of the foregoing descriptions and all rights or forms of protection having equivalent or similar effect.
   11. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
   12. "Order Form" means an ordering document or online order specifying the Products to be provided hereunder that is entered into between You and Your respective Affiliates and Us, including any addenda and supplements thereto.
   13. "Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
   14. "Personal Information" has the meaning given to it in the Data Processing Agreement.
   15. "Products" means any cloud-based products offered by Us on a subscription basis that You order under an Order Form or gain access to in connection with a pilot or free trial, including any associated offline and mobile components. “Products” exclude Content and Third Party Applications.
   16. "Product Terms" means the supplemental terms and conditions that may apply to certain Products, and which can be found here.
   17. "Term" shall have the meaning assigned to it in Section 12.1.
   18. "Territory" means the United States of America (unless otherwise specified in an Order Form).
   19. "Third Party Application" means a web-based or offline software application that is provided by a third party and which may interoperate with the Products.
   20. "Third Party Forms" means forms and marketing materials that are developed or licensed by a third party to You or to Us and used by motor vehicle dealers to (i) sell, lease, or finance motor vehicles and (ii) sell insurance and warranty products.
   21. "User" means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Products provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with whom You transact business.
   22. "User Documentation" means the applicable Service's technical and functional documentation (including product guides in any form or medium, including training videos) and its usage guides and policies, as updated from time to time (subject to the terms of this Agreement).
   23. "Your Data" means any data or information that is submitted by or for You or Your Users in relation to the Products, excluding (i) Content and (ii) Third Party Applications. For the avoidance of doubt, Your Data includes any Personal Data (as defined in Data Processing Agreement).
2. PROVISION OF PRODUCTS
   1. Provision of Products. We will make the Products available to You in accordance with this Agreement and any applicable Order Forms. Certain Products may be subject to supplemental terms and conditions that can be found here ("Product Terms"). These Product Terms will apply to You as part of this Agreement if Your Order Form includes such Products.
   2. Provision of Equipment. We will provide You the Equipment listed in an Order Form to support Your use of the Cloud Products. You will provide, and be responsible for, any hardware, software, connectivity or licenses necessary to access and use the Cloud Products. You will ensure that Your Internet connectivity meets the minimum requirements specified by Us. You will also provide a suitable installation environment for the Equipment, and provide and install all site-specific wiring, cabling, electrical and other utilities required for installing the Equipment.
3. USE OF PRODUCTS, EQUIPMENT, AND CONTENT
   1. Subscription. Unless otherwise provided in the applicable Order Form, (a) Products are purchased as subscriptions for the term stated in the applicable Order Form, (b) subscriptions for additional Products may be added during a subscription term, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
   2. Security. You must keep Your registration information accurate and complete during the term of the Agreement. You are responsible for the security of passwords of all Users, for all activities that occur in User accounts, and for Your Users' compliance with this Agreement, the User Documentation, Order Forms and applicable laws and regulations. You must use commercially reasonable efforts to prevent unauthorized use of, or access to, the Products and must promptly notify Us: (a) of any unauthorized use of, or access to, a User's account; or (b) if any password is lost, stolen, disclosed to an unauthorized party or otherwise compromised, of which You become aware.
   3. Authorized Use. You must not and will ensure that Your Affiliates do not: (a) make the Products or Content available to, or use the Products or Content for the benefit of, anyone other than You, (b) modify, copy or create derivative works based on the Products; (c) disassemble, reverse engineer, or decompile the Products or part thereof; (d) copy any ideas, features, content, functions, user interface or graphics of the Products, (e) use the Product in a way intended to work around the Product’s technical limitations, recurring fees calculation, or usage limits, (f) use the Products to store or transmit malicious code or infringing, libelous, offensive, unlawful or tortious material, or material in violation of applicable law; (g) interfere with or disrupt the integrity or performance of the Products, (h) modify, delete or remove any ownership, title, trademark, patent or copyright notices from the Products; (i) unless otherwise set forth in this Agreement, sell, distribute, rent, lease, sublicense, display, modify, time share, outsource or otherwise provide the Products or Content to any third party or use it in a service bureau or outsourcing environment, (j) use the Products in violation of this Agreement, the Order Form, or User Documentation. We reserve the right, but have no obligation, to investigate any violation of this provision or misuse of the Products and take appropriate actions as reasonably needed (including but not limited to immediate suspension of the Products).
   4. Your Legal Compliance. You are responsible for complying with all applicable laws, rules and regulations applicable to You and Your use of the Products, such as, without limitation, those related to advertising, electronic communications and solicitations, telemarketing, "do not call" and "do not contact" compliance, call recording, privacy and consumer protection including but not limited to the United Kingdom General Data Protection Regulation, the General Data Protection Regulation 2016 (EU) 2016/679, the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Security of Network & Information Systems Regulations 2018, the Investigatory Powers Act 2016 and the Consumer Rights Act 2015, all as amended and/or replaced, and in force from time to time.
   5. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
4. THIRD PARTY PROVIDERS
   1. Integration with Third Party Applications. The Products may contain features designed to interoperate with Third Party Applications. These Third Party Applications are not part of the Products and the Agreement does not apply to them. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Application ceases to make the Third Party Application available for interoperation in a manner acceptable to Us.
   2. Third Party Applications and Your Data. If You choose to use a Third Party Application with a Service, You grant Us permission to allow the Third Party Application and its provider to access Your Data as required for the interoperation of that Third Party Application with the Service. We are not responsible for any use, disclosure, modification or deletion of Your Data resulting from access by such Third Party Application or its provider. Additionally, We are not responsible for any use, disclosure, modification or deletion of Your Data once it is exported from systems and databases within Our control.
   3. Third-Party Content. Any third-party Content, including the Third Party Forms, we make accessible is provided on an "as-is" and "as available" basis without any warranty of any kind. You acknowledge and agree that We are not responsible for, and have no obligation to control, monitor, or correct, third-party Content. We disclaim all liabilities arising from or related to third-party Content.
   4. Mobile Access to Products. You or Your Users may access certain Products through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.
5. FEES AND PAYMENT
   1. Subscription Fees. You will pay all fees specified in Order Forms. Except as otherwise specified in an Order Form, subscription fees are based on Products purchased and not actual usage.
   2. Invoicing and Payment. All fees will be invoiced monthly in advance and must be paid in advance and must be paid net 30 days from the invoice date, unless otherwise stated in an Order Form. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
   3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by applicable law, whichever is lower, and/or (b) We may condition future renewals and Order Forms on payment terms shorter than those specified in Section 5.2. For all past due invoices, You agree to pay all costs of collection (including collection agency fees), reasonable attorney fees and court costs. You agree to submit any disputes regarding fees in writing to Us within thirty (30) days of the disputed invoice, otherwise the dispute will be waived and the fees therein will be final and not subject to challenge.
   4. Suspension of Service and Acceleration. If any amount owed by You under this Agreement is sixty (60) or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least ten (10) days' prior written notice that Your account is overdue, before suspending services to You.
   5. No Offset. All amounts that You owe to Us under this Agreement must be paid in full without any set-off, counterclaim, deduction, or withholding.
   6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
   7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features
6. PROPRIETARY RIGHTS AND LICENSES
   1. Reservation of Rights. We or Our licensors retain all ownership and Intellectual Property rights in and to the Products and Content, derivative works thereof, and anything developed or delivered by or on behalf of Us under this Agreement. Except as expressly granted to You under this Section 6, all rights to Our assets and properties, including all Intellectual Property, are hereby reserved by Us.
   2. Your Data. As between You and Us, You retain ownership of Your Data. You are responsible for the accuracy, quality, integrity, legality and reliability of Your Data. Subject to the terms and conditions of this Agreement, You grant Us a limited, worldwide, non-exclusive non-transferable and royalty-free license to access, use, process, copy, distribute, disclose, make derivative works of, perform, export and display Your Data, and any Third Party Products created by or for You: (a) to provide, maintain and improve the Products; (b) to prevent or address service, security, support or technical issues; (c) as required by applicable law; and (d) as expressly permitted in writing by You. Notwithstanding the foregoing and anything to the contrary in the Agreement (including the Data Processing Agreement), and to the extent permitted by applicable Data Protection Laws, You acknowledge that We may anonymize or de-identify Your Data for Our own legitimate business purposes, including as provided in Section 6.2.
   3. Consents. You represent and warrant that You have secured all rights in and to Your Data and all consents as may be necessary: (a) to grant Us the licenses contained in this Section 6; and (b) for the use of Your Data by Us and our service providers pursuant to the terms of this Agreement.
   4. AI Usage and Data Consent. We use artificial intelligence ("AI") capabilities to enhance the functionality and performance our products and services. The AI components may adapt over time to improve user experience, optimize product features, and provide personalized insights. By using our products and services, You consent to Our use of Your Data, including but not limited to, operational data, performance data, and usage statistics, to train and improve the AI components within Our products. Such use shall be in accordance with applicable Data Protection Laws, Our Data Processing Agreement, and Our Privacy Policy.
   5. Feedback. You may from time to time provide suggestions, comments, or other feedback to Us with respect to the Products. You grant to Us a worldwide, perpetual, irrevocable and royalty-free license to use and incorporate into Our products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users.
7. DATA PROTECTION
   1. Protection of Your Data. We will maintain reasonable administrative, physical, and technical safeguards that are designed to protect the security, integrity and confidentiality of Your Data. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Your Data as described in Our Data Processing Agreement. You are responsible for properly configuring and using the Products in a manner that will provide appropriate security and protection, for taking reasonable steps to secure Your Data. You and We will each comply with applicable Data Protection Laws and the Data Processing Agreement.
8. CONFIDENTIALITY
   1. Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"),whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data and any Personal Data contained therein; Our Confidential Information includes the Products and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party; provided that none of the foregoing exclusions will apply to Your Data, including without limitation any Personal Data.
   2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates' employees and contractors who need that access to perform obligations under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party's prior written consent, provided that a party that makes any such disclosure will remain responsible for such affiliate's, legal counsel's or accountant's compliance with this "Confidentiality" section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form under terms of confidentiality materially as protective as set forth herein: (a) to a subcontractor or Third Party Application provider to the extent necessary to perform Our obligations to You under this Agreement, or (b) in connection with a merger, acquisition, bankruptcy, dissolution, reorganization, sale of some or all of Our assets, financing, sale of all or a portion of Our business, a similar transaction or proceeding, or steps in contemplation of such activities.
   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by applicable law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by applicable law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. WARRANTIES AND DISCLAIMERS
   1. Mutual Warranties. Each party represents that (a) it is duly organized and in good standing under the laws of the state or country of its incorporation or formation, (b) it has the right and power to enter into and perform this Agreement and that it has the power and authority to do so, and (c) to the best of each party's respective knowledge, the execution, delivery, and performance of the Agreement by each party does not materially conflict with any agreement that party has with a third party. A party’s electronic signature or transmission of any documents by electronic means will be deemed to bind such part as if signed and transmitted in physical form.
   2. Our Warranties. We warrant that during the term of this Agreement, (a) We will employ commercially reasonable efforts in accordance with industry standards to prevent the transmission of malware or malicious code via the Products and (b) the Products will perform materially in accordance with the applicable User Documentation.
   3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1 AND SECTION 9.2, THE PRODUCTS AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND AND AT YOUR OWN RISK. WE DO NOT WARRANT THAT THE PRODUCTS WILL PERFOM TIMELY, ERROR-FREE OR UNINTERRUPTED, THAT WE WILL CORRECT ALL PRODUCTS ERRORS, OR THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. WE ALSO EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ISSUES RELATED TO THE PERFORMANCE AND OPERATION OF THE PRODUCTS THAT ARISE FROM YOUR DATA OR THIRD PARTY CONTENT (INCLUDING THIRD PARTY FORMS), THIRD PARTY APPLICATIONS, OR PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES.
   4. Exclusive Remedies. FOR ANY BREACH OF THE WARRANTY IN SECTION 9.2 (A), YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY SHALL BE AS DESCRIBED IN SECTION 11 BELOW.
   5. No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY, REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM COURSE OF DEALING, USAGE, TRADE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS OR OTHER TERMS, INCLUDING ANY TERMS IMPLIED BY SECTIONS 13 TO 15 OF THE SUPPLY OF GOODS AND PRODUCTS ACT 1982 AND ANY OTHER IMPLIED WARRANTY, REPRESENTATION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. INDEMNIFICATION
    1. Indemnification by Us. We will indemnify and defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Product infringes such third party's intellectual property rights (a "Claim Against You"), and will indemnify You from any damages, including actual and statutory damages, fines, and penalties, reasonable attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (x) promptly give Us written notice of the Claim Against You, (y) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (z) give Us all reasonable assistance, at Our expense. If We receive information about an infringement claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Products so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Your continued use of that Product in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days' written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defence and indemnification obligations do not apply if (I) the allegation does not state with specificity that the Products are the basis of the Claim Against You; (ii) a Claim Against You arises from the use or combination of a Product or any part thereof with software, hardware, data, or processes not provided by Us, if the Products or use thereof would not infringe without such combination; (iii) a Claim Against You arises from Products under an Order Form for which there is no charge; (iv) a Claim against You arises from Content, a Third-Party Application, products or services (including integrations) provided by third parties or Your breach of this Agreement, the User Documentation or applicable Order Forms or (v) to the extent a Claim Against You arises from the use of Your Data outside of our products or services.
    2. Indemnification by You. You will indemnify and defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party (a) arising out of Your violation of this Agreement or Your use of the Product in violation of Applicable laws; (b) Your breach of Your warranty in Section 6.3; or (c) resulting from Our transfer of Your Data to a third-party at Your request (each a "Claim Against Us"), and You will indemnify Us from any damages, including actual and statutory damages, fines, and penalties, reasonable attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (x) promptly give You written notice of the Claim Against Us, (y) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (z) give You all reasonable assistance, at Your expense.
    3. Exclusive Remedy. This Section 10 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in Section 10.
11. LIMITATION OF LIABILITY
    1. Limitation of Liability. SUBJECT TO 11.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR (OR OUR AFFILIATES’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE PRODUCT FROM WHICH THE CLAIM AROSE (OR, FOR A CLAIM ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT PAID OR PAYABLE FOR THE FIRST TWELVE (12) MONTH PERIOD) OR ONE MILLION POUNDS (1,000,000 GBP) WHICHEVER IS LOWER.
    2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, LOSS OR CORRUPTION OF DATA, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
    3. Exceptions. SECTION 11.1 WILL NOT APPLY TO OR IN ANY WAY LIMIT: (i) A PARTY’S INDEMNIFICAITON OBLIGATIONS UNDER SECTION 10; (ii) PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF A PARTY, ITS EMPLOYEES OR AGENTS; (iii) FRAUD OR FRAUDULENT MISREPRESENTATION; (iv) A PARTY’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT; OR (v) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS.
12. TERM AND TERMINATION
    1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Products under an Order Form have expired or have been terminated. Termination of one or more of the Products does not automatically terminate the entire Agreement unless all Products have expired or been terminated.
    2. Term of Products. The term of each Product subscription shall be as specified in the applicable Order Form and may be terminated as set forth in the Order Form. Except as otherwise specified in an Order Form, Cloud Service subscriptions will automatically renew for a twelve (12) month term unless either party gives the other notice of non-renewal at least 30 (thirty) days before the end of the relevant subscription term. Unless otherwise specified in an Order Form, all month-to-month renewals will be at Our applicable list price in effect at the time of the renewal. Upon the renewal of any Product and unless otherwise agreed, the term for which any Equipment associated with that Product are provided to You shall automatically renew for an additional period corresponding to the renewed Product subscription term.
    3. Termination. A party may terminate this Agreement only: (i) upon 30 (thirty) days written notice to the other party of a material breach of this Agreement by such other party if such breach remains uncured at the expiration of such period, (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (iii) as provided in the applicable Order Form. We may terminate this Agreement upon thirty (30) days’ prior written notice following Your receipt of a notice that You are delinquent in the payment any fees pursuant to Section 5.
    4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3, We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the termination date. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination. Except for termination by You under Section12.3(i), if You terminate the Agreement prior to the end of the Term, You must pay Us all fees owed to Us for remainder of the Term within five (5) business days of the delivery of Your termination notice failing which We may invoke the provisions of 5.3.
    5. Your Data Portability and Deletion. We will make Your Data available for export or download in a commercially usable format upon Your request within thirty (30) days of termination or expiration of this Agreement. After this 30-day period, We will have no obligation to maintain or provide Your Data and will delete all copies of Your Data, except for (i) backup copies, which will be deleted within one hundred and eighty (180) days from termination, and (ii) any retention obligations imposed on Us by applicable Law. We will continue to protect Your Data as required by this Agreement and applicable Law until Your Data is entirely removed from Our systems. Notwithstanding the foregoing, in the event of termination of this Agreement by Us due to a breach by You, including but not limited to non-payment of fees owed, We may condition performance of Our obligations upon (i) payment of fees then owed, (ii) prepayment of fees for further services, and (iii) receipt by Us of an officer’s certificate from You certifying ongoing compliance with the terms of this Agreement.
    6. Transition Period before Final Termination. Upon any termination of the Agreement, We shall, upon Your request, continue to provide the Products to You pursuant to the terms of this Agreement for a transitional period of up to three (3) months (the"Transition Period"), unless the parties agree to a longer period. Access to the Products during the Transition Period will be subject to the fees set out in the applicable Order Form, prorated on a monthly basis and payable in advance, based on the annual fees for the Products during the calendar period of the Transition Period if the Order Form has fees for such calendar period. During the Transition Period, We will provide cooperation and assistance as You may reasonably request to support an orderly transition to another provider of similar software or services. Such cooperation and assistance will be limited to consulting regarding Our Cloud Products and will be subject to a fee based on Our then-current rates for professional services and such services will be set out in a separate professional services agreement and statement of work agreed between the parties. Notwithstanding the foregoing, in the event of termination of this Agreement by Us due to a breach by You, We may withhold the provision of services during the Transition Period and condition further performance upon (i) payment of undisputed fees then owed, (ii) prepayment of fees for further services, and (iii) receipt by Us of an officer's certificate from You certifying ongoing compliance with the terms of this Agreement during the Transition Period.
    7. Surviving Provisions. Sections 1, 5, 6, 7, 8, 9, 10, 11, 12.4, 12.5, 12.6, 12.7 and 13 will survive any termination or expiration of this Agreement.
13. INSURANCE
    1. Tekion Insurance Policies. We will maintain, at no cost to You, commercially appropriate insurance coverage given the nature of the Our business and Our obligations under this Agreement. Such insurance will be in an industry standard form with licensed insurance carriers with A.M. Best ratings of A-VII or better, and will include commercially appropriate cyber liability insurance coverage.
14. MISCELLANEOUS PROVISIONS
    1. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Products and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter (provided always that nothing herein will operate to limit or exclude any liability for fraud or fraudulent misrepresentation). Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (1) this Agreement, (2) Tekion Product Terms, which are incorporated by reference here, and (3) the applicable Order Form; provided, however, that in the event of a conflict or inconsistency involving fees owed under an Order Form, the applicable Order Form shall take precedence. This Agreement may be executed in counterparts and by electronic signatures.
    2. Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement, except for notices of termination or an indemnifiable claim ("Legal Notices") which shall clearly be identifiable as Legal Notices and sent to Our Legal Department at legal@tekion.com, will be in writing and will be effective upon: (a) personal delivery, (b) the second business day after mailing, or (c) the day of sending by email. Legal Notices will be effective the day of sending by email as required above. Billing-related notices to You will be addressed to the relevant billing contact designated by You.
    3. Modifications. As Our business evolves, we may change the terms of this Agreement (except any Order Forms). If we make a material change to this Agreement, we will provide You with reasonable notice prior to the change taking effect, either by emailing the email address associated with Your account, notifying You through Our website, and/or by notifying You through the Products. You can review the most current version of the Agreement at any time by visiting https://tekion.com/legal. he revised Agreement will become effective on the date set forth in our notice. Your access or use of a Product after the effective date of any modification will be deemed acceptance of the modified terms.
    4. Withdrawals. We may withdraw a Product by posting a notice at least 12 (twelve) months prior to the effective date of the withdrawal. Upon withdrawal of a Product: (a) all support services relating to that Product will automatically stand withdrawn on the effective date of the withdrawal; and (b) We will continue to provide You the Product until the effective date of the withdrawal.
    5. Governing Law. This Agreement, and any disputes arising out of or related to. This Agreement, its. formation, interpretation or enforcement, or in any way related to Your Data or Your Use of the Products, will be governed exclusively by English law without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
    6. Venue; Fees. The English courts will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement, or in any way related to Your Data or Your use of the Products. Each party hereby consents and submits to the exclusive jurisdiction of such courts. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney's fees.
    7. Assignment. Subject to Section 13.11, neither party may assign, transfer of subcontract any of its rights or obligations hereunder to any other party, including a corporate affiliate, parent, or subsidiary, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld) except that We may assign, novate or otherwise transfer any or all of Our rights and/or obligations under this Agreement (together with all Order Forms) without Your consent to the surviving entity in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Our assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    8. Third Party License Terms (MarketScan). Lease, Finance and Cash purchase option calculations are provided to Your dealership by our technology partner, Market Scan. It is Market Scan’s responsibility to ensure the accuracy of the data utilized to calculate the payments options that are reflected in Your Tekion subscription. While Market Scan’s database contains most manufacturer and lender offerings, it might not contain information specific to Your dealership. You agree to be responsible to provide to Market Scan Information Systems, Inc. ("Market Scan"), on a timely, basis all regional and non-regional data regarding manufacturer and vehicle rebate, incentive, lease and or retail finance information as it becomes available. You further agree to provide Market Scan with Your electronic access to rebate, incentive, lease and retail finance data by providing Market Scan with valid login credentials to all applicable manufacturer and lender portals. Every Market Scan customer has a unique account and a unique database. You are providing this login information strictly to allow Market Scan to populate the information contained in Your unique, individual Market Scan database on Your behalf. You also agree to the Data Access Agreement with MarketScan.
    9. Relationship of the Parties; Third Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Save to the extent expressly set out in this agreement, there are no third-party beneficiaries under this Agreement and no person who is not a party to this Agreement shall have any rights under or in connection with it, whether under the Contracts (Right of Third Parties) Act 1999 or otherwise.
    10. Subcontracting. Notwithstanding Section 13.7, We may subcontract parts of the Products to third parties. We will remain directly and primarily liable to You for the performance of all of Our obligations hereunder, including those assigned to or assumed by subcontractors, and for subcontractors' compliance with this Agreement. We shall ensure that each subcontractor complies, and that each subcontract includes provisions that require compliance by the applicable subcontractor with, the Our obligations under this Agreement. We shall not disclose to any subcontractor any of Your Confidential Information unless and until such Subcontractor has executed a nondisclosure agreement that is no less protective of Your rights than are the confidentiality provisions set forth in this Agreement.
    11. Anti-Corruption. It is a condition of this Agreement that, in pre-contract negotiations and in the exercise of its rights or the performance of its obligations under this Agreement, each party shall at all times ensure that it complies with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including the Bribery Act 2010 ("Anti-bribery Laws") and that it does not commit (or procure the commission of) any breach of any Anti-bribery Laws or do anything which would cause any other party to commit an offence under any Anti-bribery Laws. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@tekion.com.
    12. Publicity. You grant Us the right to use Your company name and logo as a reference for marketing or promotional purposes on Our website and in other public or private communications with Our existing or potential customers subject to Your standard trademark usage guidelines as provided to Us from time-to-time. In addition, upon request, You consent to participating in a case study regarding Your experiences with Our Products and services ("Case Study"), and inclusion of the Case Study in public-facing materials.
    13. Severability. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
    14. No Waiver. A waiver of any breach of the Agreement is not deemed a waiver of any other breach. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
    15. No Joint and Several Liability. Only We are responsible and liable for Our obligations to You under this Agreement, and nothing in this Agreement should be interpreted to create joint or joint and several liability between Us and Our Affiliates for any of Our obligations to You or Your Affiliates.

Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT") IS BETWEEN TEKION CANADA ULC, AN ENTITY FORMED UNDER THE LAWS OF THE PROVINCE OF BRITISH COLUMBIA, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 5934 GIBRALTAR DRIVE, PLEASANTON, CALIFORNIA, USA 94588 ("WE," "US," "OUR," OR "TEKION") AND THE ENTITY LISTED IN THE ORDER FORM, INCLUDING ANY AFFILIATES USING THE SERVICES ( "YOU") AND SETS FORTH THE TERMS AND CONDITIONS GOVERNING ORDERS PLACED UNDER THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGE RECEIPT OF OUR PRIVACY NOTICE. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE ACCEPTED BY YOU ("EFFECTIVE DATE").

1. DEFINITIONS
   1. Any capitalized terms that are not specifically defined in this Agreement can be found in the supplemental terms and conditions available here.
   2. "Cloud Services" means any distinct, subscription-based, on-demand products and services offered by Us under the name "Tekion Cloud" or successor branding that You order under a free trial or an Order Form and We make available to You online via password-protected customer login, including any associated offline and mobile components.
   3. "Content" means information obtained by Us from publicly available sources or Our third-party content providers, including but not limited to Third Party Forms, and made available to You through the Services, or pursuant to an Order Form, as more fully described in the User Documentation.
   4. "Equipment" means the hardware and other equipment (proprietary and/or third party) provided by Us to You as listed in the Order Forms.
   5. "Force Majeure Event" means circumstances beyond either party’s reasonable control, including without limitation acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, passage of applicable law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation, or other similar cause beyond reasonable control of a party such that it could not have been prevented by reasonable precautions.
   6. "Order Form" means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto.
   7. "Services" means the services and products (including hardware) provided by Us to You. "Services" exclude Content and Third Party Applications.
   8. "Third Party Application" means a web-based or offline software application that is provided by a third party and which may interoperate with the Services.
   9. "Third Party Forms" means forms and marketing materials that are developed or licensed by a third party to You or to Us and used by motor vehicle dealers to (i) sell, lease, or finance motor vehicles and (ii) sell insurance and warranty products.
   10. "User" means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with whom You transact business.
   11. "User Documentation" means the applicable Service’s technical and functional documentation (including product guides in any form or medium, including training videos) and its usage guides and policies, as updated from time to time (subject to the terms of this Agreement).
   12. "Your Data" means any data or information that is submitted by or for You or Your Users in relation to the Services, excluding (i) Content and (ii) Third Party Applications. For the avoidance of doubt, Your Data includes any Personal Data (as defined in Data Processing Agreement).
2. PROVISION OF SERVICES
   1. Provision of Services. We will make the Services available to You in accordance with this Agreement. Certain Services may be subject to supplemental terms and conditions that can be found here. These supplemental terms will apply to You as part of this Agreement if Your Order Form includes such Services.
   2. Provision of Equipment. We will provide You the Equipment listed in an Order Form to support Your use of the Cloud Services. You will provide, and be responsible for, any hardware, software, connectivity or licenses necessary to access and use the Cloud Services. You will ensure that Your Internet connectivity meets the minimum requirements specified by Us. You will also provide a suitable installation environment for the Equipment, and provide and install all site-specific wiring, cabling, electrical and other utilities required for installing the Equipment.
3. USE OF CLOUD SERVICES, EQUIPMENT AND CONTENT
   1. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Cloud Services are purchased as subscriptions pursuant to an Order Form, (b) additional subscriptions may be added during a subscription term via an Order Form, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
   2. Security. You must keep Your registration information accurate and complete during the term of the Agreement. You are responsible for the security of passwords of all Users, for all activities that occur in User accounts, and for Your Users' compliance with this Agreement, the User Documentation, Order Forms and applicable laws and regulations. You must use commercially reasonable efforts to prevent unauthorized use of, or access to, the Services and must promptly notify Us: (a) of any unauthorized use of, or access to, a User’s account; or (b) if any password is lost, stolen, disclosed to an unauthorized party or otherwise compromised, of which You become aware.
   3. Acceptable Use. You must not: (a) make the Services or Content available to, or use the Services or Content for the benefit of, anyone other than You, (b) modify, copy or create derivative works based on the Services; (c) disassemble, reverse engineer, or decompile the Services or part thereof; (d) copy any ideas, features, content, functions, user interface or graphics of the Services, (e) use the Service in a way intended to work around the Service’s technical limitations, recurring fees calculation, or usage limits, (f) use the Services to store or transmit malicious code or infringing, libelous, offensive, unlawful or tortious material, or material in violation of applicable law; (g) interfere with or disrupt the integrity or performance of the Services, (h) modify, delete or remove any ownership, title, trademark, patent or copyright notices from the Services; (i) unless otherwise set forth in this Agreement, sell, distribute, rent, lease, sublicense, display, modify, time share, outsource or otherwise provide the Services or Content to any third party or use it in a service bureau or outsourcing environment, (j) use the Services in violation of this Agreement, the Order Form, or User Documentation. We reserve the right, but have no obligation, to investigate any violation of this provision or misuse of the Services and take any action that we believe is reasonable and appropriate under the circumstances.
   4. Historical Data Conversion. We will use reasonable efforts to convert Your historical data from your existing technology provider for the fees set forth in the Order Form. You will cooperate with Us by providing Us with the records, reports and other necessary information, access and documentation required for this purpose.
   5. Your Legal Compliance. You are responsible for complying with all applicable federal, state, and local laws, rules and regulations applicable to You and Your use of the Services, such as, without limitation, those related to advertising, electronic communications and solicitations, telemarketing, "do not call" and "do not contact" compliance, call recording, privacy and consumer protection including but not limited to Canada’s Anti-Spam Law ("CASL") and Unsolicited Telecommunications Rules ("UTR"). You bear the sole responsibility for ensuring that proper "unsubscribe", "do not call", "do not contact" and other privacy and consumer protection protocols are in use.
4. THIRD PARTY PROVIDERS
   1. Integration with Third Party Applications. The Services may contain features designed to interoperate with Third Party Applications. These Third Party Applications are not part of the Services and the Agreement does not apply to them. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Application ceases to make the Third Party Application available for interoperation in a manner acceptable to Us.
   2. Third Party Applications and Your Data. If You choose to use a Third Party Application with a Service, You grant Us permission to allow the Third Party Application and its provider to access Your Data as required for the interoperation of that Third Party Application with the Service. We are not responsible for any use, disclosure, modification or deletion of Your Data resulting from access by such Third Party Application or its provider.
   3. Third-Party Content. Any third-party Content, including the Third Party Forms, we make accessible is provided on an "as-is" and "as available" basis without any warranty of any kind. You acknowledge and agree that We are not responsible for, and have no obligation to control, monitor, or correct, third-party Content. We disclaim all liabilities arising from or related to third-party Content.
   4. Mobile Access to Cloud Services. You or Your Users may access certain Cloud Services through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.
5. FEES AND PAYMENT
   1. Cloud Service Fees and Equipment Charges. You will pay all fees specified in Order Forms. Except as otherwise specified in an Order Form, fees for Cloud Services are based on Cloud Services purchased and not actual usage.
   2. Invoicing and Payment. All fees will be invoiced and must be paid in advance in accordance with the billing frequency stated in the applicable Order Form. Unless otherwise stated in an Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
   3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by applicable law, whichever is lower, and/or (b) We may condition future renewals and Order Forms on payment terms shorter than those specified in Section 5.2. For all past due invoices, You agree to pay all costs of collection (including collection agency fees), reasonable attorney fees and court costs. You agree to submit any disputes regarding fees in writing to Us within 30 days of the disputed invoice, otherwise the dispute will be waived and the fees therein will be final and not subject to challenge.
   4. Suspension of Service and Acceleration. If any amount owed by You under this Agreement is 90 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior written notice that Your account is overdue, before suspending services to You.
   5. Payment Disputes. We will not exercise Our rights under Section 5.3 or Section 5.4 if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
   6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
   7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
   1. Reservation of Rights. We or Our licensors retain all ownership and intellectual property rights in and to the Services and Content, derivative works thereof, and anything developed or delivered by or on behalf of Us under this Agreement. Except as expressly granted to You under this Section 6, all rights to Our assets and properties, including all intellectual property, are hereby reserved by Us.
   2. Your Data. As between You and Us, You retain ownership of Your Data. You are responsible for the accuracy, quality, integrity, legality and reliability of Your Data. Subject to the terms and conditions of this Agreement, You grant Us a limited, worldwide, non-exclusive non-transferable and royalty-free license to access, use, process, copy, distribute, disclose, make derivative works of, perform, export and display Your Data, and any Third Party Products created by or for You: (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by applicable law; (d) to the maximum extent permitted under the terms of any consents/license received with respect to Your Data; and (e) as expressly permitted in writing by You. Notwithstanding the foregoing and anything to the contrary in the Agreement, including Our Data Processing Agreement (as defined below), and to the extent permitted by applicable Data Protection Laws, You acknowledge that We shall have a right to process Data for the purposes of creating anonymized or de-identified information for Our own legitimate business purposes, including where You have requested a Service that includes the provision of benchmarking reports, compiling anonymized benchmarking reports and statistics.
   3. Consents. You represent and warrant that You have secured all rights in and to Your Data and all consents as may be necessary: (a) to grant Us the licenses contained in this Section 6; and (b) for the use of Your Data by Us and our service providers pursuant to the terms of this Agreement.
   4. Feedback. You may from time to time provide suggestions, comments, or other feedback to Us with respect to the Services. You grant to Us a worldwide, perpetual, irrevocable and royalty-free license to use and incorporate into Our products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users.
7. DATA PROTECTION
   1. Protection of Your Data. We will maintain reasonable administrative, physical, and technical safeguards that are designed to protect the security, integrity and confidentiality of Your Data. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Your Data as described in Our Data Processing Agreement. You are responsible for properly configuring and using the Services in a manner that will provide appropriate security and protection, for taking reasonable steps to secure Your Data. You and We will each comply with applicable Data Protection Laws and the Data Processing Agreement.
8. CONFIDENTIALITY
   1. Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data and any Personal Data contained therein; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party; provided that none of the foregoing exclusions will apply to Your Data, including without limitation any Personal Data.
   2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access to perform obligations under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this "Confidentiality" section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form under terms of confidentiality materially as protective as set forth herein: (a) to a subcontractor or Third Party Application provider to the extent necessary to perform Our obligations to You under this Agreement, or (b) in connection with a merger, acquisition, bankruptcy, dissolution, reorganization, sale of some or all of Our assets, financing, sale of all or a portion of Our business, a similar transaction or proceeding, or steps in contemplation of such activities.
   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by applicable law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by applicable law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
   1. Mutual Warranties. Each party represents that (a) it is duly organized and validly existing under the laws of the state, province or country of its incorporation or formation, (b) it has validly entered into this Agreement and that it has the power and authority to do so, (c) the Agreement is a valid obligation binding upon both Parties and enforceable in accordance with its terms, and (d) to the best of each party’s respective knowledge, the execution, delivery, and performance of the Agreement by each party does not materially conflict with any agreement that party has with a third party.
   2. Our Warranties. We warrant that during the term of this Agreement, (a) We will perform the Services using care and skill consistent with generally accepted industry standards, (b) We will not materially decrease the overall security of the Services, and (c) the Services will perform materially in accordance with the applicable User Documentation.
   3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1 AND SECTION 9.2, THE SERVICES AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND AND AT YOUR OWN RISK. WE DO NOT WARRANT THAT THE SERVICES WILL BE PERFORMED TIMELY, ERROR-FREE OR UNINTERRUPTED, THAT WE WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. WE ALSO EXPRESSLY DISCLAIM ANY AND ALL LIABILITY FOR ANY ISSUES RELATED TO THE PERFORMANCE AND OPERATION OF THE SERVICES THAT ARISE FROM YOUR DATA OR THIRD PARTY CONTENT (INCLUDING THIRD PARTY FORMS) OR PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES.
   4. Exclusive Remedies. FOR ANY BREACH OF THE SERVICES WARRANTY IN SECTIONS 9.2(A) AND (C), YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF WE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE DEFICIENT SERVICES AND WE WILL REFUND TO YOU THE FEES FOR THE TERMINATED SERVICES THAT YOU PRE-PAID TO US FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
   5. No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY, REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM COURSE OF DEALING, USAGE, TRADE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY, REPRESENTATION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. INDEMNIFICATION
    1. Indemnification by Us. We will indemnify and defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a "Claim Against You"), and will indemnify You from any damages, including actual and statutory damages, fines, and penalties, reasonable attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (x) promptly give Us written notice of the Claim Against You, (y) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (z) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply: (I) to the extent a Claim Against You arises from a breach by You or Users of this Agreement; or (II) to the extent a Claim Against You arises from Your use of the Service in conjunction with any product or service not provided or authorized by Us.
    2. Indemnification by You. You will indemnify and defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party airsing out of Your violation of this Agreement (each a "Claim Against Us"), and You will indemnify Us from any damages, including actual and statutory damages, fines, and penalties, reasonable attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (x) promptly give You written notice of the Claim Against Us, (y) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (z) give You all reasonable assistance, at Your expense.
    3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in Section 10.
11. LIMITATION OF LIABILITY
    1. Limitation of Liability. SUBJECT TO SECTION 11.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR (OR OUR AFFILIATES’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE SERVICE FROM WHICH THE CLAIM AROSE (OR, FOR A CLAIM ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT PAID OR PAYABLE FOR THE FIRST TWELVE (12) MONTH PERIOD).
    2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
    3. Exceptions. SECTION 11.1 WILL NOT APPLY TO OR IN ANY WAY LIMIT: (i) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, (ii) CLAIMS TO THE EXTENT BASED ON RECKLESS MISCONDUCT, GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND/OR FRAUD OF A PARTY, (iii) YOUR PAYMENT OBLIGATIONS.
12. TERM AND TERMINATION
    1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Services under an Order Form have expired or have been terminated. Termination of one or more of the Services does not automatically terminate the entire Agreement unless all Services have expired or been terminated. To the extent applicable to You, You hereby waive any right to unilaterally resiliate the contract pursuant to the Civil Code of Québec and hereby agree that You shall be entitled to terminate this Agreement solely in accordance with the terms hereof.
    2. Term of Cloud Services. The term of each Cloud Service subscription shall be as specified in the applicable Order Form and may be terminated as set forth in the Order Form. Except as otherwise specified in an Order Form, Cloud Service subscriptions will automatically renew on a month-to-month basis unless either party gives the other notice of non-renewal at least 30 (thirty) days before the end of the relevant subscription term. Unless otherwise specified in an Order Form, all month-to-month renewals will be at Our applicable list price in effect at the time of the renewal. Upon the renewal of any Cloud Service and unless otherwise agreed, the term for which any Equipment associated with that Cloud Service are provided to You shall automatically renew for an additional period corresponding to the renewed Cloud Service subscription term.
    3. Termination. A party may terminate this Agreement: (i) upon 30 (thirty) days written notice to the other party of a material breach of this Agreement by such other party if such breach remains uncured at the expiration of such period, (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (iii) upon upon 30 (thirty) days written notice to the other party for any reason or no reason whatsoever.
    4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3, We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
    5. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download by secure file transfer in a format reasonably requested by You, and, at a minimum, in a format that is commercially useable apart from the Cloud Services. After such 30-day period, We will have no obligation to maintain or provide any Your Data. Upon termination or expiration of the Agreement, and subject to applicable law, We shall delete and procure the deletion of all copies of Your Data Processed by Us or Our Sub-Processors (as defined in the Data Processing Agreement) provided, however, that We will not be required to remove copies of Your Data from Our backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases We will continue to protect Your Data in accordance with this Agreement. The foregoing deletion obligation will be subject to any retention obligations imposed on Us by applicable law.
    6. Transition Period before Final Termination. Upon any termination of the Agreement, We shall, upon Your request, continue to provide the Services to You pursuant to the terms of this Agreement for a transitional period of up to three (3) months (the "Transition Period"), unless the parties agree to a longer period. Access to the Services during the Transition Period will be subject to the fees set out in the applicable Order Form, prorated on a monthly basis and payable in advance, based on the annual fees for the Services during the calendar period of the Transition Period if the Order Form has fees for such calendar period. During the Transition Period, We will provide cooperation and assistance as You may reasonably request to support an orderly transition to another provider of similar software or services. Such cooperation and assistance will be limited to consulting regarding Our Cloud Services and will be subject to a fee based on Our then-current rates for consulting services and such services will be set out in a statement of work agreed between the parties. Notwithstanding the foregoing, in the event of termination of this Agreement by Us due to a breach by You, We may withhold the provision of Transition Services and condition further performance upon (i) payment of undisputed fees then owed, (ii) prepayment of fees for further services, and (iii) receipt by Us of an officer’s certificate from You certifying ongoing compliance with the terms of this Agreement during the Transition Period.
    7. Surviving Provisions. Sections 1, 5, 6, 7, 8, 9, 10, 11, 12.4, 12.5, 12.6, 12.7 and 13 will survive any termination or expiration of this Agreement.
13. MISCELLANEOUS PROVISIONS
    1. Entire Agreement and Order of Precedence. This Agreement, together with the terms set forth in any other agreements expressly referenced and incorporated herein, including those identified in this Section 13.1 constitutes the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (1) this Agreement, (2) Tekion Product Terms and, which are incorporated by reference here, and (3) the applicable Order Form.
    2. Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement, except for notices of termination or an indemnifiable claim ("Legal Notices") which shall clearly be identifiable as Legal Notices and sent to Our Legal Department at legal@tekion.com, will be in writing and will be effective upon: (a) personal delivery, (b) the second business day after mailing, or (c) the day of sending by email. Legal Notices will be effective the day of sending by email as required above. Billing-related notices to You will be addressed to the relevant billing contact designated by You.
    3. Modifications. As Our business evolves, we may change the terms of this Agreement (except any Order Forms). If we make a material change to this Agreement, we will provide You with reasonable notice prior to the change taking effect, either by emailing the email address associated with Your account, notifying You through our website, and/or by notifying You through the Services. The revised Agreement will become effective on the date set forth in our notice. Your access or use of the Service after the effective date of any modification will be deemed acceptance of the modified terms.
    4. Withdrawals. We may withdraw a Service by posting a notice at least 12 (twelve) months prior to the effective date of the withdrawal. Upon withdrawal of a Service: (a) all support services relating to that Service will automatically stand withdrawn on the effective date of the withdrawal; and (b) We will continue to provide You the Service until the effective date of the withdrawal.
    5. Governing Law. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal Laws of the province of Ontario and federal laws applicable therein, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
    6. Venue; Waiver of Jury Trial; Fees. The courts located in Toronto, Ontario will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
    7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) except that We may assign this Agreement (together with all Order Forms) without Your consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Our assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    8. Relationship of the Parties; Third Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries under this Agreement.
    9. Force Majeure. Any delay in performance caused by a Force Majeure Event is not a breach of the Agreement, provided that (i) such delay could not have been reasonably prevented or circumvented by the party whose performance is delayed (the "Non-Performing Party") through the use of alternate sources, work-around plans or other means, (ii) the Non-Performing Party uses commercially reasonable efforts to minimize the duration and impact of such delayed performance, and (iii) the Non-Performing Party promptly notifies the other party of any Force Majeure Event. The time for performance will be extended for a period equal to the duration of the conditions preventing performance. Any amounts payable under this Agreement shall be equitably adjusted such that You are not required to pay any amounts for Services that You are not receiving.
    10. Subcontracting. We may subcontract parts of the Services to third parties. We will remain directly and primarily liable to You for the performance of all of Our obligations hereunder, including those assigned to or assumed by subcontractors, and for subcontractors’ compliance with this Agreement. We shall ensure that each subcontractor complies, and that each subcontract includes provisions that require compliance by the applicable subcontractor with, the Our obligations under this Agreement. We shall not disclose to any subcontractor any of Your Confidential Information unless and until such Subcontractor has executed a nondisclosure agreement that is no less protective of Your rights than are the confidentiality provisions set forth in this Agreement.
    11. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@tekion.com.
    12. Publicity. You grant Us the right to use Your company name and logo as a reference for marketing or promotional purposes on Our website and in other public or private communications with Our existing or potential customers subject to Your standard trademark usage guidelines as provided to Us from time-to-time.
    13. Severability. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
    14. No Waiver. A waiver of any breach of the Agreement is not deemed a waiver of any other breach. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
    15. No Joint and Several Liability. Only We are responsible and liable for Our obligations to You under this Agreement, and nothing in this Agreement should be interpreted to create joint or joint and several liability (or in the province of Québec, any solidarity) between Us and Our Affiliates for any of Our obligations to You or Your Affiliates.

ENTENTE-CADRE DE SOUSCRIPTION

LA PRÉSENTE ENTENTE-CADRE DE SOUSCRIPTION (« ENTENTE ») EST CONCLUE ENTRE Tekion Canada ULC, une entité formée en vertu des lois de la province de la Colombie-Britannique, dont le principal établissement est situé au 5934 Gibraltar drive, pleasanton, california, USA 94588 (« NOUS », « NOTRE » OU « TEKION ») ET L’ENTITÉ MENTIONNÉE DANS LE BON DE COMMANDE, Y COMPRIS TOUTE SOCIÉTÉ AFFILIÉE UTILISANT LES SERVICES (« VOUS ») ET ÉNONCE LES CONDITIONS RÉGISSANT LES COMMANDES PASSÉES DANS LE CADRE DE LA PRÉSENTE ENTENTE.

EN ACCEPTANT LA PRÉSENTE ENTENTE, VOUS ACCEPTEZ LES TERMES DE LADITE ENTENTE ET ACCUSEZ RÉCEPTION DE NOTRE AVIS DE CONFIDENTIALITÉ. LA PRÉSENTE ENTENTE ENTRE EN VIGUEUR À LA DATE À LAQUELLE VOUS L’AVEZ ACCEPTÉ (« DATE D’ENTRÉE EN VIGUEUR »).

1. DÉFINITIONS
   1. Tous les termes en majuscules qui ne sont pas spécifiquement définis dans la présente Entente peuvent être trouvés dans les conditions générales supplémentaires disponibles ici.
   2. « Services infonuagiques » désigne tous les produits et services distincts, sur abonnement et à la demande, que nous proposons sous le nom « Tekion Cloud » ou la marque qui lui succède, que vous commandez dans le cadre d’un essai gratuit ou d’un Bon de commande et que nous mettons à Votre disposition en ligne via une connexion client protégée par un mot de passe, y compris tous les composants hors ligne et mobiles associés.
   3. « Contenu » désigne les informations obtenues par Nous à partir de sources accessibles au public ou de Nos fournisseurs de contenu tiers, y compris, mais sans s’y limiter, les Formulaires Tiers, et mises à votre disposition par le biais des Services, ou conformément à un Bon de commande, tel que plus amplement décrit dans la Documentation utilisateur.
   4. « Équipement » désigne le matériel et les autres équipements (propriétaires et/ou tiers) que nous vous fournissons, tels que listés dans les Bons de commande.
   5. « Cas de force majeure » désigne des circonstances échappant au contrôle raisonnable de l’une ou l’autre des parties, y compris, sans s’y limiter, les forces majeures, les inondations, les incendies, les tremblements de terre ou les explosions, la guerre, le terrorisme, les invasions, les émeutes ou autres troubles civils, les embargos ou blocus en vigueur à la date de la présente entente ou après celle-ci, les situations d’urgence nationale ou régionale, l’adoption d’une loi applicable ou toute mesure prise par une autorité gouvernementale ou publique, y compris l’imposition d’un embargo, d’une restriction à l’exportation ou à l’importation, d’un quota ou de toute autre restriction ou interdiction, ou toute fermeture complète ou partielle du gouvernement, ou une pénurie nationale ou régionale d’énergie, de télécommunications ou de transports adéquats, ou toute autre cause similaire échappant au contrôle raisonnable d’une partie et telle qu’elle n’aurait pas pu être évitée par des précautions raisonnables.
   6. « Bon de commande » désigne un document de commande ou une commande en ligne spécifiant les Services à fournir en vertu des présentes, conclu entre Vous et Nous, y compris tout addenda et supplément à celui-ci.
   7. « Services » désigne les services et produits (y compris le matériel) que Nous Vous fournissons. Les « Services » excluent le Contenu et les Applications tierces.
   8. « Application tierce » désigne une application logicielle en ligne ou hors ligne fournie par un tiers et qui peut interagir avec les Services.
   9. « Formulaires tiers » désigne les formulaires et le matériel de marketing qui sont développés ou concédés sous licence par un tiers à Vous ou à Nous et utilisés par les concessionnaires automobiles pour (i) vendre, louer ou financer des véhicules automobiles et (ii) vendre des produits d’assurance et de garantie.
   10. « Utilisateur » désigne un individu que vous avez autorisé à utiliser un service, pour lequel Vous avez acheté un abonnement (ou dans le cas de tout Service fourni par Nous sans frais, pour lequel un service a été fourni), et à qui Vous (ou, le cas échéant, Nous à Votre demande) avez fourni un identifiant et un mot de passe. Les utilisateurs peuvent comprendre, par exemple, vos employés, consultants, entrepreneurs et agents, ainsi que les tiers avec lesquels Vous effectuez des affaires.
   11. « Documentation utilisateur » désigne la documentation technique et fonctionnelle du Service applicable (y compris les guides de produits sous toute forme ou support, y inclus les vidéos de formation) et ses guides et politiques d’utilisation, tels que mis à jour de temps à autre (sous réserve des conditions de la présente Entente).
   12. « Vos données » désigne toutes les données ou informations qui sont soumises par ou pour Vous ou Vos utilisateurs en relation avec les Services, sauf le (i) Contenu et (ii) les Applications tierces. Afin d’éviter toute ambiguïté, Vos Données comprennent toutes les Données à caractère personnel (telles que définies dans l’Accord sur le traitement des données).
2. PRESTATION DE SERVICES
   1. Prestation de services. Nous mettrons les Services à Votre disposition conformément à la présente Entente. Certains Services peuvent être soumis à des conditions supplémentaires qui peuvent être consultées ici. Ces conditions supplémentaires s’appliqueront à Vous en tant que partie intégrante de la présente Entente si Votre Bon de commande inclut ces Services.
   2. Mise à disposition d’Équipements. Nous Vous fournirons l’équipement répertorié dans un Bon de commande pour prendre en charge Votre utilisation des Services infonuagiques. Vous fournirez, et serez responsable, de tout matériel, logiciel, connectivité ou licence nécessaire pour accéder et utiliser les Services infonuagiques. Vous vous assurerez que votre connectivité Internet répond aux exigences minimales spécifiées par Nous. Vous fournirez également un environnement d’installation approprié pour l’Équipement, et Vous fournirez et installerez tous les câbles, câblages, installations électriques et autres commodités spécifiques au site nécessaires à l’installation de l’Équipement.
3. L’UTILISATION DES SERVICES, ÉQUIPEMENTS ET CONTENUS INFONUAGIQUES
   1. Souscriptions. Sauf disposition contraire dans le Bon de commande applicable, (a) les Services infonuagiques sont achetés sous forme de souscriptions conformément à un Bon de commande, (b) des souscriptions supplémentaires peuvent être ajoutées au cours d’une période de souscription par le biais d’un Bon de commande, et (c) toute souscription supplémentaire prendra fin à la même date que les souscriptions sous-jacentes.+
   2. Sécurité. Vous devez maintenir vos informations d’enregistrement exactes et complètes pendant la durée de l’Entente. Vous êtes responsable de la sécurité des mots de passe de tous les Utilisateurs, de toutes les activités qui se déroulent dans les Comptes utilisateur et du respect par vos Utilisateurs de la présente Entente, de la documentation utilisateur, des Bons de commande et des lois et réglementations applicables. Vous devez déployer des efforts commercialement raisonnables pour empêcher l’utilisation ou l’accès non autorisé aux Services et vous devez Nous informer rapidement : (a) de toute utilisation non autorisée du compte d’un utilisateur ou de tout accès non autorisé à celui-ci; ou (b) si un mot de passe est perdu, volé, divulgué à une partie non autorisée ou compromis d’une autre manière, dont Vous avez connaissance.
   3. Utilisation acceptable. Vous ne devez pas : (a) mettre les Services ou le Contenu à la disposition de, ou utiliser les Services ou le Contenu au profit de, toute personne autre que Vous, (b) modifier, copier ou créer des œuvres dérivées basées sur les Services, (c) désassembler, faire de l’ingénierie inverse ou décompiler les Services ou une partie de ceux-ci; (d) copier les idées, les caractéristiques, le contenu, les fonctions, l’interface utilisateur ou les graphiques des services, (e) utiliser le service d’une manière destinée à contourner les limites techniques du service, le calcul des frais récurrents ou les limites d’utilisation, (f) utiliser les Services pour stocker ou transmettre des codes malveillants ou du matériel contrefait, diffamatoire, offensant, illégal ou délictuel, ou du matériel en violation de la loi applicable; (g) interférer avec ou perturber l’intégrité ou les performances des Services, (h) modifier, supprimer ou retirer tout avis de propriété, de titre, de marque, de brevet ou de droit d’auteur des Services; (i) sauf disposition contraire de la présente Entente, vendre, distribuer, louer, concéder une sous-licence, afficher, modifier, partager le temps, externaliser ou fournir de toute autre manière les Services ou le Contenu à un tiers ou les utiliser dans une société de services informatiques ou un environnement d’externalisation, (j) utiliser les services en violation de la présente Entente, du Bon de commande ou de la Documentation utilisateur. Nous nous réservons le droit, mais n’avons aucune obligation, d’enquêter sur toute violation de cette disposition ou sur toute utilisation abusive des Services et de prendre toute mesure que nous estimons raisonnable et appropriée dans les circonstances.
   4. Conversion des données historiques. Nous déploierons des efforts raisonnables pour convertir Vos données historiques à partir de votre fournisseur de technologie existant, moyennant les frais indiqués dans le Bon de commande. Vous collaborerez avec Nous en Nous fournissant les dossiers, rapports et autres informations, accès et documents nécessaires à cette fin.
   5. Votre conformité juridique. Il Vous incombe de vous conformer à l’ensemble des lois, règles et règlements fédéraux, étatiques et locaux applicables à Vous et à Votre utilisation des Services, tels que, sans s’y limiter, ceux relatifs à la publicité, aux communications électroniques et aux sollicitations, au télémarketing, à la conformité aux règles de non-appel et de non-communication, à l’enregistrement des appels, à la confidentialité et à la protection des consommateurs, y compris, sans s’y limiter, la Loi canadienne anti-pourriel (« LCAP ») et les Règles sur les télécommunications non sollicitées (« UTR »). Vous êtes seul responsable de la mise en place de protocoles appropriés de « désabonnement », de « non-appel », de « non-contact » et autres protocoles de protection de la vie privée et des consommateurs.
4. TROISIÈMES FOURNISSEURS TIERS
   1. Intégration avec des Applications tierces. Les Services peuvent contenir des fonctionnalités conçues pour interagir avec des Applications tierces. Ces Applications tierces ne font pas partie des services et l’Entente ne s’applique pas à elles. Nous ne pouvons pas garantir la disponibilité continue de ces caractéristiques du Service, et Nous pouvons cesser de les fournir sans Vous donner droit à un remboursement, un crédit ou une autre compensation, si, par exemple et sans limitation, le fournisseur d’une Application tierce cesse de rendre l’Application tierce disponible pour l’interopérabilité d’une manière acceptable pour Nous.
   2. Les Applications tierces et Vos données. Si Vous choisissez d’utiliser une Application tierce avec un Service, Vous Nous autorisez à permettre à l’Application tierce et à son fournisseur d’accéder à Vos Données dans la mesure où cela est nécessaire pour l’interopérabilité de cette Application tierce avec le Service. Nous ne sommes pas responsables de l’utilisation, de la divulgation, de la modification ou de la suppression de Vos Données résultant de l’accès par cette Application tierce ou son fournisseur.
   3. Contenu de tiers. Tout contenu de tiers, y compris les Formulaires tiers, que nous rendons accessible est fourni « en l’état » et « tel que disponible » sans aucune garantie de quelque nature que ce soit. Vous reconnaissez et acceptez que Nous ne sommes pas responsables du contenu de tiers et que Nous n’avons aucune obligation de le contrôler, de le surveiller ou de le corriger. Nous déclinons toute responsabilité découlant de ou liée au contenu de tiers.
   4. Accès mobile aux Services infonuagiques. Vous ou Vos Utilisateurs pouvez accéder à certains Services infonuagiques par le biais d’applications mobiles obtenues sur des sites Internet de tiers, tels que le magasin d’applications Android ou Apple. L’utilisation d’applications mobiles peut être régie par les conditions générales présentées lors du téléchargement/accès à l’application mobile et non par les conditions de l’Entente.
5. FRAIS ET PAIEMENT
   1. Frais de service et d’équipement infonuagiques. Vous paierez tous les frais spécifiés dans les Bons de commande. Sauf indication contraire dans un Bon de commande, les frais pour les Services infonuagiques sont basés sur les Services infonuagiques achetés et non sur l’utilisation réelle.
   2. Facturation et paiement. Tous les frais seront facturés et devront être payés à l’avance conformément à la fréquence de facturation indiquée dans le Bon de commande applicable. Sauf indication contraire dans un Bon de commande, les frais facturés sont dus à 30 jours nets à compter de la date de la facture. Vous avez la responsabilité de Nous fournir des informations de facturation et les coordonnées complètes et exactes et de Nous informer de toute modification de ces informations.
   3. Frais impayés. Si un montant facturé n’est pas reçu par Nous à la date d’échéance, alors sans limiter Nos droits ou recours, (a) ces frais peuvent accumuler des intérêts de retard au taux de 1,5 % du solde impayé par mois, ou le taux maximum autorisé par la loi applicable, le plus bas étant retenu, et/ou (b) Nous pouvons conditionner les renouvellements futurs et les Bons de Commande à des conditions de paiement plus courtes que celles spécifiées dans l’Article 5.2. Pour toutes les factures en souffrance, Vous acceptez de payer tous les frais de recouvrement (y compris les frais d’agence de recouvrement), les honoraires d’avocat raisonnables et les frais de justice. Vous acceptez de Nous soumettre par écrit toute contestation relative aux frais dans les 30 jours suivant la réception de la facture contestée, faute de quoi la contestation sera abandonnée et les frais indiqués seront définitifs et ne pourront être contestés.
   4. Suspension du service et accélération. Si un montant que Vous devez en vertu de la présente Entente est en retard de 90 jours ou plus, nous pouvons, sans limiter Nos autres droits et recours, accélérer Vos obligations de frais impayés de sorte que toutes ces obligations deviennent immédiatement exigibles et payables, et suspendre Nos services à Votre égard jusqu’à ce que ces montants soient payés en totalité. À l’exception des clients qui paient par carte de crédit ou par prélèvement automatique et dont le paiement a été refusé, Nous Vous informerons par écrit au moins 10 jours à l’avance que Votre compte est en souffrance, avant de suspendre les services.
   5. Contestations de paiement. Nous n’exercerons pas Nos droits en vertu de l’Article 5.3 ou de l’Article 5.4 si Vous contestez les frais applicables de manière raisonnable et de bonne foi et si Vous coopérez avec diligence pour résoudre la contestation.
   6. Taxes. Nos honoraires ne comprennent pas de taxes, de prélèvements, de droits ou d’évaluations gouvernementales similaires de quelque nature que ce soit, y compris, par exemple, les taxes sur la valeur ajoutée, les ventes, l’utilisation ou les taxes retenues à la source, évaluables par quelque juridiction que ce soit (collectivement, « Taxes »). Vous êtes responsable du paiement de toutes les Taxes associées à Vos achats en vertu des présentes. Si Nous avons l’obligation légale de payer ou de collecter les taxes dont Vous êtes responsable en vertu du présent Article 5.6, Nous Vous facturerons et Vous paierez ce montant, à moins que Vous ne Nous fournissiez un certificat d’exonération fiscale valide autorisé par l’autorité fiscale compétente.
   7. Fonctionnalité future. Vous convenez que Vos achats ne sont pas subordonnés à la livraison d’une fonctionnalité ou d’une caractéristique future, ni dépendants de tout commentaire public oral ou écrit fait par Nous concernant une fonctionnalité ou une caractéristique future.
6. DROITS DE PROPRIÉTÉ ET LICENCES
   1. Réserve des droits. Nous ou Nos concédants de licence conservons tous les droits de propriété et de propriété intellectuelle sur les Services et le Contenu, les travaux dérivés de ceux-ci, et tout ce qui est développé ou livré par Nous ou en Notre nom dans le cadre de la présente Entente. À l’exception de ce qui Vous est expressément accordé dans le cadre du présent Article 6, Nous nous réservons par les présentes tous les droits sur Nos actifs et propriétés, y compris la propriété intellectuelle.
   2. Vos Données. Entre Vous et Nous, Vous restez propriétaire de Vos Données. Vous êtes responsable de l’exactitude, de la qualité, de l’intégrité, de la légalité et de la fiabilité de Vos Données. Sous réserve des conditions de la présente Entente, Vous Nous accordez une licence limitée, mondiale, non exclusive, non transférable et libre de redevance pour accéder, utiliser, traiter, copier, distribuer, divulguer, faire des travaux dérivés, exécuter, exporter et afficher Vos Données, et tout Produit tiers créé par ou pour Vous : (a) pour fournir, maintenir et améliorer les Services; (b) pour prévenir ou résoudre des problèmes de service, de sécurité, d’assistance ou des problèmes techniques; (c) comme requis par la loi applicable; (d) dans la mesure maximale autorisée par les termes de tout consentement/licence reçu concernant Vos Données; et (e) comme expressément autorisé par écrit par Vous. Nonobstant ce qui précède et toute disposition contraire dans l’Entente, y compris notre Contrat de traitement des données (tel que défini ci-dessous), et dans la mesure permise par les Lois applicables en matière de protection des données, Vous reconnaissez que Nous aurons le droit de traiter les Données dans le but de créer des informations anonymes ou dépersonnalisées à nos propres fins commerciales légitimes, y compris lorsque Vous avez demandé un Service qui comprend la fourniture de rapports d’analyse comparative, la compilation de rapports d’analyse comparative anonymes et de statistiques.
   3. Consentements. Vous déclarez et garantissez que Vous avez obtenu tous les droits sur Vos Données et tous les consentements nécessaires : (a) pour Nous accorder les licences contenues dans cet Article 6; et (b) pour l’utilisation de Vos Données par Nous et nos fournisseurs de services conformément aux termes de la présente Entente.
   4. Rétroaction. Vous pouvez de temps à autre Nous fournir des suggestions, des commentaires ou d’autres rétroactions concernant les Services. Vous Nous accordez une licence mondiale, perpétuelle, irrévocable et libre de redevance pour utiliser et incorporer dans Nos produits et services toute suggestion, demande d’amélioration, recommandation, correction ou autre rétroaction fournie par Vous ou les Utilisateurs.
7. PROTECTION DES DONNÉES
   1. Protection de vos Données. Nous maintiendronsdes mesures de protection administratives, physiques et techniques raisonnables, conçues pour protéger la sécurité, l’intégrité et la confidentialité de Vos Données. Ces garanties comprendront des mesures visant à empêcher l’accès, l’utilisation, la modification, la suppression et la divulgation non autorisés de Vos Données, comme décrit dans notre Accord sur le traitement des données. Il vous incombe de configurer et d’utiliser les services de manière à assurer une sécurité et une protection appropriées, et de prendre des mesures raisonnables pour sécuriser vos données. Vous et Nous respecterons chacun les lois applicables en matière de protection des données et l’Accord sur le traitement des données.
8. CONFIDENTIALITÉ
   1. Informations confidentielles. « Informations confidentielles » désigne toutes les informations divulguées par une partie (« Partie divulgatrice ») à l’autre partie (« Partie réceptrice »), que ce soit oralement ou par écrit, qui sont désignées comme confidentielles ou qui devraient raisonnablement être considérées comme confidentielles étant donné la nature des informations et les circonstances de leur divulgation. Vos Informations confidentielles comprennent Vos Données et toutes les Données personnelles qu’elles contiennent; Nos Informations confidentielles comprennent les Services et le Contenu; et les Informations confidentielles de chaque partie comprennent les conditions de la présente Entente et tous les Bons de Commande (y compris les prix), ainsi que les plans commerciaux et marketing, la technologie et les informations techniques, les plans et conceptions de produits, et les processus commerciaux divulgués par ladite partie. Toutefois, les Informations confidentielles n’incluent pas les informations qui (i) sont ou deviennent généralement connues du public sans violation d’une quelconque obligation due à la Partie divulgatrice, (ii) étaient connues de la Partie réceptrice avant leur divulgation par la Partie divulgatrice sans violation d’une quelconque obligation due à la Partie divulgatrice, (iii) sont reçues d’un tiers sans violation d’une quelconque obligation due à la Partie divulgatrice, ou (iv) ont été développées indépendamment par la Partie réceptrice; à condition qu’aucune des exclusions précédentes ne s’applique à Vos Données, y compris, sans s’y limiter, aux Données personnelles.
   2. Protection des informations confidentielles. La Partie réceptrice fera preuve du même degré de diligence que celui qu’elle utilise pour protéger la confidentialité de ses propres informations confidentielles de même nature (mais pas moins que la diligence raisonnable) pour (i) ne pas utiliser les Informations confidentielles de la Partie divulgatrice à des fins sortant du cadre de la présente Entente et (ii) sauf autorisation écrite contraire de la Partie divulgatrice, limiter l’accès aux Informations confidentielles de la Partie divulgatrice à ceux de ses employés et entrepreneurs, ainsi que ceux de ses affiliés, qui ont besoin de cet accès pour exécuter les obligations découlant de la présente Entente et qui ont signé des accords de confidentialité avec la Partie réceptrice contenant des protections non matériellement moins protectrices des Informations confidentielles que celles prévues par les présentes. Aucune des parties ne divulguera les termes de la présente Entente ou d’un Bon de commande à un tiers autre que ses sociétés affiliées, ses conseillers juridiques et ses comptables sans le consentement écrit préalable de l’autre partie, étant entendu qu’une partie qui procède à une telle divulgation restera responsable du respect par cette société affiliée, ce conseiller juridique ou ce comptable du présent article « Confidentialité ». Nonobstant ce qui précède, Nous pouvons divulguer les termes de la présente Entente et de tout Bon de Commande applicable dans des conditions de confidentialité matériellement aussi protectrices que celles énoncées dans les présentes : (a) à un sous-traitant ou à un fournisseur d’applications tierces dans la mesure nécessaire à l’exécution de Nos obligations envers Vous en vertu de la présente Entente, ou (b) dans le cadre d’une fusion, d’une acquisition, d’une faillite, d’une dissolution, d’une réorganisation, de la vente de tout ou partie de Nos actifs, d’un financement, de la vente de tout ou partie de Notre activité, d’une transaction ou d’une procédure similaire, ou de démarches en vue de telles activités.
   3. Divulgation forcée. La Partie réceptrice peut divulguer les Informations confidentielles de la Partie divulgatrice dans la mesure où la loi applicable l’y oblige, à condition que la Partie réceptrice donne à la Partie divulgatrice un préavis de la divulgation forcée (dans la mesure où la loi le permet) et une assistance raisonnable, aux frais de la Partie divulgatrice, si cette dernière souhaite contester la divulgation. Si la Partie réceptrice est contrainte par la loi applicable de divulguer les Informations confidentielles de la Partie divulgatrice dans le cadre d’une procédure civile à laquelle la Partie divulgatrice est partie, et que la Partie divulgatrice ne conteste pas la divulgation, la Partie divulgatrice remboursera à la Partie réceptrice ses coûts raisonnables de compilation et de fourniture d’un accès sécurisé à ces Informations confidentielles.
9. GARANTIES, RECOURS EXCLUSIFS ET CLAUSES DE NON-RESPONSABILITÉ
   1. Garanties mutuelles. Chaque partie déclare (a) qu’elle est dûment organisée et existe valablement en vertu des lois de l’État, de la province ou du pays où elle a été constituée ou formée, (b) qu’elle a valablement conclu la présente Entente et qu’elle a le pouvoir et l’autorité de le faire, (c) que l’Entente est une obligation valide qui lie les deux parties et qui est exécutoire conformément à ses conditions, et (d) qu’à la connaissance de chaque partie, la signature, la livraison et l’exécution de l’Entente par chaque partie ne sont pas matériellement en conflit avec un accord que cette partie a avec un tiers.
   2. Nos garanties. Nous garantissons que, pendant la durée de la présente Entente, (a) nous exécuterons les Services en faisant preuve d’un soin et d’une compétence conformes aux normes industrielles généralement reconnues, (b) nous ne diminuerons pas sensiblement la sécurité globale des services, et (c) les Services fonctionneront sensiblement conformément à la documentation utilisateur applicable
   3. Avis de non-responsabilité. SAUF DISPOSITIONS EXPRESSES DE L’ARTICLE 9.1 ET L’ARTICLE 9.2, LES SERVICES ET LE CONTENU SONT FOURNIS « EN L’ÉTAT » ET « SELON LA DISPONIBILITÉ », SANS GARANTIE NI DÉCLARATION D’AUCUNE SORTE ET À VOS PROPRES RISQUES. NOUS NE GARANTISSONS PAS QUE LES SERVICES SERONT EXÉCUTÉS EN TEMPS VOULU, SANS ERREUR OU SANS INTERRUPTION, QUE NOUS CORRIGERONS TOUTES LES ERREURS DE SERVICES OU QUE LES SERVICES RÉPONDRONT À VOS EXIGENCES OU ATTENTES. NOUS DÉCLINONS ÉGALEMENT EXPRESSÉMENT TOUTE RESPONSABILITÉ POUR LES PROBLÈMES LIÉS À LA PERFORMANCE ET AU FONCTIONNEMENT DES SERVICES QUI DÉCOULENT DE VOS DONNÉES OU DU CONTENU DE TIERS (Y COMPRIS LES FORMULAIRES DE TIERS) OU DES PRODUITS OU SERVICES FOURNIS PAR DES TIERS.
   4. Recours exclusifs. POUR TOUTE VIOLATION DE LA GARANTIE DES SERVICES DANS LES ARTICLES 9.2(A) ET (C), VOTRE RECOURS EXCLUSIF ET NOTRE ENTIÈRE RESPONSABILITÉ SERONT LA CORRECTION DES SERVICES DÉFICIENTS QUI ONT CAUSÉ LA VIOLATION DE LA GARANTIE, OU, SI NOUS NE POUVONS PAS CORRIGER SUBSTANTIELLEMENT LA DÉFICIENCE D’UNE MANIÈRE COMMERCIALEMENT RAISONNABLE, VOUS POUVEZ METTRE FIN AUX SERVICES DÉFICIENTS ET NOUS VOUS REMBOURSERONS LES FRAIS POUR LES SERVICES RÉSILIÉS QUE VOUS NOUS AVEZ PAYÉS À L’AVANCE POUR LA PÉRIODE SUIVANT LA DATE EFFECTIVE DE LA RÉSILIATION.
   5. Aucune autre garantie. À L’EXCEPTION DE CE QUI EST EXPRESSÉMENT PRÉVU DANS LE PRÉSENT DOCUMENT, AUCUNE DES PARTIES NE DONNE DE GARANTIE, NI NE FAIT DE DÉCLARATION DE QUELQUE NATURE QUE CE SOIT, QU’ELLE SOIT EXPRESSE, IMPLICITE, STATUTAIRE, DÉCOULANT DE LA CONDUITE HABITUELLE DES AFFAIRES, DE L’USAGE, DU COMMERCE OU AUTRE, ET CHAQUE PARTIE REJETTE SPÉCIFIQUEMENT TOUTES LES GARANTIES IMPLICITES, Y COMPRIS TOUTE GARANTIE IMPLICITE, DÉCLARATION DE QUALITÉ MARCHANDE, D’ADÉQUATION À UN USAGE PARTICULIER OU DE NON-VIOLATION, DANS LA MESURE MAXIMALE AUTORISÉE PAR LA LOI APPLICABLE.
10. INDEMNISATION
    1. Indemnisation par Nous. Nous Vous indemniserons et Vous défendrons contre toute réclamation, demande, poursuite ou procédure faite ou intentée contre Vous par un tiers alléguant que tout Service enfreint ou détourne les droits de propriété intellectuelle de ce tiers (une « réclamation contre Vous »), et Nous Vous indemniserons de tout dommage, y compris les dommages, amendes et pénalités réels et légaux et Nous Vous indemniserons de tous les dommages, honoraires d’avocat et frais raisonnables finalement accordés contre Vous à la suite d’une réclamation contre Vous, ou pour les montants payés par Vous dans le cadre d’un règlement approuvé par Nous par écrit d’une réclamation contre Vous, à condition que Vous (x) nous donniez rapidement une notification écrite de la réclamation contre Vous, (y) Nous donniez le contrôle exclusif de la défense et du règlement de la réclamation contre Vous (sauf que Nous ne pouvons pas régler une réclamation contre Vous à moins qu’elle ne Vous libère inconditionnellement de toute responsabilité), et (z) Nous donniez toute l’assistance raisonnable, à Nos frais. Si Nous recevons des informations concernant une réclamation pour infraction ou détournement liée à un Service, nous pouvons, à notre discrétion et sans frais pour Vous (i) modifier les Services de manière à ce qu’ils ne soient plus accusés d’infraction ou d’avoir été détournés, (ii) obtenir une licence pour Votre utilisation continue de ce Service conformément à la présene Entente, ou (iii) résilier Vos abonnements à ce Service moyennant un préavis écrit de 30 jours et Vous rembourser tous les frais prépayés couvrant le reste de la durée des abonnements résiliés. Les obligations de défense et d’indemnisation ci-dessus ne s’appliquent pas : (I) dans la mesure où une réclamation contre Vous découle d’une violation de la présente Entente par Vous ou par les utilisateurs; ou (II) dans la mesure où une réclamation contre Vous découle de Votre utilisation du Service en conjonction avec tout produit ou service non fourni ou autorisé par Nous.
    2. Indemnisation par Vous. Vous Nous indemniserez et Nous défendrez contre toute réclamation, demande, poursuite ou procédure faite ou intentée contre Nous par un tiers et découlant de Votre violation de la présente Entente (chacune étant une « Réclamation contre Nous »), et Vous Nous indemniserez de tout dommage, y compris les dommages réels et légaux, les amendes et les pénalités, les honoraires d’avocat raisonnables et les coûts finalement accordés contre Nous à la suite d’une réclamation contre Nous, ou pour tout montant payé par Nous dans le cadre d’un règlement approuvé par écrit par Vous, d’une réclamation contre Nous, à condition que Nous (x) Vous donnions rapidement un avis écrit de la réclamation contre Nous, (y) Vous donnions le contrôle exclusif de la défense et du règlement de la réclamation contre Nous (sauf que Vous ne pouvez pas régler une réclamation contre Nous à moins qu’elle ne Nous libère inconditionnellement de toute responsabilité), et (z) Vous donnions toute l’assistance raisonnable, à Vos frais.
    3. Recours exclusif. Le présent article 10 énonce la seule responsabilité de la partie indemnisante envers, et le recours exclusif de la partie indemnisée contre, l’autre partie pour tout type de demande décrite dans l’article 10.
11. LIMITATION DE LA RESPONSABILITÉ
    1. Limitation de la responsabilité. SOUS RÉSERVE DE L’ARTICLE 11.3 DANS TOUTE LA MESURE PERMISE PAR LA LOI APPLICABLE, EN AUCUN CAS NOTRE RESPONSABILITÉ GLOBALE (OU CELLE DE NOS SOCIÉTÉS AFFILIÉES) DÉCOULANT DE OU LIÉE À LA PRÉSENTE ENTENTE, QUE CE SOIT DANS LE CADRE D’UN CONTRAT, D’UN DÉLIT OU AUTRE, NE DÉPASSERA LES FRAIS EFFECTIVEMENT PAYÉS PAR VOUS EN VERTU DE PRÉSENTE ENTENT AU COURS DE LA PÉRIODE DE DOUZE (12) MOIS IMMÉDIATEMENT PRÉCÉDENTE POUR LE SERVICE DONT LA RÉCLAMATION DÉCOULE (OU, POUR UNE RÉCLAMATION SURVENANT AVANT LE PREMIER ANNIVERSAIRE DE LA DATE D’ENTRÉE EN VIGUEUR, LE MONTANT PAYÉ OU PAYABLE POUR LA PREMIÈRE PÉRIODE DE DOUZE (12) MOIS).
    2. Exclusion des dommages indirects et connexes. EN AUCUN CAS, L’UNE OU L’AUTRE DES PARTIES OU SES SOCIÉTÉS AFFILIÉES NE POURRONT ÊTRE TENUES RESPONSABLES DE TOUTE PERTE DE BÉNÉFICES, DE REVENUS OU DE CLIENTÈLE, OU DE TOUT DOMMAGE INDIRECT, SPÉCIAL, ACCESSOIRE, CONSÉCUTIF, EXEMPLAIRE OU PUNITIF, QU’IL S’AGISSE D’UNE ACTION CONTRACTUELLE OU DÉLICTUELLE ET QUELLE QUE SOIT LA THÉORIE DE LA RESPONSABILITÉ, MÊME SI UNE PARTIE OU SES SOCIÉTÉS AFFILIÉES ONT ÉTÉ INFORMÉES DE LA POSSIBILITÉ DE TELS DOMMAGES OU SI LE RECOURS D’UNE PARTIE OU DE SES SOCIÉTÉS AFFILIÉES N’ATTEINT PAS SON OBJECTIF ESSENTIEL. LA CLAUSE DE NON-RESPONSABILITÉ QUI PRÉCÈDE NE S’APPLIQUERA PAS DANS LA MESURE OÙ LA LOI APPLICABLE L’INTERDIT.
    3. Exceptions. L’ARTICLE 11.1 NE S’APPLIQUERA PAS ET NE LIMITERA EN AUCUN CAS : (i) LES OBLIGATIONS D’INDEMNISATION D’UNE PARTIE EN VERTU DE L’ARTICLE 10, (ii) LES RÉCLAMATIONS DANS LA MESURE OÙ ELLES SONT BASÉES SUR UNE FAUTE RÉCUPÉRATOIRE, UNE NÉGLIGENCE GRAVE, UNE FAUTE VOLONTAIRE ET/OU UNE FRAUDE D’UNE PARTIE, (iii) VOS OBLIGATIONS DE PAIEMENT.
12. DURÉE ET RÉSILIATION
    1. Durée de l’Entente. La présente Entente prend effet à la date d’entrée en vigueur et se poursuit jusqu’à ce que tous les Services prévus par un Bon de commande aient expiré ou aient été résiliés. La résiliation d’un ou de plusieurs Services ne met pas automatiquement fin à l’ensemble de l’Entente, sauf si tous les Services ont expiré ou ont été résiliés. Dans la mesure où cela Vous est applicable, Vous renoncez par les présentes à tout droit de résilier unilatéralement le contrat en vertu du Code civil du Québec et acceptez par les présentes que Vous ayez le droit de résilier la présente Entente uniquement conformément aux termes des présentes.
    2. Durée des Services infonuagiques. La durée de chaque abonnement au service infonuagique est spécifiée dans le formulaire du Bon de Commande applicable et peut être résiliée comme indiqué dans le Bon de commande. Sauf indication contraire dans un Bon de commande, les abonnements aux Services infonuagiques seront automatiquement renouvelés d’un mois à l’autre, à moins que l’une des parties ne donne à l’autre un avis de non-renouvellement au moins 30 (trente) jours avant la fin de la durée de l’abonnement concerné. Sauf indication contraire dans un Bon de commande, tous les renouvellements d’un mois à l’autre se feront à Notre prix courant applicable en vigueur au moment du renouvellement. Lors du renouvellement de tout Service infonuagique et sauf accord contraire, la durée pour laquelle tout Équipement associé à ce Service infonuagique Vous est fourni sera automatiquement renouvelée pour une période supplémentaire correspondant à la durée de souscription du Service infonuagique renouvelé.
    3. Résiliation. Une partie peut résilier le présent Contrat : (i) moyennant un préavis écrit de 30 (trente) jours adressé à l’autre partie en cas de violation substantielle du présent Contrat par cette autre partie, si cette violation reste non corrigée à l’expiration de cette période, (ii) si l’autre partie fait l’objet d’une demande de mise en faillite ou de toute autre procédure relative à l’insolvabilité, à la mise sous séquestre, à la liquidation ou à l’exécution d’une décision de justice ou cession au profit de créanciers; ou (iii) sur préavis écrit de 30 (trente) jours à l’autre partie, pour quelque raison que ce soit ou sans raison.
    4. Remboursement ou paiement en cas de résiliation. Si vous résiliez la présente Entente conformément à l’Article 12.3 Nous Vous rembourserons tous les frais payés d’avance couvrant le reste de la durée de tous les Bons de commande après la date effective de la résiliation. Si la présente Entente est résiliée par Nous conformément à l’Article 12.3 Vous paierez tous les frais impayés couvrant le reste de la durée de tous les Bons de commande. En aucun cas la résiliation ne Vous libère de Votre obligation de payer tout frais payable à Nous pour la période avant la date effective de la résiliation.
    5. Votre Portabilité et suppression des données. Sur demande de Votre part formulée dans les 30 jours suivant la date d’effet de la résiliation ou de l’expiration de la présente Entente, Nous mettrons Vos Données à votre disposition pour exportation ou téléchargement par transfert de fichier sécurisé dans un format raisonnablement demandé par Vous et, au minimum, dans un format commercialement utilisable en dehors des Services infonuagiques. Après cette période de 30 jours, nous n’aurons aucune obligation de maintenir ou de fournir Vos données. À la résiliation ou à l’expiration de l’Entente, et sous réserve de la loi applicable, Nous supprimerons et ferons supprimer toutes les copies de Vos Données traitées par Nous ou par Nos Sous-Traitants (tels que définis dans le Contrat de traitement des données), à condition, toutefois, que Nous ne soyons pas tenus de supprimer les copies de Vos Données de Nos supports et serveurs de sauvegarde jusqu’au moment où il est prévu de supprimer les copies de sauvegarde, à condition également que, dans tous les cas, Nous continuions à protéger Vos Données conformément à la présente Entente. L’obligation de suppression qui précède sera soumise à toute obligation de conservation qui Nous est imposée par la loi applicable.
    6. Période de Transition avant la résiliation définitive. En cas de résiliation de l’Entente, nous continuerons, à Votre demande, à Vous fournir les Services conformément aux conditions de la présente Entente pendant une période transitoire de trois (3) mois maximum (la « période de transition »), à moins que les parties ne conviennent d’une période plus longue. L’accès aux Services pendant la Période de transition sera soumis aux frais énoncés dans le Bon de commande applicable, calculés au prorata sur une base mensuelle et payables à l’avance, sur la base des frais annuels pour les Services pendant l’année civile de la Période de transition si le Bon de commande comporte des frais pour cette période calendaire. Au cours de la Période de transition, Nous Vous fournirons la coopération et l’assistance que vous pouvez raisonnablement demander pour soutenir une transition ordonnée vers un autre fournisseur de logiciels ou de services similaires. Cette coopération et cette assistance seront limitées à la consultation concernant Nos Services infonuagiques et feront l’objet d’une rémunération basée sur Nos tarifs alors en vigueur pour les services de consultation et ces services seront définis dans un cahier des charges convenu entre les parties. Nonobstant ce qui précède, en cas de résiliation de la présente Entente par Nous en raison d’un manquement de Votre part, Nous pouvons suspendre la fourniture des Services de transition et subordonner la poursuite de l’exécution (i) au paiement des frais non contestés alors dus, (ii) au paiement anticipé de frais pour d’autres services et (iii) à la réception par Nous d’une attestation de Votre part certifiant le respect continu des conditions de la présente Entente pendant la Période de transition.
    7. Dispositions survivantes. Articles 1, 5, 6, 7, 8, 9, 10, 11, 12.4, 12.5, 12.6, 12.7 et 13 survivront à toute résiliation ou expiration de la présente Entente.
13. DISPOSITIONS DIVERSES
    1. Entente intégrale et ordre de préséance. La présente Entente, ainsi que les conditions énoncées dans tous les autres ententes expressément référencées et intégrées aux présentes, y compris celles identifiées dans le présent Article 13.1, constituent l’intégralité de l’Entente entre Vous et Nous concernant Votre utilisation des Services et du Contenu et remplacent tous les accords, propositions ou déclarations antérieurs et contemporains, écrits ou oraux, concernant son objet. Sauf disposition contraire dans le présent document, aucune modification, aucun amendement ni aucune renonciation à une disposition de la présente Entente ne sera efficace s’il n’est pas rédigé par écrit et signé par la partie contre laquelle la modification, l’amendement ou la renonciation doit être invoquée. En cas de conflit ou d’incohérence entre les documents suivants, l’ordre de préséance est le suivant : (1) la présente Entente, (2) Les Conditions des produits Tekion qui sont incorporées par référence ici, et (3) le Bon de commande applicable.
    2. Avis. Sauf indication contraire dans la présente Entente, tous les avis relatifs à la présente Entente, à l’exception des avis de résiliation ou de réclamation indemnisable (« Avis juridiques ») qui doivent être clairement identifiables comme des Avis juridiques et envoyés à notre Service juridique à l’adresse suivante legal@tekion.com seront rédigées par écrit et prendront effet : (a) à la remise en mains propres, (b) le deuxième jour ouvrable après l’envoi par la poste, ou (c) le jour de l’envoi par courriel. Les Avis juridiques prendront effet le jour de leur envoi par courrier électronique, comme indiqué ci-dessus. Les avis relatifs à la facturation qui Vous sont adressés le seront au contact de facturation désigné par Vous.
    3. Modifications. Au fur et à mesure de l’évolution de Nos activités, nous pouvons modifier les termes de la présente Entente (à l’exception des Bons de commande). Si nous apportons une modification importante à la présente Entente, nous Vous fournirons un préavis raisonnable avant que la modification ne prenne effet, soit en envoyant un courriel à l’adresse électronique associée à Votre compte, soit en Vous notifiant par le biais de notre site Internet, et/ou en Vous notifiant par le biais des Services. Vous pouvez consulter la version la plus récente de l’Entente à tout moment en vous rendant à l’adresse suivante https://tekion.com/legal. L’Entente révisée prendra effet à la date indiquée dans notre avis. Votre accès ou votre utilisation du Service après la date d’entrée en vigueur de toute modification sera considéré comme une acceptation des termes modifiés.
    4. Retraits. Nous pouvons retirer un Service en publiant un avis au moins 12 (douze) mois avant la date effective du retrait. En cas de retrait d’un Service : (a) tous les Services d’assistance relatifs à ce service seront automatiquement retirés à la date effective du retrait; et (b) Nous continuerons à vous fournir le Service jusqu’à la date effective du retrait.
    5. Droit applicable. La présente Entente, ainsi que toute contestation découlant des présentes ou s’y rapportant, sera régie exclusivement par les Lois internes de la province de l’Ontario et les lois fédérales qui y sont applicables, sans égard à ses règles de conflits de lois ou à la Convention des Nations unies sur la vente internationale de marchandises.
    6. Lieu; renonciation à un procès devant jury; honoraires. Les tribunaux situés à Toronto, en Ontario, auront la compétence exclusive pour trancher toute contestation découlant de l’Entente ou de sa formation, de son interprétation ou de son application. Chaque partie consent et se soumet à la juridiction exclusive de ces tribunaux. Chaque partie renonce également par la présente à tout droit à un procès devant un jury dans le cadre de toute action ou de toute contestation découlant de quelque manière que ce soit de la présente Entente ou s’y rapportant. Dans toute action ou procédure visant à faire valoir des droits en vertu de l’Entente, la partie gagnante aura le droit de recouvrer ses coûts raisonnables et ses honoraires d’avocat.
    7. Cession. Aucune des parties ne peut céder ses droits ou obligations en vertu des présentes, que ce soit par effet de la loi ou autrement, sans le consentement écrit préalable de l’autre partie (qui ne doit pas être refusé de manière déraisonnable), sauf que nous pouvons céder la présente Entente (ensemble avec tous les Bons de commande) sans votre consentement dans le cadre d’une fusion, d’une acquisition, d’une réorganisation d’entreprise ou de la vente de la totalité ou de la quasi-totalité de Nos actifs.Toute cession prétendue en violation du présent article est nulle. Sous réserve de ce qui précède, la présente Entente lie les parties, leurs successeurs respectifs et leurs cessionnaires autorisés et s’appliquera à leur profit.
    8. Relations entre les parties; tiers bénéficiaires. Les parties sont des entrepreneurs indépendants. La présente Entente ne crée pas de partenariat, de franchise, de relation d’entreprise, d’agence, de fiduciaire ou de relation d’emploi entre les parties. Il n’existe aucun bénéficiaire tiers dans le cadre de la présente Entente.
    9. Cas de force Majeure. Tout retard d’exécution causé par un cas de force majeure ne constitue pas une violation de l’Entente, à condition que (i) ce retard n’ait pu être raisonnablement évité ou contourné par la partie dont l’exécution est retardée (la « Partie non exécutante ») par l’utilisation de sources alternatives, de plans de contournement ou d’autres moyens, (ii) la Partie non exécutante fasse des efforts commercialement raisonnables pour minimiser la durée et l’impact de ce retard d’exécution, et (iii) la partie non exécutante notifie rapidement à l’autre partie tout cas de force majeure. Le délai d’exécution sera prolongé d’une période égale à la durée des conditions empêchant l’exécution. Tous les montants payables en vertu de la présente Entente seront ajustés équitablement de sorte que Vous ne soyez pas tenu de payer des montants pour des Services que Vous ne recevez pas.
    10. Sous-traitance. Nous pouvons sous-traiter des parties des Services à des tiers. Nous demeurons directement et principalement responsables envers Vous de l’exécution de toutes nos obligations en vertu des présentes, y compris celles qui sont assignées ou assumées par les sous-traitants, et du respect de la présente Entente par les sous-traitants. Nous veillerons à ce que chaque sous-traitant respecte, et que chaque contrat de sous-traitance comprenne des dispositions exigeant le respect par le sous-traitant concerné, de Nos obligations en vertu de la présente Entente. Nous ne divulguerons à aucun sous-traitant aucune de Vos Informations confidentielles à moins et jusqu’à ce que ce sous-traitant ait signé un accord de non-divulgation qui ne protège pas moins Vos droits que les dispositions de confidentialité énoncées dans la présente Entente.
    11. Anti-corruption. Vous acceptez de ne pas avoir reçu ou de ne pas vous être vu offrir de pot-de-vin, de dessous de table, de paiement, de cadeau ou d’objet de valeur illégal ou inapproprié de la part de l’un de nos employés ou agents dans le cadre de la présente Entente. Les cadeaux raisonnables et les divertissements fournis dans le cours normal des affaires ne constituent pas une violation de la restriction ci-dessus. Si Vous avez connaissance d’une violation de la restriction susmentionnée, vous ferez des efforts raisonnables pour en informer rapidement Notre Service juridique à l’adresse suivante legal@tekion.com.
    12. Publicité. Vous Nous accordez le droit d’utiliser le nom et le logo de Votre société comme référence à des fins de marketing ou de promotion sur notre site Internet et dans d’autres communications publiques ou privées avec nos clients existants ou potentiels, sous réserve des directives d’utilisation de Votre marque de fabrique standard, telles qu’elles Nous sont fournies de temps à autre.
    13. Divisibilité. Si une disposition de l’Entente est jugée invalide ou inapplicable, cette invalidité ou cette inapplicabilité n’affectera pas les autres dispositions de l’Entente.
    14. Non Renonciation. La renonciation à une quelconque violation de l’Entente n’est pas considérée comme une renonciation à toute autre violation. Aucune renonciation au titre de l’Entente ne sera effective si elle n’est pas faite par écrit et signée par un représentant autorisé de la partie qui est réputée avoir accordé la renonciation.
    15. Pas de responsabilité conjointe et solidaire. Nous sommes les seuls à être responsables de Nos obligations envers Vous en vertu de la présente Entente, et aucune disposition de présente Entente ne doit être interprétée comme créant une responsabilité conjointe ou solidaire (ou, dans la province de Québec, une solidarité quelconque) entre Nous et nos sociétés affiliées pour l’une de Nos obligations envers Vous ou Vos sociétés affiliées.

Professional Services Agreement

THIS TEKION PROFESSIONAL SERVICES AGREEMENT - UNITED STATES ("AGREEMENT") IS BETWEEN TEKION CORP ("WE," "US," "OUR," OR "TEKION") AND THE ENTITY LISTED IN THE ORDER FORM, INCLUDING ANY AFFILIATES AVAILING THE PROFESSIONAL SERVICES ("YOU") AND SETS FORTH THE TERMS AND CONDITIONS GOVERNING ORDERS PLACED UNDER THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGE RECEIPT OF OUR PRIVACY NOTICE. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE ACCEPTED BY YOU ("EFFECTIVE DATE").

THIS AGREEMENT GOVERNS YOUR PURCHASE AND RECEIPT OF TEKION PROFESSIONAL SERVICES ONLY AND DOES NOT APPLY TO SUBSCRIPTION PRODUCTS OR SERVICES PROVIDED BY US. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. EACH SOW OR ORDER FORM ENTERED INTO BY THE PARTIES DURING THE TERM OF THIS AGREEMENT FOR THE PURCHASE AND RECEIPT OF TEKION PROFESSIONAL SERVICES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1. DEFINITIONS
   1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party.
   2. "Agreement" means this Professional Services Agreement and any exhibits, schedules and addenda, including without limitation any SOWs and Order Forms attached hereto.
   3. "Change Order" means an amendment to an SOW or Order Form, as applicable, as described in Section 4.1 below. Change Orders will be deemed incorporated by reference in the applicable SOW or Order Form, as applicable, in the absence of an SOW.
   4. "Deliverable" means any output of the Professional Services that is identified as a Deliverable under an SOW or Order Form.
   5. "Force Majeure Event" means circumstances beyond either party’s reasonable control, including without limitation (a) acts of God, (b) acts of government, such as any changes in law or regulations or any action taken by a governmental or public authority including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, (c) acts or omissions of third parties, (d) civil unrest, wars, acts of terror, invasions, riots or other civil unrest, epidemics or pandemics, or strikes or other actions taken by labor organizations, (e) computer, telecommunications, transportation, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within an impacted party’s possession or reasonable control, (f) network intrusions or denial of service attacks, or (g) any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the impacted party’s reasonable control.
   6. "Order Form" means an ordering document specifying the Professional Services to be provided hereunder and that is entered into between You and Us, including any addenda and supplements thereto. Order Forms governed, in whole or in part, by this Agreement must have a SOW attached thereto or expressly state that the Order Form or certain Professional Services provided thereunder are governed by this Agreement. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
   7. "Professional Services" or "Services" means work performed by Tekion, its Affiliates, or its or their respective authorized subcontractors under an SOW or Order Form that expressly references this Agreement, including the provision of any Deliverables specified in such SOW or Order Form.
   8. "SOW" means a statement of work describing Professional Services to be provided hereunder, that is entered into between You and Us or which is incorporated into an Order Form that is entered into between You and Us. A Tekion Affiliate that executes an SOW with Customer will be deemed to be "Us" or "Tekion" as such term is used in this Agreement. SOWs or Order Forms will be deemed incorporated herein by reference.
   9. "Tekion Products" means any cloud-based products offered by Us on a subscription basis that You order under Tekion’s Master Subscription Agreement, including any associated offline and mobile components.
2. PROFESSIONAL SERVICES
   1. Scope of Professional Services and Delivery. We will provide you the Professional Services and Deliverables in accordance with the Agreement and the applicable SOWs or Order Forms, subject to Your payment of all applicable fees as set forth in the "Fees" section of this Agreement.
   2. Affiliate Participation. You authorize Your Affiliates to procure Professional Services under the terms and conditions of this Agreement by executing an SOW or Order Form. Each Affiliate that executes a SOW under this MSA shall be deemed a party to this Agreement and shall be bound by all the terms and conditions herein to the same extent as the Customer.
   3. Relationship to Tekion Products. This Agreement is limited to Professional Services and does not convey any right to use Tekion Products. Any use of Tekion Products by Customer or its Affiliates will be governed by a separate agreement. You agree that Your purchase of Professional Services is not contingent on the delivery of any future Tekion Products, functionality or features, other than Deliverables, subject to the terms of the applicable SOW or Order Form, or on any oral or written public comments by Us regarding future Tekion Products functionality or features.
   4. Protection of Confidential Information. We will maintain appropriate technical and organizational measures for the protection of the security, confidentiality and integrity of Your Confidential Information in accordance with Our Data Processing Agreement, which is available online at https://tekion.com/legal/privacy/dpa, and the Master Subscription Agreement. The terms of these agreements between Tekion and Customer are hereby incorporated by reference into this Agreement.
3. YOUR COOPERATION
   1. Cooperation. You will cooperate reasonably and in good faith with Us in Our performance of Professional Services by, without limitation:
      1. Resources. Assigning an internal project manager as Your primary point of contact for each project and allocating sufficient resources to perform Your obligations under this Agreement and each SOW or Order Form;
      2. Actions. (i) Promptly responding to Our inquiries and providing Your deliverables including accurate information, data, and feedback as necessary for the project, and ii) actively participating in scheduled meetings and performing other obligations required under each SOW or Order Form;
      3. Facilities and Equipment. To the extent necessary for the applicable project, providing at no charge to Us, office workspace and access to other facilities, and suitably configured computer equipment with Internet access.
   2. Delays. If We are unable to perform the Professional Services due to a delay by You, including Your failure to comply with Section 3.1 above, You may be responsible for additional fees.
4. CHANGE ORDERS
   1. Change Orders. Changes to a SOW or Order Form will require a written Change Order signed by the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
5. FEES, INVOICING AND TAXES
   1. Fees. You will pay Us for the Professional Services at the rates specified in the applicable SOW or Order Form, or if no rate is specified in the SOW or Order Form, Our standard rates in effect at the time the Professional Services are to be provided. Professional Services are provided on either a time-and-materials or fixed fee basis, as provided in an SOW or Order Form.
   2. Incidental Expenses. You will reimburse Us for reasonable travel and out-of-pocket expenses incurred in connection with the Professional Services. If an estimate of incidental expenses is provided in the applicable SOW or Order Form, We will not exceed such estimate without Your written consent.
   3. Invoicing and Payment. Charges for Professional Services sold on a SOW or Order Form will be invoiced monthly in arrears unless otherwise expressly stated in the applicable SOW or Order Form. Invoiced amounts will be due net 30 days from the invoice date unless otherwise stated in the applicable SOW or Order Form. You are responsible for providing Us with Your complete and accurate billing and contact information and notifying Us of any changes to such information.
   4. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future purchases of Professional Services on payment terms shorter than those specified in Section 5.
   5. Suspension of Professional Services. If any amount You owe Us under this Agreement is 30 days or more overdue, We may, without limiting Our other rights and remedies, suspend Our performance of Professional Services until such amounts are paid in full and/or terminate this Agreement in accordance with Section 11.2.
   6. No Offset. All amounts that You owe to Us under this Agreement must be paid in full without any set-off, counterclaim, deduction, or withholding.
   7. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, We will invoice You and You will pay that amount, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6. PROPRIETARY RIGHTS AND LICENSES
   1. Your Intellectual Property. You do not grant Us any rights in or to Your intellectual property except such licenses as may be required for Us to perform Our obligations hereunder and which shall be expressly set forth in an SOW or Order Form.
   2. Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information.
   3. License for Contract Property. Subject to Your payment of fees due under an applicable SOW or Order Form, We grant You a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for Your internal business purposes associated with Your use of Tekion Products, anything developed by Us for You, including Deliverables, under this Agreement ("Contract Property"). Each party retains all right, title and interest in its respective intellectual property and We retain all ownership rights in the Contract Property.
7. CONFIDENTIALITY
   1. Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes the terms and conditions of this Agreement and all SOWs or Order Forms (including pricing), as well as business and marketing plans, strategies, data, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
   2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are subject to confidentiality obligations not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any SOW or Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this "Confidentiality" section.
   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
   1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
   2. Warranty. We warrant that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Your exclusive remedy and Our entire liability will be the re-performance of the applicable Professional Services. If We are unable to re-perform the Professional Services as warranted, You will be entitled to recover the Professional Services fees paid to Tekion for the deficient Professional Services. You must make any claim under the foregoing warranty to Us in writing within 90 days of performance of such Professional Services in order to receive warranty remedies.
   3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. INDEMNIFICATION
   1. Our Indemnity. We will defend You against any claim, demand, suit or proceeding ("Claim") made or brought against You by a third party (i) arising out of death, personal injury or damage to tangible property to the extent caused by Our personnel in their performance of the Professional Services, and (ii) alleging that any information, design, specification, instruction, software, data or material furnished by Us hereunder ("Material") infringes or misappropriates such third party's intellectual property rights, and will indemnify You and will indemnify You from any damages, including actual and statutory damages, fines, and penalties, reasonable attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim provided You (x) promptly give Us written notice of the Claim , (y) give Us sole control of the defense and settlement of the Claim (except that We may not settle any Claim unless it unconditionally releases You of all liability), and (z) give Us all reasonable assistance, at Our expense. We will have no liability for any such Claim described in subsection (ii) above to the extent that (1) it arises from specifications or other Material provided by You, or (2) such claim is based on modifications to the Material by anyone other than Us. In the event that some or all of the Material is held or is reasonably believed by Us to infringe or misappropriate, We may, in Our discretion and at no cost to You, (A) modify or replace the Material so it is no longer claimed to infringe or misappropriate, (B) obtain a license for Your continued use of the Material in accordance with this Agreement, or (C) require return of the affected Material and all rights thereto from You. If We exercise option (C), either party may terminate the relevant SOW or Professional Services purchased under an Order Form upon 10 days’ written notice given within 30 days after Our exercise of such option, subject to Section 11.3 below. The above defense and indemnification obligations do not apply to the extent a Claim arises from Your breach of this Agreement or the applicable SOW or Order Form.
   2. Exclusive Remedy. This Section 9 states Our sole liability to You, and the Your exclusive remedy against Us, for any third-party claim described in this section.
10. LIMITATION OF LIABILITY
    1. Limitation of Liability. EXCEPT FOR OUR INDEMNIFICATION OBLIGATIONS IN SECTION 9, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND/OR ITS AFFILIATES HEREUNDER FOR THE STATEMENT OF WORK OR ORDER FORM OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR OR YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 5.
    2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, LOSS OR CORRUPTION OF DATA, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
    1. Term. This Agreement commences on the Effective Date and will remain in effect until all Statements of Work or Order Forms governed by this Agreement have terminated or expired in accordance with this section.
    2. Termination for Cause. A party may terminate this Agreement and/or any SOW or Order Form for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
    3. Payment Upon Termination. Upon any termination of an SOW or Order Form, You will pay, in accordance with Section 5, any unpaid fees and expenses incurred on or before the termination date (such Professional Services fees to be paid on a time-and-materials or percent-of-completion basis, as appropriate). If You terminate an SOW or Order Form under Section 11.2(i) and You have pre-paid any fees for Professional Services not yet received, We will refund such pre-paid fees. If We terminate an SOW or Order Form for cause, any pre-paid fees for Professional Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in an SOW or Order Form.
    4. Surviving Provisions. Sections 5, 6.3, 7, 8, 9, 10, 11, 12, and 13 will survive any termination or expiration of this Agreement.
12. INSURANCE

    Each party will maintain, at its own expense during the term of this Agreement, insurance appropriate to its obligations under this Agreement, including as applicable general commercial liability, errors and omissions, employer liability, automobile insurance, and worker’s compensation insurance as required by applicable law.

13. GENERAL
    1. Compliance with Laws. Each party will comply with all laws and governmental rules and regulations that apply to such party in its performance of its obligations and exercise of its rights, under this Agreement.
    2. Export Compliance. Neither party will access or use any Deliverables or Confidential Information provided to it hereunder in a United Kingdom or U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, Syria), as may be updated from time-to-time or in violation of any U.S. export law or regulation.
    3. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@tekion.com.
    4. Force Majeure. Neither party will be liable for a delay or failure to perform this Agreement, due to and to the extent such failure or delay is caused by or results from a Force Majeure Event. However, this Section does not excuse a party’s delay or failure to perform because of a change in economic conditions or an increase in that party’s costs to perform. Additionally, this Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery or business continuity procedures or either party’s payment obligations (unless that is prevented by a Force Majeure Event).
       
       The affected party must notify the other party in writing within ten (10) business days of the Force Majeure Event's occurrence, providing details of the event and its anticipated impact on performance. Affected performance deadlines (other than payment obligations) will be extended for a period equal to the time lost due to the delay.
       
       Upon cessation of the Force Majeure Event, the affected party shall promptly resume performance under this Agreement.
    5. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding the provision and receipt of Professional Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no inconsistent or additional terms contained in a purchase order, voucher, invoice or other similar document issued by either party will be incorporated into or form any part of this Agreement, and all such terms or conditions will be void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable SOW or Order Form, (2) any exhibit, schedule or addendum to this Agreement and (3) the body of this Agreement. This Agreement may be executed in counterparts and by electronic signatures.
    6. No Third-Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries under this Agreement.
    7. No Waiver. A waiver of any breach of the Agreement is not deemed a waiver of any other breach. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
    8. Severability. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
    9. Assignment. Neither party may assign any of its rights or obligations hereunder to any other party, including a corporate affiliate, parent, or subsidiary, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) except that We may assign this Agreement (together with all Order Forms) without Your consent to the surviving entity in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Our assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    10. Governing Law. This Agreement, and any disputes arising out of or related to this Agreement, its formation, interpretation or enforcement, or in any way related to Your Data or Your use of the Services, will be governed exclusively by the Laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
    11. Venue; Waiver of Jury Trial; Fees. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement, its formation, interpretation or enforcement, or in any way related to the Professional Services and any Deliverables. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement, its formation, interpretation or enforcement, or in any way related to the Professional Services and any Deliverables. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
    12. No Joint and Several Liability. Only We are responsible and liable for Our obligations to You under this Agreement, and nothing in this Agreement should be interpreted to create joint or joint and several liability between Us and Our Affiliates for any of Our obligations to You or Your Affiliates.
    13. Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement, except for notices of termination or an indemnifiable claim ("Legal Notices") which shall clearly be identifiable as Legal Notices and sent to Our Legal Department at legal@tekion.com, will be in writing and will be effective upon: (a) personal delivery, (b) the second business day after mailing, or (c) the day of sending by email. Legal Notices will be effective the day of sending by email as required above. Billing-related notices to You will be addressed to the relevant billing contact designated by You.
        
        Our address for notices is:
        
        Tekion Corp
        5934 Gibraltar Drive
        Pleasanton, California 94588.

Professional Services Agreement

THIS TEKION PROFESSIONAL SERVICES AGREEMENT - UNITED KINGDOM ("AGREEMENT") IS BETWEEN TEKION CORP ("WE," "US," "OUR," OR "TEKION") AND THE ENTITY LISTED IN THE ORDER FORM, INCLUDING ANY AFFILIATES AVAILING THE PROFESSIONAL SERVICES ("YOU") AND SETS FORTH THE TERMS AND CONDITIONS GOVERNING ORDERS PLACED UNDER THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGE RECEIPT OF OUR PRIVACY NOTICE. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE ACCEPTED BY YOU ("EFFECTIVE DATE").

THIS AGREEMENT GOVERNS YOUR PURCHASE AND RECEIPT OF TEKION PROFESSIONAL SERVICES ONLY AND DOES NOT APPLY TO SUBSCRIPTION PRODUCTS OR SERVICES PROVIDED BY US. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. EACH SOW OR ORDER FORM ENTERED INTO BY THE PARTIES DURING THE TERM OF THIS AGREEMENT FOR THE PURCHASE AND RECEIPT OF TEKION PROFESSIONAL SERVICES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1. DEFINITIONS
   1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party.
   2. "Agreement" means this Professional Services Agreement and any exhibits, schedules and addenda, including without limitation any SOWs and Order Forms attached hereto.
   3. "Change Order" means an amendment to an SOW or Order Form, as applicable, as described in Section 4.1 below. Change Orders will be deemed incorporated by reference in the applicable SOW or Order Form, as applicable, in the absence of an SOW.
   4. "Deliverable" means any output of the Professional Services that is identified as a Deliverable under an SOW or Order Form.
   5. "Force Majeure Event" means circumstances beyond either party’s reasonable control, including without limitation (a) acts of God, (b) acts of government, such as any changes in law or regulations or any action taken by a governmental or public authority including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, (c) acts or omissions of third parties, (d) civil unrest, wars, acts of terror, invasions, riots or other civil unrest, epidemics or pandemics, or strikes or other actions taken by labor organizations, (e) computer, telecommunications, transportation, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within an impacted party’s possession or reasonable control, (f) network intrusions or denial of service attacks, or (g) any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the impacted party’s reasonable control.
   6. "Order Form" means an ordering document specifying the Professional Services to be provided hereunder and that is entered into between You and Us, including any addenda and supplements thereto. Order Forms governed, in whole or in part, by this Agreement must have a SOW attached thereto or expressly state that the Order Form or certain Professional Services provided thereunder are governed by this Agreement. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
   7. "Professional Services" or "Services" means work performed by Tekion, its Affiliates, or its or their respective authorized subcontractors under an SOW or Order Form that expressly references this Agreement, including the provision of any Deliverables specified in such SOW or Order Form.
   8. "SOW" means a statement of work describing Professional Services to be provided hereunder, that is entered into between You and Us or which is incorporated into an Order Form that is entered into between You and Us. A Tekion Affiliate that executes an SOW with Customer will be deemed to be "Us" or "Tekion" as such term is used in this Agreement. SOWs or Order Forms will be deemed incorporated herein by reference.
   9. "Tekion Products" means any cloud-based products offered by Us on a subscription basis that You order under Tekion’s Master Subscription Agreement, including any associated offline and mobile components.
2. PROFESSIONAL SERVICES
   1. Scope of Professional Services and Delivery. We will provide you the Professional Services and Deliverables in accordance with the Agreement and the applicable SOWs or Order Forms, subject to Your payment of all applicable fees as set forth in the "Fees" section of this Agreement.
   2. Affiliate Participation. You authorize Your Affiliates to procure Professional Services under the terms and conditions of this Agreement by executing an SOW or Order Form. Each Affiliate that executes a SOW under this MSA shall be deemed a party to this Agreement and shall be bound by all the terms and conditions herein to the same extent as the Customer.
   3. Relationship to Tekion Products. This Agreement is limited to Professional Services and does not convey any right to use Tekion Products. Any use of Tekion Products by Customer or its Affiliates will be governed by a separate agreement. You agree that Your purchase of Professional Services is not contingent on the delivery of any future Tekion Products, functionality or features, other than Deliverables, subject to the terms of the applicable SOW or Order Form, or on any oral or written public comments by Us regarding future Tekion Products functionality or features.
   4. Protection of Confidential Information. We will maintain appropriate technical and organizational measures for the protection of the security, confidentiality and integrity of Your Confidential Information in accordance with Our Data Processing Agreement, which is available online at https://tekion.com/legal/privacy/dpa, and the Master Subscription Agreement. The terms of these agreements between Tekion and Customer are hereby incorporated by reference into this Agreement.
3. YOUR COOPERATION
   1. Cooperation. You will cooperate reasonably and in good faith with Us in Our performance of Professional Services by, without limitation:
      1. Resources. Assigning an internal project manager as Your primary point of contact for each project and allocating sufficient resources to perform Your obligations under this Agreement and each SOW or Order Form;
      2. Actions. (i) Promptly responding to Our inquiries and providing Your deliverables including accurate information, data, and feedback as necessary for the project, and ii) actively participating in scheduled meetings and performing other obligations required under each SOW or Order Form;
      3. Facilities and Equipment. To the extent necessary for the applicable project, providing at no charge to Us, office workspace and access to other facilities, and suitably configured computer equipment with Internet access.
   2. Delays. If We are unable to perform the Professional Services due to a delay by You, including Your failure to comply with Section 3.1 above, You may be responsible for additional fees.
4. CHANGE ORDERS
   1. Change Orders. Changes to a SOW or Order Form will require a written Change Order signed by the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
5. FEES, INVOICING AND TAXES
   1. Fees. You will pay Us for the Professional Services at the rates specified in the applicable SOW or Order Form, or if no rate is specified in the SOW or Order Form, Our standard rates in effect at the time the Professional Services are to be provided. Professional Services are provided on either a time-and-materials or fixed fee basis, as provided in an SOW or Order Form.
   2. Incidental Expenses. You will reimburse Us for reasonable travel and out-of-pocket expenses incurred in connection with the Professional Services. If an estimate of incidental expenses is provided in the applicable SOW or Order Form, We will not exceed such estimate without Your written consent.
   3. Invoicing and Payment. Charges for Professional Services sold on a SOW or Order Form will be invoiced monthly in arrears unless otherwise expressly stated in the applicable SOW or Order Form. Invoiced amounts will be due net 30 days from the invoice date unless otherwise stated in the applicable SOW or Order Form. You are responsible for providing Us with Your complete and accurate billing and contact information and notifying Us of any changes to such information.
   4. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future purchases of Professional Services on payment terms shorter than those specified in Section 5.
   5. Suspension of Professional Services. If any amount You owe Us under this Agreement is 30 days or more overdue, We may, without limiting Our other rights and remedies, suspend Our performance of Professional Services until such amounts are paid in full and/or terminate this Agreement in accordance with Section 11.2.
   6. No Offset. All amounts that You owe to Us under this Agreement must be paid in full without any set-off, counterclaim, deduction, or withholding.
   7. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, We will invoice You and You will pay that amount, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6. PROPRIETARY RIGHTS AND LICENSES
   1. Your Intellectual Property. You do not grant Us any rights in or to Your intellectual property except such licenses as may be required for Us to perform Our obligations hereunder and which shall be expressly set forth in an SOW or Order Form.
   2. Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information.
   3. License for Contract Property. Subject to Your payment of fees due under an applicable SOW or Order Form, We grant You a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for Your internal business purposes associated with Your use of Tekion Products, anything developed by Us for You, including Deliverables, under this Agreement ("Contract Property"). Each party retains all right, title and interest in its respective intellectual property and We retain all ownership rights in the Contract Property.
7. CONFIDENTIALITY
   1. Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes the terms and conditions of this Agreement and all SOWs or Order Forms (including pricing), as well as business and marketing plans, strategies, data, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
   2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are subject to confidentiality obligations not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any SOW or Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this "Confidentiality" section.
   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
   1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
   2. Warranty. We warrant that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Your exclusive remedy and Our entire liability will be the re-performance of the applicable Professional Services. If We are unable to re-perform the Professional Services as warranted, You will be entitled to recover the Professional Services fees paid to Tekion for the deficient Professional Services. You must make any claim under the foregoing warranty to Us in writing within 90 days of performance of such Professional Services in order to receive warranty remedies.
   3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. INDEMNIFICATION
   1. Our Indemnity. We will defend You against any claim, demand, suit or proceeding ("Claim") made or brought against You by a third party (i) arising out of death, personal injury or damage to tangible property to the extent caused by Our personnel in their performance of the Professional Services, and (ii) alleging that any information, design, specification, instruction, software, data or material furnished by Us hereunder ("Material") infringes or misappropriates such third party's intellectual property rights, and will indemnify You and will indemnify You from any damages, including actual and statutory damages, fines, and penalties, reasonable attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim provided You (x) promptly give Us written notice of the Claim , (y) give Us sole control of the defense and settlement of the Claim (except that We may not settle any Claim unless it unconditionally releases You of all liability), and (z) give Us all reasonable assistance, at Our expense. We will have no liability for any such Claim described in subsection (ii) above to the extent that (1) it arises from specifications or other Material provided by You, or (2) such claim is based on modifications to the Material by anyone other than Us. In the event that some or all of the Material is held or is reasonably believed by Us to infringe or misappropriate, We may, in Our discretion and at no cost to You, (A) modify or replace the Material so it is no longer claimed to infringe or misappropriate, (B) obtain a license for Your continued use of the Material in accordance with this Agreement, or (C) require return of the affected Material and all rights thereto from You. If We exercise option (C), either party may terminate the relevant SOW or Professional Services purchased under an Order Form upon 10 days’ written notice given within 30 days after Our exercise of such option, subject to Section 11.3 below. The above defense and indemnification obligations do not apply to the extent a Claim arises from Your breach of this Agreement or the applicable SOW or Order Form.
   2. Exclusive Remedy. This Section 9 states Our sole liability to You, and the Your exclusive remedy against Us, for any third-party claim described in this section.
10. LIMITATION OF LIABILITY
    1. Limitation of Liability. EXCEPT FOR OUR INDEMNIFICATION OBLIGATIONS IN SECTION 9, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND/OR ITS AFFILIATES HEREUNDER FOR THE STATEMENT OF WORK OR ORDER FORM OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR OR YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 5.
    2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, LOSS OR CORRUPTION OF DATA, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
    1. Term. This Agreement commences on the Effective Date and will remain in effect until all Statements of Work or Order Forms governed by this Agreement have been terminated or expired. terminated in accordance with this section.
    2. Termination for Cause. A party may terminate this Agreement and/or any SOW or Order Form for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
    3. Payment Upon Termination. Upon any termination of an SOW or Order Form, You will pay, in accordance with Section 5, any unpaid fees and expenses incurred on or before the termination date (such Professional Services fees to be paid on a time-and-materials or percent-of-completion basis, as appropriate). If You terminate an SOW or Order Form under Section 11.2(i) and You have pre-paid any fees for Professional Services not yet received, We will refund such pre-paid fees. If We terminate an SOW or Order Form for cause, any pre-paid fees for Professional Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in an SOW or Order Form.
    4. Surviving Provisions. Sections 5, 6.3, 7, 8, 9, 10, 11, 12, and 13 will survive any termination or expiration of this Agreement.
12. INSURANCE

    Party Insurances. Each party will maintain, at its own expense during the term of this Agreement, insurance appropriate to its obligations under this Agreement, including as applicable general commercial liability, errors and omissions, employer liability, automobile insurance, and worker’s compensation insurance as required by applicable law.

13. GENERAL
    1. Compliance with Laws. Each party will comply with all laws and governmental rules and regulations that apply to such party in its performance of its obligations and exercise of its rights, under this Agreement.
    2. Export Compliance. Neither party will access or use any Deliverables or Confidential Information provided to it hereunder in a United Kingdom or U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, Syria), as may be updated from time-to-time or in violation of any U.S. export law or regulation.
    3. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@tekion.com.
    4. Force Majeure. Neither party will be liable for a delay or failure to perform this Agreement, due to and to the extent such failure or delay is caused by or results from a Force Majeure Event. However, this Section does not excuse a party’s delay or failure to perform because of a change in economic conditions or an increase in that party’s costs to perform. Additionally, this Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery or business continuity procedures or either party’s payment obligations (unless that is prevented by a Force Majeure Event).
       
       The affected party must notify the other party in writing within ten (10) business days of the Force Majeure Event's occurrence, providing details of the event and its anticipated impact on performance. Affected performance deadlines (other than payment obligations) will be extended for a period equal to the time lost due to the delay.
       
       Upon cessation of the Force Majeure Event, the affected party shall promptly resume performance under this Agreement.
    5. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding the provision and receipt of Professional Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no inconsistent or additional terms contained in a purchase order, voucher, invoice or other similar document issued by either party will be incorporated into or form any part of this Agreement, and all such terms or conditions will be void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable SOW or Order Form, (2) any exhibit, schedule or addendum to this Agreement and (3) the body of this Agreement. This Agreement may be executed in counterparts and by electronic signatures.
    6. No Third-Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries under this Agreement.
    7. No Waiver. A waiver of any breach of the Agreement is not deemed a waiver of any other breach. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
    8. Severability. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
    9. Assignment. Neither party may assign any of its rights or obligations hereunder to any other party, including a corporate affiliate, parent, or subsidiary, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) except that We may assign this Agreement (together with all Order Forms) without Your consent to the surviving entity in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Our assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    10. Governing Law. This Agreement, and any disputes arising out of or related to. This Agreement, its. formation, interpretation or enforcement, or in any way related to Your Data or Your Use of the Services, will be governed exclusively by English law without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
    11. Venue; Waiver of Jury Trial; Fees. The English courts will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement, its formation, interpretation or enforcement, or in any way related to the Professional Services and any Deliverables. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement, its formation, interpretation or enforcement, or in any way related to the Professional Services and any Deliverables. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
    12. No Joint and Several Liability. Only We are responsible and liable for Our obligations to You under this Agreement, and nothing in this Agreement should be interpreted to create joint or joint and several liability between Us and Our Affiliates for any of Our obligations to You or Your Affiliates.
    13. Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement, except for notices of termination or an indemnifiable claim ("Legal Notices") which shall clearly be identifiable as Legal Notices and sent to Our Legal Department at legal@tekion.com, will be in writing and will be effective upon: (a) personal delivery, (b) the second business day after mailing, or (c) the day of sending by email. Legal Notices will be effective the day of sending by email as required above. Billing-related notices to You will be addressed to the relevant billing contact designated by You.
        
        Our address for notices is:
        
        Tekion UK Limited
        Suite 4, 7th Floor, 50 Broadway
        London, United Kingdom SW1H 0DB.

Professional Services Agreement

THIS TEKION PROFESSIONAL SERVICES AGREEMENT - CANADA ("AGREEMENT") IS BETWEEN TEKION CANADA ULC ("WE," "US," "OUR," OR "TEKION") AND THE ENTITY LISTED IN THE ORDER FORM, INCLUDING ANY AFFILIATES AVAILING THE PROFESSIONAL SERVICES ("YOU") AND SETS FORTH THE TERMS AND CONDITIONS GOVERNING ORDERS PLACED UNDER THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGE RECEIPT OF OUR PRIVACY NOTICE. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE ACCEPTED BY YOU ("EFFECTIVE DATE").

THIS AGREEMENT GOVERNS YOUR PURCHASE AND RECEIPT OF TEKION PROFESSIONAL SERVICES ONLY AND DOES NOT APPLY TO SUBSCRIPTION PRODUCTS OR SERVICES PROVIDED BY US. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. EACH SOW OR ORDER FORM ENTERED INTO BY THE PARTIES DURING THE TERM OF THIS AGREEMENT FOR THE PURCHASE AND RECEIPT OF TEKION PROFESSIONAL SERVICES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1. DEFINITIONS
   1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party.
   2. "Agreement" means this Professional Services Agreement and any exhibits, schedules and addenda, including without limitation any SOWs and Order Forms attached hereto.
   3. "Change Order" means an amendment to an SOW or Order Form, as applicable, as described in Section 4.1 below. Change Orders will be deemed incorporated by reference in the applicable SOW or Order Form, as applicable, in the absence of an SOW.
   4. "Deliverable" means any output of the Professional Services that is identified as a Deliverable under an SOW or Order Form.
   5. "Force Majeure Event" means circumstances beyond either party’s reasonable control, including without limitation (a) acts of God, (b) acts of government, such as any changes in law or regulations or any action taken by a governmental or public authority including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, (c) acts or omissions of third parties, (d) civil unrest, wars, acts of terror, invasions, riots or other civil unrest, epidemics or pandemics, or strikes or other actions taken by labor organizations, (e) computer, telecommunications, transportation, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within an impacted party’s possession or reasonable control, (f) network intrusions or denial of service attacks, or (g) any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the impacted party’s reasonable control.
   6. "Order Form" means an ordering document specifying the Professional Services to be provided hereunder and that is entered into between You and Us, including any addenda and supplements thereto. Order Forms governed, in whole or in part, by this Agreement must have a SOW attached thereto or expressly state that the Order Form or certain Professional Services provided thereunder are governed by this Agreement. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
   7. "Professional Services" or "Services" means work performed by Tekion, its Affiliates, or its or their respective authorized subcontractors under an SOW or Order Form that expressly references this Agreement, including the provision of any Deliverables specified in such SOW or Order Form.
   8. "SOW" means a statement of work describing Professional Services to be provided hereunder, that is entered into between You and Us or which is incorporated into an Order Form that is entered into between You and Us. A Tekion Affiliate that executes an SOW with Customer will be deemed to be "Us" or "Tekion" as such term is used in this Agreement. SOWs or Order Forms will be deemed incorporated herein by reference.
   9. "Tekion Products" means any cloud-based products offered by Us on a subscription basis that You order under Tekion’s Master Subscription Agreement, including any associated offline and mobile components.
2. PROFESSIONAL SERVICES
   1. Scope of Professional Services and Delivery. We will provide you the Professional Services and Deliverables in accordance with the Agreement and the applicable SOWs or Order Forms, subject to Your payment of all applicable fees as set forth in the "Fees" section of this Agreement.
   2. Affiliate Participation. You authorize Your Affiliates to procure Professional Services under the terms and conditions of this Agreement by executing an SOW or Order Form. Each Affiliate that executes a SOW under this MSA shall be deemed a party to this Agreement and shall be bound by all the terms and conditions herein to the same extent as the Customer.
   3. Relationship to Tekion Products. This Agreement is limited to Professional Services and does not convey any right to use Tekion Products. Any use of Tekion Products by Customer or its Affiliates will be governed by a separate agreement. You agree that Your purchase of Professional Services is not contingent on the delivery of any future Tekion Products, functionality or features, other than Deliverables, subject to the terms of the applicable SOW or Order Form, or on any oral or written public comments by Us regarding future Tekion Products functionality or features.
   4. Protection of Confidential Information. We will maintain appropriate technical and organizational measures for the protection of the security, confidentiality and integrity of Your Confidential Information in accordance with Our Data Processing Agreement, which is available online at https://tekion.com/legal/privacy/dpa, and the Master Subscription Agreement. The terms of these agreements between Tekion and Customer are hereby incorporated by reference into this Agreement.
3. YOUR COOPERATION
   1. Cooperation. You will cooperate reasonably and in good faith with Us in Our performance of Professional Services by, without limitation:
      1. Resources. Assigning an internal project manager as Your primary point of contact for each project and allocating sufficient resources to perform Your obligations under this Agreement and each SOW or Order Form;
      2. Actions. (i) Promptly responding to Our inquiries and providing Your deliverables including accurate information, data, and feedback as necessary for the project, and ii) actively participating in scheduled meetings and performing other obligations required under each SOW or Order Form;
      3. Facilities and Equipment. To the extent necessary for the applicable project, providing at no charge to Us, office workspace and access to other facilities, and suitably configured computer equipment with Internet access.
   2. Delays. If We are unable to perform the Professional Services due to a delay by You, including Your failure to comply with Section 3.1 above, You may be responsible for additional fees.
4. CHANGE ORDERS
   1. Change Orders. Changes to a SOW or Order Form will require a written Change Order signed by the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
5. FEES, INVOICING AND TAXES
   1. Fees. You will pay Us for the Professional Services at the rates specified in the applicable SOW or Order Form, or if no rate is specified in the SOW or Order Form, Our standard rates in effect at the time the Professional Services are to be provided. Professional Services are provided on either a time-and-materials or fixed fee basis, as provided in an SOW or Order Form.
   2. Incidental Expenses. You will reimburse Us for reasonable travel and out-of-pocket expenses incurred in connection with the Professional Services. If an estimate of incidental expenses is provided in the applicable SOW or Order Form, We will not exceed such estimate without Your written consent.
   3. Invoicing and Payment. Charges for Professional Services sold on a SOW or Order Form will be invoiced monthly in arrears unless otherwise expressly stated in the applicable SOW or Order Form. Invoiced amounts will be due net 30 days from the invoice date unless otherwise stated in the applicable SOW or Order Form. You are responsible for providing Us with Your complete and accurate billing and contact information and notifying Us of any changes to such information.
   4. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future purchases of Professional Services on payment terms shorter than those specified in Section 5.
   5. Suspension of Professional Services. If any amount You owe Us under this Agreement is 30 days or more overdue, We may, without limiting Our other rights and remedies, suspend Our performance of Professional Services until such amounts are paid in full and/or terminate this Agreement in accordance with Section 11.2.
   6. No Offset. All amounts that You owe to Us under this Agreement must be paid in full without any set-off, counterclaim, deduction, or withholding.
   7. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, We will invoice You and You will pay that amount, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6. PROPRIETARY RIGHTS AND LICENSES
   1. Your Intellectual Property. You do not grant Us any rights in or to Your intellectual property except such licenses as may be required for Us to perform Our obligations hereunder and which shall be expressly set forth in an SOW or Order Form.
   2. Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information.
   3. License for Contract Property. Subject to Your payment of fees due under an applicable SOW or Order Form, We grant You a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for Your internal business purposes associated with Your use of Tekion Products, anything developed by Us for You, including Deliverables, under this Agreement ("Contract Property"). Each party retains all right, title and interest in its respective intellectual property and We retain all ownership rights in the Contract Property.
7. CONFIDENTIALITY
   1. Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes the terms and conditions of this Agreement and all SOWs or Order Forms (including pricing), as well as business and marketing plans, strategies, data, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
   2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are subject to confidentiality obligations not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any SOW or Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this "Confidentiality" section.
   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
   1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
   2. Warranty. We warrant that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Your exclusive remedy and Our entire liability will be the re-performance of the applicable Professional Services. If We are unable to re-perform the Professional Services as warranted, You will be entitled to recover the Professional Services fees paid to Tekion for the deficient Professional Services. You must make any claim under the foregoing warranty to Us in writing within 90 days of performance of such Professional Services in order to receive warranty remedies.
   3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. INDEMNIFICATION
   1. Our Indemnity. We will defend You against any claim, demand, suit or proceeding ("Claim") made or brought against You by a third party (i) arising out of death, personal injury or damage to tangible property to the extent caused by Our personnel in their performance of the Professional Services, and (ii) alleging that any information, design, specification, instruction, software, data or material furnished by Us hereunder ("Material") infringes or misappropriates such third party's intellectual property rights, and will indemnify You and will indemnify You from any damages, including actual and statutory damages, fines, and penalties, reasonable attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim provided You (x) promptly give Us written notice of the Claim , (y) give Us sole control of the defense and settlement of the Claim (except that We may not settle any Claim unless it unconditionally releases You of all liability), and (z) give Us all reasonable assistance, at Our expense. We will have no liability for any such Claim described in subsection (ii) above to the extent that (1) it arises from specifications or other Material provided by You, or (2) such claim is based on modifications to the Material by anyone other than Us. In the event that some or all of the Material is held or is reasonably believed by Us to infringe or misappropriate, We may, in Our discretion and at no cost to You, (A) modify or replace the Material so it is no longer claimed to infringe or misappropriate, (B) obtain a license for Your continued use of the Material in accordance with this Agreement, or (C) require return of the affected Material and all rights thereto from You. If We exercise option (C), either party may terminate the relevant SOW or Professional Services purchased under an Order Form upon 10 days’ written notice given within 30 days after Our exercise of such option, subject to Section 11.3 below. The above defense and indemnification obligations do not apply to the extent a Claim arises from Your breach of this Agreement or the applicable SOW or Order Form.
   2. Exclusive Remedy. This Section 9 states Our sole liability to You, and the Your exclusive remedy against Us, for any third-party claim described in this section.
10. LIMITATION OF LIABILITY
    1. Limitation of Liability. EXCEPT FOR OUR INDEMNIFICATION OBLIGATIONS IN SECTION 9, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND/OR ITS AFFILIATES HEREUNDER FOR THE STATEMENT OF WORK OR ORDER FORM OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR OR YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 5.
    2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, LOSS OR CORRUPTION OF DATA, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
    1. Term. This Agreement commences on the Effective Date and will remain in effect until all Statements of Work or Order Forms governed by this Agreement have terminated or expired in accordance with this section.
    2. Termination for Cause. A party may terminate this Agreement and/or any SOW or Order Form for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
    3. Payment Upon Termination. Upon any termination of an SOW or Order Form, You will pay, in accordance with Section 5, any unpaid fees and expenses incurred on or before the termination date (such Professional Services fees to be paid on a time-and-materials or percent-of-completion basis, as appropriate). If You terminate an SOW or Order Form under Section 11.2(i) and You have pre-paid any fees for Professional Services not yet received, We will refund such pre-paid fees. If We terminate an SOW or Order Form for cause, any pre-paid fees for Professional Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in an SOW or Order Form.
    4. Surviving Provisions. Sections 5, 6.3, 7, 8, 9, 10, 11, 12, and 13 will survive any termination or expiration of this Agreement.
12. INSURANCE

    Each party will maintain, at its own expense during the term of this Agreement, insurance appropriate to its obligations under this Agreement, including as applicable general commercial liability, errors and omissions, employer liability, automobile insurance, and worker’s compensation insurance as required by applicable law.

13. GENERAL
    1. Compliance with Laws. Each party will comply with all laws and governmental rules and regulations that apply to such party in its performance of its obligations and exercise of its rights, under this Agreement.
    2. Export Compliance. Neither party will access or use any Deliverables or Confidential Information provided to it hereunder in a United Kingdom or U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, Syria), as may be updated from time-to-time or in violation of any U.S. export law or regulation.
    3. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@tekion.com.
    4. Force Majeure. Neither party will be liable for a delay or failure to perform this Agreement, due to and to the extent such failure or delay is caused by or results from a Force Majeure Event. However, this Section does not excuse a party’s delay or failure to perform because of a change in economic conditions or an increase in that party’s costs to perform. Additionally, this Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery or business continuity procedures or either party’s payment obligations (unless that is prevented by a Force Majeure Event).
       
       The affected party must notify the other party in writing within ten (10) business days of the Force Majeure Event's occurrence, providing details of the event and its anticipated impact on performance. Affected performance deadlines (other than payment obligations) will be extended for a period equal to the time lost due to the delay.
       
       Upon cessation of the Force Majeure Event, the affected party shall promptly resume performance under this Agreement.
    5. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding the provision and receipt of Professional Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no inconsistent or additional terms contained in a purchase order, voucher, invoice or other similar document issued by either party will be incorporated into or form any part of this Agreement, and all such terms or conditions will be void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable SOW or Order Form, (2) any exhibit, schedule or addendum to this Agreement and (3) the body of this Agreement. This Agreement may be executed in counterparts and by electronic signatures.
    6. No Third-Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries under this Agreement.
    7. No Waiver. A waiver of any breach of the Agreement is not deemed a waiver of any other breach. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
    8. Severability. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
    9. Assignment. Neither party may assign any of its rights or obligations hereunder to any other party, including a corporate affiliate, parent, or subsidiary, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) except that We may assign this Agreement (together with all Order Forms) without Your consent to the surviving entity in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Our assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    10. Governing Law. This Agreement, and any disputes arising out of or related to this Agreement, its formation, interpretation or enforcement, or in any way related to Your Data or Your use of the Services, will be governed exclusively by the Laws of the province of Ontario, Canada, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
    11. Venue; Waiver of Jury Trial; Fees. The provincial and federal courts located in Ontario, Canada will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement, its formation, interpretation or enforcement, or in any way related to the Professional Services and any Deliverables. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement, its formation, interpretation or enforcement, or in any way related to the Professional Services and any Deliverables. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
    12. No Joint and Several Liability. Only We are responsible and liable for Our obligations to You under this Agreement, and nothing in this Agreement should be interpreted to create joint or joint and several liability between Us and Our Affiliates for any of Our obligations to You or Your Affiliates.
    13. Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement, except for notices of termination or an indemnifiable claim ("Legal Notices") which shall clearly be identifiable as Legal Notices and sent to Our Legal Department at legal@tekion.com, will be in writing and will be effective upon: (a) personal delivery, (b) the second business day after mailing, or (c) the day of sending by email. Legal Notices will be effective the day of sending by email as required above. Billing-related notices to You will be addressed to the relevant billing contact designated by You.
        
        Our address for notices is:
        
        Tekion Canada ULC
        1103 - 11871 Horseshoe Way, Richmond, British Columbia V7A 5H5

Tekion Production Support and Service Level Availability Policy

Our Software as a Service ("Cloud Service") is based on a multi-tenanted operating model that applies common, consistent management practices for all customers using the service. This common operating model allows Us to provide the high level of service reflected in our business agreements. This document communicates Our Production Support and Service Level Availability Policy ("SLA") with Our customers. Capitalized terms, unless otherwise defined herein, shall have the same meaning as in the Tekion Master Subscription Agreement ("Agreement").

API License and Data Sharing Agreement

THIS API LICENSE AND DATA SHARING AGREEMENT ("AGREEMENT") IS BETWEEN TEKION CORP, A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 5934 GIBRALTAR DRIVE, PLEASANTON, CA 94588 ("WE", "OUR" OR "US") AND YOU ("YOU") AND SETS FORTH THE TERMS AND CONDITIONS GOVERNING THE USE OF OUR APIS TO ALLOW YOUR APPLICATION TO INTEROPERATE WITH OUR PRODUCTS. IT IS EFFECTIVE AS OF THE DATE ACCEPTED BY YOU ("EFFECTIVE DATE").

BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT IN A LEGALLY BINDING MANNER. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND YOUR AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND YOUR AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OUR API.

NOTE: YOU MAY NOT ACCESS OUR API FOR PURPOSES OF BENCHMARKING.

1. DEFINITIONS
   1. "API" means an application programming interface and includes all accompanying or related documentation, specifications, source code, object code, software development kit, executable applications or other materials made available by Us, including any APIs through which Data may be made available to You.
   2. "Application" means software authored by You in Object Code or Source Code form that accesses or otherwise interoperates with the Products via the APIs.
   3. "Authorized Users" means an individual authorized by You to use the APIs or Data such as Your directors, officers, employees, subcontractors or agents.
   4. "CCPA" means the California Consumer Privacy Act of 2018 (Cal Civ Code Div. 3, Pt. 4, Title 1.81.5) and the California Privacy Rights Act of 2020, each as amended and any regulations promulgated under the foregoing.
   5. "Change of Control" means (i) the sale of all or substantially all of Your assets, (ii) any merger, consolidation, or acquisition of You by or into another corporation, entity, or person, or (iii) any change in Your ownership of more than fifty percent (50%) of Your voting capital stock.
   6. "Data" means the data, including Personal Information, that We make available to You through Our APIs or any other mechanisms, including but not limited to FTP file transfers.
   7. "Data Protection Laws" means all Laws, in applicable jurisdictions worldwide, that relate to (i) the confidentiality, Processing, privacy, security, protection, transfer or trans-border data flow of Personal Information, or (ii) electronic data privacy; whether such Laws are in place as of the effective date of the Agreement or come into effect during the term. Without limiting the foregoing, Data Protection Laws includes, as applicable, California Consumer Privacy Act, California Privacy Rights Act, Virginia Consumer Data Protection Act, Colorado Privacy Act, and any rules or regulations promulgated under the foregoing.
   8. "Intellectual Property Rights" means any and all of the following in any jurisdiction throughout the world: (a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing, (b) copyrights, including all applications and registrations related to the foregoing, (c) trade secrets and confidential know-how, (d) patents and patent applications, (e) websites and internet domain name registrations, and (f) any other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
   9. "Law" means (a) any applicable law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and (b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any applicable government agency or body having the force of law.
   10. "Malicious Code" means viruses, worms, time bombs, Trojan horses, ransomware, spyware, adware, scareware, and any other malicious codes, files, scripts, agents or programs intended to do harm.
   11. "Person" includes any corporation, company, limited liability company, partnership, government agency or body, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and any individual.
   12. "Personal Information" means any information relating to an identified or identifiable individual where such information is contained within Personal Information and is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.
   13. "Products" mean any of Our services or products, including but not limited to Our Automotive Retail Cloud (ARC) platform and Our Digital Retailing Platform.
   14. "Uses" means the use cases for the Data set forth in Schedule 1 of this Agreement
2. LICENSE
   1. License Grant: Subject to the terms and conditions of this Agreement, We grant You a limited, non-exclusive, non-transferable, and revocable license during the Term to: (a) access the APIs only as necessary to develop, test, and support an integration of the Application with the Products; and (b) use Data solely for the Uses stated in Schedule 1. Any access, use or distribution of the APIs or the Data other than as expressly permitted by this Section 2.1 is strictly prohibited.
   2. License Restrictions. You agree and acknowledge that the licenses granted in Section 2.1 are explicitly conditioned on Your adherence to the following restrictions and compliance with Your responsibilities as set forth herein. You must not: (a) make the APIs or Data available to, or use the APIs or Data for the benefit of, anyone other than You, (b) modify, copy or create derivative works (e.g., a superset or subset of the APIs or Data) based on the APIs or Data; (c) disassemble, reverse engineer, or decompile the APIs or Data or part thereof; (d) attempt to or actually re-identify any previously aggregated, deidentified, or anonymized data; (e) collect, store, or use Data without obtaining proper consent of the relevant Person; (f) combine Data with data gathered from other sources for any purposes unrelated to the Uses; (g) attempt to gain unauthorized access to any of Our systems, platforms or networks, (h) use or access the APIs, Products or Data in order to monitor the availability, performance, or functionality of any of the API or a Product, for any similar benchmarking purposes or for purposes of building a competitive product or service; (i) take any action that may impose an unreasonable or disproportionately large load on the Our systems, knowingly interfere with or disrupt the integrity or performance of Our systems or the data contained therein, or circumvent or attempt to circumvent any technical or other limitations imposed by Us to limit use of the Our APIs or Data; (j) perform any penetration or vulnerability testing with respect to Our systems; (k) hide or mask the identity of systems or devices accessing the APIs; (l) unless otherwise set forth in this Agreement, sell, distribute, rent, lease, sublicense, display, modify, time share, outsource or otherwise provide the APIs or Data to any third party or use it in a service bureau or outsourcing environment, (m) use the APIs or Data in violation of this Agreement; or (n) use the APIs to send or store infringing, obscene, threatening, libelous, defamatory, or otherwise unlawful or tortious material, including material that violates third-party proprietary or other rights. We reserve the right, but have no obligation, to investigate any violation of this provision or misuse of the APIs or Data. Any use of the APIs or Data by You or Your users that: (i) is in breach of this Agreement or our policies, or (ii) in Our judgment, threatens the security, integrity or availability of the APIs or Data (including but not limited to an unusual number or frequency of API requests), may result in temporary or permanent revocation of your license, with or without notice to You.
   3. Ownership: Subject to the limited licenses expressly provided in this Agreement, We and Our licensors retain all Intellectual Property Rights in and to the APIs, Data, the Products and anything developed by Us. Nothing in this Agreement transfers or assigns to Us any of Your Intellectual Property Rights in Your Applications or other technology, and nothing in this Agreement transfers or assigns to You any of Our Intellectual Property Rights in the APIs, Data, the Products or anything developed by Us.
   4. Feedback: You grant Us a royalty-free, fully paid, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, or incorporate into any of the Products any suggestions, enhancement requests, recommendations or other feedback that We receive from You.
3. ACCESS AND SECURITY
   1. Authentication. In order to use and access the APIs, You and each Authorized User must obtain API credentials from Us (a "Token"). You and each Authorized User must not share Your Token with any third party, must keep Tokens and all login information secure, and must use the Tokens as Your sole means of accessing the API.
   2. Access. You will integrate Your Applications with Us only through documented APIs built and made expressly available by Us. You will properly implement the APIs in accordance with Our policies, including without limitation, any applicable user interface guidelines. All access to our APIs and Data is provided solely for use by Your employees (and consultants who are bound by terms which are at least as protective of Intellectual Property Rights and Confidential Information as set forth in this Agreement) and only to the extent necessary to perform Your obligations under this Agreement and to develop, and test the integration or interaction between Our Products and Your Applications.
   3. Security. You will not permit any Person that is not an Authorized User to access or use the APIs or Data and shall implement and maintain security systems and procedures reasonably designed to prevent unauthorized access, use, or misuse by any person of the APIs or Data. You are responsible for all activities by Authorized Users and for Your Authorized Users' compliance with this Agreement and applicable Laws. Without limiting the generality of the foregoing, You shall: (a) inform each Authorized User of Your obligations under this Agreement with respect to access and use of the APIs and/or Data and take all necessary steps to ensure that all Authorized Users comply with such obligations; (b) ensure that Your hardware, software, devices, and any other equipment through which the APIs or Data may be accessed are secure and able to prevent any unauthorized access, use, or misuse of the APIs or Data, including, as appropriate, the pseudonymization and encryption of the Data; (c) take any other measures reasonably necessary to prevent any use or disclosure of the APIs or Data other than as allowed under this Agreement, which measures shall be at least equal to those that You use to protect Your own confidential or proprietary information of a similar kind and character, but shall in no event be less than reasonable care; and (iv) promptly notify Us, and in no case later than twenty-four (24) hours, of discovering any actual or potential breach, compromise or vulnerability in Your security procedures related to the APIs or Data.
   4. Data Privacy. The DPA attached as Schedule 2 applies to the extent that any Data that You receive from Us under this Agreement contains Personal Information.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS
   1. Mutual Representations. Each party represents that (a) it is duly organized and validly existing under the laws of the state or country of its incorporation or formation, (b) it has validly entered into this Agreement and that it has the power and authority to do so, (c) the Agreement is a valid obligation binding upon both Parties and enforceable in accordance with its terms, and (d) to the best of each party’s respective knowledge, the execution, delivery, and performance of the Agreement by each party does not materially conflict with any agreement that party has with a third party.
   2. Your Warranties. You represent, warrant and covenant that: (a) You will comply with the terms of this Agreement (including without limitation, the provisions of Section 2) and all applicable Laws, and maintain all licenses, permits, consents and other permissions necessary to use the APIs and Data; (b) Your Applications do not and will not violate, misappropriate or infringe upon the Intellectual Property Rights of any third party; (c) Your Applications do not, and will not, contain or introduce any Malicious Code into the Products, APIs, any Data or other data stored or transmitted using the APIs; (d) to the extent that You or Your Applications store, process or transmit Data, You will not, without appropriate prior user consent or except to the extent required by applicable law: (i) modify any Data in a manner that adversely affects its integrity; (ii) disclose Data to any third party; or (iii) use Data for any purpose other than the Uses.
   3. Disclaimer of Warranties. YOU ACKNOWLEDGE THAT THE APIS AND DATA, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE APIS OR DATA WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS CODE. FURTHER, WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE INTEGRITY OF DATA THAT YOU TRANSMIT, TRANSFER, STORE, OBTAIN OR RECEIVE THROUGH USE OF THE APIS. WE ARE NOT OBLIGATED TO MAINTAIN OR SUPPORT THE APIS, OR TO PROVIDE YOU WITH UPDATES, FIXES, OR SERVICES RELATED THERETO. YOU ASSUME ALL RISK ARISING FROM USE OF THE APIS AND DATA, INCLUDING, WITHOUT LIMITATION, COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS (INCLUDING DATA PROTECTION LAWS AND LAWS RELATED TO ADVERTISING, ELECTRONIC COMMUNICATIONS AND SOLICITATIONS, TELEMARKETING, "DO NOT CALL" AND "DO NOT CONTACT" COMPLIANCE, CALL RECORDING AND CONSUMER PROTECTION).
5. INDEMNITIES AND LIMITATION OF LIABILITY
   1. Your Indemnity. You will indemnify and hold Us harmless against any claim brought by a third party against Us arising from or related to any breach of an obligation, representation, warranty, covenant or other provision of this Agreement by You or any matter which You are responsible for pursuant to this Agreement.
   2. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT THIS AGREEMENT SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM; AND (B) In no event will WE have any liability to YOU or to any third party for any lost profits or revenues, or for any indirect, special, incidental, consequential, or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not YOU or the third party has been advised of the possibility of such damages.
6. TERM AND TERMINATION
   1. Term. This Agreement shall commence on the Effective Date and will remain in effect until terminated pursuant to this Section 6 (the "Term"). Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if You violate any provision of this Agreement or undergo a Change of Control. Any termination of this Agreement shall also terminate the licenses granted to You hereunder.
   2. Effect of Termination. Upon termination of this Agreement for any reason, You shall cease using, and either return to Us, or destroy and remove from all computers, systems, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Your possession, and shall certify to Us that such actions have occurred. Sections 2.3, 2.4, 4, 5, 6.2, 8, 10, and 11 will survive any termination of this Agreement.
7. AUDIT
   1. Records and Access. You shall maintain complete and accurate records relating to Your use of the APIs, the receipt and usage of Data, and any other related information as We may request from time to time. We are entitled, in Our sole discretion, to conduct (or arrange for an agent to conduct) an onsite audit or review of Your facilities and systems to monitor Your compliance with the terms of this Agreement and You will fully cooperate with Us and comply with all reasonable requests from Us pursuant to this provision. Any onsite audit or review pursuant to this Agreement shall be conducted during normal business hours.
8. CONFIDENTIALITY
   1. Confidential Information. As used herein, Confidential Information means any business or technical information that is disclosed to You in connection with this Agreement, including, but not limited to, the APIs, the Data, the Products and any information relating to Our plans, business opportunities, or research and development. Confidential Information excludes any information that: (a) is or becomes generally known to the public other than as a result of Your breach of this Agreement; (b) is rightfully known to You at the time of disclosure without restrictions on use or disclosure; (c) is independently developed by You, without access to or use of any Confidential Information; or (d) is rightfully obtained by You from a third party who has the right to disclose it and who discloses it without restrictions on use or disclosure.
   2. Duty of Confidentiality. You will maintain all Confidential Information in strict confidence and will not disclose Confidential Information to any third party except as permitted by this Agreement. You may use Confidential Information only to the extent necessary to exercise Your rights or perform Your obligations under this Agreement. You agree that to protect Confidential Information from unauthorized use, access, or disclosure in the same manner that You would use to protect Your own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
   3. Equitable Relief. You acknowledge that the unauthorized use or disclosure of the APIs or Data may cause Us to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, You agree that in addition to any other rights or remedies that We may have under this Agreement, in law or otherwise, We will have the right to seek immediate equitable relief to enjoin any unauthorized use or disclosure of the APIs or Data without the necessity of proving any actual damages sustained by Us and without the requirement of bond or security. Moreover, any such award of relief to Us shall include recovery of all actual and reasonable costs associated with enforcement of this Agreement including, without limitation, attorney’s fees.
9. GOVERNING LAW; AMENDMENTS AND ASSIGNMENTS
   1. Governing Law and Jurisdiction. This Agreement will be construed, interpreted, and applied in accordance with the internal laws of the State of California without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
   2. Venue; Waiver of Jury Trial; Fees. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
   3. Amendments. This Agreement may not be waived, altered, amended, or modified except by written instrument signed by the duly authorized representatives of both parties hereto.
   4. Assignments. You may assign this Agreement in its entirety, whether by operation of law or otherwise, with Our prior written consent. A Change of Control will be considered an assignment for the purpose of this provision. Any attempt to assign Your rights or obligations under this Agreement in breach of this section will be void and of no effect. We may assign this Agreement in its entirety whether by operation of law or otherwise without Your prior written consent. Subject to the aforesaid, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties.
10. MISCELLANEOUS
    1. No Waiver. Each party’s obligations hereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the other party, whether express, implied, in fact or in law. Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
    2. Notices. Notices shall be sent to the addresses set forth in this Agreement or such other address as either party may specify in writing.
    3. Entire Agreement and Severability. This Agreement is the complete and exclusive statement regarding the subject matter of this Agreement and supersedes all prior agreements, understandings and communications, oral or written, between the parties regarding the subject matter of this Agreement. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the balance of the Agreement shall be enforceable in accordance with its terms.
    4. Relationship of Parties; Third Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries under this Agreement.
    5. Publicity. You grant Us the right to use Your company name and logo as a reference for marketing or promotional purposes on Our website and in other public or private communications with Our existing or potential customers subject to Your standard trademark usage guidelines as provided to Us from time-to-time.