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 the Data Processing Agreement).
2. PROVISION OF SERVICES
   1. Provision of Services. 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 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 (d) 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 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, 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, 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. 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 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.

Master Subscription Agreement

THIS MASTER SERVICES 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" OR "TEKION") AND YOU ("CUSTOMER" OR "YOU") AND SETS FORTH THE TERMS AND CONDITIONS GOVERNING ORDERS PLACED UNDER THIS AGREEMENT AND 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 ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. NO TERMS THAT ARE CONFLICTING WITH, OR ADDITIONAL TO, THE TERMS SET FORTH IN THIS AGREEMENT WILL APPLY WITH RESPECT TO USE UNDER THIS AGREEMENT EVEN IF WE REQUIRE THAT THOSE TERMS BE "ACCEPTED" IN ORDER TO ACCESS OR USE THE SERVICES.

YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF BENCHMARKING OR OTHER COMPETITIVE PURPOSES.

1. DEFINITIONS
   1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
   2. "Agreement" means this Master Services Agreement, the SLA (as may be updated from time to time in accordance with this Agreement) and includes the Order Forms and User Documentation.
   3. "Beta Service" means any application, feature, function or other technology that We (i) may make available to You to try at Your option at no additional charge, (ii) have not made generally available to Our customers, and (iii) have designated as pilot, beta, limited release, developer preview, non-production, evaluation or by description of similar import.
   4. "Change Order" means any change to an Order Form for Tekion Lab Services. Change Orders will be deemed incorporated by reference in the applicable Order Form.
   5. "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.
   6. "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.
   7. "Contract Property" means anything developed by Us for You, including Deliverables, under this Agreement.
   8. "Equipment" means the hardware and other equipment (proprietary and/or third party) provided by Us to You as listed in the Order Forms.
   9. "DPA" means Our standard data protection addendum attached as "EXHIBIT VII".
   10. "Deficiency" means a failure to perform in accordance with the Specifications for a Deliverable which is reproducible.
   11. "Deliverable" means the work product or other materials provided by Us to You in connection with the Services which are listed as deliverables under the applicable Order Form.
   12. "Equipment" means the hardware and other equipment (proprietary and/or third party) provided by Us to You as listed in the Order Forms.
   13. "Exhibits" means exhibits to this Agreement.
   14. "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 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.
   15. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, provincial, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
   16. "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.
   17. "Order Form" means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or Your Affiliate and Us, including any addenda and supplements thereto.
   18. "Personal Data" means any information that We collect, receive or obtain, from or on behalf of You or any of Your Users about an identifiable individual, including, without limitation, information about individual Users, Your personnel, directors, officers, agents, suppliers, contractors, investors or customers subject to applicable Privacy Laws.
   19. "Personal Data Breaches" means any actual or reasonably suspected misuse, compromise, or unauthorized, accidental or unlawful access, disclosure, acquisition, destruction, loss, or alteration of Personal Data, including, without limitation: (i) physical trespass on a secure facility; (ii) electronic systems intrusion or hacking; (iii) loss or theft of a computing or mobile device, information storage device, or printed materials; (iv) intentional or unintentional disclosure, destruction or alteration of any Personal Data; or (v) loss, theft or compromise of any access control methodology or device that could result in the disclosure of any Personal Data (e.g., disclosure of a password or encryption key).
   20. "Planned Maintenance" means planned maintenance as set forth in SLA.
   21. "Privacy Laws" means Laws, in applicable jurisdictions worldwide, that relate to (i) the confidentiality, processing, privacy, security, protection, transfer or trans-border data flow of personal data, personal information or customer 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, Privacy Laws includes, as applicable, the Personal Information Protection and Electronic Documents Act, the British Columbia Personal Information Protection Act, the Alberta Personal Information Protection Act and the Quebec Act Respecting the Protection of Personal Information in the Private Sector, and any rules or regulations promulgated under the foregoing.
   22. "Services" means the services and products (including hardware) below provided by Us to You:
       1. the Cloud Services;
       2. the Equipment;
       3. the Tekion Lab Services;
       4. Tekion Forms; and
       5. Tekion CRM.

       "Services" exclude Content and Third Party Applications

   23. "SLA" means the Tekion Production Support and Service Level Availability Policy enclosed as EXHIBIT I, which may be updated by Us from time to time. No update shall materially diminish Our responsibilities under the SLA.
   24. "Specifications" means the technical requirements set out in the applicable Order Form or User Documentation.
   25. "Tekion CRM" means Our customer relationship management product and related technologies, including technology licensed by Us and incorporated into Our customer relationship management product and related technologies. Tekion CRM does not include Third Party Applications.
   26. "Tekion Forms" means forms and materials that are developed, owned, and licensed to You, by Us and used by motor vehicle dealers to (i) sell, lease, or finance motor vehicles and (ii) sell insurance and warranty products.
   27. "Tekion Lab Services" means the consulting services to be provided by Us as listed in an Order Form such as Tekion Cloud implementation services.
   28. "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.
   29. "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.
   30. "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.
   31. "User Documentation" means the applicable Service’s technical and functional documentation (including service level agreements and 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).
   32. "We," "Us" or "Our" means Tekion Corp. and its Affiliates as applicable.
   33. "You" or "Your" means the company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity which have signed Order Forms.
   34. "Your Data" means any data or information that is (i) submitted by or for You or Your Users in relation to the Services, excluding (i) Content, (iii) Third Party Applications; and (iv) Contract Property. For the avoidance of doubt, Your Data includes any Personal Data contained therein.
2. PROVISION OF SERVICES
   1. Provision of Services. We will make the Services and Content available to You pursuant to this Agreement, the SLA, the terms and conditions in the attached Exhibits, the applicable Order Forms and User Documentation. 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. Cloud Services are designed to be available 24/7 subject to the Exceptions set forth in the SLA.
   2. Provision of Equipment. We will provide You the Equipment listed in an Order Form and User Documentation to support Your use of the Cloud Services. You will provide any hardware, software, connectivity or licenses necessary to access and use the Cloud Services. We will not be responsible or liable for any errors or issues that arise from the malfunction or failure of any of the foregoing, unless such malfunction or failure was caused by the Services or any instructions provided to You by Us. You will ensure that Your Internet connectivity meets the minimum requirements specified by Us in the User Documentation. 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 and providing access to the Cloud Services.
   3. Beta Services. From time to time, We may make Beta Services available to You at no charge. You may choose, in Your sole discretion, whether or not to try such Beta Services. Beta Services are intended for evaluation purposes and not for production use, are not supported, and are subject to additional terms. For avoidance of doubt, Beta Services are not considered “Services” under this Agreement and will be governed by a separate agreement to be entered into between You and Us. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation.
3. USE OF CLOUD SERVICES, EQUIPMENT AND CONTENT
   1. License to Use the Service. We hereby grant You a limited, non-exclusive and non-transferable right and license to use the Services, solely for Your own business purposes, subject to the terms and conditions of this Agreement, the applicable Order Forms and User Documentation.
   2. Subscriptions. Unless otherwise provided in the applicable Order Form or User Documentation, (a) Cloud Services and access to Content are purchased as subscriptions pursuant to an Order Form, (b) subscriptions may be added during a subscription term via an Order Form at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
   3. Usage Limits. Cloud Services and Content may be subject to usage limits specified in Order Forms and User Documentation. Access credentials for the Cloud Service may not be used by more than one User, but may be transferred from one User to another if the original User is no longer using, or permitted to use, the Cloud Service. A User’s password cannot be shared with any other individual or entity. We may monitor Your use to verify compliance with usage metrics (if applicable), volume and the Agreement. If You exceed a contractual usage limit, We will work in good faith with You to try to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You must enter into an Order Form for additional quantities of the applicable Cloud Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 5.
   4. 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.
   5. 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, or copy any Content other than for the intended use 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 or Third Party Application to store or transmit infringing, libelous, offensive, unlawful or tortious material, or material in violation of Law, (g) use the Services or Third Party Application to store or transmit Malicious Code, (h) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (i) attempt to gain unauthorized access to any Service or Content or its related systems, platforms or networks, (j) access the Services for purposes of building a competitive product or service; (k) release any results of performance tests related to Services to any third party in violation of Section 8 (Confidential Information); (l) modify, delete or remove any ownership, title, trademark, patent or copyright notices from the Services; (m) use any components of the Services separately from the Services; (n) 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, (o) use the Services in violation of this Agreement, the Order Form, or User Documentation, or (p) modify, copy, sublicense, misuse, obscure any trademark, proprietary or similar notices on, or permit the unauthorized use of, any Third Party Forms without prior written consent of the third party that licensed or owns the Third Party Forms. We reserve the right, but have no obligation, to investigate any violation of this provision or misuse of the Services. Any use of the Services or Content by You or a User that: (a) is in breach of this Agreement, User Documentation, Order Forms or our policies, or (b) in Our judgment, threatens the security, integrity or availability of the Services, may result in immediate suspension of the Services; provided that We will provide You with notice and an opportunity to remedy such violation or threat prior to such suspension, and will limit the suspension in time and scope as reasonably possible under the circumstances. We may monitor and access Your account in order to respond to Your requests for technical support, to ensure proper functioning of the Services, and to improve the Services.
   6. Conversions. We will use reasonable efforts to convert data system files of all Your stores (existing and future) converting to Us from competitive systems and such conversion efforts will be covered by our implementation fees agreed in the relevant Order Forms. You will extend all reasonable cooperation to Us in such conversion by providing Us with the back-up tapes, output records, reports and other necessary information and documentation required to perform the above-mentioned conversion. We will use reasonable efforts to complete the data conversion as soon as reasonably practicable (to the extent within our control) and will use reasonable efforts to keep system down time to a minimum during the conversion process.
4. THIRD PARTY PROVIDERS
   1. Third-Party Products and Services. We or third parties may make available third-party products or services, including, for example, Third Party Applications and implementation, other consulting services, and Your use of Third Party Forms. Your use of such third-party products is at Your discretion and at Your own risk and is not required for use of the Services. Any acquisition by You of such products or services, and any exchange of data between You and any third-party provider, product or service is solely between You and the applicable third-party provider. WE DO NOT WARRANT OR SUPPORT THIRD PARTY APPLICATIONS, THIRD PARTY FORMS, OR OTHER THIRD-PARTY PRODUCTS OR SERVICES, WHETHER OR NOT THEY ARE DESIGNATED BY US AS “CERTIFIED”, UNLESS EXPRESSLY PROVIDED OTHERWISE.
   2. Integration with Third Party Applications. The Services may contain features designed to interoperate with Third Party Applications and Third Party Forms. To use such features, You may be required to obtain access to such Third Party Applications and Third Party Forms from their providers. These Third Party Applications and Third Party Forms 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 or Third Party Form ceases to make the Third Party Application or Third Party Form available for interoperation with the corresponding Service features in a manner acceptable to Us.
   3. 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.
   4. 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.
   5. Removal of Content and Third Party Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable Law or third-party rights, We may so notify You and in such event, You will promptly remove such Content from Your systems. If We receive information that a Third Party Application hosted on a Service or a Third Party Form may violate applicable Law or third-party rights, We may so notify You and in such event, You will promptly either (i) disable such Third Party Application or Third Party Form or (ii) modify the Third Party Application or Third Party Form to resolve the potential violation. If You do not take the required action as aforesaid, We may disable the applicable Content, Service and/or Third Party Application until the potential violation is resolved.
   6. 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 or expressly agreed by Us in writing, (a) fees for Cloud Services are based on Cloud Services and Content subscriptions purchased and not actual usage, and (b) quantities purchased cannot be decreased during the relevant subscription term.
   2. Tekion Lab Fees and Incidental Expenses. You will pay Us for the Tekion Lab Services at the rates specified in the applicable Order Form. Tekion Lab Services may be charged on a one-time, recurring, time-and-materials or fixed fee basis as provided in an Order Form. We will periodically update You on the status of the Tekion Lab Services and the fees accrued under Order Forms. You will reimburse Us for reasonable travel and out-of-pocket expenses incurred in connection with Tekion Lab Services. If an estimate of incidental expenses is provided in the applicable Order Form, We will not exceed such estimate without Your written consent.
   3. 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 except for charges for Tekion Lab Services billed on a time-and- materials basis, which will be invoiced monthly in arrears unless otherwise expressly 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.
   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 renewals and Order Forms on payment terms shorter than those specified in Section 5.3. 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.
   5. 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.
   6. Payment Disputes. We will not exercise Our rights under Section 5.4 or Section 5.5 if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
   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 5.7, 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.
   8. 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, make derivative works of, perform, export and display Your Data, and any Third Party Products created by or for You, only as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by Law; and (d) as expressly permitted in writing by You.
   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 pursuant to the terms of this Agreement. We represent and warrant that We have secured all rights in and to Content and all consents as may be necessary to share such Content with You through the Services.
   4. Compliance with Privacy Laws. Each of the parties will comply with applicable Privacy Laws, including as provided in the Data Processing Addendum attached as EXHIBIT VII.
   5. License for Contract Property. We exclusively own all right, title and interest in and to the Contract Property. Upon Your payment of fees due under an applicable Order Form, We grant You a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) Contract Property solely for Your internal business purposes associated with Your use of Our Services. We retain all ownership rights in the Contract Property and no right, title or interest in or to the Contract Property, or any related intellectual property, are licensed or transferred to You except those licenses expressly granted to You herein.
   6. Feedback. You may from time to time provide suggestions, comments, or other feedback to Us with respect to the Services, such as feature requests or bug fixes. 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 relating to the operation of Our services.
7. DATA PROTECTION
   1. Protection of Your Data. We will implement administrative, operational, physical, organizational and technical safeguards that meet or exceed accepted industry standards and are designed to preserve and protect the security, integrity and confidentiality of Your Data and protect Your Data against Personal Data Breaches as described in Annex 2 to the DPA attached as EXHIBIT VII. Other than as provided for in this Section 7.1, You acknowledge that You are responsible for properly configuring and using the Service and otherwise taking appropriate action to secure, protect and backup Your accounts and Your Data in a manner that will provide appropriate security and protection, which might include use of encryption to protect Your Data from unauthorized access and routinely archiving Your Data. Notwithstanding anything to the contrary, We may modify and/or update Our security measures at Our discretion provided that such modification or update does not result in a material degradation of the overall security of Our Services.
   2. Data Protection Addendum. The terms of our DPA attached as EXHIBIT VII are incorporated by reference and apply to the extent any of Your Data contains Personal Data, the processing of which is subject to applicable Privacy Laws.
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 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. 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 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.
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, (c) the Services will perform materially in accordance with the applicable User Documentation, (d) We have the necessary rights to use any open source software embedded into the Services, and Your use of open source software as part of the Services will not result in an obligation to disclose, license or otherwise make available any part of Your Confidential Information to any third party, and (e) We will not introduce any Malicious Code into the Services. We also make the warranties specifically provided in EXHIBIT III to EXHIBIT VI with respect to the Tekion Lab Services and any Equipment purchased from Us.
   3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1 AND SECTION 9.2 AND SUBJECT TO THE PROVISIONS OF SECTION 7 (DATA PROTECTION), 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. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1 AND SECTION 9.2 AND SUBJECT TO THE PROVISIONS OF SECTION 7 (DATA PROTECTION), 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.
   5. Exclusive Remedies. FOR ANY BREACH OF THE SERVICES WARRANTY IN SECTIONS 9.2(A) AND (C), AND EXHIBIT IV SECTION 1.6(A), 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. FOR BREACH OF THE WARRANTY RELATING TO EQUIPMENT IN EXHIBIT III SECTION 1.4(B), YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY SHALL BE TO REPAIR OR REPLACE, AT OUR OPTION, THE DEFECTIVE EQUIPMENT.
   6. Legal Compliance. YOU UNDERSTAND THAT YOUR USE OF THE SERVICE AND COMPLIANCE WITH ANY TERMS HEREUNDER DOES NOT CONSTITUTE COMPLIANCE WITH ANY LAW. YOU UNDERSTAND THAT YOU HAVE AN INDEPENDENT DUTY TO COMPLY WITH ANY AND ALL LAWS APPLICABLE TO YOU.
   7. 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: (a) alleging that any Service infringes or misappropriates such third party’s intellectual property rights, (b) arising out of death, personal injury to the extent caused by Our personnel, subcontractors or authorized agents in their performance of the Services, (c) damage to tangible property to the extent caused by the gross negligence or willful misconduct of Our personnel, subcontractors or authorized agents in their performance of the Services, (d) arising from unauthorized disclosure of Your Data (including Personal Data) that results from a breach of Our obligations under Section 7 (Data Protection) or (e) arising from Our violation of applicable Laws (together referred to as a "Claim Against You"), and will indemnify You from any damages, 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, without breaching Our warranties under"Warranties, Exclusive Remedies and Disclaimers" above, (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 any breach or violation by You or Users of this Agreement, the User Documentation or applicable Order Forms or any reckless misconduct, negligence, willful misconduct, illegal act or fraud on the part of You or Your personnel (whether acting alone or in collusion with others), or (II) if You use the Service in conjunction with any product or service not provided by Us, or (III) if You use a version of the Service which has been superseded if the infringement claim could have been avoided by using an unaltered current version of the Service which was made available to You with at least sixty (60) days advance written notice.
    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) alleging that any of Your Data infringes or misappropriates such third party’s rights, or (b) arising from Your use of the Services or Content in violation of the Agreement, the User Documentation, Order Form or applicable Law, and (c) a breach of the representations contained in Section 6.4, (each a "Claim Against Us"), and You will indemnify Us from any damages, 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 LAW, IN NO EVENT SHALL OUR (OR OUR AFFILIATES’ OR THIRD PARTY LICENSORS’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID OR PAYABLE 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) (THE "GENERAL CAP").
    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 LAW.
    3. Exceptions. SECTION 11.1 WILL NOT APPLY TO OR IN ANY WAY LIMIT: (i) OUR INDEMNIFICATION OBLIGATIONS IN SECTION 10, (ii) RECKLESS MISCONDUCT, GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND/OR FRAUD, (iii) OUR REMEDIATION OBLIGATIONS IN EXHIBIT VII SECTION 3.5 OR (iv) YOUR PAYMENT OBLIGATIONS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL OUR (OR OUR AFFILIATES' OR THIRD PARTY LICENSORS') AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO (i) OUR INDEMNIFICATION OBLIGATION IN SECTION 10 AND (ii) OUR REMEDIATION OBLIGATIONS IN EXHIBIT VII SECTION 3.5, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE LESSER OF: (A) TWO (2) TIMES THE GENERAL CAP; AND (B) CAD 75,000.
12. TERM AND TERMINATION
    1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Services hereunder 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 Customer shall automatically renew for an additional period corresponding to the renewed Cloud Service subscription term.
    3. Termination. A party may terminate this Agreement for cause: (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 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 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 is 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) the applicable Order Form and (3) the User Documentation.
    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, (c) the day of sending by email, or (d) in case of notices through the Services, the same day. 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. All other notices to You will be addressed to the relevant Services system administrator designated by You.
    3. Modifications. We may from time to time change (a) the Services, (b) the terms of Your access to the Services, or (c) the User Documentation; or (c) any portion of this Agreement; provided, however, no such change shall materially degrade the Services or materially alter Your rights and responsibilities or our rights and responsibilities under the Agreement except to the extent agreed to by You. We will post notice of updates on the Tekion Cloud portal pursuant to our standard policies. If we make a material change pursuant to the above, we will provide You with reasonable notice prior to the change taking effect, either by emailing the email address associated with Your account or by messaging You through the Services. Any material modification permitted under this Agreement will become effective as of the date specified in our notice, and all other changes will become effective upon posting of the change. It is Your responsibility to check the Tekion Cloud portal regularly for updates. 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 for the unexpired term of Your subscription and until the effective date of the withdrawal and work with You during that time to migrate you to another Tekion Cloud offering.
    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 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. Except for assignment by Us to Our Affiliates, 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). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (together with all Order Forms) and Your Data without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, You are acquired by, sell substantially all of Your assets to, or undergo a change of control in favor of, a competitor of Ours, then We may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. 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.
    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.
    16. Acknowledgement of Terms. You acknowledge that you have read this Agreement, You understand the terms of this Agreement, You have had the opportunity to consult, and have consulted, with independent legal counsel in connection with this Agreement, have not relied on any statements by third parties, including without limitation any original equipment manufacturer through whom You hold Your retail franchise, and You have signed this Agreement voluntarily.

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.