SAAS SUBSCRIPTION AGREEMENT
Last Updated: May 4, 2023.
This SaaS Subscription Agreement (the ” Agreement “) governs Customer’s acquisition and use of Services offered by Memory Anchor Inc. (“ Memory Anchor ”).
By accepting this Agreement by: (a) clicking a box indicating acceptance; (b) executing an Order Form that references this Agreement; or (c) using the Services on a free trial basis, Customer agrees to the terms of this Agreement.
If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such
individual represents that they have the authority to bind such entity and its Affiliates to this Agreement, and the term “Customer” shall refer to such entity and its Affiliates. If the individual accepting this Agreement does not have such authority or does not agree with the terms and conditions of this Agreement, such individual must not accept this Agreement and may not use the Services.
If Customer is provided with access to the Services on a free trial basis, the section of this Agreement entitled “Free Trial Services” will govern such access.
The Services may not be accessed for the purposes of monitoring their availability, performance or
functionality, or for any other benchmarking or competitive purposes. Memory Anchor’s competitors are prohibited from accessing the Services, except with Memory Anchor’s prior written consent. This Agreement is effective as of the date Customer accepts this Agreement.
In this Agreement, unless a clear contrary intention appears:
- “Agreement” means this agreement including any recitals to this agreement, as amended, supplemented or restated from time to time.
- ” Affiliate ” means an entity that controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership of control of more than 50% of the voting interests of the subject entity.
- “Authorized User” means an End User that is authorized by Customer to use the Services, for which Customer pays the applicable monthly per-user Fee.
- “Confidential Information” means any information of a Party (in each case, the “Disclosing Party“) and includes, without limitation, any financial, business, marketing, technical and scientific information, trade secrets, processes, designs and design concepts, drawings, data, formulae, plans, prototypes, specifications, know-how, improvements, inventions (whether patentable or not), tools, technology, business opportunities and other information whether or not related to or arising from the activities contemplated in this Agreement and whether disclosed to the other Party (in each case, the “Receiving Party“) verbally or otherwise. Notwithstanding the forgoing, Confidential Information does not include any information that: (i) is in the public domain without such disclosure being a result, directly or indirectly, of a breach of this Agreement; (ii) was previously known to Receiving Party; (iii) is developed by Receiving Party without reference to Disclosing Party’s Confidential Information; or (iv) was received by Receiving Party from a source (other than Disclosing Party) and such information was not subject to obligations of confidence.
- ” Customer ” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (while they remain Affiliates) which have entered into Order Forms.
- “ Customer Data ” means electronic data and information submitted by or for Customer to the Services, in electronic form input or collected through the Services, or otherwise submitted to Provider, by or from Customer, including by End Users.
- “ Customer Marks ” means Customer’s trademarks, tradenames, service marks, and logos.
- “ Documentation ” means all specifications, user manuals, and other materials relating to the Services and provided or made available by Memory Anchor to Customer, as may be modified by Memory Anchor from time to time.
- “ Free Trial Services ” means Services that Memory Anchor makes available to Customer on a free trial basis, including as part of an evaluation or proof of concept. Free Trial Services exclude Purchased Services.
- “ Order Form ” means each written order or online order specifying the Services to be provided under this Agreement and applicable Fees, that is entered into between Customer and Memory Anchor. By entering into an Order Form, a Customer Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
- “Parties” means Provider and Customer, and “Party” means either one of them, as the context requires.
- “ Purchased Services ” means Services that Customer or Customer’s Affiliate purchases under an Order Form, as distinguished from Free Trial Services.
- ” Services ” means the products and services that are ordered by Customer under an Order Form or provided to Customer under a free trial and made available online by Memory Anchor on a subscription basis, including any associated offline components.
- “Term” has the meaning given to it in Section 5
- “ User ” means, in the case of an individual accepting this Agreement on their own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who Customer authorizes to use the Services pursuant to Customer’s rights under this Agreement, for whom Customer has purchased a subscription (or, for Free Trial Services, for whom Services have been provisioned by Memory Anchor), and to whom Customer (or, when applicable, Memory Anchor at Customer’s request) has supplied a user name and password. Users may include, for example, employees, consultants, contractors and agents of Customer.
- In this Agreement, unless a clear contrary intention appears:
- (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (v) words denoting any gender include all genders;
- references to: (i) sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (ii) an agreement (including this Agreement), instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time; and (iii) a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder;
- the exhibits, schedules, attachments and appendices referred to in this Agreement are an integral part of this Agreement to the same extent as if they were set forth verbatim in this Agreement; and
- references in this Agreement to dollars, or to $ are expressed in Canadian currency, unless otherwise specifically indicated.
- Memory Anchor Responsibilities
- Purchased Services . Memory Anchor will: (a) make the Purchased Services available to Customer under the terms of this Agreement, applicable Order Form(s) and the Documentation; (b) provide support for the Purchased Services in accordance with Memory Anchor’s then-current standard support policy; and (c) comply with laws and government regulations applicable to Memory Anchor’s provision of the Purchased Services to its customers, subject to Customer’s and Users’ use of the Purchased Services in accordance with this Agreement, applicable Order Form(s) and the Documentation.
- Security and Protection of Customer Data . During the term of this Agreement, Memory Anchor will implement and maintain appropriate administrative, physical, and technical security measures designed to protect the security, confidentiality, and integrity of, and prevent the unauthorized disclosure of, Customer Data.
- Implementation Services . Where the parties have agreed to Memory Anchor’s provision of certain implementation services (“ Implementation Services ”), the details of such Implementation Services will be set out in an Order Form or a mutually executed statement of work ( “SOW” ). The Order Form or SOW, as applicable, will include: (a) a description of the Implementation Services; (b) the schedule for the performance of the Implementation Services; and (c) the Fees applicable for the performance of the Implementation Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement.
- Free Trial Services . If Customer is approved by Memory Anchor for Free Trial Services, Memory Anchor will make the applicable Free Trial Services available to Customer free of charge until the earlier of: (a) the end of the free trial period communicated by Memory Anchor to Customer; or (b) the start date of any Purchased Services subscriptions ordered by Customer for such Service(s); or (c) termination by Memory Anchor in its sole discretion.
ANY CUSTOMER DATA CUSTOMER ENTERS INTO THE FREE TRIAL SERVICES WILL BE PERMANENTLY
LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED
BY THE FREE TRIAL SERVICES OR EXPORTS SUCH CUSTOMER DATA BEFORE THE END OF THE TRIAL
PERIOD. NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES AND DISCLAIMERS” SECTION AND
“INDEMNIFICATION BY MEMORY ANCHOR” SECTIONS BELOW, FREE TRIAL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND MEMORY ANCHOR SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE TRIAL SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE MEMORY ANCHOR’S LIABILITY WITH RESPECT TO THE FREE TRIAL SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, MEMORY ANCHOR AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE TRIAL SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (B) CUSTOMER’S USE OF THE FREE TRIAL SERVICES WILL BE
UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (C) USAGE DATA RELATED TO FREE
TRIAL SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE
“LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS
AGREEMENT TO MEMORY ANCHOR AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE TRIAL SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
- Use of Services
3.1. User Access . Each User will use a unique username and password to access the Services. Users may
only access the Services during one (1) concurrent login session. The unique usernames and
passwords cannot be shared or used by more than one individual User to access the Services.
Customer agrees to provide to Memory Anchor information and other assistance as necessary to enable Memory Anchor to establish Users’ access to the Services and will verify all User requests for access to the Services. Customer is solely responsible for all activities that occur under User accounts.
3.2. Customer Responsibilities . Customer will: (a) use the Services only in accordance with this
Agreement, Order Forms, Documentation and applicable laws and government regulations; (b) be
responsible for Users’ compliance with this Agreement, Order Forms and Documentation; (c) be
responsible for the accuracy, quality and legality of Customer Data, including the means by which
Customer acquired Customer Data, and Customer’s use of Customer Data with the Services; and (d)
use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and
notify Memory Anchor promptly of any such unauthorized access or use. Any use of the Services in breach of the foregoing by Customer or Users that in Memory Anchor’s judgment threatens the security, integrity or availability of Memory Anchor’s services, may result in Memory Anchor’s immediate suspension of the Services, however Memory Anchor will use commercially reasonable efforts to provide notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.3. Use Restrictions . Customer will not, and will ensure its Users will not: (a) make the Services available to anyone other than Customer or its Users, or use the Services for the benefit of anyone other than Customer or its Affiliates, except as expressly allowed in an Order Form; (b) modify, adapt, alter or
translate the Services; (c) sublicense, lease, sell, resell, rent, loan, or distribute the Services, or any
part thereof, or include the Services in a service bureau or outsourcing offering; (d) reverse engineer,
decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the
source code (or the underlying ideas, algorithms, structure or organization) of the Services or any
part thereof, except as permitted by law; (e) interfere in any manner with the operation of the the
Services or the hardware and network used to operate the same, or attempt to probe, scan or test
vulnerability of the Services without prior authorization of Memory Anchor; (f) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (g) modify, copy, disclose (except as expressly authorized in this Agreement) or make derivative works based on any part of the Services;
(h) access or use the Services, or any feature, information or functionality thereof, to build a similar
or competitive product or service or otherwise engage in competitive analysis or benchmarking; (i)
attempt to access the Services through any unapproved interface; (j) use the Services in connection
with any of Customer’s time-critical or mission-critical functions; (k) remove, alter, or obscure any
proprietary notices (including copyright and trademark notices) of Memory Anchor or its licensors on the Services or any copies thereof; (l) upload to the Services any Customer Data that contains any
sensitive personal information (such as financial, medical or other sensitive personal information
such as government IDs, passport numbers, protected health information, credit card data, or social security numbers); or (m) otherwise use the Services in any manner that exceeds the scope of use
permitted under applicable Order Forms.
3.4. Third-Party Integrations . The Services may integrate with certain third-party websites and
applications (“ Third-Party Services ”). Third-Party Services shall be governed solely by the terms and
conditions applicable to such Third-Party Services, as agreed to between Customer and the
Third-Party Services providers. Memory Anchor does not endorse or support and is not responsible for
Third-Party Services, including without limitation, the privacy and data security policies and practices
related to Third-Party Services. Customer may enable integrations between the Services and
Third-Party Services, and by doing so: (a) instructs Memory Anchor to share Customer Data (including, to the extent necessary, any Personal Data) with the providers of such Third-Party Services in order to
facilitate the integration; and (b) grants Memory Anchor permission to allow Third-Party Services and its
providers to access Customer Data and information about Customer’s usage of the Third-Party
Services as appropriate for the interoperation of Third-Party Services with the Services.
Customer is responsible for providing all instructions to the Third-Party Services providers about the
use and protection of Customer Data. Memory Anchor and Third-Party Services providers are not processors or sub-processors of Personal Data with respect to each other.
- Fees and Payments
4.1. Fees . Customer will pay to Memory Anchor all fees set forth in Order Forms (the “ Fees ”). Except as otherwise set forth in this Agreement or an Order Form, payment obligations are non-cancelable, and Fees paid are non-refundable. Except as otherwise set forth in an Order Form, Memory Anchor may increase the Fees upon renewal of each Order Form subscription term by providing written notice to Customer at least thirty (30) days prior to the commencement of the applicable renewal subscription term. Upon the expiration of the Initial Term or any subsequent renewal term (a “Renewal Term“) for any Services, Customer may terminate the Services, upon 30 days’ Notice to Provider prior to the end of the Initial Term or Renewal Term, as applicable. If Customer does not provide Provider with Notice regarding its intention to terminate the Services at least 30 days prior to the end of the Initial Term or Renewal Term, the applicable Service(s) will automatically renew for a Renewal Term.
4.2. Invoices and Payments . Except as otherwise set forth in the relevant Order Form, Memory Anchor will invoice Customer, or, where Customer has provided valid credit card information to Memory Anchor, Memory Anchor will charge Customer, for all Fees annually in advance. Unless otherwise stated in the Order Form, full payment for invoiced Fees is due within 30 days after the invoice date.
4.3. Late Payments . Customer will be responsible for reasonable costs and expenses incurred by Memory Anchor in the collection of any overdue Fees. If any Fees are 15 days or more overdue, Memory Anchor may, without limiting its other rights and remedies, immediately suspend Services until such amounts are paid in full, provided that Memory Anchor will use commercially reasonable efforts to give Customer at least 5 days’ prior written notice that its account is overdue before suspending Services.
4.4. Payment Disputes . Memory Anchor will not exercise its rights under the “Late Payments” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating
diligently to resolve the dispute.
4.5. Taxes . The Fees do not include taxes, duties, levies or similar government assessments of any kind,
including value-added, sales, use or withholding taxes assessable by any jurisdiction (collectively,
“ Taxes ”). Customer is responsible for paying all Taxes associated with its purchases hereunder.
Customer will not withhold any taxes from any amounts due to Memory Anchor. If Memory Anchor has a legal obligation to pay or collect any Taxes for which Customer is responsible, Memory Anchor will invoice Customer and Customer will pay that amount unless Customer provides Memory Anchor with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Memory Anchor is solely responsible for taxes assessable against it based on its income, property and employees.
- Term and Termination
5.1. Term. This Agreement will begin on the effective date of the first Order Form between the Parties
and will continue for as long as any Order Form remains in effect, unless earlier terminated in
accordance with this Agreement (the “ Term ”).
5.2. Term of Order Forms. The initial term of each Order Form will begin on effective date of such Order
Form and continue for the subscription term set forth therein. Except as set forth in such Order
Form, each Order Form will automatically renew for successive renewal terms equal in length to the initial term of such Order Form, unless either party provides the other party with written notice of
non-renewal at least thirty (30) days prior to the end of the then-current subscription term.
5.3. Termination for Cause . Either party may terminate this Agreement immediately upon notice to the
other party if: (a) the other party materially breaches this Agreement, and such breach remains
uncured more than thirty (30) days after receipt of written notice of such breach; or (b) the other
party: (i) becomes insolvent; (ii) files a petition in bankruptcy that is not dismissed within sixty (60)
days of commencement; or (c) makes an assignment for the benefit of its creditors.
5.4. Effect of Termination . Upon the earlier of expiration or termination of this Agreement, the rights and licenses granted to Customer hereunder will immediately terminate, Customer will cease use of the
Services and Documentation, and Customer will return or destroy all copies of the Documentation in
its possession or control. Termination or expiration will not relieve Customer of its obligation to pay
all Fees that accrued prior to such expiration or termination.
5.5. Return of Customer Data. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Memory Anchor will make Customer Data available to Customer. After such 30-day period, Memory Anchor will have no obligation to maintain any Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its
possession or control, unless legally prohibited.
5.6. Survival . Any provision of this Agreement that, expressly or by its nature, extends beyond the termination of this Agreement will survive any termination of this Agreement. The sections titled “Services Fees and Payments,” “Effect of Termination,” “Survival,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” and “Miscellaneous” will survive and termination or expiration of this Agreement, and the section titled “Security and Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Memory Anchor retains possession of Customer Data.
- Proprietary Rights and Licenses
6.1. The Services . Memory Anchor, its Affiliates and licensors reserve all right, title and interest in and to the Services and Documentation, including all of their related intellectual property rights, and any and all related and underlying technology and documentation, and any derivative works, modifications, or
improvements of any of the foregoing. No rights are granted to Customer hereunder other than as
expressly set forth herein. Customer recognizes that the Services and their components are protected by copyright and other laws.
6.2. Customer Data . The Customer Data are owned exclusively by Customer. Customer grants to Memory Anchor, its Affiliates and applicable contractors a non-exclusive, worldwide, perpetual, irrevocable royalty-free license to host, copy, use, transform, display and transmit Customer Data as appropriate for Memory Anchor to provide and ensure proper operation of the Services to Customer.
6.3. Feedback . Customer hereby grants Memory Anchor a perpetual, irrevocable, royalty-free and fully paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer related to the Services or other Memory Anchor products or services, including for the purpose of improving and enhancing the Services, provided that Customer is not referenced in such use.
6.4. Aggregated Data and Information . Memory Anchor may aggregate, collect and analyze information relating to the provision, use and performance of the Services and related system and technology (including information concerning Customer Data and data derived therefrom and used in machine learning models and artificial intelligence training) and may use (during and after the Term) such
information to develop and improve the Services and other Memory Anchor offerings, including disclosure of such information to third parties in an aggregated and anonymized format such that no applicable data protection or data privacy regulations or laws.
6.5. Customer Marks . The Customer Marks are the exclusive property of Customer. Memory Anchor may use Customer’s name and Customer Marks in its Customer list (including on Memory Anchor’s website, social media and in sales and marketing materials) in the same way it uses the names of its other customers. Memory Anchor shall use Customer Marks in accordance with Customer’s applicable branding guidelines if provided to Memory Anchor and Memory Anchor may not use Customer’s name or Customer Marks in any other way without Customer’s prior written consent (with email consent deemed sufficient).
7.1. Definition of Confidential Information . “Confidential Information” shall mean any information
disclosed by either party (the “ Disclosing Party ”) to the other party (the “ Receiving Party ”), either
directly or indirectly in writing, orally, or by inspection of tangible objects (a) that the disclosing party
identifies as confidential or proprietary; or (b) that reasonably appears to be confidential or
proprietary because of legends or other markings, the circumstances of disclosure, or the nature of
the information itself. Confidential Information of Customer includes Customer Data; Confidential
Information of Memory Anchor includes the Services, all technical information relating thereto, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information
does not include information that the Receiving Party can document: (i) is or becomes generally
available to the public other than through a wrongful act of the Receiving Party; or (ii) was lawfully in
its possession or known by it prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed
to it without restriction by a third party who is not bound by any confidentiality obligations with
respect thereto; or (iv) is independently developed by the Receiving Party, its employees or
third-party contractors without use of or reference to the Confidential Information. For clarity, the
non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential
Information exchanged between the parties in connection with the evaluation of additional
Memory Anchor services and offerings.
7.2. Protection of Confidential Information . All Confidential Information disclosed by Disclosing Party
shall remain the property of the Disclosing Party. The Disclosing Party reserves all rights in its
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: (a) not use any Confidential Information of the Disclosing Party for any
purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the
Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to
those of its and its Affiliates’ employees and contractors who need that access for purposes
consistent with this Agreement and who 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, Memory Anchor may disclose the terms of this Agreement and any applicable Order Form to
a contractor to the extent necessary to perform Memory Anchor’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3. Compelled Disclosure . Either party may disclose Confidential Information to the extent required by
law, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such
required disclosure and cooperates with the Disclosing Party so that the Disclosing Party may obtain
appropriate confidential treatment for such Confidential Information.
- Representations, Warranties and Disclaimers
8.1. Representations . Each party represents that it has validly entered into this Agreement and has the
legal power to do so.
8.2. Memory Anchor Warranties . Memory Anchor warrants that during the applicable subscription term Memory Anchor will not: (a) materially decrease the overall functionality of the Services; or (b) materially decrease the overall security of the Services.
8.3. Warranty Remedies . Customer will notify Memory Anchor of any non-conformance of the Services under a warranty above within 30 days. Provided that Customer notifies Memory Anchor within such time, Memory Anchor will use commercially reasonable efforts to correct the non-conformance at no additional charge. If Memory Anchor is unable to correct such non-conforming Services as warranted within a reasonable time, Customer will be entitled to terminate the applicable Order Form and receive a prorated refund of any prepaid, unused Fees covering the remainder of the subscription term. The foregoing remedy is Customer’s sole remedy in case of a breach of the limited warranties above.
8.4. Disclaimers .
(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND REPORTS ARE PROVIDED “AS IS,”
NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, MEMORY ANCHOR DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION, THAT THE REPORTS WILL BE ACCURATE AND MEMORY ANCHOR GRANTS NO WARRANTY REGARDING THE USE BY CUSTOMER OF THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MEMORY ANCHOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS .
(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT MEMORY ANCHOR IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD MEMORY ANCHOR LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER.
(c) FROM TIME TO TIME, MEMORY ANCHOR MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH CUSTOMER MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT MEMORY ANCHOR’S SOLE DISCRETION.
9.1. Indemnification by Memory Anchor . Memory Anchor will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Purchased Services infringe or misappropriate such third party’s intellectual property rights in Canada (each, a “ Claim Against Customer ”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Memory Anchor in writing of, a Claim Against Customer, provided Customer: (a) promptly gives Memory Anchor written notice of the Claim Against Customer; (b) gives Memory Anchor sole control of the defense and settlement of the Claim Against Customer; and (c) gives Memory Anchor all reasonable assistance, at Memory Anchor’s expense. If Memory Anchor receives information about an infringement or misappropriation claim related to the Services, Memory Anchor may in its discretion and at no cost to Customer: (i) modify the Services so that they are no longer claimed to infringe or misappropriate; (ii) obtain a license for Customer’s continued use of the Services in accordance with this Agreement; or (iii) terminate Customer’s subscriptions for the Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the subscription term of the terminated Services. The above defense and indemnification obligations do not apply if a Claim Against Customer arises from: (I) the use or combination of the Services or any part thereof with software, hardware, data,
or processes not provided by Memory Anchor, if the Services or use thereof would not infringe without
such combination; (II) modifications to the Services not made by Memory Anchor; or (III) Customer’s breach of this Agreement, applicable Order Forms or the Documentation.
9.2. Indemnification by Customer . Customer will defend Memory Anchor and its Affiliates against any claim, demand, suit or proceeding made or brought against Memory Anchor by a third party arising from: (a) Customer’s use of the Services in an unlawful manner or in violation of this Agreement, an
Order Form or the Documentation; or (b) any Customer Data or Customer’s use of Customer Data with the Services (each, a “ Claim Against Memory Anchor ”), and will indemnify Memory Anchor from any
damages, attorney fees and costs finally awarded against Memory Anchor as a result of, or for any
amounts paid by Memory Anchor under a settlement approved by Customer in writing of, a Claim
Against Memory Anchor, provided Memory Anchor: (i) promptly gives Customer written notice of the Claim Against Memory Anchor; (ii) gives Customer sole control of the defense and settlement of the Claim Against Memory Anchor; and (iii) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Memory Anchor arises from Memory Anchor’s breach of this Agreement, applicable Order Forms or the Documentation.
9.3. Sole and Exclusive Remedy . This Section 9 sets forth the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for the third-party claims described
- Limitation of Liability
10.1. Exclusion of Certain Types of Damages . In no event will either party be liable to the other party for any consequential, indirect, special, incidental, or punitive damages arising out of or related to this Agreement.
10.2. Liability Cap . EXCEPT FOR AMOUNTS PAYABLE UNDER A PARTY’S INDEMNIFICATION OBLIGATIONS
UNDER SECTION 9 OR CUSTOMER’S BREACH OF SECTION 3.3, IN NO EVENT SHALL THE AGGREGATE
TOTAL LIABILITY OF EITHER PARTY TOGETHER WITH ITS AFFILIATES ARISING OUT OF OR RELATED TO
THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY OR DUE FROM BUT NOT YET PAID BY
CUSTOMER UNDER THE ORDER FORM(S) GIVING RISE TO SUCH LIABILITY IN THE 6 MONTH PERIOD
PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL APPLY
WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT
WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND
PAYMENTS” SECTION ABOVE.
11.1. Export Compliance . The Services may be subject to the export laws of the United States and other
Jurisdictions. Each party represents that it is not on any U.S. government denied-party list. Customer
will not permit any User to access or use the Services in Russia or a U.S.-embargoed country or
region (currently Cuba, Iran, North Korea, Syria or Crimea) or in violation of any U.S. export law or regulation. In its use of the Services, Customer shall comply with all applicable laws, including laws governing the export or re-export of software and other technology, the protection of personal information and other laws applicable to the protection of Customer Data.
11.2. Anti-Bribery . Neither party has received or been offered any illegal or improper bribe, rebate, payoff, influence payment, kickback, or other thing of value from an employee or agent of the other party in connection with this Agreement.
11.3. Assignment . Neither party may assign or transfer its rights or obligations under this Agreement
without the prior written consent of the other party, and any assignment or transfer in derogation of
the foregoing shall be null and void, provided, however that either party shall have the right to assign
the Agreement, without the prior written consent of the other party, to the successor entity in the
event of merger, corporate reorganization or a sale of all or substantially all of such party’s assets. This Agreement shall be binding upon the parties and their respective successors and permitted
11.4. Notices . All notices required or permitted under this Agreement must be delivered in writing, if to
Memory Anchor, by emailing firstname.lastname@example.org and if to Customer by emailing the Customer Point of Contact email address listed on the Order Form, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party at the party’s address as listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
11.5. Governing Law; Forum . The Laws of the Province of Alberta (excluding its conflict of laws rules) exclusively apply to this Agreement. Any Claim arising directly or indirectly from or relating to this Agreement must be filed and maintained in a court of competent jurisdiction in the provincial or federal courts located in Calgary, Alberta. The Parties submit to that jurisdiction and venue for all purposes.
11.6. Waivers; No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the Party to be bound by the waiver. A Party’s failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a Party from any other or further exercise of that right or the exercise of any other right.
11.7 Counterparts. This Agreement may be executed in any number of counterparts (including counterparts by facsimile or other electronic means) and all such counterparts taken together will be deemed to constitute one and the same instrument.
11.8. Construction . The headings of Sections of this Agreement are for convenience and are not to be
used in interpreting this Agreement. As used in this Agreement, the word “including” means
“including but not limited to.”
2.9. Force Majeure . Any delay in the performance of any duties or obligations of either Party (except for
the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is
caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural
disasters, governmental action, pandemic/epidemic, cloud-service provider outages any other event
beyond the control of such Party, provided that such Party uses reasonable efforts, under the
circumstances, to notify the other Party of the circumstances causing the delay and to resume
performance as soon as possible.
2.10. Entire Agreement; Amendment . This Agreement and any applicable Order Form constitutes the
complete agreement between the Parties and supersedes all previous and contemporaneous
agreements, proposals, or representations, written or oral, concerning the subject matter of this
Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form
or SOW and the terms of this Agreement, the terms and conditions of the Order Form or SOW will
govern. It is expressly agreed that the terms and conditions of this Agreement and any Order Form
supersede the terms any of Customer’s purchase order.