Terms and Conditions

These Terms and Conditions (these “Terms”) are made between the Klue entity identified in the Authorization Form (“Klue”), and the Customer (each a “party” and together the “parties”). 

1. Definitions
   1. “Acceptable Use Policy” means the Klue Acceptable Use Policy at https://app.klue.com/acceptable-use.
   2. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party. For purposes of this definition, control means direct or indirect ownership or control of more than fifty (50) percent of the voting interests of the subject entity. 
   3. “Agreement” means the Terms, together with all exhibits and any current Authorization Form.  
   4. “Authorization Form” means a document executed by both Customer and Klue or a Klue Affiliate which describes the Services Customer is purchasing, including the Fees and any other details specifically related to such Services.
   5. “Business Day” means any day except Saturday, Sunday, or a statutory holiday in British Columbia, all determined with reference to Pacific Time.
   6. “Confidential Information” means (i) any non-public information communicated by a party to the other party in connection with this Agreement that is designated in writing as confidential, (ii) Customer Data, and (iii) the terms and conditions of this Agreement (including pricing and all other terms set out in any Authorization Form).
   7. “Customer” means the customer identified in the applicable Authorization Form.
   8. “Customer Data” means all content, information and data in any format, that is submitted, uploaded, transmitted or otherwise made available by Customer or Users to or through the Klue Services, including any reports or other output created by Customer with such content through use of the Klue Services; however, to the extent any of the foregoing are combined with data derived or obtained from public sources, that portion of data derived or obtained from public sources is not Customer Data.
   9. “Data Protection Laws” has the meaning given to such term in Schedule B, Customer Data Protection Addendum.  
   10. “Documentation” means the user and technical help documentation for the Klue Services made available electronically through the Website.
   11. “Effective Date” means the effective date designated pursuant to the initial Authorization Form.
   12. “Feedback” means suggestions, comments, bug reports, feature or enhancement requests, recommendations or other feedback relating to the Services or Klue’s business provided to Klue by Customer or Users.
   13. “Fees” means all amounts payable by Customer to Klue for the Services including implementation fees, ongoing subscription fees and any other fees or charges set out in the applicable Authorization Form.
   14. “Force Majeure Event” means events which are beyond the reasonable control of such party, including but not limited to acts of God, acts of government, flood, fire, pandemics, earthquakes, civil unrest, acts of terror, strikes or other labour problems, or the unavailability of third party-provided cloud hosting services. 
   15. “Klue Services” means Klue’s proprietary web-based applications for competitive enablement services for which Customer has subscribed under an Authorization Form, including technical support, but does not include Professional Services.  
   16. “Pattern Data” means aggregated and/or anonymized information, data or reports derived from or compiled through the Services, including, but not limited to, data or statistics indicating frequency of use, popularity of or other characteristics of the Services.
   17. “Personal Data” has the meaning given to such term in Schedule B, Customer Data Protection Addendum.
   18. “Personnel” means employees (including employees of an Affiliate), consultants, independent contractors or subcontractors.
   19. “Privacy Policy” means the Klue Privacy Policy at https://app.klue.com/privacy.
   20. “Professional Services” means implementation, consulting and training services purchased by Customer under an Authorization Form, which may be further detailed in a statement of work, schedule or similar document signed by both Customer and Klue or its Affiliate, but excluding technical support.  
   21. “Services” means the Klue Services and the Professional Services.
   22. “Subscription Period” means the implementation and ongoing subscription period specified in an initial Authorization Form and each subsequent renewal period(s). For greater certainty, each renewal period represents a distinct Subscription Period.
   23. “User” or “Users” means each individual that Customer or a Customer Affiliate permits to use the Klue Services and to whom Klue grants a User ID.
   24. “User ID” means the login access and identification granted by Klue to Users to enable access to the Klue Services.
   25. “Website” means https://app.klue.com/ or any other URL designated by Klue for accessing the Klue Services.
2. Access to and Use of Services
   1. Access. Subject to this Agreement, Klue grants Customer and its Users (i) access to the Klue Services during the Subscription Period, and (ii) a perpetual, limited, non-exclusive license to use, reproduce, access, and store any modifications, compilations, or derivative works created or developed from Customer Data by Klue or the Website in connection with the Klue Services, in each case solely for Customer’s own internal business purposes. Customer may provide Customer’s Affiliate’s Users with access to the Klue Services provided that such access is subject to and in compliance with this Agreement and Customer will at all times remain liable for its Affiliates, Users, and Affiliates’ Users compliance with this Agreement. In addition, Customer Affiliates may purchase Services from Klue hereunder by entering into an Authorization Form with Klue governed by these Terms. Each Authorization Form is a separate obligation of the Customer Affiliate that execute(s) such Authorization Form, and no other Customer entity has any obligation thereunder.
   2. Support and Service Levels. During the Subscription Period, Klue will provide support for the Klue Services in accordance with Exhibit A hereto and will make the Klue Services available in accordance with the service levels specified therein. Klue may alter, but not materially diminish, the functionality and user interfaces of the Klue Services from time to time in its sole discretion.
   3. Acceptable Use. Customer will comply and will ensure that its Users comply with the Acceptable Use Policy and will not use the Klue Services in any way that violates the Acceptable Use Policy, this Agreement or applicable law. 
   4. User IDs. Customer will require all Users to keep their User IDs and related passwords strictly confidential and to not share such information with any unauthorized person. Customer will be responsible for any and all actions taken using its User IDs and passwords. For greater certainty, individual User IDs are specific to individual Users and may not used by any other individuals to access the Klue Services.
   5. Professional Services. If Customer has purchased Professional Services, such services will be set forth in an Authorization Form, a statement of work or other document entered into between the parties.  Any modifications or extensions to a signed Authorization Form or statement of work related to Professional Services must be made pursuant to a project change request or similar amendment mutually agreed to in writing by the parties.  Subject to payment of the applicable Fees, Klue, for and on behalf of itself and its Affiliates, grants Customer, all right, title and interest in and to all interviews and related transcripts, all written summaries, research stories and executive summaries prepared by Klue or its Affiliate for the Customer (the “Deliverables”).  To the extent any Deliverables contain Klue Property (as defined below), Klue grants the Customer a non-exclusive, worldwide, perpetual license for its internal business purposes, to use such Klue Property in connection with the Deliverables.  Without limiting the foregoing, Klue may use aggregated and/or anonymized data or information derived from, or extracts of, any Deliverables, for Klue’s legitimate business purposes, provided that such data or information will not identify Customer or any individual or disclose any Confidential Information attributable to the Customer. 
3. Customer Data and IP Ownership
   1. Customer Data. Subject to the license granted to Klue hereunder, Customer owns and will retain all right, title, interest to and ownership of Customer Data. Customer grants Klue and its Personnel a non-exclusive, worldwide, royalty-free, sublicensable, license during the Term to access, use, process, copy, distribute, perform, export, and display Customer Data solely and exclusively for the purposes of (i) providing and supporting the Services, including storing, hosting, and managing Customer Data, and (ii) creating Pattern Data. Solely to the extent that reformatting Customer Data for use in or through the Services constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works to and from Customer Data.
   2. Customer Responsibility for Customer Data. Customer has sole responsibility for the content, accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and for the compliance of such Customer Data with this Agreement and all applicable laws. Klue will use the Customer Data “as is”, and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Customer Data. Customer may delete or request Klue to delete all or part of the Customer Data at any time.
   3. Pattern Data. Customer acknowledges and agrees that Pattern Data will not be considered and does not constitute Customer Data or Personal Data. Klue shall own all right, title and interest (including all intellectual property rights) in and to any Pattern Data.  For greater certainty, Pattern Data does not identify Customer or Users and does not relate specifically to Customer’s business.  Pattern Data will not be used to train any publicly available AI systems or public large language models.
   4. Feedback. If Customer or Users provide Feedback, Customer grants to Klue a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted and fully paid-up license to use such Feedback for any purpose.
   5. Rights Reserved by Klue. Except as provided herein, the Services are made available to Customer on a limited access basis hereunder, and no ownership rights are granted to Customer. Klue and its Affiliates and/or licensors own and will retain all right, title, and interest, including all intellectual property rights, in and to the Services and the Website including all intellectual property rights in and to all inventions, methodologies, questionnaires, templates, techniques, surveys, knowledge or know-how in connection with the delivery of the Professional Services (the “Klue Property”), and any Pattern Data, as well as any updates, modifications, adaptations, translations, customizations or derivative works thereof or in relation thereto. All rights not expressly granted to Customer herein are reserved by Klue and its Affiliates and/or licensors.
4. Fees and Taxes
   1. Fees. Customer will pay the Fees to Klue in advance unless otherwise specified in the applicable Authorization Form. Customer will pay all undisputed invoiced amounts in accordance with the terms set out in the Authorization Form. Fees are non-cancelable and non-refundable (except in accordance with Section 10.3).
   2. Access and Usage. Klue may monitor Customer’s utilization of the Klue Services as reasonably necessary to ensure Customer’s compliance with this Agreement and in particular with the number of Users or other applicable metric(s) specified on the Authorization Form (“Permitted Usage”). If Customer’s usage is shown to be in excess of Permitted Usage, Klue will notify Customer and request that usage be brought back into compliance. Additional Fees may apply if not brought back into compliance, effective as of the time that Customer first exceeded Permitted Usage.
   3. Late Payment. For any payment overdue by more than twice the number of days outlined in the Authorization Form, Klue may (i) suspend Customer’s and its Users’ access to the Services, and (ii) charge interest at the rate of one and a half percent (1.5%) compounded monthly, (19.6% annual interest) until all due amounts are paid in full.
   4. Taxes. Fees are exclusive of and Customer will pay all taxes, assessments, charges, fees, and levies that may be levied on or applicable to the Services, including all sales, use, goods and services, value added, excise and withholding taxes, customs duties, and assessments, together with any installments and any interest, fines, and penalties with respect thereto, imposed by any governmental authority, including federal, state, provincial, municipal, and foreign governmental authorities (collectively, “Taxes”), which for clarity does not include any taxes based on Klue’s income. In the event Customer is required under applicable laws to withhold Taxes, Customer will inform Klue in writing as soon as such requirement becomes known, and Customer will assist Klue in obtaining any mitigations, exemptions and/or refunds as may be available under any applicable law. If Customer is still required under laws applicable to Customer to deduct or withhold Taxes from payments to Klue, Customer may deduct the applicable amount (the “Deduction Amount”) from the Fees. Customer will not be required to pay the Deduction Amount to Klue, provided Customer presents Klue with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within ninety (90) days from the date of the invoice. If Customer does not provide this tax receipt within such period, then all Fees, inclusive of the Deduction Amount, will be immediately due and payable.
5. Confidentiality
   1. Confidential Information. Each party agrees to keep confidential and to protect the confidentiality of all Confidential Information disclosed or made available to such party by the other party.  Each party shall protect the Confidential Information disclosed to such party (the “Receiving Party”) by the other party (the “Disclosing Party”) in the same manner as such party protects the confidentiality of its own similar information and data and shall at all times exercise at least a reasonable degree of care in the protection of such Confidential Information in order to protect it from unauthorized use, access, or disclosure.  The Receiving Party will restrict access to the Confidential Information of the Disclosing Party to only those of its Personnel required to enable the Receiving Party to undertake its obligations pursuant to this Agreement. The Receiving Party shall cause each of its Personnel who may access Confidential Information of the Disclosing Party to agree to confidentiality obligations substantially similar to those in this Agreement. The obligations of confidentiality in this Agreement shall not apply to any information that: (i) is generally publicly available at the time of its communication; (ii) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (iii) becomes generally publicly available through no fault of the Receiving Party subsequent to the Disclosing Party’s communication to the Receiving Party; (iv) is in the Receiving Party’s possession free of any obligation of confidence at the time of the Disclosing Party’s communication to the Receiving Party; or (v) is lawfully communicated to the Receiving Party by a third party free of any obligation of confidentiality. This Section 5 will not be construed to prohibit the disclosure of Confidential Information if such disclosure is required by law or order of a court or other governmental authority. The Receiving Party agrees to give the Disclosing Party prompt notice (to the extent legally permitted) of the receipt of any subpoena or other similar request for such disclosure.  If this Agreement is terminated, each party will return all Confidential Information in its possession or control to the other party.  
6. Data Protection and Security
   1. Data Protection. To the extent that Klue will be processing any Personal Data subject to Data Protection Laws on Customer’s behalf in connection with this Agreement, the terms of Exhibit B, Data Processing Addendum (the “DPA”), will apply.  Furthermore, Customer agrees that if Customer or any Personal Data submitted by Customer to Klue or its Affiliates, or to the Klue Services is subject to Data Protection Laws, Customer is the data controller of such data and Klue is a data processor of such data, as such terms are defined in the applicable Data Protection Laws. Customer will not collect, provide or otherwise use in any way in relation to the Services any special category or of Personal Data or similar designation as described in Data Protection Laws.  To the extent that Klue collects, accesses, or uses Personal Data in connection with this Agreement outside of the scope of the DPA, the Privacy Policy applies to such collection, access, and use.  
   2. Security. Klue will maintain industry-standard administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer Data If Klue becomes aware of a breach of security that affects Customer Data or Personal Data, Klue shall promptly notify Customer and take all actions reasonably necessary to protect the Customer Data from unauthorized use or access and shall promptly correct its security system.
7. Warranties
   1. Customer Warranty. Customer represents and warrants that Customer Data and its use as authorized by Customer in this Agreement will not violate any applicable laws, privacy rights or any third-party intellectual property rights. 
   2. Klue Warranty. Subject to Section 7.3, Klue represents and warrants that: (i) the  Klue Services will perform substantially in compliance with the Documentation; (ii) Professional Services will be delivered in a professional and workmanlike manner by Personnel with sufficient skill, knowledge and experience to perform the Professional Services and will be delivered in accordance with any applicable Statement of Work; (iii) it owns or otherwise has sufficient rights in the Services to grant to Customer the rights to use the Services as specified pursuant to this Agreement, (iii) Customer Data shall be processed only as expressly set forth in this Agreement; and (iv) Klue’s provision of the Services hereunder will comply with all applicable laws. If the Services fail to comply with the warranty in Section 7.2(i) and (ii), as the case may be, and Customer notifies Klue in writing during the Subscription Period of the nature of such non-compliance, Klue will make commercially reasonable efforts to promptly remedy such non-compliance without charge.  If Klue does not remedy the non-compliance within a reasonable period of time agreed to by the parties, Customer may terminate these Terms as they apply to the relevant Services and receive a pro rated refund for such Services from the date Klue receives such notification.  The foregoing remedy is Customer’s sole and exclusive remedy with respect to such warranties. 
   3. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, KLUE DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES HEREUNDER AND EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, KLUE EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. KLUE FURTHER EXPRESSLY DISCLAIMS ANY LIABILITY THAT MIGHT ARISE FROM CUSTOMER COLLECTING, PROVIDING OR OTHERWISE USING IN RELATION TO THE SERVICES ANY SPECIAL CATEGORY OF PERSONAL DATA AS DESCRIBED IN DATA PROTECTION LAW. KLUE DOES NOT PROVIDE ANY WARRANTIES OR REMEDIES FOR ANY BETA VERSIONS OF THE KLUE SERVICES ORANY FEATURE OF THE KLUE SERVICES IN BETA OR IN A TRIAL VERSION, PROVIDED CUSTOMER IS NOTIFIED THAT THEY ARE ACCESSING A FEATURE OF THE KLUE SERVICES IN BETA OR IN A TRIAL VERSION.  BETA AND TRIAL VERSIONS ARE OPTIONAL AND ARE USED AT CUSTOMER’S OWN RISK.  
8. Indemnities
   1. Klue IP Indemnity. Subject to Customer’s compliance with Section 8.3, Klue will defend Customer from and against any third-party claim brought against Customer alleging that  the Services (or use thereof) infringe such third-party’s valid patent or copyright or misappropriates such third-party’s trade secret (an “Infringement Claim”) and will pay any damages awarded through a final non-appealable judgment against Customer or agreed to via settlement approved by Klue in connection with any such Infringement Claim. Notwithstanding the foregoing, Klue will have no liability for any Infringement Claim to the extent it arises from: (i) a modification of the Services by or at the direction of any person other than Klue; (ii) Use of the Services in violation of this Agreement (including the Acceptable Use Policy) or applicable law; (iii) use of the Services after Klue notifies Customer to discontinue use because of an infringement or misappropriation claim; or (iv) the combination, operation, or use of the Services with any other software, program, or device not provided or specified by Klue, to the extent such infringement would not have arisen but for such combination, operation or use. If the Services or any part thereof have become, or in Klue’s opinion are likely to become, the subject of any Infringement Claim, Klue may, at its option and expense: (a) procure the right for Customer’s continued use of Services; (b) substitute substantially functionally similar Services; or (c) terminate Customer’s right to continue using the Services upon thirty (30) days’ written notice and refund any prepaid amounts for the terminated portion of the Subscription Period. This Section states Klue’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of the intellectual property of a third party.
   2. Customer Indemnity. Subject to Klue’s compliance with Section 8.3, Customer will defend Klue from and against any third-party claim brought against Klue arising from or related to (i) Customer Data, or (ii) Customer’s breach of this Agreement, (collectively, “Klue Claims”) and will pay any damages awarded through a final non-appealable judgment against Klue or agreed to via settlement approved in writing by Customer in connection with any such Klue Claims.
   3. Conditions of Indemnification. Each Party’s indemnification obligations in this Section 8 are conditioned upon (i) the indemnified party (the “Indemnified Party”) notifying the indemnifying party (the “Indemnitor”) promptly of any threatened or pending indemnified claim (“Claim”), (ii) the Indemnified Party giving the Indemnitor reasonable assistance and information requested by the Indemnitor in connection with the defense or settlement of the Claim, and (iii) the Indemnitor having sole control over the defense of the Claim. The Indemnified Party may participate in the defense of the Claim at the Indemnified Party’s own expense. The Indemnified Party will not, without the prior written consent of the Indemnitor, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim.
9. Limitations on Liability
   1. IN NO EVENT WILL EITHER CUSTOMER’S OR KLUE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY.   THE FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OF THIS AGREEMENT; (B) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5 OF THIS AGREEMENT; OR (C) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4 OF THIS AGREEMENT.
   2. IN NO EVENT WILL EITHER CUSTOMER OR KLUE HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, REVENUES, GOODWILL OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
   3. THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION 9 SHALL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE AGREEMENT IN ACCORDANCE WITH SECTION 2.1.
10. Term and Termination
    1. Term. This Agreement will commence on the Effective Date and, unless terminated hereunder, will remain in effect for the duration of any Authorization Form then in effect between the parties or a Customer Affiliate and Klue (including any renewals thereof). Unless either Customer or Klue provides notice of non-renewal at least ninety (90) days prior to the expiration of the then-current Subscription Period, the applicable Subscription Period will automatically renew for a further twelve month period,  and, subject to Section 10.5, at the applicable subscription pricing set out in such Authorization Form. The initial Subscription Period and any renewal Subscription Period are collectively referred to herein as the “Term.”
    2. Termination. Each party shall be entitled to terminate the Agreement or any Authorization Form in effect if: (i) the other party materially breaches any provision of this Agreement, and fails within thirty (30) days after receipt of notice of such material breach to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved party; or (ii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed, or a petition in bankruptcy is filed with respect to the party and is not dismissed within ninety (90) days.
    3. Effect of Termination. The following Sections will survive termination of this Agreement for any reason: Section 1 (Definitions), Subsection 2.1 (ii) (Access), Section 2.6 (Professional Services), Section 3 (Customer Data and IP Ownership), Section 4 (Fees and Taxes), Section 5 (Confidentiality), Section 6 (Privacy, Data Protection and Security), Section 7.3 (Warranty Disclaimer), Section 8 (Indemnities), Section 9 (Limitations on Liability), this Section 10.3 (Effect of Termination) and Section 12 (General). On termination of this Agreement, Customer’s access to the Services will cease, except that Customer will have ninety (90) days from the date of the termination notice to extract any Customer Data from the Klue Services. Upon any termination by Customer, Klue shall promptly provide Customer a refund of any prepaid Fees un-used after the effective date of termination.
    4. Termination, Limitation or Suspension of Access. Klue may limit, suspend, or terminate Customer’s access to or use of the Website, and/or the Services in order to: (i) prevent damage to, or degradation of, the integrity or security of the Website, the Klue Services or Klue’s systems; or (ii) comply with any law, regulation, court order, or other governmental request or order. Klue will notify Customer of the reasons for such action in writing in advance unless it reasonably deems emergency circumstances to mandate a sooner limitation, suspension or termination, in which case notice shall be given as soon as reasonably practicable.
    5. Changes in Fees. Klue may, at its sole discretion, change subscription fee rates applicable to the Services to be effective for the next Subscription Period provided that (a) Klue gives advance written notice to Customer of such changes at least thirty (30) days prior to the applicable deadline for Customer’s notice of renewal or non-renewal as required pursuant to section 10.1, (b) changes in fees do not occur more than once in any 12 month period, and (c) changes in fees are part of a broader fee structure change across multiple clients and not changed solely and exclusively for Customer.
11. Insurance
    1. Klue will, at its own expense, maintain the following insurance in Canadian dollars (CAD):
       1. Commercial general liability Insurance with limits of at least five million dollars ($5,000,000) per occurrence and in the annual aggregate inclusive of products/completed operations, bodily injury and property damage; 
       2. Non-owned automobile liability coverage up to one million dollars ($1,000,000) dollars;
       3. Professional errors and omissions liability insurance including technology products and services liability, cyber liability, privacy breach liability with limits of at least five million dollars ($5,000,000) per occurrence and in the annual aggregate; and intellectual property infringement liability with a maximum limit of two million dollars ($2,000,000);
       4. Employer’s liability insurance with at least two million dollars ($2,000,000) per occurrence for bodily injury to Klue’s employees; and 
       5. Workers compensation insurance for the region in which Services are performed for Customer.
    2. Klue will provide Customer with certificates of insurance evidencing the foregoing coverage upon Customer’s request.  The limits set forth in this section in no way alter the limitations of liability applicable to Klue under this Agreement.
12. General. 
    1. Assignment. This Agreement is not transferable or assignable without the prior written consent of the other party; provided however each party may assign this Agreement to an Affiliate or in connection with a merger, consolidation, purchase of all or substantially all of its assets or stock or similar transaction without receiving the other party’s prior written consent. The terms of this Agreement shall be binding upon and inure to the benefit of each party’s successors and permitted assignees. 
    2. Entire Agreement. These Terms, together with the attached Exhibits and applicable Authorization Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements of any kind related thereto. Klue may update these Terms from time to time and will advise Customer of any such material updates by email, by placing a notice on the Website, or by otherwise providing an in-product notification. Customer’s continued use of the Services will be deemed acceptance of such updates. The terms of any Customer purchase order or other ordering document will not apply, even if delivered after execution of the Agreement. Except where otherwise specifically indicated with reference to this Section 12, in the event of any conflict or inconsistency, the following order of precedence applies: (a) Exhibit B, (b) the applicable Authorization Form, (c) these Terms, and (d) any other exhibit or other attachment hereto. 
    3. Force Majeure. Except for payment obligations, neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to acts of God, acts of government, flood, fire, pandemics, earthquakes, civil unrest, acts of terror, strikes or other labour problems, or the unavailability of third party-provided cloud hosting services  (“Force Majeure Event”). 
    4. Marketing. Unless Customer provides Klue with written notice to the contrary, Customer also grants Klue the right to use its name and logo on Klue’s website and marketing materials to identify Customer as a customer of Klue. 
    5. Governing Law and Jurisdiction.  This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada and the Canadian federal laws applicable therein without regard to conflicts of law principles.  
    6. Independent Contractor. The parties’ relationship is that of independent contractors, and neither party is an agent or partner of the other, by virtue of this Agreement or otherwise. 
    7. Notices. Any notice (except for notices concerning changes to subprocessors which will be handled in accordance with the DPA) under this Agreement must be given in writing. The parties’ respective addresses are as indicated in the current Authorization Form or as otherwise subsequently notified in accordance herewith. Either party may provide notice to the other party by email, by registered or certified mail.  Klue may also provide notice on the Website or otherwise providing an in-product notification. All notices shall be effective (a) if mailed, on the fifth Business Day following such mailing; or (b) if sent by email, posted on the Website, or otherwise provided in-product, on the Business Day of the date of such transmission, posting or provision, provided that for delivery by email, no automated or other response is received indicating non-delivery or the absence of the recipient. 
    8. Severability. Any provision hereof found by a tribunal or court of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect.
    9. Counterparts.  The parties agree that this Agreement may be executed in separate counterparts, by signing and returning signed copies by email, and by way of electronic signatures, each of which is deemed an original, and together shall constitute one agreement.

v. July 12, 2023

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