Master Subscription Agreement

CONTACTMONKEY SOFTWARE-AS-A-SERVICE MASTER SUBSCRIPTION AGREEMENT

This ContactMonkey Software-as-a-Service Master Subscription Agreement (“Master Subscription Agreement”) forms a binding legal agreement between ContactMonkey Inc. (“ContactMonkey”) and Customer (as defined below). This Master Subscription Agreement governs Customer’s access to and use of the Solution (as defined below). By using the Solution in any way, or executing an Order (as defined below), Customer hereby agrees to this Master Subscription Agreement. ContactMonkey and Customer together the “Parties” and each a “Party”.

1. Definitions.
Capitalized terms used in this Agreement (as defined below) have the meaning ascribed to them as follows:

(a) “Agreement” means this Master Subscription Agreement including all Orders between the Parties. 

(b) “Affiliate” means, with respect to a Party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that Party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.

(c) “Anti-Spam Laws” means Canada’s Anti-Spam Legislation or United States Can-Spam Act and the regulations thereunder and any other Applicable Laws that regulate the same or similar subject matter.

(d) “Applicable Laws” means any domestic or foreign law, rule, statute, subordinate legislation, regulation, by-law, order, ordinance, protocol, code, guideline, treaty, policy, notice, direction or judicial, arbitral, administrative, ministerial or departmental judgment, award, decree, treaty, directive, or other requirement or guideline published or in force at any time during the Term which applies to or is otherwise intended to govern or regulate any Person (including any Party), property, transaction, activity, event or other matter, including any rule, order, judgment, directive or other requirement or guideline issued by any Governmental or Regulatory Authority.

(e) “Business Hours” means 9:00 a.m. – 5:00 p.m. EST, GMT, AEST, as applicable where ContactMonkey is providing the Saas Services from, Monday to Friday, excluding public holidays in the applicable time zone.

(f) “Customer” has the meaning set out in the applicable Order.

(g) “Customer Data” means any data, information, content, records, and files that Customer (or any of its Permitted Users) loads or enters into, transmits to, or makes available to the SaaS Services, including but not limited to Personal Information. 

(h) “Data Processing Addendum” means the ContactMonkey’s data processing addendum located at https://www.contactmonkey.com/dpa.

(i) “Documentation” means documentation relating to the operation and use of the Solution that are provided by the ContactMonkey to Customer under this Agreement, as updated by ContactMonkey from time to time.

(j) “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity.

(k) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

(l) “Loss” or “Losses” means any and all losses, damages, claims, Actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

(m) “Malicious Code” means any code, files, scripts, agents or programs intended to do harm including, for example, viruses, worms, time bombs and Trojan horses.

(n) “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.

(o) “Order” means any order form that references this Master Subscription Agreement and is executed by both Parties.

(p) “Permitted User(s)” has the meaning set out in Section 5(a).

(q) “Permitted Purpose” means Customer access and use the Solution solely for Customer’s internal business purposes and in accordance with Applicable Laws.

(r) “Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate or Governmental or Regulatory Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.

(s) “Personal Information” has the meaning in the Data Processing Addendum.

(t) “Privacy Breach” has the meaning in the Data Processing Addendum.

(u) “Privacy Laws” has the meaning in the Data Processing Addendum.

(v) “Processing” has the meaning in the Data Processing Addendum.

(w) “Proposal” has the meaning in the Order.

(x) “SaaS Services” means: (i) services through which ContactMonkey hosts and makes available the hosted solution as described in an Order; (ii) any component or Modification of the services referred to in (i); and (iii) the Support Services.

(y) “Software” means any software that is downloaded or installed as part of the SaaS Services. 

(z) “Solution” means the SaaS Services and the Software.

(aa) “Website” means any websites used by ContactMonkey to provide the ContactMonkey SaaS Services, including the website(s) located at www.ContactMonkey.com.

2. The Solution
(a) Provisioning of the Solution. During the Term, ContactMonkey will make the Solution available to  Customer and its Permitted Users on the terms and conditions set out in the Agreement, solely for the Permitted Purpose. 

(b) Usage Restrictions. The Customer shall not (a) make the Solution available to anyone other than the Customer, its Affiliates or Permitted Users, or use any Solution or Documentation for the benefit of anyone other than the Customer and its Affiliates, unless expressly stated otherwise in an Order; (b) sell, resell, license, sublicense, distribute, rent or lease any Solution or Documentation, or include any Solution or Documentation in a service bureau or outsourcing offering; (c) use the Solution to store or transmit infringing, libelous, or otherwise unlawful or tortious material or to store or transmit material in violation of any third party privacy rights; (d) use the Solution to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Solution; (f) attempt to gain unauthorized access to the Solution or Documentation or its related systems or networks; (g) permit direct or indirect access to or use of any Solution or Documentation in a way that circumvents a contractual usage limit or use the Solution to access, copy or use any of ContactMonkey’s intellectual property except as expressly permitted by the Agreement; (h) modify, copy or create derivative works of the Solution or any part, feature, function or user interface of the Solution; (i) copy Documentation except as permitted by this Agreement; (j) frame or mirror any part of the Solution or Documentation; (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Solution or Documentation or access it to (i) build a competitive product or service; (ii) build a product or service using similar ideas, features, functions or graphics as the Solution; (iii) copy any ideas, features, functions or graphics of the Solution; or (iv) determine whether the Solution are within the scope of any patent. 

(c) Suspension of Access.  ContactMonkey may suspend or limit the Customer’s access or use of the Solution without incurring any liability to the Customer if (a) ContactMonkey experiences or reasonably believes it will experience a security threat or system failure that endangers the integrity of ContactMonkey’s internal systems; (b) ContactMonkey is directed to do so by any law enforcement or regulatory agency; (c) the continued performance of ContactMonkey’s obligations under this Agreement could result in ContactMonkey being in breach of any Applicable Laws; (d) ContactMonkey reasonably believes the Customer is in breach of Section 2(b)(Usage Restrictions); or (e) the Customer fails to pay any Fees that are not disputed by the Customer in accordance with Section 7 this Agreement. ContactMonkey shall (i) promptly notify the Customer in advance that it intends to suspend or limit access or use of the Solution in accordance with this Section 2c; and (ii) use commercially reasonable efforts to restore such access and use as soon as reasonably practicable after the cause of the suspension has been remediated by the Customer.

(d) Changes. The Customer acknowledges and agrees that ContactMonkey. may, at ContactMonkey’s discretion modify the Solution, Documentation, Data Processing Addendum or Support Services from time to time; provided, however any such modifications shall (a) replace all prior versions (as applicable); and (b) not reduce the service levels, functionality or security of the SaaS Services. Where practicable ContactMonkey shall provide prior notice.

(e) Downloadable Software. Your use of any Software is governed by the terms of the end user license agreement, if any, which accompanies, or is included with, the Software (“License Agreement”). You may not install, access, or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms. For any Software made available for download or installation not accompanied by a License Agreement, we hereby grant to you a limited, personal, nontransferable, non-sublicensable license to use the Software for viewing and otherwise using the SaaS Service and for no other purpose. Any Modifications will be subject either the License Agreement or our license above and Customer consents to ContactMonkey interacting with Customer systems for these purposes. 

3. Ownership; Reservation of Rights
(a) Reservation of Rights. ContactMonkey reserves all rights not expressly granted to the Customer in this Agreement. (b) ContactMonkey or its licensors retain all right, title and interest including all Intellectual Property Rights in and to:(i) the Solution;(ii) anything used, developed or delivered by or on behalf of ContactMonkey under this Agreement;(iii) all other ContactMonkey’s Confidential Information, including but not limited to, any reports generated from the Solution; and(iv) any Modifications to the foregoing (collectively “ContactMonkey Property”).

(b) Customer Data. Subject to the license rights granted in this Agreement, all right, title and interest in the Customer Data (including all Intellectual Property Rights in the Customer Data) is owned by the Customer. The Customer grants to ContactMonkey an irrevocable, perpetual, non-exclusive, worldwide, fully paid up and royalty-free license to use, reproduce, display, distribute, publish, perform, create derivative works from, process, transmit, provide and store the Customer Data for the purpose of providing, enhancing, developing, diagnosing and correcting the SaaS Services. To the extent permitted by Applicable Law, ContactMonkey will not be liable for any failure to store, or for loss or corruption of Customer Data

(c) Documentation. ContactMonkey grants to the Customer a limited, non-transferable, non-exclusive, worldwide, fully paid up and royalty-free license to use and reproduce the Documentation for the Permitted Purpose. 

(d) Feedback. The Customer grants to ContactMonkey an irrevocable, perpetual, unlimited, transferable, exclusive, worldwide, fully paid up and royalty-free license to use, distribute, disclose, make and incorporate into the Solution any suggestion, enhancement request, recommendation, correction or other feedback provided by the Customer relating to the Solution. 

4. Privacy
(a) The Processing of Personal Information provided to ContactMonkey by Customer under this Agreement will be subject to the obligations set out in the Data Processing Addendum.

(b) Customer will not upload to the Solution or otherwise submit or make accessible to ContactMonkey any personal health information or any financial account identifiers (e.g., credit card numbers or bank account numbers), government issued identifiers (e.g., social insurance numbers, health card numbers) or other types of sensitive data that is subject to specific or elevated data protection requirements (collectively, “Prohibited Data”).

(c) ContactMonkey will, on not less than an annual basis, obtain from a third-party audit firm a Service Organization Control (SOC) 2 type II Report (or a comparable report) (“SOC Report”) on its systems examining logical security controls, physical security controls, and systems availability as related to the ContactMonkey SaaS Services. ContactMonkey will promptly provide to Customer a copy of its then-current SOC Report upon Customer’s written request. The SOC Report is ContactMonkey’s Confidential Information.

5. Customer User Account; Customer Responsibilities
(a) In order for Customer to access and use the SaaS Services ContactMonkey will issue one or more accounts (each, a “Customer User Account”) to Customer for use by one or more individuals who are employees or independent contractors of Customer that Customer wishes to have access to and use of the SaaS Services (each, a “Permitted User”). Customer will not allow any Permitted User to share its Customer User Account with any other person.

(b) Customer will promptly notify ContactMonkey of any actual or suspected unauthorized use of the SaaS Services. ContactMonkey reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose.

(c) Customer is responsible for providing the equipment and services that Customer needs to access, download, install and use the SaaS Services. ContactMonkey does not guarantee that the Solution is accessible on any particular equipment or device or with any particular software or service plan.

(d) To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the Solution to Customer’s authorized users and shall maintain a procedure external to the Solution for reconstruction of lost or altered files, data or programs.

(e) Customer shall ensure that any and all access and use of the Solution is in compliance with this Agreement and Applicable Laws, regulations and governmental or other regulatory bodies’ rules and policies applicable to Customer (including applicable sanctions, privacy, data protection and anti-spam laws).

(f) Customer is responsible for identifying and authenticating all Permitted Users and for ensuring only Permitted Users access and use Solution. Customer shall ensure that all Permitted Users comply with this Agreement.

6. Support Services and Service Levels
(a) Support Services. Customer will generally have access to ContactMonkey’s technical support services (“Support Services”) within the Business Hours for the applicable time zone through email at support@contactmonkey.com, or as otherwise agreed to by the Parties in writing.

(b) Service Levels. ContactMonkey will use commercially reasonable efforts to provide the SaaS Services available 24 hours per day, seven (7) days per week, excluding downtime or suspension of the SaaS Services for scheduled maintenance (which ContactMonkey will use reasonable efforts to conduct outside of Business Hours), unavailability caused by Customer or any software, hardware or service not provided by ContactMonkey, downtime or any unavailability caused by circumstances beyond ContactMonkey’s reasonable control, including, for example, Force Majeure Event, Internet service provider failure or delay or denial of service attack. ContactMonkey may revise the service levels in this Agreement or the features and functions of the Solution at any time, provided no such revision materially reduces features or functionality provided pursuant to an Order.

7. Fees and Payment
(a) Fees. Customer will pay to ContactMonkey the fees described in an applicable Order (“Fees”). Unless otherwise noted on an Order, all Fees are identified in United States dollars, are non-refundable, payable in advance and all Orders are non-cancellable. Customer may not withhold or set-off any amounts due under this Agreement.

(b) Usage Limits. SaaS Services may be subject to usage limits specified in an Order, the Documentation or within the Solution. If Customer exceeds a usage limit, ContactMonkey may: (a) bill Customer for such usage and Customer will pay the additional fees in accordance with this Agreement; (b) work with Customer to seek to reduce Customer’s usage so that it conforms to that limit; or (c) request Customer to execute an Order for additional quantities of the applicable SaaS Services.

(c) Invoicing. ContactMonkey will prepare and send to Customer, at the then-current contact information on file with ContactMonkey, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 calendar days of the invoice date.

(d) Disputed Invoices or Charges. If Customer believes ContactMonkey has charged or invoiced Customer incorrectly, Customer must contact ContactMonkey no later than 30 days after having been charged by ContactMonkey or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.

(e) Taxes. 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 (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with the purchase of the SaaS Services and shall not deduct any amount from the Fees for Taxes. If ContactMonkey has the legal obligation to pay or collect Taxes for which the Customer is responsible under this Section 7(e), ContactMonkey shall invoice the Customer and the Customer shall pay that amount unless the Customer provides ContactMonkey with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, ContactMonkey is solely responsible for taxes assessable against it based on its income, property and employees.

(f) Suspension. Any suspension of the Solution (for non-payment of Fees) pursuant to this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

8. Confidential Information
(a) Definitions. For the purposes of this Agreement, a Party or its Affiliates, customers, employees, licensors or suppliers receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its service providers, licensors or customers that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer, Customer’s Confidential Information includes Customer Data and where Discloser is ContactMonkey, ContactMonkey’s Confidential Information includes the ContactMonkey Property. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.

(b) Confidentiality Covenants. The Recipient shall not use or disclose Confidential Information of the Discloser for any purpose other than to perform its respective obligations under this Agreement. Each Party retains all ownership rights to its Confidential Information. The Recipient shall use at least the same level of care to prevent unauthorized use or disclosure of Confidential Information as it uses for its own confidential and proprietary information, but in no event less than a reasonable standard of care. The confidentiality obligations contained in this Section 8 supersede and replace any prior non-disclosure agreement between the Parties regarding the subject matter of this Agreement. The Recipient shall only make available Confidential Information to its Affiliates, employees and contractors on a need-to-know basis and shall be subject to contractual obligations of confidentiality no less restrictive than the restrictions set out in this Section 8 with respect to the use and disclosure of Confidential Information. The Recipient shall be responsible for any unauthorized disclosure of any Confidential Information by its Affiliates, employees and contractors. 

(c) Exceptions to Confidentiality. Notwithstanding Section 8(b), the Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of ContactMonkey, to potential assignees, acquirers or successors of ContactMonkey if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of ContactMonkey.

(d) Injunction and other Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 8 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

(e) Return of Confidential Information. Upon the termination or expiration of this Agreement and all Orders under this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed in the Data Processing Addendum) of the other Party in its possession or control within a reasonable amount of time in accordance with the Recipient’s data destruction practices. 

9. Warranty; Disclaimer
(a) Customer Warranty. Customer represents and warrants to, and covenants with ContactMonkey that: (i) it shall only send or cause or permit to be sent emails, text messages or other commercial electronic messages to recipients from whom Customer has obtained all necessary consents and provided all necessary notices as required by and in compliance with Applicable Laws, including Anti-Spam Laws; and (ii) in respect of Customer Data (a) it owns all rights, title and interests in, or has a license to, all Customer Data; (b) it has the necessary rights and consents to provide Customer Data to ContactMonkey; (c) it has the necessary rights to grant the licenses granted by the Customer to ContactMonkey in this Agreement; (d) Customer Data complies with all applicable license requirements and does not violate any Applicable Laws. Any template, sample or other notices provided to Customer by ContactMonkey pursuant to this Agreement or otherwise are for reference only and ContactMonkey does not represent that such templates, samples or notices are sufficient to meet Customer’s obligations under Applicable Laws.

(b) ContactMonkey represents and warrants that (a) the SaaS Services shall function as described in the Documentation in all material respects; (b) it shall use reasonable efforts to scan for Malicious Code; and (c) it shall provide the SaaS Services using commercially reasonable care and skill and in accordance with Applicable Laws. 

(c) GENERAL DISCLAIMER.EXCEPT AS PROVIDED IN SECTION 9(b), CONTACTMONKEY DOES NOT WARRANT THAT THE CONTACTMONKEY SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE CONTACTMONKEY SOLUTION OR THE BUSINESS DECISIONS THAT THE CUSTOMER MAKES, IMPLEMENTS OR PERMITS THROUGH THE SOLUTION. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE CONTACTMONKEY SOLUTION (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY CONTACTMONKEY TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS PROVIDED IN SECTION 9(b), CONTACTMONKEY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

10. Indemnities
(a) ContactMonkey Indemnity.

(i) ContactMonkey will indemnify and defend Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses finally awarded in any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate of a Customer Indemnitee) allegation that the SaaS Service infringes any third party Intellectual Property Right in Canada and the United States. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any SaaS Services into, or any combination, operation, or use of any SaaS Services with, any products or services not provided or authorized by ContactMonkey; (B) Modification of any SaaS Services other than by ContactMonkey or with ContactMonkey’s express written approval; (C) unauthorized use of the SaaS Services; or (D) Customer’s indemnity in Section 10(b). This Section 10(a) states the ContactMonkey’s sole liability to, and the Customer Indemnitees exclusive remedy against, ContactMonkey for any third-party claim described in this section.

(ii) If the SaaS Services are, or in ContactMonkey’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of any SaaS Services is enjoined or threatened to be enjoined, ContactMonkey may, at its option and sole cost and expense:

(A) obtain the right for Customer to continue to use the affected SaaS Services materially as contemplated by this Agreement;

(B) modify or replace SaaS Services, in whole or in part, to seek to make the SaaS Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute SaaS Services under this Agreement; or

(C) if ContactMonkey determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate the provision of the Solution, in whole or in part, and require Customer to immediately cease all use of the terminated Solution or part or feature thereof and pro rata refund of any unused prepaid Fees for the terminated Solution, if applicable.

THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.

(b) Customer Indemnity. Customer will defend and indemnify ContactMonkey, and its officers, directors, employees and agents (each, a “ContactMonkey Indemnitee”) from and against any and all Losses incurred by a ContactMonkey Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a ContactMonkey Indemnitee) that arise from or relate to: (i) Customer Data; (ii) is in relation to Customer’s use of the SaaS Service in contravention of the Agreement, including contrary to Applicable Law

(c) Indemnification Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified Party promptly notifying the indemnifying Party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying Party of any liability hereunder (except to the extent the indemnifying Party has suffered actual material prejudice by such failure); (b) the indemnifying Party having sole control of the defense or settlement of any claim or suit (provided the indemnifying Party may not settle any claim without the indemnified Party’s consent unless it unconditionally releases the indemnified Party of all liability); and (c) the indemnified Party (at the indemnifying Party’s expense) reasonably cooperating with the indemnifying Party to facilitate the settlement or defense of any claim or suit.

11. Limitation of Liabilities
(a) Indirect Damages. In no event shall either Party or its Affiliates and their respective officers, directors, employees and agents be responsible or liable with respect to this Agreement or the Services under any contract, tort, negligence, strict liability or other theory: (a) for any indirect, exemplary, punitive, incidental, special or consequential damages; (b) for loss of business, profits or revenues, failure to realize expected savings or other commercial or economic losses of any kind; or (c) for error or interruption of use or for loss or inaccuracy of corruption of data or cost of procurement of substitute goods, services or technology, in each case whether or not a Party has been advised of the possibility of such damages.

(b) Cap on Liability. The aggregate cumulative liability of each Party to the other Party for any claims arising under or relating to this Agreement, notwithstanding the form in which any action is brought, whether in contract, tort (including negligence) or otherwise, shall be limited in the aggregate to the total Fees paid or payable by the Customer to ContactMonkey in the 12 month period immediately preceding the event that gave rise to the claim (“ACV”); provided, however the limitations of liability set out in this Section 11 shall not apply to limit a Party’s liability for (a) gross negligence or willful misconduct, (b) payment of Fees; or (c)  or Section 10 (Indemnities). 

12. Term and Termination
(a) Term. This Agreement will commence on the Effective Date and continue to be in effect for the Initial Term, as set out in the applicable Order. The Term will automatically renew for successive periods of 1 year (each a “Renewal Term”), unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term. Initial Term and applicable Renewal Terms, collectively the “Term”.

(b) Termination. A Party may terminate this Agreement for cause: (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, ContactMonkey may terminate this Agreement immediately if: (A) Customer breaches any restrictions on use in Section 2(b); or (B) required by Applicable Law. If this Agreement is terminated by ContactMonkey in accordance with Section 12(b), Customer will remain liable to pay the full Fees outstanding on the effective date of termination. ContactMonkey will invoice, and Customer will pay, any accrued but unbilled Fees and any unpaid Fees covering the remainder of the then current Term. If this Agreement is terminated by Customer pursuant to Section 12(b)(i), ContactMonkey will provide Customer with a pro rata refund of any Fees prepaid by Customer applicable to the period following the effective date of termination.

(c) Effect of Termination. Upon expiration or termination of this Agreement:

(i) Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the Solution and delete all ContactMonkey Property in its possession;

(ii) All Orders will also terminate; and

(iii) All Fees due and other amounts due and payable to ContactMonkey are immediately due and are to be immediately paid by Customer to ContactMonkey. No expiration or termination will affect or relieve Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund (except as expressly set out in Section 12(b)).

(d) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9(a) (Customer Warranty), Section 10 (Indemnities), Section 11 (Limitation of Liabilities), Section 14 (General Provisions) and this Section 12(d) (Survival).

13. Insurance
ContactMonkey shall throughout the Term maintain adequate insurance cover with a reputable insurer in relation to the provision of the SaaS Services and the operation of ContactMonkey’s business. ContactMonkey shall on written request of Customer provide evidence of its insurance cover. 

14. General Provisions
(a) Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent:

(i) if to ContactMonkey, to the following address:
ContactMonkey Inc.
Unit 600, 468 King St. W. Toronto Ontario, M5V1L8
Attention: Scott Pielsticker (CEO)
Email: scott@contactmonkey.com

and (ii) if to Customer, to the current postal or email address that ContactMonkey has on file with respect to Customer. ContactMonkey may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with ContactMonkey current at all times during the Term.

(b) Assignment. This Agreement shall be binding upon and shall enure to the benefit of and be enforceable by the Parties and their respective successors and permitted assignees. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party; provided, however either Party may assign this contract: (a) to an Affiliate; (b) as part of a bona fide corporate reorganization; or (c) in connection with a sale of its business, a sale of all or substantially all of its assets, a merger, a change of control transaction, a business combination or other such similar transaction, whether by way of contract, operation of law or otherwise.

(c) Governing Law and Attornment. For Customers located in the United States, this Agreement and any dispute (whether contractual or non-contractual) arising out of or in connection with this Agreement, its subject matter or formation will be governed by and interpreted and construed in accordance with the laws of Delaware, without regard to conflict of law principles, and will be subject to the exclusive jurisdiction of the courts of Delaware. For Customers located in the EU or UK the references to Delaware in Section above will be deemed to be references to the laws of England and the courts of England and Wales. For Customers located in Canada or elsewhere in the world, the references to Delaware above will be deemed to be references to the laws of Province of Ontario and the federal laws of Canada applicable therein and the courts of the Province of Ontario. The Uniform Commercial Code UCC, the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act UCITA do not apply to this Agreement.

(d) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.

(e) Force Majeure Event. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure Event”), provided such Party gives prompt written notice to the other Party (the “Non-Force Majeure Party”) of the Force Majeure Event and such affected Party exercises all reasonable efforts to eliminate the effects of the Force Majeure Event on this Agreement as soon as possible. If any Force Majeure Event continues for a period longer than 30 days, the Non-Force Majeure Party may terminate this Agreement upon written notice to the other Party.

(f) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

(g) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

(h) Independent Contractors. ContactMonkey’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of or bind the other Party.

(I) Entire Agreement. This Agreement, including any Orders, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.

(j) Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.

(k) Customer Lists. ContactMonkey may identify Customer by name and logo as a ContactMonkey customer on the Website and on other promotional materials. Any goodwill arising from the use of Customer’s name and logo will inure to the benefit of Customer.

(l) Third Party Communications. The Solution allows Customer to communicate with an individual or an organization other than ContactMonkey (a “Third Party”). Any communication with a Third Party, including any services and any advice, opinion or information that Customer may obtain by way of such communications through the Solution, or any payment transaction facilitated or enabled by the Solution, is between Customer and this Third Party. ContactMonkey is not responsible for the content of these communications and expressly disclaims any responsibility or liability for any claims, losses or damages that may arise as a result of such communications or failure of communications. ContactMonkey reserves the right, but has no obligation, to become involved in any way with any dispute between Customer and another third party arising out of or that is in connection with the Solution. ContactMonkey is not responsible for the conduct, whether online or offline, of any user of the Solution.

(m) Export Compliance. The Services are subject to all applicable export control laws and regulations including, without limitation, those of the United States government. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

(n) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. 

(o) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.