Introduction

These Terms of Service form an agreement between the Customer named in the Order Form and Deskree under which the Customer accesses and uses the applicable Deskree’s Products and Services and is entered into on the Effective Date. This Agreement includes any current or future Order Forms, and all such documents are incorporated by this reference. Deskree and Customer will be referred to together as the “Parties” and each a “Party”. Capitalized terms used in this Agreement have the meaning ascribed to them in the preamble or in this Section 14. This Agreement sets forth the terms and conditions that govern the provision and use of the Services.

BY USING THE DESKREE’S PRODUCTS (INCLUDING THE WEBSITE, AS DEFINED BELOW), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 13(m). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE DESKREE’S PRODUCTS. CUSTOMER REPRESENTS AND WARRANTS TO DESKREE THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE DESKREE’S PRODUCTS ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO DESKREE THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THESE TERMS OF SERVICE

1. Deskree’s Products

1. Provisioning of Deskree’s Products. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement (including any Order Form), Deskree will make the applicable Deskree’s Products available to Customer on the terms and conditions set out in this Agreement during the Term. Customer may access and use the Deskree’s Products solely for Customer’s internal business purposes
2. Restrictions on Use. Customer will not itself, and will not permit others to: (i) sub-license, sell, rent, lend, lease or distribute the Deskree’s Products or any Intellectual Property Rights therein, or otherwise make the Deskree’s Products available to any third parties other than Permitted Users; (ii) use Deskree’s Products or Services for personal, family or household purposes; (iii) use or access the Deskree’s Products: (A) in violation of any Applicable Laws or Intellectual Property Right; (B) for any High Risk Activities; (C) in a manner that threatens the security or functionality of the Deskree’s Products; (D) in violation of Google Cloud Platform Terms or any other Third-Party Services providers’ terms and condition; or (E) for any purpose or in any manner not expressly permitted in this Agreement; (iv) use or access the Deskree’s Products to create, collect, transmit, store, use or process any Customer Property that: (A) contains any Personal Information other than Account Information; (B) Customer does not have the lawful right to create, collect, transmit, store, use or process; (C) violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); or (D) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (v) copy or Modify the Deskree’s Products; (vi) reverse engineer, de-compile or disassemble the Deskree’s Products or any part of them; (vii) access or use the Deskree’s Products for purposes of benchmarking or competitive analysis of such Deskree’s Products; (viii) access or use the Deskree’s Products for the purpose of building a similar or competitive product or service; (ix) remove or obscure any proprietary notices or labels on the Deskree’s Products, including brand, copyright, trademark and patent or patent pending notices; (x) perform any vulnerability, penetration or similar testing of the Deskree’s Products; (xi) use Deskree’s Products to circumvent the intended features, functionality or limitations of Deskree’s APIs; (xii) use any automated or programmatic method to extract data or output from Deskree’s Products, including scraping, web harvesting, or web data extraction; (xiii) do any of the following: (A) accessing content and data that is not intended for Customer; (B) attempting to breach or breaching the security and/or authentication measures which are not authorized; (C) restricting, disrupting or disabling service to users, hosts, servers or networks; (D) illicitly reproducing TCP/IP packet header; (E) disrupting network services and otherwise disrupting our ability to monitor the Platform; (F) using any robot, spider, or other automatic device, process, or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform; (G) attacking the Platform via a denial-of-service attack, distributed denial-of-service attack, flooding, mailbombing or crashing; and (H) otherwise attempting to interfere with the proper working of the Platform; buy, sell, or transfer API Keys without Deskree’s prior consent; (xiv) use Deskree’s Products in a manner which, in the opinion of Deskree would tend to bring Deskree or any of its trademarks into public disrepute, contempt, scandal or ridicule, would adversely affect the reputation or goodwill of Deskree or any of its the trademarks, or adversely affect the relationship between Deskree and any of its licensors or other customers; (xv) use Deskree’s Products to store or transmit material that is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, libelous, obscene, or otherwise objectionable or unlawful; (xvi) use Deskree’s Products to impersonate any person in violation of such person’s privacy or personality rights; or (xvii) without limiting the foregoing, do any of the following: (A) include or contain any material that is exploitive, obscene, harmful, threatening, abusive, harassing, hateful, defamatory, disparaging, offensive, sexually explicit or pornographic, violent, inflammatory, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age or other such legally prohibited ground or be otherwise objectionable, such determination to be made in Deskree’s sole discretion; (B) involve stalking, attempting to exploit or harm any individual (including minors) in any way by exposing them to inappropriate content or otherwise or ask for personal information as prohibited under applicable law; (C) involve, provide or contribute any false, inaccurate or misleading information; (D) impersonate or attempt to impersonate any of the Deskree Parties, another customer or user, an End Customer, or any other person or entity (including, without limitation, by using email addresses, or screen names associated with any of the foregoing); (E) transmit spam or other unsolicited communications; (F) encourage any other conduct which, as determined by us, may harm Deskree or users of the Platform or expose them to liability; (G) promote any illegal activity, or advocate, promote, or assist any unlawful act; or (H) give the impression that they originate from or are endorsed by us or any other person or entity, if this is not the case.
3. Suspension of Access; Scheduled Downtime; Modifications. Deskree may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement: (i) suspend Customer’s access to or use of the Services or any component of them: (A) for scheduled maintenance; (B) due to a Force Majeure event; (C) if Deskree believes in good faith that Customer or any Permitted User has violated any provision of this Agreement; (D) to address any emergency security concern; (E) if required to do so by a Governmental or Regulatory Authority or as a result of a change in Applicable Laws; or (F) for any other reason as provided in this Agreement; and (ii) make any Modifications to the Services or Deskree’s Products, provided that such Modifications do not materially reduce the level of performance, functionality, security or availability of the Services or Deskree’s Products during the applicable Service Term. Customer is required to accept all patches, bug fixes and updates made by or on behalf of Deskree to the Deskree’s Products. Where reasonably practicable in the circumstances and unless prohibited by Applicable Law, Deskree will use reasonable endeavors to give Customer reasonable advance notice of any limitation or suspension pursuant to this Section 1 (c) so that Customer can plan around it or address the issue that has prompted Deskree to take such action. There may be some situations, such as security emergencies, where it is not practicable for Deskree to give such advance notice such as in the event the suspension is due to an emergency security concern or required by a Governmental or Regulatory Authority or Applicable Law, Deskree will use commercially reasonable efforts to narrow the scope and duration of the suspension as is needed to resolve the issue that prompted such action.
4. Subcontracting. Deskree may engage third parties to provide Deskree’s Products or Services or any part of them, without Customer’s consent and without prior notice to Customer. The delegating or subcontracting of all or any part of Deskree’s obligations set out in this Agreement will not relieve Deskree from any obligation or liability under this Agreement.
5. Downloadable Software. Use of the Deskree’s Products may require or include use of Deskree Downloadable Software to be run directly on Customer’s systems (“Customer Systems”). As a result, Deskree Downloadable Software may automatically download and install updates and upgrades from time to time from Deskree. These updates are designed to improve, enhance and further develop the Deskree’s Products and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. Customer consents to the installation of Deskree Downloadable Software, including updates and upgrades (and authorizes Deskree to deliver these to Customer) as part of Customer’s use of the Deskree’s Products. Customer acknowledges that Deskree Downloadable Software causes Customer Systems to communicate with Deskree for the purposes described above. Notifications will be made in advance of any upcoming significant releases, maintenance or other event that may affect the Deskree’s Products. Some emergency updates may be communicated after they are delivered. Customer, at its sole expense, agrees to provide compatible Customer Systems for the activation of Deskree Downloadable Software and is responsible for upgrading and configuring Customer Systems to remain compatible with any minimum system requirements as required by Deskree, during the Term.
6. Customer Affiliates. Deskree may provide the Services or any part of the Services, and grant the rights under this Agreement, to any Affiliate of Customer in accordance with this Agreement and as may be directed by Customer from time to time. If any Customer’s Affiliate is receiving any Services or is granted any rights under this Agreement, a reference to Customer will refer to such Customer’s Affiliate to the extent that such term or condition applies to such Customer’s Affiliate’s receipt of the Services or grant of such rights. Deskree agrees that Customer may disclose the Agreement and the Deskree’s Confidential Information to the extent required in order to inform each such other Customer’s Affiliate of the nature and scope of the Services or grant of rights hereunder and otherwise in connection with such other Affiliate’s receipt of the Services or grant of such rights. Customer will remain responsible for all obligations of such any Customer’s Affiliate as if such Services were provided to Customer.

2. Ownership; Reservation of Rights

1. Customer Property.

   1. Subject to the rights granted in this Section 2, Customer retains all right, title and interest including Intellectual Property Rights in and to Customer Property.
   2. Customer grants to Deskree: (A) a nonexclusive, worldwide, royalty-free, irrevocable, non transferable (except as permitted in Section 13(c)), sublicensable, and fully paid-up licence during the Term to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Property solely to provide the Deskree’s Products and Services; and (B) a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, non transferable (except as permitted in Section 13(c)), sublicensable, and fully paid-up licence to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Property to: (A) improve and enhance Deskree’s Products, Services and Deskree’s other offerings; and (B) produce or generate information and other data in an anonymous or aggregated form that is collected or generated by Deskree’s Products and Services related to how individual users interact with the Deskree’s Products and Services, including frequency and duration of usage, specific features or functions accessed, user preferences and patterns of behavior, but expressly excluding any information or data that can (whether alone or when combined with other information or data) identify or reveal the identity of individual user. (such data, information and materials, the “Aggregated Data”). Deskree may use, process, store, disclose, transmit, transfer and display the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind.
2. Deskree Property. Deskree or its licensors retain all right, title and interest including Intellectual Property Rights in and to: (i) Deskree’s Products; (ii) Services; (iii) Platform; (iv) anything developed or delivered by or on behalf of Deskree in accordance with the terms of this Agreement including any deliverables, SOC Reports, Reports, Documentation, Aggregated Data and any metadata that is generated by Deskree’s Products; and (v) any Modifications to the foregoing (collectively, “Deskree Property”). All rights not expressly granted by Deskree to Customer under this Agreement are reserved.
3. Feedback. To the extent that Customer or any Permitted User submits ideas, suggestions, documents, or proposals regarding the Deskree’s Products to Deskree (“Feedback”), Customer acknowledges and agrees that: (i) the Feedback does not contain confidential or proprietary information and Deskree is not under any obligation of confidentiality with respect to the Feedback; and (ii) Deskree will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to Customer for such use.
4. Access Right and License Grant to Customer. Subject to the terms and conditions of this Agreement: (A) Deskree hereby grants to Customer: (i) a limited, revocable, non-exclusive, non-sublicensable (except for permitted use by Permitted Users), non-transferable (except as permitted in Section 13(c)) right during the applicable Service Term to allow its Permitted Users to access and use the Platform Services in accordance with the Documentation, solely for Customer’s and Permitted Users’ internal use; and (ii) a limited, revocable, non-exclusive, non-sublicensable (except for permitted use by Permitted Users), non-transferable (except as permitted in Section 13(c)) license during the applicable Service Term to: (A) access and use the Deskree’s API (if access to Deskree’s API is provided to Customer pursuant to any Order Form) and Deskree Downloadable Software, solely for the purpose of facilitating the transfer of information from Customer Systems to the Platform Services; and (B) a revocable, non-exclusive, non-sublicensable (except for permitted use by Permitted Users), non-transferable (except as permitted in Section 13(c)) limited license during the Service Term to use the Deskree’s Materials, deliverables, and Reports solely for the purpose of use and receipt of the Services. Customer hereby agrees to ensure that all copyright, trademark and other proprietary notices of Deskree affixed to or displayed on the Deskree’s Products (including the Platform Services) will not be removed or modified. Customer will not use any name, title or expression that, in the opinion of Deskree, so nearly resembles any Deskree trademarks that such use may lead to confusion or uncertainty on the part of the public.

3. Deskree’s APIs

1. Deskree’s APIs. If Customer is provided with access and use of the Deskree’s API in the Order Form, then:

   1. Customer will receive an API key from Deskree (each, an “API Key”). Customer acknowledges that such API Keys are Deskree’s Confidential Information and will not share Customer’s API Keys with any third party without Deskree’s prior consent. In addition, Deskree may revoke Customer’s API Keys any time without Customer’s consent.
   2. Customer may incorporate Deskree’s APIs into Customer’s products and services and otherwise use Deskree’s APIs in connection with its internal business purposes, provided such incorporation and use are done in accordance and in compliance with this Agreement and the related Documentation.
   3. Unless otherwise set out in an Order Form, the number of calls Customer makes to Deskree’s APIs during any given period may be limited, at Deskree’s sole discretion, based on various factors that include the manner in which Customer makes calls to Deskree’s APIs and the anticipated volume of use associated with Customer.
   4. Deskree reserves the right to change Deskree’s APIs and related Documentation at any time and without notice. Customer acknowledges and understands that these changes may require Customer to make changes to Customer Applications at Customer’s own cost and expense.
   5. Notwithstanding the foregoing, Deskree retains the right, at Deskree’s sole discretion, to suspend or revoke Customer’s or its Permitted Users’ access to the Deskree’s APIs, at any time and for any reason, including for: (A) violation of the terms of this Agreement, the Responsible Use Guidelines or any other responsible use guidelines Deskree provides to Customer or are posted on the website; (B) Customer’s use of the Deskree’s APIs contrary to the related Documentation; (C) scheduled maintenance; or (D) any emergency security concerns.
   6. Customer acknowledges and agrees that Deskree may monitor Customer’s or its Permitted Users’ use of Deskree’s APIs and that Customer will not block or otherwise interfere with Deskree’s monitoring.

4. Privacy; Security

1. To the extent that the Customer Data includes “Protected Health Information” or “PHI” (as defined in the BAA), the Business Associate Agreement agreed between the Parties dated the Effective Date (the “BAA”) is made a part of, and incorporated by reference into, this Agreement.
2. Deskree’s APIs. If Customer is provided with access and use of the Deskree’s API in the Order Form, then:

   1. only use Personal Information for the purposes of fulfilling Deskree’s obligations and exercising its rights in accordance with the Agreement and as otherwise instructed by Customer in writing from time to time;
   2. not disclose any Personal Information to any third party without the prior written consent of Customer except as permitted hereunder;
   3. where any disclosure or transfer of Personal Information is required by law, promptly notify Customer in writing before complying with any such requirement for disclosure (except where legally prohibited from doing so);
   4. limit access to Personal Information only to those employees and subcontractors who need to have access to the Personal Information for the purposes of Deskree fulfilling its obligations hereunder;
   5. notify Customer as soon as reasonably practicable upon becoming aware of any loss, theft, unauthorized access to or disclosure of Personal Information, and comply with all reasonable instructions of Customer in connection therewith;
   6. enter into a written agreement with each subcontractor or third party that has access to Personal Information that enables Deskree to comply with its obligations in this Section 4; and
   7. upon the termination of this Agreement, Deskree shall comply with the retention and destruction requirements set out in Section 12(c) of this Agreement.
3. Upon request in writing by Customer, Deskree will provide Customer with a copy of Deskree’s then current annual SOC 2 Type II report (“SOC Report”). Such SOC Report is Deskree’s Confidential Information.

5. Third-Party Services

If the Deskree’s Products or Services contain or require the use of Third Party Licensed Technology, Customer will accept and comply with the license terms applicable to such Third Party Licensed Technology. If Customer does not agree to abide by the applicable license terms for any such Third Party Licensed Technology, then Customer should not install, access, or use such Third Party Licensed Technology. Any acquisition by Customer of Third Party Licensed Technology, and any exchange of data between Customer and any such provider of Third Party Licensed Technology is solely between Customer and the applicable Third Party Licensed Technology provider. Deskree does not warrant or support Third Party Licensed Technology, even if they are designated by Deskree as “certified” or otherwise recommended. Deskree cannot guarantee the continued availability of Third Party Licensed Technology features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Licensed Technology ceases to make the Third Party Licensed Technology available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Deskree. Deskree is not responsible for any disclosure, modification or deletion of Customer Data resulting from access to Customer Property by such Third Party Licensed Technology or their providers.

6. Customer User Account; Customer Responsibilities

1. Customer User Account. In order for Customer to access and use the Platform Services and other applicable Deskree’s Products, Deskree will issue one or more Administrator User Accounts to Customer that provides the Administrator User with the capability to create Employee User Accounts and Customer User Accounts for its other Permitted Users.
2. Customer Responsibilities.

   1. Customer will ensure that a Permitted User only uses the Deskree’s Products through the Permitted User’s assigned Customer User Account. Customer will not allow any Permitted User to share a Customer User Account with any other person. Customer will promptly notify Deskree of any actual or suspected unauthorized use of Deskree’s Products. Deskree 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; and
   2. Customer will solely be responsible for: (A) the accuracy, quality and legality of Customer Property, the means by which Customer acquired Customer Property, Customer’s use of Customer Property with Deskree’s Products, and the interoperation of any third party products or systems with which Customer uses Deskree’s Products; (B) providing, at its own expense, all network access to Deskree’s Products, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use Deskree’s Products; (C) properly configuring and using Deskree’s Products and taking its own steps to maintain appropriate security, protection and backup of its infrastructure (including without limitation any databases, servers, and any other protocol) which may include the use of encryption technology to protect such infrastructure from unauthorized access and routine archiving of such infrastructure; (D) using Deskree’s Products in accordance with this Agreement and Applicable Laws; (E) identifying and authenticating all Permitted Users and for ensuring only Permitted Users access and use Deskree’s Products; (F) its Affiliates and Permitted Users’ compliance with this Agreement (and compliance with any applicable terms and conditions for Third-Party Services (including Google Cloud Platform Terms)) and any breach by Customer, its Affiliates or Permitted Users shall be deemed a breach by Customer. Without limiting the generality of the foregoing, where appropriate in the circumstances, this may include Customer taking steps to ensure that all Permitted Users of the Deskree’s Products are contractually bound to terms and conditions with Customer that are no less restrictive or protective of Deskree’s rights than those set forth in this Agreement; and (G) ensuring that none of the Permitted Users bring or maintain any Claim against Deskree, its shareholders, employees, officers, directors, Affiliates, agents, contractors, successors, and assigns in respect of any matter related to or in connection with the subject matter of this Agreement. Customer will be liable for any breach by a Permitted User of this Agreement.

7. Support Services

Unless otherwise set out in the Order Form, Customer will generally have access to Deskree’s support services in relation to the Platform Services (“Support Services”).

8. Fees and Payment

1. Fees. Customer will pay to Deskree the fees described in any Order Form (the “Fees”). Unless otherwise noted on an Order Form or otherwise specified in this Agreement: (i) all Fees are identified in the currency set forth in the Order Form; (ii) Fees are non-cancelable and non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. If Customer’s use of the Deskree’s Products exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement. Deskree reserves the right to change the Fees and institute new charges on each anniversary of the Effective Date upon providing not less than 30 days prior notice to Customer. Deskree will prepare and send to Customer, at the then-current contact information on file with Deskree, 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. If Customer believes Deskree has charged Customer incorrectly, Customer must contact Deskree no later than forty-five (45) days after having been charged by Deskree 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. Customer may not withhold or setoff any amounts due under this Agreement. If Customer fails to make any payment when due, without limiting Deskree’s other rights and remedies, Deskree may: (i) charge interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid; and (ii) except for Fees subject to a reasonable and good faith dispute, if a payment is more than thirty (30) days past due and Deskree has provided at least ten (10) days written notice to Customer, Deskree may suspend in its sole discretion either: (A) suspend, in accordance with Section 1(c), Customer’s and all other Permitted Users’ access to any portion or all of Deskree’s Products until such amounts are paid in full; or (B) terminate the Agreement immediately on notice (which may be sent by electronic means to the account administrator through the applicable Customer User Account), without incurring any obligation or liability to Customer or any other person by reason of such suspension or termination.
2. Taxes. The Fees do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including any applicable interest and penalties) payable in connection with the transactions contemplated by this Agreement, other than taxes based on the net income or profits of Deskree. If Deskree has a legal obligation to pay or collect taxes for which Customer is responsible under this Agreement, the appropriate amount shall be computed based on Customer’s address listed in the Order Form, and invoiced to and paid by Customer, unless Customer provides Deskree with a valid tax exemption certificate authorized by the appropriate taxing authority.
3. Suspension. Any suspension of Deskree’s Products by Deskree pursuant to this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
4. Payment Processor. Payment and collection of Fees may be enabled through and executed by a third-party payment processor. Transaction fees associated with the individual payment and collection of Fees or amounts under this Agreement are as outlined in the pricing plan provided to Customer. Customer may be required to agree to terms and conditions as required by such third-party payment processor from time to time. Prior to using Services and any components thereof, Customer must have all applicable such third-party payment processor’s terms and conditions in effect. By using Services or any component thereof, Customer acknowledges it must be in full compliance with the terms and conditions of such third-party payment processor and be in good standing with such third party payment processor.

9. Confidential Information

1. Definitions. For the purposes of this Agreement, a Party or any of its Affiliates, customers, employees, licensors or suppliers receiving Confidential Information will be “Recipient”, the Party disclosing such information will be “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its Affiliates, and in the case of Deskree, any of its service providers, licensors or customers that has or will come into the possession or knowledge of Recipient in connection with or as a result of entering into this Agreement, including information concerning Discloser’s past, present or future customers, suppliers, technology or business, Deskree Property, this Agreement and where Discloser is Customer, Customer’s Confidential Information includes Customer Property. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include any information that: (a) is publicly available prior to it being obtained by or becoming known to Recipient, or that subsequently becomes publicly available through no breach of this Agreement by Recipient; (b) Recipient can demonstrate (through written records) was known to it prior to it being obtained by or becoming known to Recipient in connection with or as a result of entering into this Agreement; (c) becomes known to Recipient from a third party, where Recipient had no reason to believe that such third party had any obligation of confidence with respect to such information, but only until Recipient subsequently comes to have reason to believe that such information was subject to an obligation of confidence; or (d) Recipient can demonstrate (through written records) was developed independently by it or by individuals employed or engaged by Recipient who did not have any access to, or the benefit of, the Confidential Information of Discloser.
2. Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times following the Term it will: (i) not disclose Confidential Information of Discloser to any person without the express written consent of Discloser, except to its own personnel and Permitted Users (if Recipient is Customer), or its and its Affiliate’s employees, contractors, subcontractors, advisors, consultants, officers, directors, partners, shareholders, agents and their respective successors or permitted assigns (if Recipient is Deskree), or such other recipients as Discloser may approve in writing, that have a “need to know” for the purposes of receiving or providing the Services, who are informed of the confidential nature of the Confidential Information, who are directed to hold the Confidential Information in confidence and who agree in writing, or are otherwise legally bound, to comply with confidentiality obligations in respect of such Confidential Information that are no less stringent than the provisions of this Agreement; (ii) not use Confidential Information of Discloser or permit it to be accessed or used for any purpose except to exercise its rights or perform its obligations under this Agreement; (iii) not alter or remove from any Confidential Information of Discloser any proprietary legend; and (iv) maintain the Confidential Information of Discloser in strict confidence, which will include taking measures to protect the confidentiality and security of such Confidential Information using a reasonable standard of care, and no less than the standard of care taken to protect its own Confidential Information of similar sensitivity.
3. Exceptions to Confidentiality. Notwithstanding Section 9(b), Recipient may disclose Discloser’s Confidential Information: (i) only if and to the extent legally compelled or required by a Governmental or Regulatory Authority, provided that Recipient must first: (A) provide Discloser with prompt prior written notice of such compelled disclosure (except where prohibited by Applicable Laws from doing so) to give Discloser the opportunity to oppose such disclosure; and (B) cooperate fully with Discloser in protecting against or limiting any such disclosure, including obtaining a protective order narrowing the scope of such disclosure and use of the Confidential Information. Thereafter, Recipient may disclose the Confidential Information of Discloser, but only to the extent required and subject to any protective order that applies to such disclosure; (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 Deskree, to potential assignees, acquirers or successors of Deskree 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 Deskree.
4. Injunction and other equitable relief. Each of the Parties acknowledge that disclosure of Discloser’s Confidential Information or any other breach of this Section 9 may cause serious and irreparable damage and harm to Discloser and that remedies at law may be inadequate to protect against breach of this Agreement, and each Party agrees that Discloser may seek injunctive relief for any breach of the provisions of this Section 9 and to the specific enforcement of the terms of this Section 9, in addition to any other remedy to which Discloser would be entitled.
5. Return or Destruction. Upon written request by a Discloser or upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 12(c) of the other Party in its possession or control within a reasonable amount of time in accordance with Recipient’s data destruction practices. Notwithstanding the foregoing, Deskree may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Section 9. Upon written request of Discloser, Recipient will certify in writing that it has complied with this Section 9.

10. Warranty; Disclaimer; Indemnity

1. Customer Warranty. Customer represents and warrants to, and covenants with Deskree that: (i) necessary consents, rights and notices, and otherwise has and continues to have all necessary authority in and relating to the Customer Property (including Personal Information) for Deskree to perform its obligations and exercise its rights under this Agreement in compliance with Applicable Laws, including applicable privacy laws, and without infringing, misappropriating or otherwise violating any Intellectual Property Rights or other rights of any third party, and shall inform Deskree immediately if any such consents, rights or authority are withdrawn or can no longer be relied upon; (ii) Customer shall implement reasonable and appropriate measures designed to help secure Customer’s and its Permitted Users’ access to and use of Deskree’s Products; (iii) Customer will not use Deskree’s Products for personal, family or household purposes; (iv) Customer and its Permitted Users shall comply with all Applicable Laws; (v) Customer will not permit any Permitted User to access and use the Services from Russia, China, or any country: (A) subject to any embargo by the United States or Canada (collectively, the “Embargoed Countries”); or (B) on the U.S. Department of the Treasury’s list of Specially Designated Nationals, any other restricted party lists (existing now or in the future) identified by the Office of Foreign Asset Control, or the U.S. Department of Commerce Denied Persons List or Entity List, or any other restricted party lists (collectively, “Restricted Party Lists”); and (vi) Customer shall comply with Section 13(e).
2. DISCLAIMERS. DESKREE DOES NOT WARRANT THAT THE DESKREE’S PRODUCTS 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 DESKREE’S PRODUCTS EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT. THE DESKREE’S PRODUCTS (OR ANY PART OF THEM), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY DESKREE TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY LICENSED TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, DESKREE 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, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, 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. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, DESKREE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE DESKREE’S PRODUCTS (OR ANY PART OF THEM), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. WITHOUT LIMITING THE FOREGOING, CUSTOMER IS RESPONSIBLE FOR IMPLEMENTING SAFEGUARDS TO PROTECT THE SECURITY AND INTEGRITY OF ITS AND PERMITTED USERS’ COMPUTER SYSTEM AND ANY CUSTOMER PROPERTY. DESKREE DOES NOT GUARANTEE OR WARRANT THAT ANY COMPONENT OF DESKREE’S PRODUCTS OR ANY OTHER OF DESKREE PROPERTY IS COMPATIBLE WITH CUSTOMER’S COMPUTER SYSTEM OR THAT DESKREE’S PRODUCTS OR ANY LINKS FROM ANY COMPONENT OF DESKREE’S PRODUCTS, WILL BE FREE OF DISABLING DEVICES. DESKREE RESERVES THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR OR TO TAKE ANY ACTION REGARDING DISPUTES BETWEEN CUSTOMER AND ANY OTHER USER AND SHALL HAVE NO LIABILITY FOR CUSTOMER’S (OR ITS PERMITTED USERS’) INTERACTIONS OR ANY DISPUTES WITH OTHER USERS OR FOR ANY USER’S ACTION OR INACTION. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS CONDUCT ON DESKREE’S PRODUCTS AND ITS (END CUSTOMERS OR ITS PERMITTED USERS’) INTERACTIONS WITH OTHER USERS. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER, NOT DESKREE, ARE FULLY RESPONSIBLE FOR ANY CUSTOMER DATA AND OTHER CUSTOMER PROPERTY THAT CUSTOMER, PERMITTED USERS INCLUDING OR ANY END CUSTOMERS SUBMIT OR CONTRIBUTE, AND CUSTOMER IS FULLY RESPONSIBLE AND LEGALLY LIABLE, INCLUDING TO ANY THIRD PARTY, FOR SUCH CONTENT AND ITS ACCURACY. DESKREE IS NOT RESPONSIBLE OR LEGALLY LIABLE TO ANY THIRD PARTY FOR THE CONTENT OR ACCURACY OF ANY CUSTOMER PROPERTY SUBMITTED BY CUSTOMER, PERMITTED USERS OR ANY END CUSTOMERS OR BY ANY OTHER PERMITTED USER, END CUSTOMERS OR USER OF THE PLATFORM OR ANY OTHER DESKREE’S PRODUCTS.
3. Customer Indemnity. Customer will defend, indemnify and hold harmless Deskree, its employees, officers, directors, Affiliates, agents, contractors, successors, and assigns (each, a “Deskree Indemnitee”) from and against any and all Losses incurred by a Deskree Indemnitee arising out of or relating to any Claim by a third party (other than an Affiliate of a Deskree Indemnitee) that arise from or relate to: (i) Customer Property; (ii) Customer’s breach of Section 0(b), Section 6(b), Section 10(a) or Section 13(e); (iii) Customer’s and Permitted Users’ use of Deskree’s Products, including content, products or services Customer develops or offers in connection with Deskree’s Products; (iv) Customer’s breach or violation of Applicable Law; or (v) use of Deskree’s Products (or any part thereof) by Customer or any Permitted User in combination or integration with any third party software, application or service. Customer will fully cooperate with Deskree in the defense of any Claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such Claim without the prior written consent of Deskree.
4. Deskree Indemnity. Deskree will defend, indemnify and hold harmless Customer, its employees, officers, directors, Affiliates, agents, contractors, successors, and assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any Claims by a third party (other than an Affiliate or a Customer Indemnitee) finally awarded by a court of competent jurisdiction or in settlement approved by Deskree in writing that arise from or relate to any allegation that the authorized access to or use by the Customer or any Permitted User of Platform Services as permitted pursuant to this Agreement, infringes, violates or misappropriates any Intellectual Property Rights of such third party in Canada and the United States. The foregoing obligation does not apply to any Claims or Losses arising out of or relating to any: (A) incorporation of any Deskree’s Products into, or any combination, operation, or use of any Deskree’s Products with, any products or services not provided or authorized by Deskree; (B) modification of any Deskree’s Products other than by Deskree or with Deskree’s express written approval; (C) unauthorized use of the Deskree’s Products; or (D) Losses covered by the Customer’s indemnity obligations in Section 10(c). THIS SECTION 10(d) REPRESENTS THE SOLE AND EXCLUSIVE LIABILITY OF DESKREE FOR THE INFRINGEMENT, VIOLATION, OR MISAPPROPRIATION OF THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY UNDER THIS AGREEMENT.
5. IP Remedy. If Platform Services are, or in Deskree’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 portion of Platform Services are enjoined or threatened to be enjoined, Deskree may, at its option and sole cost and expense: (i) obtain the right for the Customer to continue to use the affected Platform Services materially as contemplated by this Agreement; (ii) Modify or replace Platform Services in whole or in part, to seek to make Deskree’s Products (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Platform Services under this Agreement; or (iii) if Deskree determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate this Agreement, require Customer to immediately cease all use of Platform Services or part or feature thereof and provide pro rata refund of any unused prepaid Fees for the terminated Platform Services, if applicable. THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
6. Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Claim for which such Party believes it is entitled to be indemnified pursuant to this Section 10. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Claim (although the Indemnitor will not settle any Claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10(f) will not relieve the Indemnitor of its indemnity obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

11. Limitation of Liabilities

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

1. LIMITATION OF LIABILITY. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF DESKREE, ITS AFFILIATES AND LICENSORS IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO DESKREE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL DESKREE’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
2. EXCLUDED DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL DESKREE, ITS AFFILIATES AND LICENSORS BE LIABLE TO CUSTOMER, ANY PERMITTED USER OR ANY PERSON FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATI(D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

12. Term and Termination

1. Term and Service Term. The term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms have expired or have otherwise been terminated, unless earlier terminated pursuant to this Agreement (the “Term”). Subscription to Deskree’s Products commence on the date and are for the Service Term as set forth in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions to Deskree’s Products and Service Term will automatically renew for additional terms equal to the expiring Service Term, unless or until either Party gives the other notice of non-renewal at least thirty (30) days prior to the end of the then-current Service Term.
2. Termination for Cause. Either Party may, in addition to other relief, terminate this Agreement for cause: (i) upon thirty (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, Deskree may terminate this Agreement immediately upon notice to Customer: (A) if Customer breaches Sections 0(b) or Section 13(e) or as otherwise permitted in this Agreement; (B) if the relationships with Third-Party Services providers outside of Deskree’s control; (C) as otherwise permitted in this Agreement; or (D) to comply with Applicable Law or government requests. If this Agreement is terminated by Customer due to Deskree’s material breach pursuant to this Section 12(b), Deskree will provide Customer with a pro rata refund of any unused Fees prepaid by Customer applicable to the period following the effective date of termination of the Agreement or Order Form. If this Agreement is terminated by Deskree pursuant to Section 12(b), Customer will remain liable to pay the full Fees outstanding on the effective date of termination of the Agreement and Customer shall pay all remaining Fees for the rest of the then-current Service Term, as applicable. Deskree will invoice, and Customer will pay, any accrued but unbilled Fees and any unpaid Fees covering the remainder of the Service Term, had it not been terminated.
3. Effect of Termination. Upon the effective date of the expiration or termination of this Agreement (the “Termination Effective Date”): (i) Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using Deskree’s Products and Services; (ii) Customer will return any Deskree Property in its possession and certify in writing to Deskree that the Deskree Property has been returned; (iii) no new Order Forms may be agreed to or entered into by the Parties and all Order Forms will terminate; and (iv) all Fees due and payable and any amounts due to Deskree are immediately due and are to be immediately paid by Customer to Deskree. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
4. 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 2 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 8 (Fees and Payment), Section 9 (Confidential Information), Section 10 (Warranty; Disclaimer; Indemnity), Section 11 (Limitation of Liabilities), Section 12(d) (Survival), and Section 13 (General Provisions).

13. General Provisions

1. 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 Deskree, to the following address: Deskree Technologies Inc. Address: 169 Gore Vale Ave Toronto ON M6J 2R5 Canada Attention: Dmytro Grechko, CEO Email:sales@deskree.com and (ii) if to Customer, to the current postal or email address that Deskree has on file with respect to Customer. Deskree 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 Deskree current at all times during the Term.
2. Customer Lists. Deskree may identify Customer by name and logo as a Deskree customer on Deskree’s 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..
3. Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or Deskree without the other Party’s prior written consent, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing: (i) either Party may freely assign this Agreement in its entirety (including all Order Forms), without notice and without the consent of the other Party, to its successor in connection with an amalgamation, merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets; and (ii) Deskree may assign this Agreement to its Affiliates or in connection with a change of control, provided that, in the case of assignment by the Customer, all Fees owed and due have been paid, the assignee is not a competitor of Deskree and in all instances of assignment the assignee agrees to be bound by all the terms of this Agreement (“Permitted Assignment”). In this case, under such Permitted Assignment, such assignee will have and may exercise all the rights, and will assume all of the obligations, of the assignor under this Agreement, except that the assignment will not release the assignor from liability for assignor’s obligations under this Agreement prior to such assignment. Any attempt by a Party to assign its rights or obligations under this Agreement, other than as permitted by this Section, will be void and of no effect. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
4. Governing Law and Attornment. This Agreement and any Claim related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada, without regard to conflicts of law principles. The Parties will initiate any lawsuits In connection with this Agreement in Toronto, Ontario Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, Deskree may: (i) seek remedies to collect unpaid Fees from Customer; and (ii) seek remedies with respect to a violation of Deskree’s Intellectual Property Rights or Section 9 (Confidential Information), in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
5. Export Restrictions. Customer will comply with all export laws and regulations under Applicable Laws that may apply to its access to or use of the Services. Deskree makes no representation or warranty that the Services may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
6. 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. The terms “consent” or “discretion”, when used in respect of a Party in this Agreement, mean the right of such Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party.
7. Force Majeure. 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, slowdowns, walkouts or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, cyberattacks, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party software or websites or changes in law preventing or limiting the provision of the Services (“Force Majeure”). This Section does not apply to any of Customer’s obligations under Sections 8, 9, or 10. In the event of any failure or delay caused by a Force Majeure event, the affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure event.
8. 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.
9. 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.
10. Independent Contractors. Deskree’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 the other Party.
11. Entire Agreement. This Agreement (including all Order Forms and any documents incorporated herein by reference to a URL or otherwise), constitute 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. For clarity, any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Services; and (ii) do not override or form a part of this Agreement (including any Order Form).
12. Order of Precedence. To the extent of a conflict between these Terms of Service and any Order Forms: (i) in respect of Section 2 (Ownership; Reservation of Rights), Section 9 (Confidential Information), Section 10 (Warranty; Disclaimer; Indemnities), Section 11 (Limitation of Liabilities), Section 12(d) (Survival) and Section 13 (General Provisions, including this Section 13(l), these Terms of Service will prevail; and (ii) for all other Sections, unless the Order Form expressly states that it modifies or varies these Terms of Service, these Terms of Service will prevail.
13. 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. Notwithstanding the preceding sentence, Deskree may unilaterally amend this agreement, in whole or in part (each, an “Amendment”), by giving Customer 30 days prior notice of such Amendment or posting notice of such Amendment on Deskree’s website. Unless otherwise indicated by Deskree, any such Amendment will become effective 30 days after the date the notice of such Amendment is provided to Customer or is posted on Deskree’s website (whichever is the earlier).
14. Further Assurances. Each Party will, from time to time, execute and deliver all such further documents and instruments and do all acts and things as the other Party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
15. Third Party Beneficiaries. Nothing contained in this Agreement, expressed or implied, is intended to confer on any person other than the Parties hereto (other than Deskree’s licensors and the Indemnitee or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities pursuant to, or by reason of, this Agreement.
16. English Language. The Parties confirm that the essential stipulations of this Agreement reflect the mutual agreement of the Parties further to negotiation, and were not imposed by either Party, even when drawn up by one of the Parties. The Parties further confirm that it is the express wish of all Parties that this Agreement, all documents related to this Agreement and all communications between the Parties in the context of the performance of this Agreement be in English only. Les Parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n’ont pas été imposées par l’une ou l’autre des Parties, même lorsque rédigées par l’une des Parties. Les Parties confirment également que c’est la volonté expresse des Parties que la présente entente, tout document s’y rattachant et toute communication entre les Parties dans le cadre de l’exécution de cette entente soient uniquement en anglais.

14. Definitions

1. “Account Information” means information about Customer that Customer provides to Deskree in connection with the creation or administration of Customer User Account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with Customer User Account, Services or Customer’s subscription to the Deskree’ Products.
2. “Administrator User Account” means the administrator account for use by the Administrator User.
3. “Administrator Users” means those employees of Customer that are authorized by Customer to access and use the Deskree’s Products on Customer’s behalf through an Administrator User Account.
4. “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.
5. “Agreement” means these Terms of Service, together with any Order Forms, any attachments, exhibits, and/or amendments thereto, all as amended from time to time.
6. “Aggregated Data” has the meaning in Section 2(a).
7. “Amendment” has the meaning in Section 13(m).
8. “Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
9. “API Key” has the meaning in Section 3.
10. “BAA” has the meaning in Section 4.
11. “Claim” means any actual, threatened, or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding, or any other claim or demand.
12. “Confidential Information” has the meaning in Section 9.
13. “Customer”, “you” or “your” has the meaning in the applicable Order Form.
14. “Customer Application” means any Customer’s application that interfaces with Deskree’s APIs.
15. “Customer Data” means any data (other than Aggregated Data), information, content, records, and files, including Personal Information, that Customer (or any of its Permitted Users) loads, makes available to and is accessed by, transmits to or enters into Deskree’s Products.
16. “Customer Indemnitee” has the meaning in Section 10(d).
17. “Customer Property” means Customer Applications, Customer Systems, Projects, and Customer Data. The term “Customer Property” does not include any Deskree Property.
18. “Customer Systems” has the meaning set out in Section 1(e).
19. “Customer User Accounts” means the Employee User Accounts, accounts for End Customers and Administrator User Accounts together.
20. “Deskree”, “we”, “us” or “our” has the meaning in the applicable Order Form.
21. “Deskree’s APIs” means Deskree’s proprietary application programming interface, and any related Documentation all of which are designed to facilitate Customer’s access to and use of the Platform Services through interfaces between Customer Applications and the Platform Services.
22. “Deskree Downloadable Software” means a software component installed on Customer Systems in order to access the Platform Services, and any updates provided as part of the Platform Services.
23. “Deskree Indemnitee” has the meaning in Section 10(c).
24. “Deskree Materials” means the Deskree information or data (including third-party data) that Deskree may provide to Customer pursuant to this Agreement, including the Documentation. The Term “Deskree Materials” does not include Customer Property.
25. “Deskree’s Products” means: (i) the Platform Services as described in an Order Form; (ii) Deskree’s APIs; (iii) Deskree Materials; (iv) and Deskree’s other software, tools, developer services, data, and websites; (v) Deskree Downloadable Software and (vi) any component or Modification of the foregoing. The term “Deskree’s Products” does not include Third-Party Services.
26. “Deskree Property” has the meaning in Section 2(b).
27. “Discloser” has the meaning in Section 9.
28. “Documentation” means Deskree’s user guides and other end user documentation for the applicable Services available on the online help feature of Deskree’s Products, which may be updated by Deskree from time to time.
29. “Effective Date” means the Order Form Effective Date set forth in the Order Form.
30. “Embargoed Countries” has the meaning in Section 10(a).
31. “Employee User Account” means each user account created by the Administrator User for its Employee Users.
32. “Employee Users” means those active employees of Customer that are permitted by Customer to access and use the Deskree’s Products.
33. “End Customer” means any customer and their respective end users of a Project.
34. “Feedback” has the meaning in Section 2(c).
35. “Fees” has the meaning in Section 8(a).
36. “Force Majeure” has the meaning in Section 13(g).
37. “Google Cloud Platform Terms” means the Google Cloud Platform Terms of Service (including any document referred to therein), as amended from time to time, currently accessible from https://cloud.google.com/terms.
38. “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, dispute settlement panel or body, bureau, official, minister, Crown corporation, or court or other law, rule or regulation-making entity having or purporting to have jurisdiction over Deskree, Customer, or any other person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by such entities.
39. “High Risk Activities” means activities that have a: (i) high risk of physical harm or death, serious personal injury, or severe environmental or property damage; (ii) high risk of economic harm; or (iii) high risk government decision making.
40. “Indemnitee” has the meaning in Section 10(f).
41. “Indemnitor” has the meaning in Section 10(f).
42. “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.
43. “Losses” means any and all damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments), costs, and expenses (including interest, court costs, reasonable fees and expenses of lawyers, accountants, and other experts and professionals, or other reasonable fees and expenses of litigation or other proceedings or of any Claim, default, or assessment).
44. “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
45. “Order Form” any the order form or any ordering documents agreed by both Parties or, if applicable, Deskree and a Customer’s Affiliate from time to time, setting out the details of Deskree’s Products and where applicable Support Services to be provided by Deskree to Customer or, if applicable, Customer’s Affiliate, pursuant to this Agreement, and any amendments thereto.
46. “Order Form Effective Date” means the effective date set forth in an applicable Order Form.
47. “Party” or “Parties” has the meaning in the preamble.
48. “Permitted User(s)” means Administrator Users, End Customers and each Employee User and includes any Customer User Account.
49. “Personal Information” means information about an identifiable individual transferred by Customer, or its permitted agents, to Deskree hereunder.
50. “Platform” means all software platform used by Deskree to provide the Platform Services, and any updates provided as part of the Platform Services.
51. “Platform Services” means the services through: (i) which Deskree hosts and makes available the Platform as may be described in an Order Form; and (ii) any component or Modification of the services referred to in (i).
52. “Project” means any mobile, web or other app created through, hosted on or which is otherwise accessible using the Platform Services. For greater certainty, any part of any app which was not created through, is not hosted on or is not accessible from the Platform is not included in the definition of a "Project".
53. “Reports” means any reports made available via the Deskree’s Products.
54. “Recipient” has the meaning in Section 9.
55. “Restricted Party Lists” has the meaning in Section 10(a).
56. “Services” means the Support Services, collectively, and any part of them.
57. “Service Term” means the term of each subscription to Deskree’s Products as specified in the applicable Order Form.
58. “SOC Report” has the meaning in Section 4.
59. “Support Services” has the meaning in Section 7.
60. “Term” has the meaning in Section 12(a).
61. “Terms of Service” means these terms of service.
62. “Termination Effective Date” has the meaning in Section 12(d).
63. “Third Party Licensed Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
64. “Third-Party Services” means Third Party Licensed Technology or other third party products that are owned by third parties.