SML Terms of Service

During the Term (as defined below), Kira Systems grants to User a limited, non-exclusive, non-transferable, non-assignable (other than to a permitted assignee of this Agreement) and non-sublicensable worldwide license to access and use the Services solely for the internal business purposes of User and to provide services to User’s clients. User shall have access to the Services pursuant to a cloud deployment, subject to the provisions hereof and in accordance with the license grant set forth herein. Use of the Services will be subject to the number of users and any other limitations specified on the applicable Order Form. The Services shall reside on server(s) operated by or on behalf of Kira Systems and User will have access to the Services solely via the Internet and shall not receive any software code. The “Services” mean the services to be provided by Kira Systems, comprised of (i) access to Kira Systems’ proprietary software application for reviewing and analyzing contracts, data or other information uploaded to the application (“Documents”), together with any fixes, updates, enhancements or upgrades thereto, but not including additional modules for the Application, or new products or services that Kira Systems may make available from time to time (“Upgrades”) (collectively, the “Application”) and any (ii) support, maintenance or other services set out in this Agreement or any Order Form(s).

Kira Systems shall use commercially reasonable efforts to maintain the availability of the Services at all times, excluding downtime related to: (i) Force Majeure (as hereinafter defined), (ii) the acts or omissions of Users, (iii) any hardware, software or other materials not provided by Kira Systems, (iv) maintenance, or (v) the implementation of Upgrades. To the extent practicable, Kira Systems will schedule downtime outside of standard business hours and provide reasonable notice of downtime. Kira Systems will provide at no additional charge, general email or phone support from 8am to 6pm ET, Monday-Friday (excluding Canadian holidays), and afterhours support to address situations when the Services is not accessible in accordance herewith or not functioning in one or more material respects.

User shall pay Kira Systems all of the Fees and other charges indicated on the applicable Order Form(s). All fees are exclusive of, and User is responsible for, applicable federal, state, provincial, or other sales, use, excise or other applicable taxes other than taxes on the net income of Kira Systems. User shall pay or reimburse Kira Systems for any such taxes and Kira Systems may add any such taxes to invoices submitted to User by Kira Systems. Unless otherwise stated on an Order Form all Fees and other charges are denominated and shall be paid in US dollars.

A. Term

The term of this Agreement (the “Term”) shall commence on the Start Date (as defined in the Order Form) and continue for as long as any Order Form(s) are in effect, unless earlier terminated in accordance with this Section. Unless otherwise specified on the Order Form, the Term shall be automatically extended for successive one-year Annual Periods (each a “Renewal Period”), unless either Party provides the other Party with written notice of non-renewal at least thirty (30) days prior to the end of the Term. Kira Systems may increase the applicable Fees by no more than 4% with respect to such Renewal Periods.

B. Termination

1. For Breach. Without limitation of its other rights or remedies, either party may terminate this Agreement by reason of a material breach of this Agreement, including any Order Form, by the other party, which breach shall not have been cured within thirty (30) days following receipt of notice of such breach from the non-breaching Party.
2. Effect of Termination. For the avoidance of doubt: upon any termination of this Agreement, all outstanding Order Form(s) shall also simultaneously terminate, as well as all rights to use the Services. User shall be responsible for downloading or deleting any Documents, Reports and any other User Data from the Services upon termination and, upon request, shall be permitted to have limited access to the Services solely for such purposes for thirty (30) days following termination.
3. Survival. The following provisions hereof, together with any payment obligations that shall have accrued as of such date any other provisions that by their sense or context would reasonably be understood to survive, will survive any expiration or termination of this Agreement or any Order Form: 4(b), 5 (except as expressly provided therein), 6, 7, 9, 10, 11 and 12.

A. User Data

The User retains all right, title and interest (including, but not limited to, Intellectual Property Rights) in and to the Documents, any reports generated by the Application based on the Documents (“Reports”), and the User’s Confidential Information. For purposes of this Agreement, Intellectual Property Rights means all rights with respect to trademarks, service marks, trade dress, logos, copyrights, rights of authorship and patents; all database rights, moral rights, inventions, rights of inventorship, rights of publicity and privacy, trade secrets, know-how, and rights under unfair competition and unfair trade practices laws; all other worldwide intellectual and industrial property rights related thereto; and all applications, registrations, derivative works or renewals relating to any of the foregoing.

B. Kira Technology

Kira Systems retains all right, title and interest (including, but not limited to, Intellectual Property Rights) in and to the Services, the Application, including all of the software, code, interfaces, processes, images, graphics, text or other materials contained therein, and other technology used by Kira Systems in providing the Services (the “Kira Technology”), Kira Systems’ Confidential Information, any documentation made available to User by Kira Systems for use with the Services, the collective ideas, know-how, inventions, methods, or techniques developed or conceived as a result of providing the Services hereunder, including any derivative works, improvements, enhancements and/or extensions made to the Services and any information reflecting the access or use of the Application by or on behalf of Customer or any User, including but not limited to visit-, session-, impression-, click through- or click stream-data and any statistical or other analysis, information or data based on or derived from any of the foregoing (“Usage Data”). Any modifications to the Services, including in response to the User’s paid for customization request, will be the sole property of Kira Systems. During the term of this Agreement and in accordance with this Agreement, Kira Systems grants to the User a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable worldwide license to permit Users to access and use the Application solely for the User’s internal business purposes.

C. User Responsibilities

The User will limit access to the Services to its personnel who have a need to use the Services in the normal course of their duties. The User shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Application; (ii) copy, modify or create derivative works based on the Application; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer User’s rights to use the Application; (iv) use the Application for timesharing or service bureau purposes; (v) use the Application to develop any similar or competitive service; (vi) use the Services or any Documents or Reports in violation of any applicable laws or third party rights; (iii) introduce any viruses, worms, malware or other destructive code into the Application; (viii) bypass any measures Kira Systems uses to restrict access to the Application, (ix) remove or modify any proprietary marking or restrictive legends placed on the Application, or (x) use the Services to store or transmit malicious code, or to transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights. User represents, warrants and covenants on behalf of itself and its Users that it: (i) has all necessary rights to use the Documents in connection with the Application without violating any fiduciary duty, duty of confidentiality, contractual obligation or applicable laws; (ii) will not use, or permit the use of, the Services, the Documents or the Reports for illegal, fraudulent, or unethical purposes or otherwise in a manner that could give rise to civil or criminal liability; and will not interfere with or impede the ability of others to use the Services. User shall ensure that it and its Users comply with the provisions of the Agreement applicable to use of the Services and shall be liable for any and all use of and access to the Application by any Users.

The parties acknowledge and agree that each party (the “Receiving Party”) has and will have access to certain confidential information (“Confidential Information”) of the other party (the “Disclosing Party”). “Confidential Information” means all information provided by the Disclosing Party to the Receiving Party hereunder that is (i) proprietary and/or non-public information related to the business activities of the Disclosing Party, its subsidiaries, and its affiliates, including any business plans, strategy, pricing, or financial information; (ii) information relating to the Disclosing Party’s methods, processes, code, data, information technology, network designs, passwords, and sign-on codes; (iii) the terms of this Agreement; and/or (iv) any other information that is designated as confidential by the Disclosing Party. Confidential Information of Kira Systems shall also include the Services, and Confidential Information of the User shall also include the Documents and Reports. Confidential Information does not include information that is or was, at the time of the disclosure: (i) generally known or available to the public; (ii) received by Receiving Party from a third party; (iii) already in Receiving Party’s possession prior to the date of receipt from Disclosing Party; or (iv) independently developed by the Receiving Party without reference to Disclosing Party’s Confidential Information, provided in each case that such information was not obtained by the Receiving Party as a result of any unauthorized or wrongful act or omission, or breach of this Agreement, or breach of any legal, ethical or fiduciary obligation owed to the Disclosing Party. At all times the Receiving Party shall: (1) use the same standard of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care, (2) not use the Disclosing Party’s Confidential Information other than as permitted under this Agreement, and (3) not disclose, distribute, or disseminate the Confidential Information to any third party, except as permitted by this Agreement.

User’s access to the Services is via the Kira Systems website. As such, a User’s interaction with the website, and any information that may be collected by the website, is governed by the website’s Privacy Policy which may be updated from time to time. User agrees to receive announcements from Kira Systems regarding the operation of the Services as well as marketing and other non-critical Service-related communications from time to time.

Without limiting the following, Kira Systems shall maintain appropriate physical, technical and administrative safeguards for protection of the security, confidentiality and integrity of the Documents. User acknowledges that the structure of the systems used in connection with the Services makes it technically possible for a limited number of Kira Systems personnel to access the Documents. Kira Systems personnel will only access the Documents subject to the confidentiality restrictions in Section 6 hereof, and with the consent of User or to the extent reasonably required (i) to perform the Services on behalf of User; (ii) to investigate or correct a system error or otherwise improve the Services; (iii) to respond to duly authorized information requests of police, law enforcement, or other governmental authorities; (iv) to comply with any applicable law, regulation, subpoena, discovery request or court order; (v) to investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity; or (vi) to verify compliance with the provisions hereof; or (vii) to enforce/protect the rights and properties of Kira Systems.

For Users that are required to comply with international data protection laws and regulations governing the international or cross-border data transfer of information, and who are not using the Services via a local installation option, please be advised that the data centers in which the infrastructure for the Services, Documents and User Data are housed are located in the Cloud Hosting Jurisdiction listed on the applicable Order Form. User must not use the Services if this causes conflict with User’s local data protection laws.

Each party represents and warrants that this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 10, KIRA SYSTEMS DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, KIRA SYSTEMS MAKES NO WARRANTY THAT (I) THE SERVICES, INCLUDING THE KIRA TECHNOLOGY, THE REPORTS, OR ANY OTHER SERVICES OR DELIVERABLES PROVIDED HEREUNDER (COLLECTIVELY, THE “MATERIALS”) WILL MEET THE REQUIREMENTS OF USER OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE OR DATA NOT PROVIDED BY KIRA SYSTEMS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE MATERIALS WILL BE ACCURATE OR RELIABLE, OR (IV) ANY ERRORS IN THE MATERIALS WILL BE CORRECTED. THE MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL DEFECTS. NO ORAL OR WRITTEN INFORMATION OR COMMUNICATIONS GIVEN BY KIRA SYSTEMS, ITS EMPLOYEES, OR AGENTS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTY OR CREATE ANY NEW OR ADDITIONAL WARRANTIES.

A. Indemnity

Kira Systems shall indemnify, defend and hold harmless the User and its officers, directors, employees and agents from any and all damages, liabilities, and reasonable costs or expenses, including reasonable attorneys’ fees, resulting from any third party claim that the Services, as used in accordance with this Agreement, infringes upon any third party Intellectual Property Rights. Notwithstanding anything to the contrary contained herein, the indemnification and other obligations of Kira Systems in this Section 11(a) shall not apply with respect to any claim related to any of the Documents or any other document annotations and project information that User upload or enter into the Services, any use of the Services in a manner that does not comply with the provisions of this Agreement, any negligence or willful misconduct by the User, or any combination of the Services with any software, hardware, data or other materials not provided by Kira Systems for use in connection with the Services. If a claim is made against the User that is subject to indemnification under this Section, Kira Systems shall either: (i) obtain for the User the right to continue to use the Services; or (ii) modify or replace the Services with a non-infringing substitute that provides substantially the same performance and functionality of the original Services; provided, however, that if Kira Systems reasonably determines that it is not commercially practicable to effectuate the actions described in the foregoing clauses (i) or (ii), Kira Systems shall have the right to terminate this Agreement, in which case it shall provide the User with a refund of any prepaid sums with respect to the balance of the subscription term. This Section sets forth User’s sole remedy, and Kira Systems’ sole liability, in connection with claims of infringement.

B. Limitation of Liability

EXCEPT FOR DAMAGES ARISING FROM A PARTY’S FRAUD OR WILLFUL MISCONDUCT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OR THE INDEMNITY PROVIDED BY KIRA SYSTEMS SET OUT IN SECTION 11(A) ABOVE: IN NO EVENT WILL (I) EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUES, DATA LOSS OR USAGE, OR LOSS OF OPPORTUNITIES, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (II) EACH PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SERVICES, REGARDLESS OF CAUSE OR THEORY OF RECOVERY, SHALL NOT EXCEED THE TOTAL AMOUNT PAID (IN THE CASE OF LIABILITY OF KIRA SYSTEMS) OR PAYABLE (IN THE CASE OF LIABILITY OF USER) UNDER THIS AGREEMENT, DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. To the extent any liability of a party cannot be disclaimed, excluded or limited as aforesaid under applicable law, such liability shall be disclaimed, excluded and limited to the fullest extent permitted under applicable law.

A. Notices

All notices, requests, demands or other communications to be given or delivered under or by reason of this Agreement shall be in writing and shall be delivered personally, by courier, by certified or registered mail (return receipt requested and first-class postage prepaid), or by email, in each case to the parties at their addresses set forth on the applicable Order Form(s) or otherwise as the recipient party has specified by notice to the sending Party in accordance herewith. A copy of any notice to Kira Systems shall be sent via email to legal@kirasystems.com.

B. Miscellaneous

The relationship of the parties under this Agreement is one of independent contractors. This Agreement sets forth the entire agreement of the parties as to its subject matter and supersedes all prior agreements, negotiations, representations, and promises between them with respect to its subject matter. Neither Party shall be in default if its failure to perform or delay in performing any obligation under the Agreement (other than payment obligations) is caused by Force Majeure. Neither Party may assign this Agreement or any Order Form, in whole or in part, without the other Party’s prior written consent, not to be unreasonably withheld; provided, however, that Kira Systems may assign the Agreement without User’s consent to any entity that acquires all or substantially all of the business or assets of Kira Systems related to the Services, whether by merger, reorganization, acquisition, sale, operation of law, change in control or otherwise. Any assignment made in conflict with this provision shall be void. This Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and assigns. A waiver of rights under this Agreement will not be effective unless it is in writing and signed by an authorized representative of the party that is waiving the rights. Nothing in this Agreement is intended or shall be construed to give any person, other than the parties hereto, their successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect of this Agreement. If any provision of the Agreement, or portion thereof, is found to be invalid, unlawful or unenforceable to any extent, the parties shall negotiate in good faith amendments to the Agreement to reflect the original intent of the parties as closely as possible. Such invalid provision or portion thereof will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by Applicable laws. In the case of any conflict or inconsistency between the provisions of an Order Form and the provisions of these Terms and Conditions, the provisions of the Order Form shall govern. No User invoice or purchase order shall add to, delete or otherwise modify the terms of this Agreement. This Agreement may be amended or modified only by a writing duly executed by authorized representatives of the Parties. This Agreement, and any and all disputes directly or indirectly arising out of or relating to this Agreement, will be governed by and construed in accordance with the laws of the Province of Ontario, without reference to the choice of law rules thereof. The parties agree to submit to the exclusive jurisdiction over all disputes hereunder in the Province of Ontario. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument.