This General Services Agreement (“Agreement”) is between you and KIWI (as defined in Section 18.1 below). If you accept this Agreement not as an individual but on behalf of your company or one of its Affiliated Entities (as defined in Section 1.2 below), the terms “Client,” “you,” or “your” will refer to that entity. KIWI and you will be referred to as “Parties” (collectively, “Parties”). this Agreement.

You must not access KIWI Products if you are a direct competitor of KIWI, unless you have obtained KIWI's prior consent. Likewise, you must not access KIWI Products to monitor their availability, performance, or functionality, or for any other comparative or competitive analysis purpose.

By accepting this Agreement, whether by checking a box indicating your acceptance, signing a purchase order that refers to this Agreement, or using or accessing BY PURCHASING KIWI PRODUCTS, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

• 1. DEFINITIONS. The following terms, when used in this Agreement, have the meanings given to them in this Article 1. Other terms are defined as they appear in the text. Definitions are deemed to refer to the singular or plural, as the context requires. In this document, the term "including" (and its variants) means "including without limitation" (and its variants).
  • 1.1 “API” refers to the Application Programming Interface of the Products;
  • 1.2 “Affiliated Entity” means an entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” includes both the power to direct the management or business and ownership of 50% or more of the voting shares or other equivalent voting rights of an entity;
  • 1.3 “Laws” refers to applicable local, state, federal, and international laws and regulations, including privacy laws and related regulations;
  • 1.4 “User” means any end user accessing the Products.
• 2. PURPOSE AND SCOPE OF THE AGREEMENT. This Agreement governs your initial purchase and any future purchases made by you that refer to this Agreement. This Agreement includes all Purchase Orders (as defined in Section 3) and all other policies and appendices referenced herein. The benefit of this Agreement extends to your Affiliated Entities provided that you remain responsible for placing the Purchase Orders and distributing the Products to your Affiliated Entities. You are responsible for ensuring that all Users comply with this Agreement. Any use of the Products by you and your Users must comply with the Usage Rights (as defined in Section 3) and solely for your benefit or that of your Affiliated Entities. This Agreement governs (a) KIWI's hosted or cloud-based solutions (referred to as "cloud deployments") (the "Hosted Services"), (b) downloadable software products or components made available by KIWI ("Software"), and (c) any technical support services provided by KIWI ("Support Services"). The Software and Hosted Services are collectively referred to as " Products ». The Products and their authorized use are described in more detail in KIWI's standard documentation (the "Documentation"). Article 4 (Conditions Applicable to Hosted Services) applies specifically to Hosted Services, and Article 5 (Conditions Applicable to Software) applies specifically to the Software, and unless otherwise stated, the other provisions of this Agreement apply to all Products. If you choose to purchase professional services that may include Product implementation and optimization, change management, and business practice optimization (collectively, the “Professional Services”), the relevant provisions of this Agreement and the provisions set forth in the Statement of Work entered into between the parties for the provision of these Professional Services will apply.
• 3. ORDER FORM. The order form for the Products (the “Order Form”) and the Documentation will specify your Rights to Use the Products (defined below), which may include the number and type of Users, documents, the number of licenses, copies or instances, or other restrictions or billable units (if applicable, the “Rights to Use”). The term “Order Form” also includes any purchase you make to increase or extend your Rights to Use and any renewal made in accordance with this Agreement. The duration of each subscription to the Hosted Services (in each case, the "Duration") will be specified in each Purchase Order.
4. CONDITIONS APPLICABLE TO THE HOSTED SERVICES. This Article 4 applies to all Hosted Services under any applicable Purchase Order.
• 4.1 Access to Hosted Services. KIWI grants you a non-exclusive right to access and use the Hosted Services for the applicable Term, in accordance with this Agreement, your User Rights, and the Documentation. You acknowledge that our Hosted Services are subscription-based online products and that KIWI may modify the Hosted Services from time to time in accordance with the applicable Support and Service Level Policy. your subscription.
• 4.2 Subscription Term. The Hosted Services are provided on a subscription basis for the Term specified in a Purchase Order. The price upon renewal will be equivalent to the lower of the (i) charges in the then-current Purchase Order plus an annual increase not exceeding the Price Index at Consumption (CPI - Canada as a whole, all items, not seasonally adjusted) applicable based on the Client's location plus an innovation index of two and a half percent (2.5%) or (ii) the costs then indicated on the KIWI website.
• 4.2.1 Public Sector: This contract terminates at the end of the initial period specified in the Purchase Order. It is renewable by the issuance of a new annual purchase order by the Client or by the receipt of a new purchase order number authorizing the continuity of services before the end of the current period.
• 4.2.2 Private Sector: The subscription renews automatically for successive 12-month periods, unless the Client cancels their subscription by providing written notice to that effect to entente@kiwi.ca at least sixty (60) days before the end of the current period.
• 4.3 Credential Information. You must ensure that all Users protect the confidentiality of their usernames and passwords for accessing the Hosted Services and do not share this information with unauthorized individuals. You are responsible for all actions taken from your accounts and using your passwords, and you agree to notify KIWI immediately of any unauthorized use of which you become aware. Subject to the Usage Rights indicated in the applicable Order Form, you can reassign your Users' login credentials.
• 4.4 Customer Data. “Customer Data means any item, data, or other material of any kind that you upload or submit to the Hosted Services and that may be stored in whole or in part on the KIWI platform. You will retain all rights, title, and interest in and to the Customer Data. KIWI does not acquire any ownership rights to your Data. Subject to the terms of this Agreement, you grant KIWI has a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify, and create derivative works from Customer Data, in each case only to the extent necessary to provide you with the applicable Hosted Services or to improve the Hosted Services, and (b) to publicly broadcast, perform, and display Customer Data according to the configuration choices that you (or your Users) may enable through the Hosted Services. KIWI may also access your account or instance in order to respond to your support requests.
• 4.5 Retention and Access After Expiration. KIWI will delete Customer Data within sixty (60) days of the termination or expiration of the Term of the last Purchase Order.
  Grace Period and Read-Only Access: In the event of the expiration of a Purchase Order without immediate renewal (particularly for the Public Sector awaiting the issuance of a new Purchase Order), KIWI may, at its discretion, maintain access to the Services in "read-only" mode for a period of thirty (30) days to ensure continuity Administrative.
  Before the permanent deletion of the data, the Client may submit a written request to KIWI to obtain a copy of their Data in KIWI's standard format.
• 4.6 Security. KIWI implements commercially reasonable security procedures to protect Client Data from security attacks as described in KIWI's Security Policy. You agree that using the Hosted Services necessarily involves transmitting Customer Data over networks not owned, operated, or controlled by KIWI, and that KIWI is not responsible for any loss, alteration, interception, or storage of Customer Data on these networks. You may not (i) perform security, integrity, penetration, or vulnerability tests or any other similar testing on the Hosted Services, or (ii) use any tool on the Hosted Services designed to automatically mimic the actions of a human user (commonly referred to as a "bot") in conjunction with the Hosted Services, without obtaining the prior written consent of KIWI's Security Officer, which consent will not be retained without reasonable cause.
• 4.7 Removal and Suspension. KIWI has no obligation to monitor content uploaded to the Hosted Services. However, if KIWI deems such action necessary due to your breach of this Agreement, KIWI reserves the right to (i) remove your Customer Data from the Hosted Services or (ii) suspend your access to the Hosted Services. KIWI will notify you if it is taking such action and will give you a reasonable opportunity to remedy your breach. However, if KIWI determines that your actions endanger the operation of the Hosted Services or other Users, KIWI may suspend your access immediately and without notice.
• 5. SOFTWARE TERMS AND CONDITIONS. Section 5 applies if Software components are licensed to you under any applicable Purchase Order.
  • 5.1 Your License Rights. KIWI grants you a non-exclusive, non-transferable, and non-sublicensable license, except as provided in this Agreement, to install and use the Software for the applicable Term in accordance with this Agreement, your User Rights, and the Documentation. The Software requires a license key to operate, which will be delivered as described in Section 8.1 (Delivery).
  • 5.2 Number of Instances. For each Software license you purchase, you may install the specified number of production instances of the Software. in the applicable Purchase Order on systems that you own or operate (or that are operated by your service providers, provided that you remain responsible for their compliance with the terms and conditions of this Agreement). You may also purchase licenses for certain of our software offerings to enable you to deploy "non-production" instances, for example, for development, transfer, or quality assurance purposes. You and your Affiliates may make one (1) copy of the Software solely for backup and disaster recovery purposes. You must obtain prior written approval from KIWI to create additional copies of the Software.
  • 5.3 Payment. Unless otherwise specified in a Purchase Order, all Royalties are payable within thirty (30) days of the KIWI invoice date. For public sector organizations, KIWI undertakes to include the Purchase Order (PO) number on its invoices, provided that said number is supplied by the Client at the time of initial signature or at least thirty (30) days before the renewal date.
• 6. SUPPORT AND MAINTENANCE SERVICES. KIWI will provide the Support Services described in the Support and Service Level Policy, which is identified in your Purchase Order. The Support Policies are available upon request and may be amended by KIWI from time to time to reflect improvements or changes in market practices; provided that none of these amendments materially reduces the Level of Support Services defined in the applicable policy.
• 7. API. KIWI may provide an API with the Product. This allows you to access your Data in JSON (JavaScript Object Notation) format.
• 8. FINANCIAL TERMS.
  • 8.1 Delivery. All deliveries made under this Agreement will be made electronically. Upon invoicing for the fees due under an applicable Purchase Order, KIWI will transmit the applicable license keys (in the case of Software) or login instructions (in the case of Hosted Services) to the email address specified in your Purchase Order. To avoid any confusion, you hereby acknowledge that you are responsible for the installation of all Software and that KIWI has no further delivery obligations with respect to the Software after delivery of the license keys.
  • 8.2 Payment. The Customer agrees to pay all charges in accordance with this Agreement and each applicable Purchase Order. Amounts are in Canadian dollars and taxes are extra. Unless otherwise specified in the Purchase Order, the following payment terms apply:
    • 8.2.1 Public Sector: Services are billed annually and payable on the dates indicated in the payment schedule. Billing is conditional upon the Client providing the purchase order number.
    • 8.2.2 Private Sector: Subscription services are billed annually and must be paid in full within thirty (30) days of receipt of the invoice from KIWI.
      If an invoiced amount is not received by the expiry date, without limiting K's rights and remedies KIWI may, (i) charge additional fees equal to the lesser of 1% per month and the maximum rate permitted by applicable law, and/or (ii) KIWI may make any future subscription subject to shorter payment terms than those indicated in this paragraph. If any payment due by the Customer for an undisputed invoice is thirty (30) days or more overdue, KIWI shall have the additional right, at its sole discretion, to suspend access to the Product until payment is received. KIWI will not exercise its remedies under this paragraph if the Customer disputes the applicable charges reasonably and in good faith and cooperates to resolve the dispute. Except as expressly stated in this Agreement, all amounts are non-refundable, non-cancellable, and cannot be credited.
    • 8.3 Taxes. To the extent that taxes or duties are payable by KIWI in respect of the Products, KIWI will include these taxes and duties in the invoice, and you must pay them. KIWI the amount of these duties or taxes in addition to any applicable fees due under this Agreement. If you have obtained an exemption from relevant taxes or duties at the time such taxes or duties are levied or assessed, you will have the right to provide KIWI with any information relating to this exemption, and KIWI will make reasonable efforts to provide the billing documentation enabling you to obtain a refund or credit for the amount so paid from any competent tax authority, if such a refund or credit is available.
  • 9. ADDITIONAL USE. You will have access to the status of your consumption of the Hosted Services via the "Consumption Dashboard" module. If you exceed your Usage Rights during the Term of your Order Form, KIWI will make reasonable efforts to inform you and reserves the right to charge you for any past or current use exceeding your Usage Rights. This remedy is without prejudice to any other remedies available to KIWI at law or in equity, or under this Agreement.
  • 10. FREE PRODUCTS. KIWI may offer you certain Products at no cost, including free accounts and free trials (the "Free Products"). You are not authorized to use the Products free of charge for competitive analysis or similar purposes. KIWI may modify or terminate your right to use the Products free of charge at any time, for any reason, and at its sole discretion, without liability to you. If you participate in a free trial of a KIWI product for a period of thirty (30) days or more (the “Trial”), this Agreement will last for thirty (30) days or for such other term as KIWI may agree upon, from the date of authorization of the service. At the end of the Trial, if you choose not to purchase a KIWI Product, you will immediately cease all use of the Product. All data you enter into the Products and all modifications made to the Products by or for you will be lost and unrecoverable unless you purchase a license or subscription to use the same Product as the one covered by the Trial before the expiration of such Trial. To the maximum extent permitted by applicable law, KIWI discharges itself from all obligations or liabilities with respect to the Products at no cost, including any obligations or liabilities arising from the Support, Warranty, and Indemnity Services.
  • 11. OWNERSHIP RIGHTS INTELLECTUAL.
    • 11.1 KIWI Technology. The Products are available under license or limited access. No ownership rights are granted to you, regardless of the use of terms such as "purchase" or "sale." KIWI and its licensors retain all rights, know-how, title, and interest, including all intellectual property rights and trade secrets relating to the Products, their overall appearance, any associated or underlying technology, and any modification or derivative work created by or for KIWI (the “KIWI Technology”).
    • 11.2 Suggestions. You and your Users may submit comments, information, questions, data, ideas, process descriptions, or other information to KIWI, including in connection with Support Services (“Suggestion”). The Suggestion will be anonymized and will not contain any of your Confidential Information. KIWI may use, copy, disclose, license, distribute, and exploit any Suggestion in any manner whatsoever without obligation, royalty, or restriction based on intellectual property rights or otherwise, and nothing in this Agreement shall be construed as limiting KIWI's right to independently use, develop, evaluate, or market products, whether or not they incorporate Suggestions.
  • 12. CONFIDENTIALITY. Unless otherwise provided in this Agreement, each Party agrees that any code, invention, know-how, technical, financial and commercial information or any information specifically designated as confidential or that can reasonably be understood as confidential or proprietary disclosed to the other Party (the “Receiving Party”) by the disclosing party (the “Disclosing Party”) constitutes the confidential property of the disclosing Party (the “Confidential Information”). All KIWI Technology, all commercial terms (including pricing) of this Agreement and of any Purchase Order or Statement of Work (but not the mere existence of this Agreement) and all Product performance information are deemed to be KIWI Confidential Information without any mention or other designation. Except as expressly authorized in this Agreement, the Receiving Party shall make (and ensure that its employees, Affiliates, agents, subcontractors, and all approved third parties make) reasonable efforts (which shall be no less than the efforts made to protect its own Confidential Information of a similar nature) to prevent the disclosure of the Disclosing Party's Confidential Information for purposes other than those authorized by this Agreement, except as authorized by the Disclosing Party. The non-disclosure obligation of the Receiving Party does not apply to information that the Receiving Party can prove: (i) was lawfully in its possession or was known to it prior to receipt of the Confidential Information; (ii) is or has become public through no fault of the Receiving Party; (iii) was lawfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) was independently developed by employees of the Receiving Party who did not have access to such Confidential Information. The Receiving Party may also disclose Confidential Information if required by law, regulation, or court order (but only to the minimum extent necessary to comply with such law or order and upon prior notice to the Disclosing Party).
  • 13. TERM AND TERMINATION.
    • 13.1 Term. This Agreement remains in effect as long as you have a valid Purchase Order, unless terminated beforehand in accordance with this Agreement.
    • 13.2 Termination for Default. Either Party may terminate this Agreement before the expiration of the Term if the other Party materially breaches any of the terms of this Agreement and fails to remedy the default within thirty (30) days of written notification of the default. Either Party may also terminate this Agreement before the Term expires if the other Party ceases operations, declares bankruptcy, becomes insolvent, or is otherwise unable to meet its financial obligations. If you terminate this Agreement in accordance with this paragraph, KIWI will refund you the pro-rata amount of any prepaid and unused fees for the Products that would have applied to the remainder of the unexpired Term, calculated from the date of termination until the Term End Date.
    • 13.3 Effect of Termination and Survival. Except where an exclusive remedy is provided in this Agreement, the exercise by either Party of any remedy, including termination, will be without prejudice to any other remedy available to it under this Agreement, law, or otherwise. Upon termination of this Agreement, you (and your Users) will no longer have the right to use or access the Products, information, or materials that KIWI makes available to you under this Agreement, including KIWI's Confidential Information. You are required to remove all the above-mentioned elements from your systems, if applicable (including third-party systems operated on your behalf), and to provide KIWI with written confirmation to that effect upon request. All provisions herein that, by their nature, are intended to survive any termination or expiration of this Agreement, shall remain in effect.
  • 14. WARRANTY AND WAIVER
    • 14.1 Mutual Representation. Each Party represents and warrants that it has the power and authority legal authority to enter into this Agreement, and that this Agreement and any Purchase Order are entered into by a representative of this Party with the necessary authority to bind it to the terms and conditions of this Agreement.
    • 14.2 KIWI Warranty.
      • 14.2.1 Performance Warranty. KIWI warrants that the Products will, in all material respects, comply with the KIWI specifications then in force and set forth in the Documentation for the Term (“Warranty Period”). KIWI guarantees that the Support Services will be provided in accordance with industry standards. In the event of a breach of the above warranties, your exclusive remedy and KIWI's sole liability will be: (a) for KIWI to correct the errors in the Products that caused the breach of warranty; or (b) if KIWI cannot correct this breach within a commercially reasonable time, you may cancel your Purchase Order for the defective Product module and receive a refund of a pro-rata amount of the prepaid fees for that Product module that would have applied for the remainder of the unexpired Term, calculated from the date of cancellation until the End Date of the Term.
      • 14.2.2 Free Software Warranty. You acknowledge that certain components of the Products may be covered by so-called "open source" software licenses, meaning that any software license approved as an "open source" license by the "Open Source Initiative" or any substantially similar license, including any license that, as a condition of distribution of the licensed software, requires the distributor to make the software available in source code form (the "Open Source Components"). KIWI represents and warrants that Products ordered pursuant to a Purchase Order are not subject to no Open Source Component that would create an obligation for KIWI or you to make any source code or data publicly available.
    • 14.3 Guarantee by you.
      • 14.3.1 Guarantee relating to Customer Data. You represent and warrant that (i) your use of the Hosted Services; (ii) all Customer Data, and its transfer and use by KIWI in accordance with this Agreement, are at all times compliant with the Laws, and do not violate the third-party rights, including intellectual property rights, privacy rights, or publicity rights. Unless otherwise agreed between the Parties, you represent and warrant that you will not submit to the Hosted Services and will not use the Hosted Services to collect (i) any protected health information, including that regulated by the Health Insurance Portability and Accountability Act (as amended from time to time, “HIPAA”); (ii) any cardholder data protected by the Payment Card Industry Data Security Standard (“PCI DSS”); or (iii) any information subject to specific laws or protections (collectively (i), (ii), and (iii) constitute “Restricted Data”). KIWI expressly disclaims all liability of any kind that may arise from the submission of Restricted Data to KIWI. You also acknowledge that, unless otherwise agreed between the Parties, KIWI is not acting as your “Business Associate” or “subcontractor”. (as defined and used in HIPAA) and that the hosted Services are not HIPAA compliant or PCI DSS certified.
      • 14.3.2 Restrictions. Except as expressly permitted in this Agreement, you shall not (a) rent, reproduce, modify, adapt, create derivative works from, distribute, sell, sublicense, transfer, or provide access to the Products to any third party; (b) use or incorporate the Products into any third party; (b) use or incorporate the Products, disclose, create, use, or knowingly authorize the use of any license code for the benefit of any third party; (c) use the Products to provide office services, time-sharing services, or shared processing services other than for your own use; (d) interfere with any license key mechanism in the Products or circumvent in any way any mechanisms in the Products designed to limit your use; (e) reverse engineer, disassemble, decompile, translate, or otherwise attempt to obtain or extract the source code, underlying ideas, algorithms, file formats, or non-public APIs of any Product, except as permitted by law; (f) publicly disseminate information concerning the performance of the Products; (g) use the KIWI Products to circumvent the terms and conditions of any agreement you have with a third-party provider. In particular, if you use YouTube as a third-party provider in connection with the Products, you agree to be bound by YouTube's Terms of Service (https://www.youtube.com/t/terms). The above restrictions are essential to this Agreement and your failure to comply with any of its terms would constitute sufficient grounds for termination.
    • 14.4 Disclaimer. KIWI expressly disclaims all warranties and representations of any kind whatsoever that are not expressly stated in this Agreement. The duration of any warranties required by law, if any, is hereby limited to the shortest period permitted by law. KIWI shall not be liable for any problems inherent in the use of the Internet or other systems outside of KIWI's control. To the extent permitted by law, neither KIWI nor its suppliers make any representations regarding the reliability or accuracy of any Product or its contents, or that: (a) the use of any Product will be secure, continuously available, uninterrupted, or error-free; (b) the Products will function in combination with any other system or data; (c) the Products will meet your requirements; (d) all stored data will be accurate or reliable, or that all stored data will not be lost or corrupted; (e) errors or defects will be corrected; or (f) any server that hosts the Hosted Services is free from viruses or other harmful components.
    • 15. LIMITATION OF LIABILITY. Except for the indemnification obligations provided for in this Agreement, intentional misconduct or gross negligence, or your payment obligations provided for in this Agreement, neither Party nor any of their Affiliated Entities shall be liable for (i) indirect, special, incidental, or consequential damages of any kind whatsoever, whether arising out of or in connection with this Agreement (including lost profits), regardless of the form of action, whether contractual, tortious, strict liability, or otherwise, even if the Party is advised of the possibility of such damages in advance, or (ii) amounts exceeding the fees actually paid by you for the Hosted Services in the twelve (12) months preceding the first act or omission giving rise to liability.
    • 16. INDEMNIFICATION.
      • 16.1 Indemnification by KIWI. KIWI agrees to defend, indemnify and hold you, your Affiliates, directors, officers and employees harmless from any and all damages, claims and costs awarded by a court of competent jurisdiction or agreed to in an out-of-court settlement previously approved by KIWI (including reasonable legal fees) arising out of a third-party claim (“Claim”) alleging that (i) KIWI caused personal injury (including death) or damage to real or tangible property; or (ii) a Product, when used as authorized under this Agreement, infringes any intellectual property right. KIWI's indemnification obligations under subparagraph (ii) do not apply: (1) if the Product is modified by a third party, only to the extent that the alleged infringement is caused by that modification; (2) if the Product is used in combination with a product, software, or equipment not originating from KIWI, only to the extent that the alleged infringement is caused by that combination; (3) to unauthorized use of the Products; (4) to any Claim arising from circumstances covered by your indemnification obligations under Section 16.2 (Indemnification by You) or any third-party deliverable or component contained in the Products; (5) to any unsupported version of the Software; or (6) if you settle or admit to a Claim without KIWI's prior written consent. This section sets forth KIWI's sole liability and your exclusive remedy for any infringement of intellectual property rights related to any Product or item provided by KIWI under this Agreement. If your use of a Product is or is likely to be prohibited, if an amicable settlement so requires, or if KIWI deems such actions reasonably necessary to avoid substantial liability, KIWI may, at its sole discretion: (i) obtain a license for your continued use of the Product in accordance with this Agreement; (ii) substitute a functionally substantially similar Product; or (iii) terminate your right to continue using the Product and refund any prepaid and unused amounts for the terminated portion of the Term.
      • 16.2 Indemnity by you. You will defend, indemnify, and hold harmless KIWI, its directors, officers, employees, and affiliated entities from and against any and all damages, losses, costs, liabilities, or injuries, including attorneys' fees, for which KIWI becomes liable as a result of or in connection with any claim relating to your breach of Subparagraph 14.3.1 (Customer Data Guarantee).
      • 16.3 Indemnification Process. Either Party's indemnification obligations are conditional upon the other Party receiving (i) without delay, written notice from the (but in any event, within a period sufficient for the Indemnifying Party to respond to it without prejudice); (ii) the exclusive right of the Indemnifying Party to control and direct the investigation, defense, or settlement of such a Claim; and (iii) any reasonable cooperation necessary from the Indemnified Party, at its own expense. The Indemnifying Party may not, except with the prior written consent of the Indemnified Party, enter into a settlement of a Claim that imposes direct financial liability on the Indemnified Party or includes an admission of fault on the part of the Indemnified Party.
    • 17. ADVERTISING AND TRADEMARK LICENSE. Subject to your prior written approval for each specific use, you hereby grant KIWI a worldwide, non-exclusive, non-transferable, royalty-free license to use your trade name and logo (“Licensed Trademarks”) to enable KIWI to identify you as a customer in all promotional materials and on the KIWI website. KIWI may only use the Licensed Trademarks after obtaining your explicit consent for each intended use, whether in material you share with KIWI or material publicly accessible on your website. You retain the right to refuse any proposed use and may at any time revoke your consent or request that KIWI cease using your Licensed Trademarks by sending an email to media[at]kiwi.ca, and KIWI will process your request promptly.
    • 18. NOTICE, APPLICABLE LAW AND JURISDICTION.
      • 18.1 Entity KIWI legal status. The place where The Client must send its notices, the law governing this Agreement, and the courts with exclusive jurisdiction.
        
        
        

        Applicable Laws	Jurisdiction	Notification Address
        Quebec and Canadian Federal Laws	District of Quebec, Quebec	206-3125 Flaubert, Quebec QC G2E 2J2 Canada

        This Agreement shall be interpreted in accordance with the law of the applicable jurisdiction below, without regard to rules of choice or conflict of laws, and the Parties hereby consent to the competent court and forum chosen. The Parties agree that this Agreement is not governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA).

      • 18.2 Dispute Resolution and Arbitration. In the event of any dispute or claim arising out of or relating to this Agreement, the Parties shall consult and negotiate with each other and, recognizing their mutual interests, shall attempt to reach a settlement. a solution satisfactory to both Parties. If the Parties fail to reach a settlement within sixty (60) days, any unresolved dispute or claim arising out of or relating to this Agreement shall be submitted to binding arbitration in accordance with the Arbitration Rules of the International Chamber of Commerce. The Parties shall seek to appoint arbitrators to each other. If the Parties cannot agree on a single arbitrator, there shall be three (3) arbitrators: one chosen by each Party and a third by the first two. The arbitration shall take place in the city where the courts have jurisdiction in accordance with the table in paragraph 18.1. All negotiations and arbitration proceedings initiated under this paragraph shall be confidential and treated as conciliation or settlement negotiations for the purposes of applying similar rules and codes of evidence of the applicable laws and jurisdictions. The language of the arbitration shall be French.
      • 18.3 Injunction. Nothing in this Agreement shall prevent either Party from seeking an injunction for any violation of intellectual property rights, confidentiality obligations, or for the purpose of execution or recognition of any decision or order made in any appropriate jurisdiction.
      • 18.4 Export Restrictions. The Products may be subject to export restrictions imposed by the United States government and other applicable regulations, as well as import restrictions from certain foreign governments, and you agree to comply with all applicable export and import laws in connection with your use of the Products. You must not (and will not allow any third party to) remove or export from the United States or permit the export or re-export of any part of the Products or any direct proceeds thereof: (a) into (or to a citizen or resident of) any country under embargo or supporting terrorism; (b) to any person listed in the U.S. Department of Commerce's "Table of Denial Orders" or the U.S. Department of the Treasury's "List of Specially Designated Nationals"; (c) to any country to which export or re-export is restricted or prohibited, or for which the United States government or any of its agencies requires an export license or other government authorization for export or re-export without first obtaining such license or approval; (d) otherwise in violation of export or import restrictions, laws or regulations of U.S. or foreign agencies or authorities; or (e) in any country that does not have copyright laws protecting the rights of KIWI and the software providers from which its licensing rights are derived.
      • 18.5 Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed to have been duly given or made if delivered personally, sent by first-class mail (postage prepaid with return receipt requested), or sent by a recognized courier service (e.g., Federal Express, DHL, UPS) (i) if you: to the attention of “Legal” at the address indicated in the Order Form (or to any other address you have designated in writing to KIWI in accordance with this paragraph) and (ii) if to KIWI: to the attention of “Legal” at 206-3125 Flaubert, Quebec QC Canada G2E 2J2 including a copy to entente[at]kiwi.ca. KIWI may also inform you via your account about hosted services.
      • 18.6 Compliance and protection of personal information. KIWI is committed to comply with applicable laws and regulations regarding public contracts, particularly those concerning ethics, transparency, and the protection of personal information in Quebec (including the Act respecting the private sector and its reforms, known as Bill 25).
      • 18.7 Commitment and Signatures. By signing a service proposal, issuing a purchase order, or accessing the Products, the Client confirms their intention to subscribe to the services and accepts all of the the terms of this Agreement.
      • 18.7.1 Public Sector: The Client acknowledges that renewal is conditional upon the issuance of a new annual purchase order or the receipt of a new purchase order number authorizing continuity. services before the end of the current period.
      • 18.7.2 Private Sector: The Client confirms their acceptance of the automatic renewal terms described in section 4.2.2 and authorizes KIWI to bill annually for services until receipt of a valid cancellation notice.
    • 19.GENERAL PROVISIONS.
      • 19.1 Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform any of its obligations under this Agreement (except for payment obligations) if the delay or failure is due to a force majeure event through no fault or negligence on the part of the Party that is in delay or default. A “force majeure event” means an unforeseen event beyond the reasonable control of that Party, including civil unrest, labor disputes, wars or acts of terrorism, natural disasters, epidemics, refusal of a license by a government agency, and failures or reductions of public services or data networks.
      • 19.2 Waiver of the Right to Terminate. The Parties acknowledge and agree that no right of unilateral termination is granted under this Agreement. The Parties hereby waive the application of article 2125 of the Civil Code of Québec.
      • 19.3 Assignment. This Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party, except that no consent is required for an assignment of this Agreement by a Party as a result of a change of control, a merger, or the sale of substantially all of that Party's assets or outstanding shares to a wholly owned subsidiary or an affiliated entity within the same group as that subsidiary to a subsidiary one hundred percent or a member of the same group as the latter, or to a wholly owned subsidiary or to a member of the same group as its controlling owner, provided that, if (a) the transferee is a competitor of the other Party, or (b) the other Party reasonably determines that the transferee of that transferring Party will not have sufficient capital, assets, resources, and expertise to perform its obligations hereunder, such consent shall then be required. Subject to the foregoing, this Agreement binds the Parties to this Agreement, their respective successors and assigns.
      • 19.4 Amendments to this Agreement. KIWI may amend the terms of this Agreement from time to time by posting a revised version of the Agreement on the KIWI website, and the amended terms will become effective upon posting.
      • 19.5 Complete Agreement and Severability. This Agreement constitutes the entire of the agreement between you and KIWI regarding the Products and supersedes all communications, proposals, and representations, whether oral or written, prior or contemporaneous, concerning the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be invalid by an arbitrator or court of competent jurisdiction, that provision will be severed, and the remainder of this Agreement will remain in full force and effect and will be interpreted to reflect the intent of the Parties to the greatest extent possible.
      • 19.6 Waiver. No breach or delay by an injured Party of this Agreement to Exercising any right under this Agreement shall not be deemed a waiver of that right, and no exercise, in whole or in part, shall preclude any further or subsequent exercise of that right or any other right, power, or privilege at law or in equity.
      • 19.7 Independent Parties. The Parties to this Agreement are independent. This Agreement shall not be construed as establishing a partnership between the Parties or as creating any other form of legal association that would give one Party has the right, power, or authority, express or implied, to create a duty or obligation towards the other Party.