Master Services Agreement

This Master Services Agreement (the "Agreement") is a legal agreement between You (the "Licensee") and Klipfolio Inc., a corporation incorporated under the laws of Ontario ("Klipfolio"), with its principal place of business at 176 Gloucester Street, Suite 200, Ottawa, Ontario, K2P 0A6, Canada.

By signing up for a trial, an academic license or an account, You agree to the terms of this Agreement, which governs access to and use of Klipfolio’s Software and Services. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity to these terms and conditions. If You do not have such authority or if You do not agree with these terms and conditions, You must not accept this Agreement and may not use the Software or Services. This Agreement is effective between You and Klipfolio as of the date You accept it or access or use the Software or Services.

Klipfolio may amend this Agreement at any time by providing thirty (30) days’ notice (“Notice Period”) on the “Legal” web page of the Klipfolio website, by email or within the Software. The amended Agreement and a description of the amendments will be posted on the Legal web page for the duration of the Notice Period and the amended Agreement will be effective immediately following expiry of the Notice Period. You can terminate the Agreement any time during the Notice Period if You don’t agree with the changes.

We have provided summaries for each section in non-legalese to help You better understand this Agreement, but keep in mind that these explanations do not contain every detail and are not legally binding. Please read the complete Master Services Agreement to fully understand Your legal obligations.

By accessing or using Klipfolio Software or Services, You are agreeing to these terms. We update the Agreement once in a while.

1. Definitions:

  • 1.1 "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
  • 1.2 "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
  • 1.3 "Licensee," "You," or "Your" means the company or other legal entity for which You are accepting this Agreement;
  • 1.4 "Plan" means the Software, Services, and Support You have subscribed to or licensed from Klipfolio, which can be found in the My Plan section under Account/Company/My Plan within Klipfolio’s Software;
  • 1.5 “Seat” means the ability for one User to access the Software or Services;
  • 1.6 "Software" or "Services" means any of Klipfolio's products or services, including Klipfolio's software, mobile application (“App”) and related programs, whether under a trial, academic license or Plan, accessed or used by You, including Updates, and corresponding documentation, associated media, printed materials, and online or electronic documentation;
  • 1.7 "Support” means any assistance that Klipfolio offers and provides related to its Software or Services.
  • 1.8 “Updates" means a bug fix, patch, error correction and/or other enhancements to the Software or Services; and
  • 1.9 "User" means an employee, independent contractor, consultant or agent of the Licensee identified and authorized by the Licensee to use the Software or Services;

What this means

The terms defined here are used throughout the MSA. Refer to this section if You come across one of these terms when You are reading this document and are not sure what it means.

2. Rights and Restrictions:

  • 2.1 Subject to the terms and conditions of this Agreement, You are hereby granted a non-exclusive, non-transferable license: (i) to download, install, access and use the App on your mobile device; and, (ii) - for the number of Seats set out in the applicable Plan to use the Software or Services solely for Your own business purposes. Only one User can access the Software or Services through a Seat at a time. One User accessing the Software or Services through a Seat can only have two logins on a computer and two logins on mobile devices open at a time. Your use of the Software or Services is subject to additional terms and conditions: (i) set out in the applicable Plan, including the duration of the term of license; and, (ii) required by the distributor from whom You downloaded the App (e.g. Apple iTunes, Google Play, etc.) (collectively “App Distributors”).
  • 2.2 You may not re-license, sub-license, sell, assign, or otherwise transfer the Software or Services. You agree that the Software or Services will only be used in accordance with the provisions of this Agreement.
  • 2.3 You will not modify, resell for profit, distribute, or create derivative works based upon the Software or Services or any part thereof.
  • 2.4 You will take appropriate steps, both before use and at all times thereafter, to copy and protect Your own data and programs that may be lost, harmed or destroyed and to protect Your equipment from any damage. You will be responsible for reconstruction, replacement, repair or recreation of lost programs, data or equipment in the event of hardware, software, or services failure. Klipfolio will not, under any circumstances, be responsible for any such losses or damages.
  • 2.5 Klipfolio compiles and analyzes usage and performance of the Software and Services (“Compiled Data”) and uses Compiled Data to build features and improve the functionality and feature set of the Software and Services. Klipfolio shall have exclusive ownership of any Compiled Data and the exclusive right to use the same for any purpose, provided that Klipfolio shall not distribute any Compiled Data in a manner which identifies Your business or Your customers or any personal information of such customers. You agree that Klipfolio may collate, modify and create aggregate, non-personally identifiable information from and from use of the Software and Services and that Klipfolio may reuse all general knowledge, know-how, work and technologies acquired during provision of Software and Services.
    Klipfolio shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Software and Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including any Users, relating to the Software or Services.
  • 2.6 All of the data You use within the Software and Services which is visible through the Software and Services to us (“Your Data”) belongs to You. You hereby grant Klipfolio a non-exclusive, royalty-free, worldwide sub-licenseable right and license to access and use Your Data in order to provide the Software and Services as contemplated by this Agreement, including to send You personalized suggestions. Klipfolio will use Your Data to not only provide the Software and Services as they exist today, but also to allow Klipfolio to provide You with innovative features and services it develops in the future that use the information it receives about You in new ways. You agree that Klipfolio may collate, modify and create aggregate, non-personally identifiable information from Your Data (“Aggregate Data”) and that such Aggregate Data does not form part of Your Data.

What this means

2.1 You can purchase Seats to use with Klipfolio Software and Services for Your organization. One Seat can be used by only one User. The App can be used on your mobile device.

2.2 You can’t allow someone else to use Your license.

2.3 The Software and Services belong to us. You are not allowed to copy our Software or Services or use them in any illegal or unauthorized way.

2.4 Your data, software and equipment is Yours so make sure You protect it and make backups as needed.

2.5 We collect information (usage and performance data, aka Compiled Data) from our customers and You may give us feedback which we may use as the basis for updates or new product features. That said, we won’t share any information that could identify You in any way.

2.6 We will use Your Data for good and will respect Your privacy.

3. Intellectual Property:

Ownership in the Software and Services will at all times remain with Klipfolio. Klipfolio will retain all right, title, copyright, trade secrets, patents, trademarks, and other proprietary and intellectual property rights in the Software or Services. You do not acquire any rights, express or implied, in the Software or Services, other than those specified in the Agreement. You will not remove any copyright, patent, trademark, design right, trade secret or any other proprietary rights or legends from the Software or Services, unless removal is permitted by subscribing to Klipfolio’s White Label feature, an add-on available as part of Your Plan.

What this means

Klipfolio respects intellectual property and we hope You do, too. Klipfolio Software and Services belong to us, but we are happy to grant You the right to ‘White Label’ our product when You subscribe to this add-on feature (see Pricing).

4. Confidentiality:

  • 4.1 Your Confidential Information shall include Your Data; Klipfolio's Confidential Information shall include the Software and Services, including Compiled Data and Aggregate Data; and Confidential Information of each party shall include the terms and conditions of this Agreement, including any Plan, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that: (i) is publicly known or readily ascertainable by the public, through no wrongful act of Receiving Party; (ii) is received from a third party without breaching an obligation owed to the Disclosing Party; (iii) is independently developed by or for the Receiving Party; or (iv) was in its possession prior to it being furnished to the Receiving Party by the Disclosing Party.
  • 4.2 The Receiving Party agrees that Confidential Information of the Disclosing Party: (i) will not be used for any purpose outside the scope of this Agreement; (ii) will be treated with the same degree of care as similar information of the Receiving Party is treated within the Receiving Party’s organization (but in no event less than reasonable care); (iii) will not be used for the benefit of a third party; and (iv) will remain the property of the Disclosing Party. The Receiving Party will limit access to Confidential Information of the Disclosing Party except as otherwise authorized by the Disclosing Party in writing, to those of its and its Affiliates' employees, officers, directors, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Disclosure of Confidential Information by the Disclosing Party’s employees, officers, directors, contractors, agents or Affiliates is deemed to be the disclosure by the Disclosing Party.
  • 4.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
  • 4.4 The obligations of the Receiving Party set forth in this section will remain in effect for a period of five (5) years following the date of first disclosure. Confidential information identified as a trade secret will be held in confidence indefinitely.

What this means

Fair is fair. We keep our lips are sealed when it comes to Your confidential information and we expect that You will do the same for us.

5. Disclaimer of Warranties and Preview Services:

  • 5.1 Klipfolio warrants that: (i) it has validly entered into this Agreement and has the legal power to do so; (ii) the Software and Services shall perform materially in accordance with the documentation included with the Software or Services; and, (iii) the functionality of the Software and Services will not be materially decreased during a subscription term. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 6.2 below.
  • 5.2 You warrant that You have validly entered into this Agreement and have the legal power to do so.
  • 5.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
  • 5.4 From time to time Klipfolio may invite You to try, at no charge, Software or Services that are not generally available to Klipfolio customers ("Preview Services"). You may accept or decline any such Preview Services in Your sole discretion. Preview Services will be clearly designated as alpha, beta, pilot, limited release, developer preview, or non-production, or by a description of similar import. Preview Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. We may discontinue Preview Services at any time in Klipfolio's sole discretion and may never make them generally available. PREVIEW SERVICES ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY.

What this means

This just means that what You see is what You get – as in we provide limited warranties for our Software and Services. We may also invite You to try out new Software and Services features with our Preview Services, without any warranties.

6. Limitation of Damages:

  • 6.1 NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL KLIPFOLIO (OR ITS EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS) BE LIABLE TO THE LICENSEE, OR ANY THIRD PARTY CLAIMING THROUGH THE LICENSEE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWSOEVER CAUSED (INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF PRODUCTION, LOSS OF INCOME, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, INCREASED COSTS OF OPERATION, LITIGATION COSTS, AND THE LIKE), WHETHER BASED UPON A CLAIM OR ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IN CONNECTION WITH THE SUPPLY, USE, OR PERFORMANCE OF THE SOFTWARE OR SERVICES, REGARDLESS OF WHETHER KLIPFOLIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  • 6.2 KLIPFOLIO'S AGGREGATE LIABILITY TO THE LICENSEE, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION, OR OTHERWISE WILL, IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES, BE LIMITED TO DIRECT DAMAGES AND WILL IN NO CIRCUMSTANCES EXCEED, IN THE AGGREGATE, THE FEES PAID TO KLIPFOLIO BY THE LICENSEE IN RESPECT OF THE SOFTWARE OR SERVICES.

What this means

Basically, we can only be held liable up to the amount You have paid us should You suffer a loss or damage directly related to Your use of our Software and Services.

7. Fees:

  • 7.1 You will pay the amount agreed to as part of Your Plan and any amendments made to Your Plan. If You have chosen to pay the fee by recurring credit card charges, the fee will be charged automatically to Your credit card. If You have chosen any other payment method, the payment is due upon receipt of the invoice and shall be received by Klipfolio within 30 days to avoid restrictions being placed on the account.
  • 7.2 There will be no refunds or credits for partial periods of service or periods of inactivity.
  • 7.3 All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You are responsible for payment of all such taxes, levies, or duties.
  • 7.4 Should You make amendments to Your Plan to increase the number of Seats or purchase additional Support, Software or Services, this will result in an immediate charge to You of a prorated amount reflecting the increase in price for the remainder of the term of Your Plan. Should You make an amendment to Your Plan to decrease the number of Seats or decrease the Support, Software or Services that You are receiving, any decrease in price will be reflected at the beginning of the next term of Your Plan.
  • 7.5 The renewal of Your Plan will be automatic and will reflect any amendments made to Your Plan.

What this means

Yes, it’s true, we do charge for our Support, Software and Services. Credit card payments are charged immediately. If You qualify for invoice, the payment is due immediately but we will give You a reasonable amount of time to send in the payment. Non-payment will result in restrictions being placed on Your account. Your Plan will be automatically renewed. No refunds.

8. Term and Termination:

  • 8.1 This Agreement commences on the date You accept it and continues for the subscription term specified within the chosen Plan. The term of this Agreement shall automatically renew for additional periods equal to the expiring term, unless either party gives the other notice of non-renewal before the end of the relevant term.
  • 8.2 Upon termination of this Agreement, You will cease using the Software and Services.
  • 8.3 This Agreement will terminate should You decide to electronically delete Your account associated with the Software and Services. Any fees that You have committed to paying must still be paid.
  • 8.4 Should You cancel Your account associated with the Software and Services, this Agreement will terminate at the end of the period for which You have committed to pay fees. Any fees that You have committed to paying must still be paid.
  • 8.5 If You elect to use the Software or Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
  • 8.6 Klipfolio, in its reasonable discretion, has the right to suspend or terminate this Agreement and use of the Software or Services by You. Klipfolio will use all reasonable efforts to contact You directly via email to warn You prior to suspension or termination. Should Klipfolio terminate this Agreement, it will send You notice and the effective date of termination will be the date the notice is sent by Klipfolio.
  • 8.7 You are solely responsible for properly cancelling the Services or deleting Your account. Klipfolio will not refund any fees paid.
  • 8.8 Your Data will be permanently deleted upon You deleting Your account. Klipfolio will permanently delete Your Data upon written confirmation that You wish to have Your Data deleted.

What this means

Let’s not let things get to this point, but if they do, both parties have an out. You can cancel Your account with Klipfolio at any time. If You cancel in the middle of the month, You will still be billed. Klipfolio can suspend or cancel this agreement and Your account at any time with notice.

9. U.S. Government Restricted Rights Legend:

Software distributed to or on behalf of the United States of America, its agencies or instrumentalities ("U.S. Government") is provided with Restricted Rights. Use, duplication, or disclosure of Software by the U.S. Government is subject to the restrictions in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraphs (c) (1) and (2) of the Commercial Computer Software - Restricted Rights at 48CFR52.227-19, as amended or applicable, or such other applicable rules and regulations.

What this means

For our US customers only, this just means that our Software, when used by or on behalf of the US Government, is provided with restricted rights.

10. General:

  • 10.1 Governing Law: This Agreement will be governed by, interpreted, and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. Each party irrevocably attorns to the jurisdiction of the courts of the Province of Ontario. The parties expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods, and any legislation implementing such Convention will not apply to this Agreement nor to any dispute arising therefrom.
  • 10.2 Relationship of Parties: The parties are not agents or legal representatives of each other. The parties to this Agreement are independent contractors. No relationship of principal to agent, master to servant, employer to employee, or franchisor to franchisee is established hereby between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.
  • 10.3 Survival: The provisions in Articles 3, 5, 6, and 10 and Sections 2.2, 2.3, 2.5, 2.6, 4.4 and 8.2 will survive termination of this Agreement.
  • 10.4 Precedence: If You also enter into a Solution Provider Partner Agreement with Klipfolio, and there is a conflict between this Agreement and the Solution Provider Partner Agreement, the Solution Provider Partner Agreement will prevail to the extent of the conflict.
  • 10.5 Assignment: Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.
  • 10.6 Waiver: The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Except for actions for breach of Klipfolio's proprietary rights in the Software or Services, no action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the cause of action has arisen.
  • 10.7 Entire Agreement: This Agreement together the terms of any Plan is the complete agreement between the parties regarding the subject matter hereof and will not be deemed to have been waived by any act or failure to act.
  • 10.8 Severability: If one or more provisions of this Agreement are held to be unenforceable under applicable laws, such provisions will be modified to the minimum extent necessary to comply with applicable law and the intent of the parties.
  • 10.9 Export Administration: To the extent applicable to the Licensee, You agree to comply fully with all relevant export laws and regulations of Canada and the United States ("Export Laws") to ensure that neither the Software, Services, nor any direct product thereof is: (a) exported, directly or indirectly, in violation of Export Laws; or (b) is intended to be used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
  • 10.10 App Distributor Terms: You acknowledge that this Agreement is concluded between You and Klipfolio only and not with an App Distributor. App Distributors and their subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, App Distributors will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary. App Distributors and their subsidiaries shall have no liability under this Agreement.
  • 10.10 Legal Notices; Contacting Klipfolio. All legal notices to Klipfolio shall be sent to legal@klipfolio.com. Questions regarding the Software or the Services can be directed to support@klipfolio.com. App Distributors are not responsible for addressing any questions, comments, complaints, or claims regarding the App.

What this means

This is a tricky one. In part, this section says that this Agreement is subject to the laws of the Province of Ontario and the laws of Canada where applicable. It also says that should there be a conflict between the Solution Provider Partner Agreement and this Agreement, the Solution Provider Partner Agreement takes precedence. In addition, it says that if Klipfolio chooses not to enforce any of the provisions in this Agreement at any time, it may still do so later. You are bound by the export laws and regulations of Canada and the US as applicable. Lastly, App Distributors benefit from the terms of this Agreement and can enforce them even though it is between You and Klipfolio.