KLEMMER MASTER SUBSCRIPTION AGREEMENT


THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF AND, WHERE APPLICABLE, YOUR SUBSCRIPTION TO THE KLEMMER™ BRAND SERVICES.

BY CLICKING ON THE “I ACCEPT” BUTTON OR SIGNING THIS AGREEMENT, YOU ACCEPT THIS AGREEMENT AND AGREE TO ITS TERMS AND CONDITIONS. IT IS IMPORTANT THAT YOU READ THIS ENTIRE AGREEMENT BEFORE ACCEPTING THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. 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 SERVICES. YOUR USE OF THE SERVICES IS CONDITIONED ON YOUR ACCEPTANCE OF THIS AGREEMENT AND YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS PROVIDED HEREIN. WE ENCOURAGE YOU TO REVIEW THIS AGREEMENT AND ALL RELATED DOCUMENTS IN THEIR ENTIRETY BEFORE ACCEPTING.

YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR DIRECT COMPETITOR EXCEPT WITH OUR PRIOR WRITTEN CONSENT. ONLY AUTHORIZED PERSONS MAY OBTAIN OR UTILIZE ISSUED USERNAMES OR PASSWORDS. YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

THIS AGREEMENT WAS LAST UPDATED BY US ON MARCH 31, 2018. WE MAY AT ANY TIME REVISE THIS AGREEMENT, WHICH REVISIONS WILL BE EFFECTIVE IMMEDIATELY. WE WILL PROVIDE YOU WITH NOTICE OF ANY SUCH REVISIONS. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE AND TIME IN OUR LOCATION WHEN YOU ACCEPT THIS AGREEMENT.

  1. DEFINITIONS

“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. This Agreement shall apply to each of Your Affiliates, regardless whether they also use the Services.

“Business Days” means any days on which commercial banks in Petaluma, California are open for business. “Documentation” means any written information provided to You by Us in connection with the Services.

“Fees” means the amounts payable to Us by You in exchange for the Services You order from Us, as specified in the Orders and subject to the Terms, and any additional amounts otherwise due and payable under this Agreement or the Terms, including, without limitation, late fees and collection costs.

“Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.


“Orders” means the purchase orders agreed by Us and You, whether in writing or via electronic communication, that specify the Services ordered by You and to be delivered by Us, the Fees due and payable in exchange therefor and the basis for calculating those Fees, and any applicable delivery or payment terms.

“Services” means any online, cloud-based or web-based platform and services and any associated mobile applications or offline components that You order from Us.

“Terms” means the terms and conditions applicable to Your use of the Services provided by Us. The Terms include, without limitation, all the terms and conditions set forth in this Agreement and all the terms and conditions set forth in one more of the following additional agreements or other documents:

  • Our “Terms and Conditions of Use”, which governs the use of Our websites, a current copy of which is attached hereto as Appendix A or is available online at JEREMY WILL INSERT ADDRESS;
  • Our “Privacy Policy”, which governs the use of any private information we gather from Users, a copy of which is attached hereto as Appendix B or is available online at JEREMY WILL INSERT ADDRESS;
  • Our “End User License Agreement”, which governs the use of any software licensed from Us, including, without limitation, Our mobile applications downloaded and installed by You, the Users, or by Us at Your request and on Your behalf, a current copy of which is attached hereto as Appendix C;
  • Our “Professional Services Agreement,” which governs the purchase, delivery, and use of any professional consulting, coaching, facilitation services or customized, project-based services You order from Us in connection with the Services, a current copy of which is attached hereto as Appendix D; and
  • Any “Addenda,” which for convenience and simplicity We may use from time to time to set forth any agreed-upon amendments, changes, or other modifications to, or waivers of, any of the standard terms and conditions set forth in any of the foregoing agreements or other documents; such modifications shall be binding on all parties (including the Users) if set forth in a written Addendum attached by Us to this Agreement and signed by both You and Us.

The terms and conditions set forth from time to time in these additional agreements and other documents are hereby incorporated into this Agreement by reference and made a part of this Agreement. We may at any time revise such terms and conditions, which said revisions will be effective immediately. Except as may be limited or qualified by the Terms, We will provide you with notice of any such revisions.

If You agree to participate in testing any of Our pre-release services, You may also be asked to enter into a memorandum of understanding or beta agreement regarding Your use of such pre-release services.

These are stand-alone agreements and the terms and conditions set forth in these agreements are not incorporated herein or otherwise made a part of this Agreement or the Terms and only apply to your use of such pre-release services.


“Third-Party Goods or Services” means any goods or services provided to You by third-parties to interoperate with the Services, including, without limitation, any smartphones, tablets, computers, online, web-based or cloud-based applications, or offline software or other hardware products that are provided by third-parties.

“Users” means individuals who are authorized by You to use the Services, for whom subscriptions have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include, but are not limited to, Your family members, employees, consultants, contractors and agents; or third parties with which You transact business.

“We,” “Us”, “Our” or “Company” means KLEMMER.

“You” or “Your” means the company or other legal entity for which You acknowledge You have the authority to accept, bind, and enter into this Agreement.

“Your Data” means all electronic data or information submitted by You in connection with the Services.

  1. SUBSCRIPTION
  • Provision of Services

We shall make the Services available to You as purchased by You through Orders pursuant to this Agreement and subject to the Terms. You agree that Your purchases are neither contingent on the delivery of any future functionality or features nor dependent on any oral comments made by Us regarding future functionality or features.

  • Subscriptions

You agree that (i) Services are purchased as subscriptions and may not be accessed or used by You, the Users, or your employees, contractors, or other participants in excess of the subscription amounts specified in the Orders, (ii) additional subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional subscriptions are added, and (iii) the added subscriptions shall terminate on the same date as the pre-existing subscriptions. Except as otherwise specified by Us in the Orders, subscriptions are based on the persons designated by You as the permissible Users or employees, contractors, or other participants and cannot be shared or used by anyone except as permitted in the Orders. You are responsible for ensuring that Your employees, contractors, and customers comply at all times with the Terms in using the Services.

  1. USE OF THE SERVICES
  • Use

The Services consist of software running remotely on servers controlled by Our third-party hosting provider, and may also include related mobile applications and offline capabilities. You have no right to receive either an object code or source code version of the software operating on the remote servers. Your usage rights are constrained by the Terms and are limited to accessing the Services via a designated portal using username(s) and password(s) provided to You by Us or on Our behalf in Our sole discretion. You must have a high speed internet connection, hardware, and software that is compatible with the Services, as indicated by Us. You may need to upgrade Your equipment in order to use the Services.

  • Our Responsibilities

We will: (i) provide You basic support for the Services at no additional charge, (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, a guaranteed 99% uptime for the term of the agreement, except for: (i) planned downtime (of which We shall give at least 24 hours notice via our web site or electronic data message (EDM), or (ii) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays or other systemic Internet issues, and (iii) provide the Services only in accordance with applicable laws and government regulations.

  • Your Responsibilities

You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data,

(iii) prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with this Agreement and applicable laws and government regulations. You shall not (i) make the Services available to anyone other than Users, (ii) sell, resell, rent or lease the Services, (iii) use the Services to store or transmit infringing, libelous, obscene or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights, (iv) use the Services to store or transmit Malicious Code, (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (vi) attempt or permit others to attempt to gain unauthorized access to the Services or their related systems or networks, (vii) load test the Services in order to test scalability, or

(viii) copy, reproduce, publicly perform or create derivative works based upon the Services or Documentation or make or have made any feature or functionality of the Services.

  • Usage Limitations

The Services may be subject to other limitations, such as, limits on disk storage space or Internet bandwidth. We shall employ commercially reasonable efforts to apprise You of any such limitations. The Services may not be used for any purpose in violation of applicable laws or regulations.

  • Acceptance of Terms by Klemmer

You or, if applicable, your employer or independent contractor, may request or authorize Klemmer to access your computer or mobile device on your behalf in order to install or deliver any Services and, in such event, you agree and acknowledge that Klemmer is authorized and directed to accept this Agreement and any Terms on your behalf (including, without limitation, by affirmatively clicking through any prompts relating to this Agreement, the Services, or the Terms). You agree that this Agreement and the Terms are binding on you, and you shall comply fully with them, even if Klemmer accepts this Agreement or any of the Terms on your behalf (at your request) or affirmatively clicks-through any prompts relating to this Agreement, the Services, or the Terms on your behalf.

  1. THIRD-PARTY GOODS OR SERVICES
  • Acquisition of Third-Party Goods or Services

You may wish to purchase and use Third-Party Goods and Services to interoperate with the Services provided by Us to You. Any purchase or use by You of any Third-Party Goods or Services is solely between You and the third-party provider. You agree to comply with all terms and conditions applicable to such purchase or use of the Third-Party Goods or Services. We are not responsible for Third-Party Goods or Services and We do not warrant or support Third-Party Goods or Services, whether or not they are designated by Us as “certified” or otherwise. You bear all risks associated with the purchase, access, and use of all Third-Party Goods or Services.

  • Third-Party Goods or Services and Your Data

If You install or enable Third-Party Goods or Services, You acknowledge that We may allow third-party providers to transport Your Data as required for the interoperation of such Third-Party Goods or Services with Our Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access. The Services may allow You to restrict such access by restricting Users from installing or enabling any additional Third-Party Goods or Services not purchased by You.

  1. ORDERS, FEES, AND PAYMENT
  • Orders

In order to facilitate Your order, purchase, and use of Services, We will prepare and send to you Orders from time to time, either in writing or via electronic communication. The Orders will specify the Services ordered by You and to be delivered by Us, the Fees due and payable in exchange therefor and the basis for calculating those Fees, and any applicable delivery or payment terms. If You believe an Order contains any errors, please notify Us immediately. If we send You an Order and You do not respond within 5 Business Days regarding any errors, We will assume that You have accepted the Order and the Order will be binding on You.

  • User Fees

You shall pay all Fees specified in Your Orders pursuant to the Terms. Except as otherwise specified by Us: (i) all Fees are quoted and payable in United States dollars; (ii) all Fees are based on Services ordered by You and not actual usage; (iii) payment obligations are non-cancelable and Fees paid are non- refundable; and (iv) the level of service cannot be decreased during the relevant subscription term. Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, Fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the relevant subscription term.

  • Invoicing and Payment

You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Fees due and payable according to Your Orders, including, without limitation, any sales tax or applicable processing or credit card fees. Fees for subscriptions shall be paid by You in full in advance of the subscription term, either annually or in accordance with any different billing frequency, as specified in Your Orders, and all Fees for any other Services not included in the subscriptions shall be paid by You in full when We send you the applicable Orders. If We agree that payment will be by a method other than a credit card, We will invoice You accordingly. Unless otherwise agreed, invoiced Fees are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information with Us.

  • Overdue Fees

If any Fees are not paid by You when due then such Fees may accrue a late fee at the rate of 1.5% of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date the Fees were due until paid and We may condition future Orders on different payment terms specified in this Agreement or Your prior Orders.

  • Suspension of Service and Acceleration

If any amount You owe Us is overdue by 30 or more days (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate all unpaid Fee obligations under this Agreement, Your outstanding Orders, or any other Terms so that all such obligations become immediately due and payable, and suspend Your current Services, or withhold future Services ordered by You, until all such amounts are paid in full.

  • Payment Disputes

We will not exercise Our rights under Section 5.4 (Overdue Fees) or 5.5 (Suspension of Service and Acceleration) if the applicable Fees are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.


  • Taxes

Unless otherwise specified by Us, Our Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases from Us. If We have the legal obligation to pay or collect Taxes for which You are responsible, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property, and employees.

  1. PROPRIETARY RIGHTS
  • Reservation of Rights

This is a subscription to a service. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including, without limitation, all related intellectual property rights. No rights, including any rights under license, either express are implied, are granted to You hereunder other than as expressly set forth herein. This means that if We add to or modify the Services to make them better, even if You assist Us in that effort, all intellectual property rights relating to such additions or modifications shall be held by Us and You will have no ownership or license rights to such additions or modifications except for this subscription.

  • Restrictions

You shall not (i) permit any third party to access the Services except as permitted herein or as otherwise agreed, (ii) create derivative works based on the Services, (iii) copy, frame, or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to build a competitive product or service or copy any features, functions, or graphics of the Services.

  • Ownership of Your Data

As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. Notwithstanding the foregoing, the term “Your Data” does not include any analytical or statistical information regarding devices or operating systems used to access or utilize the Services; syncing, wait or down times; aggregated user or transaction data; errors encountered by Users; or the identifiers of where within the Services any technical problems arose. We (or a third party on Our behalf) may track, collect, and utilize such information to test, evaluate, support, market, or otherwise improve the quality of the Services. We (or a third party on Our behalf) will never access or use Your Data for support purposes without first obtaining your explicit permission.

  • Suggestions

  • In order to avoid any misunderstandings or disputes relating to the Services and the ownership of all related intellectual property rights, please do not send Us unsolicited ideas, including but not limited to ideas for features, product improvements, promotions, products, processes, code, marketing plans, or product names. However, We welcome Your feedback regarding the Services and Our business. If You want to send Us feedback, please use Our “Support” page at JEREMY WILL INSERT ADDRESS;.
  1. CONFIDENTIALITY
  • Definition of Confidential Information

As used herein, “Confidential Information” means all confidential 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. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, 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 (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,

  • was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
  • Protection of Confidential Information

Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, 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.

  • Protection of Your Data

We will not (i) modify Your Data, (ii) disclose Your Data except as compelled by law in accordance with Section 7.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (iii) access Your Data except to provide the Services, prevent or address service or technical problems, or at Your request in connection with customer support matters.

  • Compelled Disclosure

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.

  • Separate NDA

In the event of a conflict between the terms in this Section 7 and any Non-Disclosure Agreement (“NDA”) in place between You and Us, the terms of the NDA shall govern. In the event of a conflict between the terms in this Section 7 and our Privacy Policy, the terms of our Privacy Policy shall govern.

  1. LIMITED WARRANTIES AND DISCLAIMERS
  • Our Limited Warranty

We warrant that the Services shall be provided by Us in a professional, competent and workmanlike manner and the Services shall perform materially in accordance with the Documentation (if any). For any breach this limited warranty, Your exclusive remedy shall be as provided in Section 11.3 (Termination) and Section 11.4 (Refund or Payment upon Termination) below.

  • Mutual Representations and Warranties

Each party represents and warrants that (i) it has the legal authority to enter into this Agreement and be bound by its terms and conditions, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).

  • Disclaimer

EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  1. Mutual Indemnification

Both Parties shall indemnify, defend, and hold harmless all Affiliates, and respective officers, directors, contractors, and agents, from and against any claim made or brought against an indemnified party by a third-party (a) alleging that Data breaches any agreement either Party may have with a party other than each other, infringes or misappropriates the intellectual property rights of a third-party, or violates applicable law or (b) relating to the use of the Services in violation of the Terms, including any damages


awarded against an indemnified party and any reasonable attorney’s fees and court costs incurred by an indemnified party in connection with any such claim; provided, that the Party receiving the claim (i) promptly give notice of the claim, (ii) give that Party control of that portion of the defense and settlement of the claim that relates to Party being claimed against (provided that neither Party may not settle any claim unless the settlement unconditionally releases all indemnified parties of all liability), and

  • provide either Party with all reasonable assistance at Our reasonable expense
  1. LIMITATION OF LIABILITY
  • Limitation of Liability

IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED TWO TIMES (2X) THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.

  • Exclusion of Consequential and Related Damages

IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

  1. TERM AND TERMINATION
  • Term of Agreement

This Agreement commences on the date You accept it and continues until we are no longer providing You with any Services or this Agreement is terminated pursuant to Section 11.3 below.

  • Term of User Subscriptions

User subscriptions purchased by You commence on the start date specified in the Orders and continue for the subscription term specified in the Orders. Except as otherwise specified by Us, all User subscriptions shall automatically renew for an additional period of twelve (12) months, unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant subscription term, unless otherwise defined in the Orders. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

  • Termination

A party may terminate this Agreement for cause (i) upon 60-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. We may also terminate this Agreement at any time upon 60-days’ written notice to You.

  • Refund or Payment upon Termination

Upon termination of this Agreement We shall refund You any prepaid Fees covering the remainder of the term of all subscriptions after the effective date of termination, except for termination for cause by Us under Section 11.3, in which case You shall pay any unpaid Fees covering the remainder of the term after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any Fees payable to Us for the period prior to the effective date of termination.

  • Return of Your Data

We will maintain Your Data for a period of 30 days after the effective date of termination of this Agreement to enable You to download Your Data. After such time period, We shall have no obligation to maintain or provide access to any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

  • Surviving Provisions

Section 5 (Orders, Fees, and Payment), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Return of Your Data), 12 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.

  1. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
  • General

You are contracting with KLEMMER a mailing address at 1340 Commerce St, Suite G, Petaluma , CA , 94954 USA; and telephone: 1-800-577-5447. You should direct all notices under this Agreement to “CEO” at that address. You agree that the substantive laws of the state of California, exclusive of its choice of law provisions, will apply to the construction and interpretation of this Agreement and also with respect to any lawsuit arising out of or in connection with this Agreement. You further agree that the state or federal courts located in the state of California, USA, shall have exclusive jurisdiction of, and shall be the exclusive and correct venue for, the resolution of any dispute arising out of or related to this Agreement. You agree that any dispute You may have with Us shall be subject, in our discretion, to submission to binding arbitration in Petaluma, California pursuant to the Commercial Arbitration rules then-currently in place and promulgated by the American Arbitration Association.

  • Manner of Giving Notice

Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second Business Day after mailing, or (iii) the second Business Day after sending by confirmed facsimile. Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You, or to the email address You provide to Us. You agree to provide Us with Your current email address at all times.

By Your acceptance of this Agreement, You agree to have opted-in for the receipt of email communications pursuant to the provisions of the United States CAN-SPAM Act.

  • Agreement to Governing Law and Jurisdiction

Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of and venue within the applicable courts stated above.

  1. GENERAL PROVISIONS
  • Export Compliance

Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use the Services in violation of any U.S. export embargo, prohibition or restriction.

  • Relationship of the Parties

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

  • No Third-Party Beneficiaries

There are no third-party beneficiaries to this Agreement.

  • Waiver and Cumulative Remedies

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

  • Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the


original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

  • Attorney Fees

You shall pay on demand all of Our reasonable attorneys’ fees and other costs incurred by Us to collect any Fees due Us under this Agreement. In any action arising out of or related to this Agreement, if the defendant is determined by a court of competent jurisdiction to have prevailed regarding the action, then the defendant shall be entitled to an award of its reasonable attorneys’ fees and costs of defending the action.

  • Assignment

You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent (not to be unreasonably withheld). Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

  • Entire Agreement

This Agreement, including all exhibits and addenda, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless it is either (i) set forth in a written Addendum attached by Us to this Agreement and signed by both You and Us in writing or (ii) is otherwise signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.

However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any appendix or addendum hereto, the terms of such appendix or addendum shall prevail.


TERMS

"Terms" means the terms and conditions applicable to Your use of the Services provided by Us. The Terms include, without limitation, all the terms and conditions set forth in this Agreement and all the terms and conditions set forth in one more of the following additional agreements or other documents:

  • Our "Master Subscription Agreement", which governs the relationship between You and Us, a current copy of which is available online at https://KLEMMER.io/msa;
  • Our "End User License Agreement", which governs the use of any software licensed from Us, including, without limitation, Our web and mobile applications downloaded and installed by You, the Users, or by Us at Your request and on Your behalf, a current copy of which is available online at https://KLEMMER.io/end-user-license;
  • Our "Professional Services Agreement", which governs the purchase, delivery, and use of any professional consulting or customized, project-based services You order from Us in connection with the Services, a current copy of which is available online at JEREMY WILL INSERT ADDRESS; and
  • Any "Addenda," which for convenience and simplicity We may use from time to time to set forth any agreed-upon amendments, changes, or other modifications to, or waivers of, any of the standard terms and conditions set forth in any of the foregoing agreements or other documents; such modifications shall be binding on all parties (including the Users) if set forth in a written Addendum attached by Us to this Agreement and signed by both You and Us.

Provision of Services. We shall make the Services available to You as purchased by You through Orders pursuant to this Agreement and subject to the Terms. You agree that Your purchases are neither contingent on the delivery of any future functionality or features nor dependent on any oral comments made by Us regarding future functionality or features.

Usage Limitations. The Services may be subject to other limitations, such as, limits on disk storage space or Internet bandwidth. We shall employ commercially reasonable efforts to apprise You of any such limitations. The Services may not be used for any purpose in violation of applicable laws or regulations.

Reservation of Rights. This is a subscription to a service. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including, without limitation, all related intellectual property rights. No rights, including any rights under license, either express are implied, are granted to You hereunder other than as expressly set forth herein. This means that if We add to or modify the Services to make them better, even if You assist Us in that effort, all intellectual


property rights relating to such additions or modifications shall be held by Us and You will have no ownership or license rights to such additions or modifications except for this subscription.

Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. Notwithstanding the foregoing, the term "Your Data" does not include any analytical or statistical information regarding devices or operating systems used to access or utilize the Services; syncing, wait or down times; aggregated user or transaction data; errors encountered by Users; or the identifiers of where within the Services any technical problems arose. We (or a third party on Our behalf) may track, collect, and utilize such information to test, evaluate, support, market, or otherwise improve the quality of the Services. We (or a third party on Our behalf) will never access or use Your Data for support purposes without first obtaining your explicit permission.

General. You are contracting with KLEMMER a mailing address at 1340 Commerce St, Suite G, Petaluma, CA  94954 USA; and telephone: 1-800-577-5447. You should direct all notices under this Agreement to "CEO" at that address. You agree that the substantive laws of the state of California, exclusive of its choice of law provisions, will apply to the construction and interpretation of this Agreement and also with respect to any lawsuit arising out of or in connection with this Agreement. You further agree that the state or federal courts located in the state of California, USA, shall have exclusive jurisdiction of, and shall be the exclusive and correct venue for, the resolution of any dispute arising out of or related to this Agreement. You agree that any dispute You may have with Us shall be subject, in our discretion, to submission to binding arbitration in Petaluma, California pursuant to the Commercial Arbitration rules then- currently in place and promulgated by the American Arbitration Association.


APPENDIX A - TERMS AND CONDITIONS OF USE

THESE TERMS AND CONDITIONS OF USE (“TERMS AND CONDITIONS”) APPLY TO YOU (“YOU” OR “USER”) AND YOUR USE OF KLEMMER™ BRAND SERVICES ON A SERVER HOSTED BY KLEMMER (“KLEMMER”), A SERVER HOSTED BY A THIRD-PARTY PROVIDER ON KLEMMER’S BEHALF, THE WWW.KLEMMER.COM WEBSITE OR ANY ASSOCIATED SUBDOMAINS OR FUTURE WEBSITES, OR ANY RELATED NETWORKED MOBILE APPLICATIONS (COLLECTIVELY, THE “KLEMMER PLATFORM”).

BY CLICKING ON THE “I ACCEPT” BUTTON OR USING THE KLEMMER PLATFORM YOU ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS. IT IS IMPORTANT THAT YOU READ THE ENTIRETY OF THESE TERMS AND CONDITIONS BEFORE ACCEPTING THEM. IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THESE TERMS AND CONDITIONS AND MAY NOT USE THE KLEMMER PLATFORM. YOUR USE OF THE KLEMMER PLATFORM IS CONDITIONED ON YOUR ACCEPTANCE OF, AND COMPLIANCE WITH THESE TERMS AND CONDITIONS. WE ENCOURAGE YOU TO REVIEW THESE TERMS AND CONDITIONS IN THEIR ENTIRETY BEFORE ACCEPTING THEM.

THESE TERMS AND CONDITIONS WERE LAST UPDATED BY US ON MARCH 31, 2017. WE MAY AT ANY TIME, WITHOUT PRIOR NOTICE TO YOU, REVISE THESE TERMS AND CONDITIONS, WHICH REVISIONS WILL BE EFFECTIVE IMMEDIATELY.

  1. GENERAL USAGE

These Terms and Conditions apply to you and all other users, including without limitation, your employees, independent contractors, or customers, of the Klemmer Platform, including, without limitation, users who are also contributors of item listings, video content, information, forum posts, blogs, and other materials or services to the Klemmer Platform. The Klemmer Platform may contain links to third-party websites that are not owned or controlled by Klemmer; Klemmer has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites. In addition, Klemmer will not and cannot censor or edit the content of any third-party site. By using the Klemmer Platform, you expressly relieve Klemmer from any and all liability arising from your use of any third-party website. Accordingly, we encourage you to be aware when you leave the Klemmer Platform and to read the terms and conditions and privacy policy of each other website that you visit. YOU MAY BE ASKED TO ENTER INTO CONTRACTS WITH THOSE THIRD-PARTY SITES OR THEIR OWNERS OR OPERATORS BY VIRTUE OF YOUR CLICKING ON A LINK ON THIS SITE AND BEING TRANSPORTED TO THE EXTERNAL THIRD-PARTY SITE(S). YOU UNDERSTAND AND ACCEPT THE RISK OF PERHAPS BEING REQUIRED TO ENTER INTO SUCH THIRD-PARTY CONTRACTS AS A CONDITION OF YOUR RECEIVING THE SERVICES PROVIDED BY THE KLEMMER PLATFORM AND THE LINKED THIRD-PARTY SITES AND THAT KLEMMER IS NOT RESPONSIBLE FOR YOUR ACTIONS OR INACTIONS IN CONNECTION WITH ANY THIRD- PARTY SITE.


To view or access all the features of the Klemmer Platform, your web browser may require additional third- party software, also known as plug-ins, add-ons, extensions, etc. Klemmer makes no warranties that this third-party software will be compatible with your computer and specifically disclaims any liability for direct or consequential damages that arise when you download, install, or use third-party software to access the content or features of the Klemmer Platform.

  1. KLEMMER PLATFORM ACCESS

Klemmer hereby grants you a limited, revocable license to use the Klemmer Platform subject to your compliance with these Terms and Conditions and conditioned upon: (i) your use of the Klemmer Platform solely as permitted hereby and in connection with your use of the Services (as defined in the Master Subscription Agreement), if applicable; (ii) you will not copy or distribute any part of the Klemmer Platform in any medium without Klemmer’s prior written authorization; (iii) you will not alter or modify any part of the Klemmer Platform other than as may be reasonably necessary to use the Klemmer Platform for its intended purpose; (iv) you will not register or obtain domain names, Twitter handles, Facebook pages, or Instagram, Pinterest or other social media accounts using or incorporating any Company intellectual property, including but not limited to its trademarks; and (v) you will otherwise comply with these Terms and Conditions.

In order to access some features of the Klemmer Platform, you may have to create an account. You may never use another’s account without Klemmer’s permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Klemmer immediately of any breach of security or unauthorized use of your account. Although Klemmer will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Klemmer or others due to such unauthorized use.

You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Klemmer Platform in a manner that sends more request messages to the servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser. You agree not to collect or harvest any personally identifiable information, including account names, from the Klemmer Platform, and not to use the communication systems provided by the Klemmer Platform for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Klemmer Platform.

  1. INTELLECTUAL PROPERTY RIGHTS

The content on the Klemmer Platform, excluding Your Data as defined in the MSA, including without limitation, the text, software, metatags, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) and the trademarks, service marks, trade dress and logos contained therein (“Marks”), are owned by or licensed to Klemmer, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Klemmer Platform is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise


exploited for any other purposes whatsoever without the prior written consent of the respective owners.

Klemmer reserves all rights not expressly granted in and to the Klemmer Platform and the Content. You agree not to engage in the use, copying, or distribution of any of the Content other than expressly permitted herein. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Klemmer Platform or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Klemmer Platform or the Content therein.

  1. UNSOLICITED IDEA SUBMISSION POLICY
  • In order to avoid any misunderstandings or disputes relating to the Klemmer Platform and the ownership of all related intellectual property rights, please do not send Klemmer any unsolicited ideas, including but not limited to ideas for features, product improvements, promotions, products, processes, code, marketing plans, or product names. However, Klemmer welcomes your feedback regarding the Services and its business. If you want to send feedback to Klemmer, please use the “Support” page at JEREMY WILL INSERT ADDRESS;.
  1. WARRANTY DISCLAIMER

YOU AGREE THAT YOUR USE OF THE KLEMMER PLATFORM SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, KLEMMER, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE KLEMMER PLATFORM AND YOUR USE THEREOF, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. KLEMMER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT OF THE KLEMMER PLATFORM OR ANY SITES LINKED TO THE KLEMMER PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE KLEMMER PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREON, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE KLEMMER PLATFORM BY ANY THIRD PARTY, OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE KLEMMER PLATFORM.

KLEMMER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE KLEMMER PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND KLEMMER WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY


TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

  1. LIMITATION OF LIABILITY

IN NO EVENT SHALL KLEMMER, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE KLEMMER PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE KLEMMER PLATFORM, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE KLEMMER PLATFORM BY ANY THIRD PARTY, OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE KLEMMER PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KLEMMER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

Klemmer makes no representations that the Klemmer Platform is appropriate or available for use in locations outside the USA. Those who access or use the Klemmer Platform from other jurisdictions do so at their own volition and are responsible for compliance with local law.

  1. INDEMNITY

You agree to defend, indemnify, and hold harmless Klemmer, its affiliates, and their respective officers, directors, employees, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:

(i) your use or access of the Klemmer Platform; (ii) your violation of any of these Terms and Conditions; or

(iii) your violation of any third-party right, including without limitation any copyright, patent, trademark, property, or privacy right. This defense and indemnification obligation will survive these Terms and Conditions and your use of the Klemmer Platform.

  1. ABILITY TO ACCEPT TERMS AND CONDITIONS OF USE

You affirm that you are either 18 or more years of age on the date at your location at which you click on “I Agree,” are an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and Conditions, and to abide by and comply with these Terms and Conditions.


  1. ACCEPTANCE OF TERMS AND CONDITIONS BY KLEMMER

You or, if applicable, your employer or independent contractor, may request or authorize Klemmer to access your computer or mobile device on your behalf in order to implement the Klemmer Platform or upload or store your information thereon and, in such event, you agree and acknowledge that Klemmer is authorized and directed to accept these Terms and Conditions on your behalf (including, without limitation, by affirmatively clicking through any prompts relating to these Terms and Conditions or the Klemmer Platform). You agree that these Terms and Conditions are binding on you, and you shall comply fully with them, even if Klemmer accepts these Terms and Conditions, accesses your computer or mobile device on your behalf in order to implement the Klemmer Platform or upload or store your information thereon, or affirmatively clicks-through any prompts relating to these Terms and Conditions or the Klemmer Platform on your behalf.

  1. ASSIGNMENT

These Terms and Conditions, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Klemmer without restriction.

  1. GENERAL

You agree that: (i) the Klemmer Platform is to be deemed to be based solely in the United State of America; and (ii) the Klemmer Platform is to be deemed a passive website that does not seek to purposefully avail itself of the benefits and privileges of doing business in any state other than California and thus does not give rise to personal jurisdiction over Klemmer, either specific or general, in jurisdictions other than California.

These Terms and Conditions shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and Klemmer that arises in whole or in part from the Klemmer Platform shall be decided exclusively by a court of competent jurisdiction located in county in which Klemmer’s principal offices are located. These Terms and Conditions, together with the Privacy Policy at  JEREMY WILL INSERT ADDRESS , your Master Subscription Agreement and related Terms, shall constitute the entire agreement between you and Klemmer concerning the Klemmer Platform. If any provision of these Terms and Conditions is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms and Conditions, which shall remain in full force and effect. No waiver of any term of these Terms and Conditions shall be deemed a further or continuing waiver of such term or any other term, and Klemmer’s failure to assert any right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision.

Klemmer may amend these Terms and Conditions at any time. If you wish to be notified of any changes to these Terms and Conditions, you must e-mail us at support@klemmer.com, and if your e-mail address changes at any time, you are responsible for notifying us of your new address by sending an e- mail to support@klemmer.com. If you choose not to be notified of any changes to these Terms and Conditions by not complying with the preceding e-mail notification requirements, you thereby waive your right to notification and agree that you are responsible for reviewing these Terms and Conditions each time you visit this Klemmer Platform. In all cases, your use of the Klemmer Platform following any


amendment of these Terms and Conditions will signify your assent to and acceptance of its revised terms, even if we fail to send you an e-mail notification. CONTACTING US VIA EMAIL FOR THE PURPOSES SET FORTH ABOVE CONSTITUTES YOUR OPTING-IN TO RECEIVE EMAIL COMMUNICATIONS FROM US FOR PURPOSES OF THE UNITED STATES CAN-SPAM ACT.


APPENDIX B - PRIVACY POLICY

THIS PRIVACY POLICY (“PRIVACY POLICY”) APPLIES TO YOU (“YOU” OR “USER”) AND THE USE AND DISCLOSURE OF YOUR INFORMATION TO WHICH KLEMMER (“KLEMMER”), OR THIRD-PARTIES MAY HAVE ACCESS THROUGH THE USE OF KLEMMER™ BRAND SERVICES ON A SERVER HOSTED BY KLEMMER, A SERVER HOSTED BY A THIRD-PARTY PROVIDER ON KLEMMER’S BEHALF, THE WWW.KLEMMER.COM WEBSITE OR ANY ASSOCIATED SUBDOMAINS OR FUTURE WEBSITES, OR ANY RELATED NETWORKED MOBILE APPLICATIONS (COLLECTIVELY, THE “KLEMMER PLATFORM”).

BY CLICKING ON THE “I ACCEPT” BUTTON, UPLOADING OR STORING ANY INFORMATION ON THE KLEMMER PLATFORM OR OTHERWISE USING THE KLEMMER PLATFORM YOU ACCEPT THIS PRIVACY POLICY AND AGREE TO ITS TERMS AND CONDITIONS. IT IS IMPORTANT THAT YOU READ THIS ENTIRE PRIVACY POLICY BEFORE ACCEPTING THIS PRIVACY POLICY. IF YOU ARE ACCEPTING THIS PRIVACY POLICY ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS PRIVACY POLICY AND MAY NOT UPLOAD OR STORE ANY INFORMATION ON THE KLEMMER PLATFORM OR OTHERWISE USE THE KLEMMER PLATFORM. YOUR USE OF THE KLEMMER PLATFORM IS CONDITIONED ON YOUR ACCEPTANCE OF THIS PRIVACY POLICY AND YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS PROVIDED HEREIN. WE ENCOURAGE YOU TO REVIEW THIS PRIVACY POLICY IN ITS ENTIRETY BEFORE ACCEPTING THIS PRIVACY POLICY.

THIS PRIVACY POLICY WAS LAST UPDATED BY US ON MARCH 31, 2018. WE MAY AT ANY TIME, WITHOUT PRIOR NOTICE TO YOU, REVISE THIS PRIVACY POLICY, WHICH REVISIONS WILL BE EFFECTIVE IMMEDIATELY.

Your use of the Klemmer Platform and any personal or private information you provide on or through the Klemmer Platform remains subject to the terms of this Privacy Policy. Please note that this Privacy Policy does not apply to any video, image, music clip or track, or other content that Users direct us to post onto the Klemmer Platform. This Privacy Policy, together with the Terms and Conditions of Use at  JEREMY WILL INSERT ADDRESS, your Master Subscription Agreement and related Terms (as defined therein), shall constitute the entire agreement between you and Klemmer concerning the Klemmer Platform.

  1. WHAT INFORMATION WE COLLECT

Klemmer may collect personally identifiable information regarding you, your employees or independent contractors, or your customers (such as name, email address, gender, occupation, age, marital status, etc.), if you or they choose to participate in various activities on the Klemmer Platform or subscribing to newsletters or other mailing lists.

Klemmer collects User-submitted account information such as name and email address to identify Users and send notifications related to the use of the Klemmer Platform. When you visit the Klemmer Platform, we may send one or more cookies - a small text file containing a string of alphanumeric characters - to your computer or mobile device that uniquely identifies your browser. Klemmer uses both session cookies and persistent cookies. A persistent cookie remains after you close your browser.


Persistent cookies may be used by your browser on subsequent visits to the site. Persistent cookies can be removed by following your browser’s help file directions. A session cookie is temporary and disappears after you close your browser. You can set your browser to refuse all cookies or to indicate when a cookie is being sent. However, some features of the Klemmer Platform may not function properly if the ability to accept cookies is disabled. Klemmer automatically receives and records information on our server logs from your browser, including your Internet Protocol (“IP”) address, cookie information, the page you request and how long and how often you watch one of our videos. When you use the Klemmer Platform, our servers may automatically record certain information that your web browser sends whenever you visit any website. These server logs may include information such as your web request, IP address, browser type, browser language, referring / exit pages and URLs, platform type, number of clicks, domain names, landing pages, pages viewed and the order of those pages, the amount of time spent on particular pages, the date and time of your request, and one or more cookies that may uniquely identify your browser.

  1. HOW INFORMATION IS USED

If you submit personally identifiable information to us on or through the Klemmer Platform, then we use such information to provide the services to operate, maintain, and provide to you the features and functionality of the Klemmer Platform. Klemmer uses information you provide for such purposes as customizing the advertising and content you see, fulfilling your requests for products and services, improving our services, contacting you, conducting research, and providing anonymous reporting for internal and external clients. Klemmer uses both personally identifiable information and certain non-personally-identifiable information (such as anonymous usage data, cookies, IP addresses, browser type, click-stream data, etc.) to improve the quality and design of the Klemmer Platform and to create new features, promotions, functionality, and services by storing, tracking, and analyzing trends and Users’ preferences. Any personal information, video, or music content that you voluntarily disclose online (on discussion boards, in messages, in chat areas, or within your public profile page, etc.) or otherwise submit for distribution becomes publicly available and can be collected and used by others. Your account name (not your email address) is displayed to other Users when you upload videos or send messages through the Klemmer Platform and other Users can contact you through messages and comments.

Klemmer may use cookies, clear gifs, and log file information to: (a) remember information so that you will not have to re-enter it during your visit or the next time you visit the Klemmer Platform; (b) provide custom, personalized content and information; (c) monitor the effectiveness of our services; (d) monitor aggregate metrics such as total number of visitors, pages viewed, etc.; and (e) track your entries, submissions, and status.

  1. WHEN WE DISCLOSE INFORMATION

We provide personally identifiable information and non-personally-identifiable information to our subsidiaries, affiliated companies, or other businesses or persons for the purpose of processing such information on our behalf. We require that these parties agree to process such information in compliance with our Privacy Policy, and we use reasonable efforts to limit their use of such information and to use other appropriate confidentiality and security measures. Klemmer does not rent, sell, or share personal information about you with other people or nonaffiliated companies except to provide products or services you’ve requested, when we have your permission using the opt in/opt out option.


We provide the information to trusted partners who work on behalf of or with Klemmer under confidentiality agreements. These companies may use your personal information to help Klemmer communicate with you about our services and the Klemmer Platform. However, these companies do not have any independent right to share this information.

Klemmer will disclose personally and non-personally identifiable information when Klemmer believes it is necessary to: (1) respond to subpoenas, court orders, or legal process; (2) establish or exercise our legal rights; (3) defend against legal claims; (4) investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, or violations of our terms of use; or (5) to otherwise comply with the law.

Klemmer will transfer Users’ information if we are acquired by or merge with another company.

  1. OPTIONS

You may, of course, decline to submit personally identifiable information through the Klemmer Platform, in which case Klemmer may not be able to provide certain services to you. To protect your privacy and security, we take reasonable steps (such as requesting a unique password) to verify your identity before granting you profile access or making corrections. You are responsible for maintaining the secrecy of your unique password and account information at all times. We reserve the right to send you certain communications relating to the Klemmer Platform and the services we provide, such as service announcements, administrative messages and other news, that are considered part of your account, without offering you the opportunity to opt-out of receiving them.

Please contact Klemmer at support@klemmer.com with any questions or comments about this Privacy Policy, your personal information, your consent, or your opt-in or opt-out choices.

  1. THIRD-PARTY ADVERTISERS AND LINKS TO OTHER SITES

Klemmer may allow third-party advertisers to serve advertisements within the Klemmer Platform. These third-party advertisers may use technology to send, directly to your browser, the advertisements and links that appear on the Klemmer Platform. They may automatically receive your IP address when this happens. Klemmer does not provide any personally identifiable information to these third-party advertisers without your consent, except as may be part of a specific program or feature for which you will have the ability to opt-in or opt-out. Should you respond to an advertisement, the advertiser may conclude that you fit the description of the audience the advertiser is trying to reach. The advertiser may also use information regarding your use of the Klemmer Platform, such as the number of times you viewed an ad (but not any personally identifiable information), to determine which ads to deliver to you.

  1. CONFIDENTIALITY

If Klemmer learns of a security systems breach, then we may attempt to notify you electronically so that you can take appropriate protective steps. Klemmer may post a notice on the Klemmer Platform if a security breach occurs. We limit access to personal information about you to employees and service providers who we believe reasonably need to come into contact with that information to provide products or services to you or in order to do their jobs. We have physical, electronic, and procedural safeguards that comply with federal regulations to protect personal information about you.

  1. INTERNATIONAL USERS

Please be advised that through your continued use of the Klemmer Platform, which are governed by U.S. law, this Privacy Policy, and our Terms and Conditions of Use, that you are agreeing to be bound by the laws of this territory and by transferring your personal information to the United States, you consent to that transfer.

  1. PRIVACY FOR CHILDREN

Protecting the privacy of young children is especially important. For that reason, Klemmer does not knowingly collect or maintain personally identifiable information or non-personally-identifiable information on the Klemmer Platform from persons under 11 years of age, and no part of our website is directed to persons under 11. If you are under 11 years of age, then please do not use or access the Klemmer Platform at any time or in any manner. If Klemmer learns that personally identifiable information of persons under 11 years of age has been collected on the Klemmer Platform without verified parental consent, then Klemmer will take the appropriate steps to delete this information.

  1. ACCEPTANCE OF TERMS AND CONDITIONS BY KLEMMER

You or, if applicable, your employer or independent contractor, may request or authorize Klemmer to access your computer or mobile device on your behalf in order to implement the Klemmer Platform or upload or store your information thereon and, in such event, you agree and acknowledge that Klemmer is authorized and directed to accept this Privacy Policy on your behalf (including, without limitation, by affirmatively clicking through any prompts relating to this Privacy Policy or the Klemmer Platform). You agree that the terms and conditions provided in this Privacy Policy are binding on you, and you shall comply fully with such terms and conditions, even if Klemmer accepts this Privacy Policy, accesses your computer or mobile device on your behalf in order to implement the Klemmer Platform or upload or store your information thereon, or affirmatively clicks-through any prompts relating to this Privacy Policy or the Klemmer Platform on your behalf.

  1. CHANGES

Klemmer may amend this Privacy Policy at any time. If you wish to be notified of any changes to this Privacy Policy, you must e-mail us at support@klemmer.com, and if your e-mail address changes at any time, you are responsible for notifying us of your new address by sending an e-mail to support@klemmer.com. If you choose not to be notified of any changes to this Privacy Policy by not complying with the preceding e-mail notification requirements, you thereby waive your right to notification and agree that you are responsible for reviewing this Privacy Policy each time you visit this Klemmer Platform. In all cases, your use of the Klemmer Platform following any amendment of this Privacy Policy will signify your assent to and acceptance of its revised terms, even if we fail to send you an e-mail notification. CONTACTING US VIA EMAIL FOR THE PURPOSES SET FORTH ABOVE CONSTITUTES YOUR OPTING-IN TO RECEIVE EMAIL COMMUNICATIONS FROM US FOR PURPOSES OF THE UNITED STATES CAN-SPAM ACT.


APPENDIX C - END USER LICENSE AGREEMENT

THIS END USER LICENSE AGREEMENT (“AGREEMENT”) BETWEEN YOU (“YOU” OR “LICENSEE”) AND ALL KLEMMER (“LICENSOR”), PROVIDES THE TERMS AND CONDITIONS UNDER WHICH LICENSOR WILL LICENSE TO LICENSEEE CERTAIN KLEMMER™ BRAND SOFTWARE.

BY CLICKING ON THE “I ACCEPT” BUTTON, SIGNING A COPY OF THIS AGREEMENT, OR DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU ACCEPT THIS AGREEMENT AND AGREE TO ITS TERMS AND CONDITIONS. IT IS IMPORTANT THAT YOU READ THIS ENTIRE AGREEMENT BEFORE ACCEPTING THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. 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 ORDER, PURCHASE, ACCEPT DELIVERY OF, INSTALL, OR USE THE SOFTWARE. YOUR USE OF THE SOFTWARE IS CONDITIONED ON YOUR ACCEPTANCE OF THIS AGREEMENT AND YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS PROVIDED IN THIS AGREEMENT. WE ENCOURAGE YOU TO REVIEW THIS AGREEMENT IN ITS ENTIRETY BEFORE ACCEPTING THIS AGREEMENT.

THIS AGREEMENT WAS LAST UPDATED BY US ON MARCH 31, 2018. WE MAY AT ANY TIME, WITHOUT PRIOR NOTICE TO YOU, REVISE THIS AGREEMENT, WHICH REVISIONS WILL BE EFFECTIVE IMMEDIATELY.

  1. 1. LICENSE

License Grant Title Restrictions NO WARRANTY

SUPPORT AND MAINTENANCE

Support Training Beta Site

TERM AND TERMINATION

Term Termination

Survival and Effect of Termination LIMITATION OF LIABILITY

RIGHT TO AUDIT

ACCEPTANCE OF TERMS AND CONDITIONS BY LICENSOR APPLE TERMS AND CONDITIONS

  1. Limited Warranty. In the event of any failure of the Software to conform to any applicable warranty, Licensee may notify Apple, and Apple will refund the purchase price for the Software to Licensee; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Licensor’s responsibility (subject

to Sections 2 and 5 of this Agreement) or, if applicable, another third-party’s (other than Apple) responsibility as provided in any warranty provided by such third-party.

  1. Infringement. In the event of any third party claim that the Software or the Licensee’s possession and use of the Software infringes that third party’s intellectual property rights, Licensor (subject to Section

1.2 of this Agreement), and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

  1. Third-Party Beneficiary. Nowithstanding Section 9.7 of this Agreement, in the event Licensee (or Licensor at the request and on behalf of Licensee) downloads or access the Software via the Apple Store, then Apple and its subsidiaries are third-party beneficiaries to this Agreement and, upon Licensee’s acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Licensee as a third party beneficiary hereof.

GENERAL PROVISIONS

Cumulative Remedies Governing Law Notices

Export Restrictions Assignment Independent Contractor Third Party Beneficiaries Severability

Waiver of Rights

Entire Agreement; Conflict Force Majeure

Legal Expenses Government End-Users

1.2. Solely for the period Licensor is providing software-as-a-service to Licensee or, if applicable, Licensee’s employer or independent contractor, under a Master Subscription Agreement (the “Term”), Licensor grants to Licensee and Licensee accepts from Licensor a non-exclusive, revocable, non- sublicensable and non-transferable license under Licensor’s copyrights (the “License”) in the United States to download, install and use the machine-code version of the software together with any related technical specification documentation (the “Documentation”) provided by Licensor (collectively, the “Software”) on a single computer or mobile device, provided that Licensee comply with the terms herein.

1.4. Subject only to the License, Licensor shall retain all right, title and interest, including all patent rights, copyrights and trademarks, in and to the Software and all derivative works. Licensee shall indemnify, defend, and hold harmless Licensor harmless from and against any claim made or brought against Licensor by a third-party alleging that Licensee’s use of the Software infringes or misappropriates the intellectual property rights of a third-party or violates applicable law if Licensee’s use of the Software was in breach of the terms of this Agreement.

1.6. Except as otherwise expressly permitted herein, Licensee and its principals, agents and employees shall not (and shall not allow any third party) to: (i) decompile, disassemble, or otherwise reverse


engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, workflows, file formats or programming or interoperability interfaces of the Software by any means whatsoever, (ii) remove any product identification, copyright, trademark or other notices, (iii) provide, lease, lend, use for timesharing, service bureau or hosting purposes or otherwise use or allow others to use the Software to or for the benefit of third parties, including, but not limited to, entities with which the Licensee or the principals of the Licensee are affiliated in any way, (iv) modify, or, except to the extent expressly authorized herein, incorporate into or with other software or create a derivative work of any part of the Software, (v) disseminate information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Software from any source, without prior written authorization by Licensor, or (vi) use the output or other information generated by the Software (including, without limitation, output describing the structure of a software program) for any purpose other than use by the Software in accordance with its specifications, or (vii) share the application in a client/server or networked environment.

2.1. THIS SOFTWARE IS PROVIDED BY LICENSOR “AS-IS” AND WITH ALL FAULTS ACCEPTED, WITH NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND. LICENSOR MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE SOFTWARE, THE DOCUMENTATION, OR OTHER MATERIALS PROVIDED BY LICENSOR. LICENSOR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT OPERATION OF THE SOFTWARE WILL BE SECURE OR UNINTERRUPTED. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERMISSIBLE DURATION. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE.

3.2. Solely during the Term, and provided Licensee has paid the applicable support and maintenance fees (if any), Licensor shall provide support and maintenance in accordance with Licensor’s then-current policies. Any patches, updates, etc. provided as part of Software maintenance shall be included within the definition of Software for the purposes of this Agreement to the extent made available by Licensor.

3.4. Upon Licensee’s request, Licensor will provide training to Licensee in accordance with Licensor’s then current training offerings and at Licensor’s then current prices at mutually agreed upon times and locations. In the event training services are provided at locations other than at Licensor’s premises, Licensee shall be responsible for all travel, meals, hotel and other associated expenses related to providing such training services.

3.6. Licensee agrees, if requested by Licensor, to participate in beta testing of subsequent releases of the Software and to provide feedback on functionality, interoperability, security and other performance metrics as Licensee may reasonably request. Licensee may be required to enter into a separate agreement covering Licensee’s and Licensor’s respective rights and obligations with respect to any beta testing.


4.2. This Agreement shall commence on the date it is first accepted by Licensee, and shall continue for the Term unless earlier terminated as provided in Section 4.2.

4.4. Licensor may terminate this Agreement (a) for cause if Licensee fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach or (b) immediately in the case of a breach of Section 1.3. Licensor may terminate this Agreement in connection with a termination of Licensor’s Master Subscription Agreement with Licensee, or, if applicable, Licensee’s employer or independent contractor, on the same terms and conditions set forth in the Master Subscription Agreement.

4.6. Sections 1.2, 1.3, 2, 4, 5, 6, and 8 shall survive termination. Upon the expiration of the Term or the termination of this Agreement pursuant to Section 4.2, Licensee shall immediately cease all use of the Software and return or destroy all copies of the Software and all portions thereof and so certify to Licensor. Termination is not an exclusive remedy, and all other remedies will be available whether or not this Agreement is terminated.

5.1. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, LICENSOR SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY (i) FOR ANY AMOUNTS IN EXCESS OF THE TOTAL AMOUNT PAID TO LICENSOR BY LICENSEE WITH RESPECT TO THE COPIES OF SOFTWARE THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE MONTH PERIOD PRIOR TO ACCRUAL OF THE CAUSE OF ACTION; (ii) FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR ANY LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, TECHNOLOGY, SERVICES OR RIGHTS); (iii) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (iv) FOR ANY MATTER BEYOND LICENSOR’S REASONABLE CONTROL.

6.1. On Licensor’s written request Licensee shall furnish Licensor with a signed certification certifying that the Software is being used pursuant to the terms of this Agreement including any copy and user limitations. Licensor may audit the Software in use by Licensee. With prior reasonable notice, Licensor may perform a physical audit of the Software in use by Licensee and, if applicable, the number of authorized users associated with such use, provided that such audit is during regular business hours. In the event the audit reveals a material discrepancy, Licensee shall pay Licensor the then current fees for the number of licenses and/or authorized users reflected in the discrepancy and maintenance for any unauthorized use of the software.

7.1. Licensee or, if applicable, Licensee’s employer or independent contractor, may request or authorize Licensor to download and install the Software on Licensee’s computer or mobile device on Licensee’s behalf and, in such event, Licensee agrees and acknowledges that Licensor is authorized and directed to accept this Agreement on Licensee’s behalf (including, without limitation, by affirmatively clicking through any prompts relating to this Agreement or the Software). Licensee agrees that the terms and conditions provided in this Agreement are binding on Licensee, and Licensee shall comply fully with such terms and conditions, even if Licensor accepts this Agreement, downloads and installs


the Software on Licensee’s computer or mobile device, or affirmatively clicks-through any prompts relating to this Agreement or the Software on Licensee’s behalf.

8.1. If Licensee (or Licensor at the request and on behalf of Licensee) downloads or accesses the Software via the Apple Store, then Licensee also agrees to any terms and conditions established by Apple with respect to the Apple Store and the Software. Without limiting the generality of the foregoing, Licensee and Licensor acknowledge and agree to the following Apple terms and conditions:

9.2. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.

9.4. This Agreement shall be governed in all respects by the internal laws of the State of California (excluding conflict of laws principles) and without regard to the U.N. Convention on Contracts for the International Sale of Goods. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of and venue within the state or federal courts located in the county in which Licensor’s principal offices are located, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts.

9.6. All notices under this Agreement shall be in writing and deemed to have been effectively given and received: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of such facsimile is promptly sent by another means specified in this Section 8.3; or (iii) when delivered if delivered personally or sent by express courier service. Unless otherwise specified by the receiving party, all notices shall be addressed as follows:

  • If to Licensee: As set forth in purchasing information provided to Licensor prior to download.
  • If to Licensor: KLEMMER
  • Attn: CEO
  • 1340 Commerce Street, Suite G
  • Petaluma, California 94954

9.10. Licensee understands and acknowledges that certain technology licensed hereunder may be subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries or persons. Licensee warrants that it will comply in all respects with the export restrictions applicable to any materials or technology provided hereunder and will otherwise comply with the Export Administration Regulations or other United States laws and regulations in effect from time to time. Without limiting the foregoing, (i) Licensee represents that it is not named on any U.S. government list of persons or entities


prohibited from receiving exports, and (ii) Licensee agrees to not permit any person to access or use the Software in violation of any U.S. export embargo, prohibition or restriction.

9.12. Licensee shall not assign or otherwise transfer any of its rights, obligations or licenses hereunder without the prior written consent of Licensor, including any assignment by operation of law as a result of the merger or acquisition of Licensee, and only upon the original Licensee’s fully divesting itself, himself or herself of all possession of the Software and all media and copies thereof. Subject to the foregoing, the provisions of this Agreement shall apply to and bind the successors and permitted assigns of the parties.

9.14. The relationship created by this Agreement is one of independent contractors, and not partners, franchisees or joint venturers. No employees, consultants, contractors or agents of one party are employees, consultants, contractors or agents of the other party, nor do they have any authority to bind the other party by contract or otherwise to any obligation, except as expressly set forth herein. Neither party will represent to the contrary, either expressly, implicitly or otherwise.

9.16. Licensee acknowledges and agrees that there are no third party beneficiaries of this Agreement.

9.18. If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or by reason of its being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and to otherwise have the broadest application as shall be enforceable. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.

9.20. The failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights, and the obligations of the party with respect to such future performance shall continue in full force and effect.

9.22. This Agreement, together with all exhibits or addenda hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions of the parties. In the event of any conflict between the terms and conditions of this Agreement and your applicable Master Subscription Agreement, the terms and conditions of the Master Subscription Agreement shall prevail.

9.24. Either party shall be excused from any delay or failure in performance hereunder, except the payment of amounts due by Licensee, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, floods, lightning, labor disputes and strikes, other labor or industrial disturbances, riots, war, acts of the public enemy, insurrections, embargoes, blockages, regulations or orders of any government, agency or subdivision thereof, shortages of materials, rationing, utility or communication failures, casualty, novelty of product manufacture or other unanticipated product development problems, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period


of time equal to that of the underlying cause of the delay; provided that such party shall give notice of such force majeure event to the other party as soon as reasonably possible.

9.26. Licensee shall pay on demand all of Licensor’s reasonable attorneys’ fees and other costs incurred by Licensor to collect any amounts due and payable under this Agreement In any action arising out of or related to this Agreement, if the defendant is determined by a court of competent jurisdiction to have prevailed regarding the action, then the defendant shall be entitled to an award of its reasonable attorneys’ fees and costs of defending the action.

9.28. The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 2.212, as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.


APPENDIX D - PROFESSIONAL SERVICES AGREEMENT

THIS PROFESSIONAL SERVICES AGREEMENT (“AGREEMENT”) BETWEEN YOU (“YOU” OR “CLIENT”) AND KLEMMER (“KLEMMER”), PROVIDES THE TERMS AND CONDITIONS UNDER WHICH KLEMMER WILL PROVIDE CLIENT WITH CERTAIN KLEMMER™ BRAND PROFESSIONAL SERVICES.

IT IS IMPORTANT THAT YOU READ THIS ENTIRE AGREEMENT BEFORE SIGNING THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PLEASE DO NOT SIGN THIS AGREEMENT AND DO NOT ORDER, PURCHASE, ACCEPT DELIVERY OF, OR USE THE PROFESSIONAL SERVICES. WE ENCOURAGE YOU TO REVIEW THIS AGREEMENT IN ITS ENTIRETY BEFORE SIGNING THIS AGREEMENT.

  1. AGREED WORK

Klemmer is a software development company that provides software development services to other companies and develops and sells its own software-as-a-service product line. Klemmer creates value for each Client by developing and delivering software and related services. Klemmer’s work with Client and time for performance shall be agreed upon at the beginning of each project pursuant to a statement of work, the form of which is attached hereto as Exhibit One (“Statement of Work”). Any software, documents, materials, ideas, and other information developed by Klemmer under the Statement of Work shall be called the “Work Product”. Successful completion and delivery of the Work Product on time is contingent upon Client’s timely provision of necessary information and other supporting resources. Klemmer makes no representations or warranties, whether expressed or implied, with respect to the Work Product and guarantees no particular outcome or result. Klemmer does not provide legal advice and does not represent or guarantee that any suggested course of conduct, strategy, or action conforms to any applicable laws or regulations. Each Statement of Work shall be governed generally by this Agreement, and in the event of a conflict, the terms of the Statement of Work shall prevail.

  1. CONFIDENTIAL INFORMATION

Klemmer treats any information and documents received from Client (subject to the exclusions below) as “Confidential Information” so long as Client designates such information and materials as confidential or it is reasonably apparent that such information and materials are confidential. Klemmer limits the disclosure of Confidential Information, and any summaries, analyses, compilations, and studies thereof generated in connection with Klemmer’s work, to those employees and agents of Klemmer that need access thereto in order for Klemmer to perform the work. Klemmer will not disclose Confidential Information to others without Client’s consent or use it for purposes other than the work. Confidential Information does not include information or documents that (a) are now or later become generally available to the public through no fault of Klemmer or its employees or agents, (b) are already rightfully in Klemmer’s possession, (c) are independently developed by Klemmer without use of Confidential Information, or (d) are obtained by Klemmer from a third party which is not Client’s agent and has the right to transfer or disclose them. Client is similarly bound as to Klemmer’s Confidential


Information, which consists of all information and documents received from Klemmer (subject to the same exclusions above). In the event Client has signed a separate non-disclosure agreement with Klemmer, the terms of such agreement shall prevail.

  1. OWNERSHIP OF KLEMMER IP

Klemmer has developed and is constantly developing and refining proprietary intellectual property (“Klemmer IP”), which includes, for example, concepts, artwork, logos, designs, frameworks, methodologies, know-how, software, and databases. Klemmer IP is an integral part of Klemmer’s knowledge base and is reusable from project to project and with multiple clients. Klemmer IP can be embodied in many forms of media, is not dependent on the availability or existence of patent, copyright, trademark, or trade secret protection, and is necessarily created or enhanced during Klemmer’s work. Irrespective of the media utilized, (a) all Klemmer IP existing, authored, created or invented before Klemmer commences its work for Client and (b) all Klemmer IP that is developed or enhanced during and in the course of Klemmer’s work for Client belongs to Klemmer, and Klemmer owns all rights therein. Client retains all ownership rights to its own intellectual property and proprietary materials existing, authored, created or invented by Client before Klemmer commences its work, but any derivatives thereof created by Klemmer during and in the course of Klemmer’s work for Client that are embodied in Work Product shall be owned by Klemmer as Klemmer IP.

  1. CLIENT USE OF KLEMMER IP

All use of Klemmer IP is governed by license. The terms of the license arrangement between Klemmer and Client shall identify the specific Klemmer IP that is licensed, the license fee, the permitted uses and permitted users, the duration of the license term, and any renewal and extension provisions. These license provisions may be contained in a proposal letter, an engagement letter, or a separate license agreement between Klemmer and Client. If no specific separate license provisions are established in a signed writing, then Klemmer hereby grants to Client a non-exclusive, perpetual, royalty-free, world-wide, non-sublicensable, limited license under copyright to use solely for its own benefit, for internal purposes only, and only with its own personnel, such Klemmer IP that is embodied in Work Product as is necessary for Client to make the agreed-upon use of the Work Product.

  1. THIRD PARTY USE OF WORK PRODUCT AND KLEMMER IP

Without Klemmer’s prior written consent, neither Work Product nor Klemmer IP may be (a) disclosed to or discussed with, or in any way made use of or relied upon by, a third party, (b) shared beyond the permitted user group, (c) converted to another medium, or (d) utilized in connection with any financing or securities offering.

  1. FINANCIAL TERMS

The financial terms may be determined on a project-by-project basis and set forth in the Statement of Work. If such financial terms are not set forth in the Statement of Work, then the following general terms apply.

An initial invoice shall be rendered at the start of each project. Additional invoices typically are sent to Client on a monthly basis thereafter. Payment is due upon Client’s receipt of an invoice. An invoice contains both fees and reimbursable expense components. Reimbursable expenses include out-of-


pocket expenses relating to the project, such as travel and travel-related expenses; research and research support costs; third party vendor and subcontractor costs; and other miscellaneous expenses directly attributable to the project. A final expense accounting will be rendered within 60 days following conclusion of a given project, together with a refund (after deduction of any unpaid fees) or a final expense billing as appropriate. Client is responsible for payment of all VAT, GST, sales taxes, withholding taxes, and other local taxes that may be owed to U.S. or other taxing authorities. Klemmer’s fees are net of all such taxes. A late payment charge may be added to billed amounts outstanding for more than 30 days.

  1. LIMITED LIABILITY AND INDEMNIFICATION

Except as it relates to any misuse of Klemmer IP by Client, neither party shall be liable to the other party for any incidental, consequential, special, multiple, or punitive damages. Klemmer’s liability to Client with respect to any project shall in no event exceed the fees received by Klemmer from Client with respect to such project. Subject to these limitations, Client shall indemnify and hold harmless Klemmer, its affiliates, and their respective officers, directors, managers, employees, and agents from and against any claims, losses, costs, fees, damages, or other liabilities arising from or claimed to be caused by this Agreement or Klemmer’s work under this Agreement, except to the extent such liabilities arise from or are caused by the gross negligence or willful misconduct of Klemmer, its affiliates, or their respective officers, directors, managers, employees, or agents.

  1. TERMINATION

This Agreement commences on the date it is signed by both parties and continues until terminated by a writing signed by both parties. Unless otherwise stated, each written proposal from Klemmer set forth in a Statement of Work, if not accepted by Client, expires 30 days after Klemmer submits to Client.

Once a Statement of Work is accepted by Client and Klemmer’s work on a project commences, Client may terminate Klemmer’s work prior to completion only upon 30 days’ prior written notice. In such event, Client shall promptly pay in full all then outstanding invoices plus any final billing thereafter provided by Klemmer to Client. Klemmer may terminate its work at any time without notice to Client if any payment is past due for more than 30 days.

  1. RELATIONSHIP OF THE PARTIES

Klemmer acts as an independent contractor and not as Client’s agent, representative, or partner. Klemmer and Client have no authority to act on one another’s behalf, and each is responsible for payment and supervision of its own personnel. Unless otherwise agreed, staffing is at Klemmer’s discretion. Klemmer may utilize subcontractors as it deems necessary.

  1. NOTICES

Unless Klemmer specifies otherwise, all notices to Klemmer with respect to this Agreement shall be directed to:

KLEMMER

Attn: CEO

1340 Commerce Street, Suite G


Petaluma, California 94954

Unless Client specifies otherwise, notices to Client will be via email and will be directed to the Client representative who engages Klemmer.

  1. MISCELLANEOUS

This Agreement, including all Statements of Work and any other exhibits or addenda, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.

This Agreement is governed by the internal laws of the State of California (without giving effect to its choice of law principles). These terms and conditions can only be waived in whole or part in a writing signed by the waiving party. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any portion of this Agreement or is determined to be invalid or unenforceable, the remaining provisions shall nonetheless continue in full force and effect. There are no third-party beneficiaries to this Agreement.

You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without Klemmer’s prior written consent (not to be unreasonably withheld). Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Prior to instituting any sort of legal proceeding against one another, Klemmer and Client shall attempt to resolve their disagreement by good faith negotiation. Failing a negotiated resolution, any dispute shall be resolved by courts located in the county in which Klemmer’s principal offices are located.

Client shall pay on demand all of Klemmer’s reasonable attorneys’ fees and other costs incurred by Klemmer to collect any amounts due and payable under this Agreement. In any action arising out of or related to this Agreement, if the defendant is determined by a court of competent jurisdiction to have prevailed regarding the action, then the defendant shall be entitled to an award of its reasonable attorneys’ fees and costs of defending the action.

This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.