Shakudo Inc. (“Shakudo”) and customer accessing and using (the terms “use” and “using” will refer to any of the foregoing) the Shakudo Solution (as defined below) (such customer, the “Customer”) have entered into an Addendum. The applicable Addendum incorporates this Shakudo Master Agreement, and depending on the products and services ordered, may incorporate additional Addenda (as defined below) (together with any attachments, exhibits and/or Addenda hereto, the “Agreement”). The Agreement will be a binding agreement effective on the earlier of: (i) the effective date set out in the Addendum; or (ii) the date Customer first uses any part of the Shakudo Solution and the date Customer agrees to be bound by this Agreement (the “Effective Date”) and will apply to Shakudo Solution, provided by Shakudo to Customer
This Agreement consists of: (a) these cover pages; (b) the attached Shakudo Master Agreement Terms and Conditions (“Terms and Conditions”); (c) any addenda prepared and executed in accordance with the terms of this Agreement (each, an “Addendum”, and collectively, the “Addenda”), all as amended from time to time; and (d) all SOWs (as defined in the Professional Services Addendum, if applicable).
This Agreement sets forth the terms and conditions under which Shakudo makes available the Shakudo Solution (as defined herein). This Agreement, does not, absent the execution of an Addendum, create any business relationship or impose any obligation on Shakudo to provide any license, access, product, or service.
IF CUSTOMER REGISTERS FOR A FREE TRIAL THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY USING THE SHAKUDO SOLUTION (INCLUDING THE WEBSITE OR ANY FREE TRIAL) CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 21.7. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SHAKUDO SOLUTION. CUSTOMER REPRESENTS AND WARRANTS TO SHAKUDO THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE SHAKUDO SOLUTION ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO SHAKUDO THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
THE SHAKUDO SOLUTION MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
SHAKUDO MASTER AGREEMENT
- Addenda. Provided Shakudo and Customer has entered into the required Addendum and subject to the terms and conditions of this Agreement, Shakudo will, if applicable: (i) provide Customer with access to the Shakudo Solution Services (as defined in the Software-as-a-Service Addendum); (ii) license Shakudo’s proprietary software, Hyperplane Platform (as defined in the Software License Addendum); (iii) perform the applicable Professional Services as defined and set out in the Professional Services Addendum; or (iv) provide a free trial, (together, with any support services, Shakudo Solution Services, the “Services”), in each case, in accordance with terms and conditions of the applicable Addendum. In this Agreement, “Products” means as applicable, the Hyperplane Platform, any documentation made available by Shakudo to Customer and, unless otherwise agreed in an Addendum, any Deliverables (as such term is defined and identified as such in the Professional Services Addendum and applicable SOW), and all bug fixes, patches, work-arounds, updates, upgrades, enhancements, Modifications (as defined below), and other new versions of the Shakudo Solution Services and Hyperplane Platform that Shakudo makes available to Customer. The Products and Services together comprise the “Shakudo Solution”.
- Proprietary Rights; Prohibited Uses.
- Proprietary Rights. The Products contain proprietary and trade secret information of Shakudo. Except for the limited rights or licenses that Shakudo grants to Customer under an Addendum, Shakudo or its licensors retain all rights, title and interest including all intellectual property rights in and to: (i) the Services; (ii) Products; (iii) anything used, developed or delivered by or on behalf of Shakudo under this Agreement including but not limited to any Deliverables, Aggregated Data, Shakudo Metadata and any other Shakudo’s Confidential Information; and (iv) any modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations (“Modifications” and “Modify” has a corresponding meaning) to the foregoing (collectively “Shakudo Property”).
- Prohibited Uses. Customer will not use the Products for any purposes beyond the scope expressly set out in this Agreement, including, for greater certainty, in the applicable Addendum. Except as expressly permitted in this Agreement, Customer will have no right and will not, nor will it authorize or assist any third party to: (a) copy the Products; (b) disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Products or otherwise discern the source code of the Products; (c) adapt, modify, translate, or create derivative works of the Products; (d) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Products or any of Customer’s rights therein; or (e) use the Products to create, collect, transmit, store, use, or process any data that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity). Customer must erase or otherwise destroy any portions of the Products installed or contained on any media prior to disposing of such media, and in any event upon termination or expiration of this Agreement. Customer must duplicate all proprietary notices and legends of Shakudo and its suppliers or licensors upon all copies of the Products made by Customer. Customer must not remove, alter, or obscure any such proprietary notice or legend. Nothing in this Agreement will be construed to grant Customer any right to obtain or use source code.
- Subcontracting. Shakudo may engage third parties to assist it in providing the Services or any part thereof. Shakudo will remain responsible for the performance of the Services by such subcontractors in accordance with this Agreement.
- Customer User Account. Upon Customer’s request, Shakudo will: (a) issue one or more accounts (each, a “Customer User Account”) to Customer for use by Customer and all individuals who are employees of Customer, that Customer wishes to have access to and use of the Shakudo Solution (each, a “Permitted User”); and (b) designate one or more Customer User Accounts as administrator accounts that provides Customer with the capability to administer, maintain, and manage certain features of the Shakudo Solution through the Shakudo Solution Services. Customer will ensure that Permitted Users only use the Products through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify Shakudo of any actual or suspected unauthorized use of the Products. Shakudo reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose. Customer will ensure that all individual users of the Products, including Permitted Users, are contractually bound to terms and conditions with Customer that are no less restrictive or protective of Shakudo’s rights than those set forth in this Agreement.
- Professional Services. During the Term, Customer may order, and subject to Customer’s payment to Shakudo of all applicable Fees, Shakudo will provide, the Professional Services and Deliverables specified in the Professional Services Addendum in accordance with the terms set out therein. In the event that Customer desires Shakudo to provide training of any Product for its employees, agents, or representatives other than training outlined in any Addendum, Customer will enter into a separate SOW under a Professional Services Addendum governing such additional training services and setting out any corresponding Fees.
- Third Party Content, Websites or Services. The Products may provide links or access to third party content, websites, services or systems. Shakudo does not endorse any third party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third party content, websites, services, or systems are not under the control of Shakudo, and if Customer chooses to access any such content, websites, services, or systems Customer does so entirely at its own risk. Customer acknowledges that it may be required by to accept terms and conditions applicable to third party content, websites, services, or systems, that such terms may supersede the terms in this Agreement with respect to the use of such third party content, websites, services or systems, and Customer shall accept and comply with any such terms and conditions.
- Fees Customer agrees that the rights granted under this Agreement, including any license or access provided to Shakudo Solution, are conditioned on Customer’s payment of all required fees for such Shakudo Solution, whether upfront, one-time, recurring, or a combination of the foregoing, as specified herein, in the applicable Addendum or SOW as applicable (“Fees”). In consideration for the rights granted to Customer and the performance of Shakudo’s obligations under this Agreement (including, for greater certainty, each Addendum, or SOW under the Professional Services Addendum), Customer will pay Shakudo the Fees.
- Free Trial. If Customer registers on Shakudo’s website for a free trial, Shakudo will make the applicable Services available to Customer on a trial basis free of charge until the earlier of: (a) the end of the free trial period for which Customer registered to use the applicable Services; (b) the start date of any Purchased Services (as defined herein) subscriptions ordered by Customer for such Services; or (c) termination by Shakudo, at any time, in its sole discretion. Near to or upon the expiration date of the free trial, Shakudo will notify Customer that the trial will be ending or has ended. Customer will be given the option to upgrade to a Purchased Services subject to an applicable Addendum. If Customer does not agree to continue use of the Shakudo Solution through a Purchased Services under an applicable Addendum as described herein, Shakudo will terminate Customer’s right to access the Shakudo Solution and notwithstanding any provision to the contrary in this Agreement, Shakudo will terminate this Agreement and all Addenda forthwith and Customer shall comply with its obligations under Section 13.2. ANY CUSTOMER DATA ENTERED INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE EXPIRATION OF THE FREE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER CUSTOMER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO SERVICES THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL. CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE EXPIRATION OF THE FREE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING THE “REPRESENTATIONS, COVENANTS, AND WARRANTIES; DISCLAIMER” SECTION AND “INDEMNITIES” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND SHAKUDO SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SHAKUDO’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED CAD$100.00. WITHOUT LIMITING THE FOREGOING, SHAKUDO AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (I) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS; (ii) CUSTOMER’S OR PERMITTED USERS’ USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (iii) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITIES” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO SHAKUDO AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. “Purchased Services” means Services that Customer purchases under an online purchasing portal and Addendum, as distinguished from those provided pursuant to a free trial.
- Changes to the Fees. Shakudo reserves the right to change the Fees and institute new charges upon providing not less than 30 days prior written notice to Customer.
- 4. Disputed Invoices or Charges. If Customer believes Shakudo has charged or invoiced Customer incorrectly, Customer will contact Shakudo no later than 45 days after receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the parties will discuss the disputed amounts in good faith in order to resolve the dispute.
- Payment. All Fees have a payment term of net 30 days from the invoice date unless stated otherwise in the applicable Addendum or SOW. All Fees under this Agreement are due upon the earlier of the delivery of the applicable Product or Service, or presentation of an Shakudo invoice, or as otherwise specified herein or in the applicable Addendum or SOW. Customer’s payment is not subject to any setoff claims or rights of offset of any kind, including inactive use, or where access to or use of the Shakudo Solution is prevented for any reason, or Customer has failed to install or use the Product or to provide access for applicable Services. Shakudo reserves the right to take any and all appropriate action if Customer fails to pay as required in this Agreement, or SOW, which may include: (a) prevention of use of the Products by any party, including the ability to purchase additional seats, capacity, or modules; (b) withholding of Shakudo Solution or support until Customer has paid in full amounts owed to Shakudo; and (c) charging a late fee of 1.5% per month (or less, as per the maximum amount allowed by applicable law) for all past due amounts. Customer shall pay and reimburse Shakudo for all such amounts and Fees.
- Taxes. The Fees set out in this Agreement do not include applicable goods and services tax, harmonized sales tax, provincial sales tax, service, use, and excise taxes, and any other similar taxes (collectively “Taxes”). Customer will be responsible for and pay all applicable Taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, imposed by any federal, provincial, territorial, or local governmental entity or regulatory authority on any amounts payable by Customer hereunder, other than Taxes based on the net income or profits of Shakudo. Notwithstanding anything to the contrary in this Agreement, if any amounts (including any Taxes) are required to be withheld by Customer from any amount otherwise payable by Customer to or for the benefit of Shakudo under this Agreement, Customer will: (a) pay an additional amount such that the net amount actually received by Shakudo will, after all such withholdings (including any withholdings to be made in respect of any additional amount payable pursuant to this sentence), equal the full amount of the payment then due; (b) pay, or cause to be paid, to the relevant taxation authority the full amount of such withholdings (including the full amount of any withholdings in respect of any additional payment required to be paid pursuant to this sentence) in accordance with applicable law; and (c) furnish Shakudo as soon as practicable (and, in any event, within 30 days) with an official receipt (or a certified copy thereof) or such other documentation as is reasonably acceptable to Shakudo evidencing payment of such withholdings to the relevant taxation authority. If Customer is a tax-exempt entity or claims exemption from any Taxes hereunder, Customer will provide a certificate of exemption upon agreement to this Agreement and, after receipt of valid evidence of exemption, Shakudo will not charge Customer any Taxes from which Customer is exempt.
- Personal Information.
- Privacy Statement. Shakudo shall maintain on its digital property(ies) a privacy statement, currently located at https://www.privacypolicies.com/live/6b24931f-8788-4fe9-b017-253d3cb193f9 or such other place as may be updated by Shakudo from time to time.
- Representations, Covenants, and Warranties; Disclaimer.
- Mutual Representations, Covenants and Warranties. Each party represents, warrants, and covenants that:
- it has full power and all necessary rights and authority to enter into this Agreement and to perform its obligations hereunder; and
- it will carry out its obligations under this Agreement in compliance with applicable laws applicable to it.
- EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SHAKUDO DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS OR SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE PRODUCTS AND SERVICES (AND ANY PART THEREOF) ARE PROVIDED “AS IS” AND “AS AVAILABLE”. SHAKUDO MAKES NO WARRANTIES UNDER THIS AGREEMENT WITH RESPECT TO ANY THIRD PARTY SOFTWARE, HARDWARE OR OTHER PRODUCTS EMBEDDED IN OR INCLUDED WITH THE PRODUCTS OR FURNISHED TO CUSTOMER BY SHAKUDO.
- TO THE EXTENT PERMITTED BY APPLICABLE LAW, SHAKUDO HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL, OR STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, SHAKUDO EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION, OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE PRODUCTS (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
- Customer’s Responsibilities and Customer’s Representation, Warranties and Covenants. Unless otherwise agreed to in an Addendum, Customer is solely responsible for: (a) configuring all equipment, software, and systems used with the Products; and (b) ensuring that Permitted Users use the Products in compliance with this Agreement. Customer represents and warrants to, and covenants with, Shakudo that its use of the Shakudo Solution will at all times comply with all applicable laws applicable to Customer and Permitted Users and will not cause Shakudo to be non-compliant with any applicable laws. Customer represents and warrants to, and covenants with Shakudo that Customer Information will only contain information about an identifiable individual (“Personal Information”) in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Shakudo to provide the Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Shakudo and to or from all applicable third parties.
- Shakudo’s Warranty. Shakudo represents and warrants that: (a) the functionality of Hyperplane Platform and the Shakudo Solution Services will not be decreased during the Term in any material way; (b) the media on which any part of the Hyperplane Platform and the Shakudo Solution Services will be delivered by Shakudo free from all viruses and malicious code (provided that this warranty does not extend to any malicious code or virus introduced into the Hyperplane Platform and the Shakudo Solution Services by the Customer); and (c) all Professional Services provided by Shakudo to Customer will be provided in a professional and workmanlike manner. In the event of a breach of the warranty in Sections 8.4 (a) and 8.4 (b): (i) Shakudo will correct the non-conforming Product as soon as reasonably practicable and at no additional charge to the Customer; or (ii) in the event that Shakudo is unable to correct such deficiency after having used reasonable efforts, Shakudo will refund the Customer unused prorated portion of any pre-paid fees, in respect to the defective Product, from the date the Customer first notified Shakudo of such deficiency. Customer will use reasonable endeavours to notify Shakudo in writing within thirty (30) days of identifying the deficiency, but Customer’s failure to notify Shakudo within such thirty (30) day period will not affect Customer’s right to receive warranty remedies with respect to a breach of Sections 8.4(a) and 8.4 (b) unless Shakudo is unable to correct the deficiency due to Customer’s failure to notify Shakudo within such period. Notice of breaches of this warranty in Sections 8.4(a) and 8.4 (b) will be made through Shakudo’s current error reporting system as set out in the applicable Addendum; notices of breaches of any other warranty in Section 8.4 will be made in accordance with Section 17. The remedies set forth in this Section 8.4 will be the Customer’s sole remedy and Shakudo’s sole liability for breach of the warranty in Sections 8.4(a) and 8.4 (b) unless the breach of warranty constitutes a material breach of this Agreement and Customer elects to terminate the Agreement in accordance with Section 13.1.
- Shakudo Indemnities.
- Shakudo will defend, indemnify and hold harmless Customer, its affiliates and their respective officers, directors, employees and agents (each, a “Customer Indemnitee”) from and against any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (“Losses”) incurred by a Customer Indemnitees arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than affiliate of a Customer Indemnitee) finally awarded that arise from or relate to any allegation that the Products infringe any third-party intellectual property right in Canada.
- This Section 9.1 (a) states Shakudo’s sole liability to, and the Customer Indemnitees exclusive remedy against, Shakudo for any third party claim described in this section.
- If a Product is, or in Shakudo’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if Customer’s use of any portion of the Product is enjoined or threatened to be enjoined, Shakudo may, at its option and sole cost and expense:
- obtain the right for Customer to continue to use the affected portion of the Product materially as contemplated by this Agreement;
- modify or replace Product, in whole or in part, to seek to make the Product (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Product under this Agreement; or
- if Shakudo determines that neither of the foregoing two options are reasonably available, by written notice to Customer, Shakudo may, in its sole discretion, terminate this Agreement and require Customer to immediately cease all use of the applicable Product or part or feature thereof and Shakudo will refund any prepaid Fees for the applicable Product that were to be provided after the effective date of termination.
- THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
- Limitations of Indemnity.Shakudo’s obligations under Section 9.1 do not apply to any claims, damages or liabilities arising out of or relating to any of the following (“Excluded Claims”): (a) any product or component thereof that is not supplied by Shakudo to Customer under this Agreement; (b) the combination of any Product with any other software, products, equipment, component, process or material in a manner not authorized in the documentation for such Product; (c) any Modification to the Product (unless made by Shakudo) if the alleged infringement arises from such Modification; (d) use of the Product in a manner not permitted by or in breach of this Agreement; (e) failure to use replacement or modified Product that provides substantially similar functionality as the original Product if the replacement or modified Product would have rendered the Product non-infringing; and (f) Shakudo’s compliance with Customer’s instructions, specifications or requirements. No indemnification for any third party products supplied by Shakudo is provided under this Agreement unless and to the extent such indemnification is provided to Customer under the terms of Shakudo’s agreement with the licensor. For clarity Shakudo will not be required to indemnify, defend or hold harmless any Customer Indemnitee in respect of an Action to the extent that an Action arises out of any Excluded Claims or Customer’s indemnities under Section 9.3 or any Customer’s indemnities under any applicable Addenda.
- Customer’s Indemnities. Customer will defend, indemnify and hold harmless Shakudo, its affiliates and their respective officers, directors, employees and agents (each, a “Shakudo Indemnitee”) from and against any and all Losses incurred by Shakudo Indemnitees arising out of or relating to any Action by a third party (other than an affiliate of a Shakudo Indemnitee) that arise from or relate to: (a) Customer’s breach of Sections 2, 8 or 15 of this Agreement; (b) unauthorized use of the Shakudo Solution (or any part thereof) by Customer, or any Permitted User; or (c) Excluded Claims. Customer will fully cooperate with Shakudo in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and Customer will not settle any such claim without the prior written consent of Shakudo.
- Indemnification Procedure. Each party will promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to this Section 9. The party seeking indemnification (the “Indemnitee”) will cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 9.4 will not relieve the Indemnitor of its indemnity obligations under this Section 9, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
- Limitation of Liability. The following provisions have been negotiated by the parties and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
- AMOUNT. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE APPLICABLE PRODUCT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
- TYPE. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (A) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (B) LOST OR LOSS OF (I) SAVINGS, (II) PROFIT, (III) DATA, (IV) USE, OR (V) GOODWILL; (C) BUSINESS INTERRUPTION; (D) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (E) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
- Exceptions. The exclusions and limitations in Sections 10.1 and 10.2 do not apply to:
- either party’s obligations under Section 9 (Indemnities);
- Losses arising out of or relating to Customer’s breach of its obligations under Sections 2 (Proprietary Rights; Prohibited Uses), 6 (Fees), 8.3 (Customer’s Responsibilities and Customer’s Representation, Warranties and Covenants); or 11 (Confidentiality) of this Agreement;
- Customer’s liability or obligations under Sections 7 (Customer Representations and Warranties) and 8 (Customer Indemnities) of the Software-as-a-Service Addendum; or
- Losses arising out of or relating to a party’s or its personnel’s gross negligence, wilful misconduct or fraud.
- Definitions. For the purposes of this Agreement, a party receiving Confidential Information (as defined below) will be the “Recipient”, the party disclosing such information will be the “Discloser”, and “Confidential Information” means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement. Confidential Information of Customer includes Customer Data (as defined in the Software-as-a-Service Addendum); Confidential Information of Shakudo includes Shakudo Property, and the terms and conditions of this Agreement, Addenda (including pricing) and SOWs (including pricing); Confidential Information of each party includes information concerning the Discloser’s past, present or future customers, suppliers, technology, business, marketing plans, technology and technical information, product plans and designs, and business processes, disclosed to a Recipient, provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (a) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (b) information that is publicly available through no wrongful act of Recipient; or (c) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
- Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (a) disclose Confidential Information of the Discloser to any person, except to its own employees and Permitted Users (in the case of the Customer) having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (b) use Confidential Information of the Discloser except to exercise its rights or perform its obligations under this Agreement; or (c) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each party will take reasonable precautions to safeguard the other party’s Confidential Information. Those precautions will be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
- Exceptions to Confidentiality. Notwithstanding Section 11.2, Recipient may disclose Discloser’s Confidential Information: (a) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (b) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party’s business; or (c) in the case of Shakudo, to: (i) potential assignees, acquirers or successors of Shakudo if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Shakudo; and (ii) its affiliates, permitted third-party Sub-processors, consultants and any other subcontractors in connection with the provision of the Shakudo Solution.
- Return of Destruction of Confidential Information. Upon the termination or expiration of this Agreement and all Addendums under this Agreement, each party will promptly return to the other party or destroy all Confidential Information of the other party in its possession or control within a reasonable amount of time in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, the Recipient may retain copies of the Confidential Information of the Discloser as required by applicable law, or to the extent such copies are electronically stored in accordance with the Recipient’s standard backup procedures or record retention policies, so long as such Confidential Information remains subject to the confidentiality provisions set out in this Agreement. Each party will protect any Confidential Information of the other party in accordance with this Agreement so long as it retains such Confidential Information.
- Term of this Agreement.This Agreement commences on the Effective Date and continues until earlier terminated in accordance with this Agreement (“Term”).
- Term of an Addendum. Each Addendum will set out the term of the Addendum and any terms and conditions relating to the renewal of the Addendum. For clarity, all Addenda will terminate upon any termination or expiration of this Agreement.
- Termination. Either party may terminate this Agreement or any Addendum or SOW (in each case in whole or in part) by giving to the other party written notice of termination upon the occurrence of any of the following events: (a) the other party breaches or defaults on any of the material terms or conditions of this Agreement (including Customer’s payment obligations under Section 6) and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; (b) the other party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (c) any proceedings are instituted by or against the other party under any insolvency laws or for reorganization, receivership or dissolution.
- Effect of Termination. Unless otherwise specified in this Agreement, upon any expiration or termination of this Agreement or any Addendum or applicable SOW: (a) Customer must immediately (and ensure that all Permitted Users immediately cease) cease accessing or using the Shakudo Solution; (b) within ten (10) days of expiration or termination, Customer will destroy (with Shakudo’s prior written consent only) or deliver to Shakudo all copies of Shakudo’s Confidential Information and Deliverables and, at Shakudo’s request, an officer of Customer will certify to Shakudo such destruction or delivery; and (c) Shakudo will have no further obligation to provide any Products or perform Services of any kind to Customer. For clarity, no new Addendum or SOW may be entered into under this Agreement after the termination or this Agreement. All Addenda will terminate upon the termination of this Agreement. Expiration or termination of this Agreement will not limit either party from pursuing any other remedies available to it, including injunctive relief. For clarity and avoidance of all doubt, no expiration or termination of this Agreement, Addendum or SOW, will affect the Customer's obligation to pay all Fees that may have become due before such expiration or termination, or (except as provided in Section 9.1 (b) (iii)) entitle the Customer to any refund. All Fees due and payable and any amounts due to Shakudo are immediately due and are to be immediately paid by the Customer to Shakudo.
- Survival. Upon any termination or expiration of this Agreement, provisions contained in this Agreement that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Agreement, including the terms on the cover pages and Sections 2, 6, 8.2, 8.3, 9, 10, 11, 12.4, 13, 14, 16, 17, 18, 19, 20 and 21 will survive.
- Assignment. Shakudo may, upon giving written notice to Customer, assign its rights and obligations under this Agreement to any of Shakudo’s affiliates or pursuant to a merger, amalgamation or other corporate reorganization or a sale of substantially all of its assets relating to that portion of its business that delivers the Services. In this case, such assignee will have and may exercise all the rights, and will assume all of the obligations, of Shakudo under this Agreement, except that the assignment will not release Shakudo from liability for Shakudo’s obligations under this Agreement. Except for such permitted assignment, neither party may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of each of the other party. Any purported assignment or delegation by the Customer in violation of this Section will be null and void. This Agreement enures to the benefit of and is binding upon the parties and their respective successors and permitted assigns.
- Export. Customer shall not directly or indirectly export, re-export or import any of the Shakudo Solution without first obtaining all required licenses, permits and permissions. Shakudo makes no representation or warranty that the Products or Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
- Force Majeure. Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control (excluding Customer’s obligation to pay Fees or its Customer’s indemnities), including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). The parties agree that in the event of a Force Majeure event affecting a party continues for four (4) weeks (“Force Majeure Period”), either party will be entitled to terminate this Agreement, by providing at least ten (10) days’ written notice to the other party after the completion of the Force Majeure Period. In the event of such termination, Customer’s sole remedy and Shakudo’s sole liability will be to refund any prepaid fees/unearned amounts for the Shakudo Solution, for the period beginning upon receipt of such written notice to the end of the term set out in the applicable Addendum.
- Notices. Notices sent to either party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the party to whom a notice is being given. Notices must be sent: (i) if to Shakudo, to the following address and email contact:229 Yonge Street
- Suite 400
- Toronto, Ontario
- and (ii) if to Customer, to the current mailing or email address that Shakudo has on file with respect to Customer. Shakudo may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Shakudo current at all times during the Term.
- No Third Party Beneficiaries. Except for those third parties that have licensed software or other intellectual property to Shakudo that is included as part of the Product, no o person or entity will be a third party beneficiary of this Agreement or have any right or cause of action hereunder.
- Governing Law. This Agreement is governed by and construed in accordance with the laws of the province of Ontario, Canada, not including its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Dispute Resolution.
- Collection Disputes. Any Fee collection disputes arising out of the failure to pay by Customer will be commenced in and determined by a court of competent jurisdiction in Toronto, in the Province of Ontario or, at Shakudo’s discretion, in the jurisdiction of incorporation of the Customer. Each of the parties to this Agreement: (a) irrevocably and unconditionally consents and submits to the jurisdiction of such courts in any such action; (b) consents to service of process in accordance with the rules governing proceedings in any such court; and (c) irrevocably waives and covenants not to assert any objection to the laying of venue in any such court in any such action.
- Information Dispute Resolution.The parties will use reasonable efforts to resolve any dispute regarding this Agreement (including any breaches of the Agreement or the interpretation of this Agreement) (each a “Dispute”) through the informal escalation process agreed by the parties. A knowledgeable representative from each party will meet no less than once per calendar quarter to: (i) review and discuss the Services, including any issues related to Shakudo’s or Customer’s performance of its respective obligations under this Agreement or any applicable Addendum or SOW; and (ii) endeavor to resolve any disputes that have been escalated to the executive level. Provided that this Section 20.2 will not prevent the parties from obtaining specific performance and injunctive or other equitable relief or initiating proceedings pursuant to Section 20.1.
- Customer List. Shakudo may identify the Customer by name and logo as a Shakudo customer on Shakudo’s website and on other marketing and promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.
- Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
- Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
- Independent Contractors. Shakudo’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether oral or written. If there is a conflict or inconsistency between the Terms and Conditions and any Addendum, then the provisions of these Terms and Conditions will govern to the extent of such conflict or inconsistency; provided, however, that the provisions of the applicable Addendum will prevail over these Terms and Conditions to the extent the Addendum expressly refers to the provisions of these Terms and Conditions over which it prevails.
- Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, SHAKUDO MAY UNILATERALLY AMEND THIS AGREEMENT INCLUDING WITHIN LIMITATION ANY ADDENDUM AND SOW, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY SHAKUDO, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER)
- Language. The parties confirm that it is their wish that this Agreement, as well as any other documents relating to this Agreement, including notices, schedules and authorizations, have been and will be drawn up in the English language only, and no rule of strict construction will be applied against any party. Les signataires confirment leur volonté que la présente convention, de même que tous les documents s'y rattachant, y compsris tout avis, annexe et autorisation, soient rédigés en anglais seulement.
SHAKUDO MASTER AGREEMENT
Last updated: Oct 19, 2021
Shakudo Inc. (“Shakudo”) and customer accessing and using the Shakudo Solution (as outlined herein) (such customer, the “Customer”) have entered into this Addendum (“SaaS Addendum”). This SaaS Addendum incorporates the Shakudo Master Agreement. This SaaS Addendum will be a binding agreement effective the date Customer first uses any part of the Shakudo Solution covered under this Addendum (the “SaaS Addendum Effective Date”) and will apply to Shakudo Solution, provided by Shakudo hereunder to the Customer.
IF CUSTOMER REGISTERS FOR A FREE TRIAL THE APPLICABLE PROVISIONS OF THE AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY USING THE SHAKUDO SOLUTION (INCLUDING BUT NOT LIMITED TO ANY FREE TRIAL) CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS ADDENDUM AND THE AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 21.7 OF THE AGREEMENT. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS ADDENDUM AND THE AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SHAKUDO SOLUTION. CUSTOMER REPRESENTS AND WARRANTS TO SHAKUDO THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE SHAKUDO SOLUTION ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO SHAKUDO THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS ADDENDUM AND THE AGREEMENT.
- Effect of this Addendum. This SaaS Addendum is part of, subject to and governed by the terms and conditions of, the Terms and Conditions, as amended from time to time.
- Definitions. Capitalized terms used but not defined in this SaaS Addendum have the meaning set forth in the Terms and Conditions.
- "Customer Data” means any data, information, content, records, and files, including Personal Information, that Customer (or any of its Permitted Users) loads, makes available to and is accessed by, transmits to or enters into the Shakudo Solution Services.
- "Shakudo Solution Services” means the services through which Shakudo hosts and makes available the Hyperplane Platform pursuant to this Addendum.
- "Hyperplane Platform” means the platform described in the Exhibit “A”, including any modules and integrations that Shakudo will provide as part of such solution as set out in Exhibit “A”.
- "Purpose” means that Customer and its Permitted Users may access and use Shakudo Solution Services for Customer’s internal use only.
- Shakudo Solution Services.
- Access. Subject to the Terms and Conditions and provided Customer remains in compliance with the Terms and Conditions, during the SaaS Addendum Term, Shakudo will make the Shakudo Solution Services available to Customer and Permitted Users, for the Purpose, on the terms and conditions set out in this SaaS Addendum and the Terms and Conditions.
- Suspension of Access; Modifications. Shakudo may from time to time and in its reasonable discretion, without limiting any of its other rights or remedies at law or in equity, under the Terms and Conditions suspend Customer’s access to or use of the Shakudo Solution Services or any component thereof: (a) as permitted under Section 6.5 (Payment) or Section 13.2 (Effect of Termination) of the Terms and Conditions; (b) due to Customer’s breach of Section 2.2 (Prohibited Uses), or pursuant to any other section of the Terms and Conditions; (c) if there is an Emergency Security Issue; and (d) to make any Modifications, improvements, customizations, updates and enhancements to the Shakudo Solution Services provided the Shakudo Solution Services continues to materially conform to the description set forth in Exhibit “A”. For the purposes of this Section, “Emergency Security Issue” means Customer or its Permitted Users’ use of the Shakudo Solution Services in violation of this Addendum, including but not limited to unauthorised third party access to the Shakudo Solution Services through Customer, which is likely to cause a material disruption to other customers or their end user customers’ use of the Shakudo Solution Services or Shakudo’s network or servers used to provide the Shakudo Solution Services.
- Customer Data. Customer retains all rights, title and interest including all intellectual property rights in and to any Customer Data and Personal Information. Customer will be responsible for maintaining, protecting, and making backups of Customer Data. To the extent permitted by applicable law, Shakudo will not be liable for any failure to store, or for loss or corruption of Customer Data. The Customer grants to Shakudo and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose, transmit, copy, modify and display Customer Data to:
- provide the Shakudo Solution Services;
- improve and enhance the Shakudo Solution Services and its other offerings; and
- produce or generate data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). Shakudo may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to the Customer of any kind. Aggregated Data is not Customer Data and is not the Customer’s Confidential Information.
- Shakudo Metadata. Shakudo or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to the metadata that is generated by the Shakudo Client Software residing on the Customer Endpoints resulting from the processing of the Customer Data and that results from the ordinary course of the operation of the Shakudo Client Software (“Shakudo Metadata”). Shakudo’s Confidential Information includes Shakudo Metadata.
- Shakudo Support. Shakudo will provide Customer with technical support for the Shakudo Solution Services (“Support Services”) via: (a) email at the email address(es) indicated on the cover pages of the Terms and Conditions, or as otherwise provided by Shakudo in writing from time to time, from 9:00am to 5:00pm ET each Monday to Friday, excluding statutory and civic holidays observed in Toronto, Ontario; or (b) any other method as set out in the cover pages of the Terms and Conditions. In addition, Shakudo will provide support and maintenance services to Customer pursuant to the terms and conditions set forth in Exhibit “B” attached to this SaaS Addendum, which may be updated from time to time, provided that such modification does not detrimentally affect the functionality of the Shakudo Solution Services.
- Fees and Payments. In consideration for the access and licenses granted to Customer and the performance of Shakudo’s obligations under this SaaS Addendum, Customer will pay to Shakudo the Fees set forth in the applicable online purchasing portal or order form agreed to by the Customer. All Fees are non-refundable.
- Customer Representations and Warranties. In addition to Customer’s representations and warranties in the Terms and Conditions, Customer represents and warrants to, and covenants with, Shakudo that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case, as required by applicable laws including applicable privacy laws, to enable Shakudo to provide the Shakudo Solution Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Shakudo and to or from all applicable third parties.
- Customer Indemnities. In addition to Customer’s indemnities in the Terms and Conditions, Customer will defend, indemnify and hold harmless Shakudo Indemnitees from and against any and all Losses incurred by Shakudo Indemnitees arising out of or relating to any Action by a third party (other than an Affiliate of an Shakudo Indemnitee) that arise from or relate to: (a) Customer Data; or (b) Customer’s breach of Section 7. The limitations in Sections 10.1 and 10.2 of the Terms and Conditions do not apply to Customer’s obligations under this Section 8.
- Term. This SaaS Addendum will become effective upon the SaaS Addendum Effective Date and will continue for the term stated in the applicable online purchasing portal or order form agreed to by the Customer, unless earlier terminated in accordance with the terms of the Terms and Conditions (“SaaS Addendum Term”). SaaS Addendum Term will automatically renew for additional periods equal to the expiring SaaS Addendum Term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant SaaS Addendum Term. For clarity, this SaaS Addendum will terminate upon any termination or expiration of the Terms and Conditions. Upon the termination or expiry of this SaaS Addendum, Customer will immediately (and ensure that all Permitted Users immediately cease) cease accessing or using the Shakudo Solution Services.
- Survival. Upon any termination or expiration of this SaaS Addendum, provisions contained in this SaaS Addendum that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this SaaS Addendum, including Sections 6, 7, 8 and this Section 10 will survive.
SHAKUDO MASTER AGREEMENT
EXHIBIT A TO SAAS ADDENDUM
Shakudo Solution Services Description
In-Scope Modules and Hyperplane Platform part of the Shakudo Solution Services:
The Hyperplane Platform is an end to end working environment for data science, AI and data engineering teams. The platform handles most aspects of the data science work including scaling computation, deployment, automation, scheduling, monitoring and alerting, and tools for issue resolution.
SHAKUDO MASTER AGREEMENT
EXHIBIT B TO SOFTWARE-AS-A-SERVICE ADDENDUM
The standard license includes a free support tier which covers 9-5 weekday support hours via Slack and Email.
Shakudo also offers a premium support plan that represents the “managed service” version of Hyperplane.
The Shakudo team will do whatever it takes to resolve issues rapidly alongside our customers, and ensure that they get the most out of the Hyperplane platform. Specific activities covered by Premium Support include:
- 30 minutes response SLA via phone, Slack, or email
- Connecting to the customer’s Hyperplane deployments and resolving issues in real-time, including any required configuration changes, package adjustments or issue resolution on the Shakudo side.
- Working with the customer’s development and data science teams to resolve any issues that arise during development, including issues related to scalability and performance, libraries and packages that are included with Hyperplane, and the Hyperplane platform itself
- Assisting the customer’s development and data science teams with identification and development of optimization opportunities, best practices around Hyperplane or the frameworks packaged within Hyperplane
- Assisting the customer’s development and data science teams with identification and development of opportunities to leverage machine learning techniques and algorithms that the Shakudo team has expertise with.
- Creating reports, presentations, and supporting the customer team in demonstrating the benefits of leveraging Hyperplane
SHAKUDO MASTER AGREEMENT
PROFESSIONAL SERVICES ADDENDUM
Last updated: Nov 15, 2021
Shakudo Inc. (“Shakudo”) and customer accessing and using the Services (as outlined herein) (such customer, the “Customer”) have entered into this Addendum (“Professional Services Addendum”). This Professional Services Addendum incorporates the Shakudo Master Agreement. This Professional Services Addendum will be a binding agreement effective the date Customer first uses any part of the Services covered under this Professional Services Addendum (the “PSA Effective Date”) and will apply to Services, provided by Shakudo hereunder to the Customer.
IF CUSTOMER REGISTERS FOR A FREE TRIAL THE APPLICABLE PROVISIONS OF THE AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY USING THE SERVICES (INCLUDING BUT NOT LIMITED TO ANY FREE TRIAL) CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS ADDENDUM AND THE AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 21.7 OF THE AGREEMENT. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS ADDENDUM AND THE AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO Shakudo THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO Shakudo THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS ADDENDUM AND THE AGREEMENT.
- Effect of this Addendum. This Professional Services Addendum is part of, subject to and governed by the Terms and Conditions, as may be amended from time to time.
- Definitions. Capitalized terms used but not defined in this Professional Services Addendum have the meanings set forth elsewhere in the Terms and Conditions.
- Statements of Work. Shakudo may perform services and provide deliverables that are not included in the then-current scope of professional services provided under the Terms and Conditions (“Projects”). The parties will identify each Project and the terms and conditions relating to such Project in a statement of work, in such form of statement of work as provided by Shakudo (each a “SOW”). Each SOW, when duly executed, will be incorporated into and subject to this Professional Services Addendum. In the event of a conflict or inconsistency between any SOW and this Professional Services Addendum or the Terms and Conditions, this Professional Services Addendum or the Terms and Conditions will govern, as applicable; provided, however, that the provisions of the applicable SOW will prevail over this Professional Services Addendum or the Terms and Conditions to the extent the SOW expressly refers to the provisions of the Professional Services Addendum or the Terms and Conditions over which it prevails.
- Services and Deliverables.
- Services and Deliverables. Shakudo will use commercially reasonable efforts to deliver all items expressly identified as a deliverable in a SOW (“Deliverables”) and to perform all professional services expressly set out in a SOW (“Professional Services”). All Professional Services will be performed remotely unless otherwise indicated in the SOW as being an on-site provided service. Unless otherwise agreed to by the parties in the SOW or in a separate written agreement or addendum to the Terms and Conditions, Shakudo will have no obligation to provide support and maintenance services for Deliverables.
- License to Use Deliverables. Subject to Customer payment of Fees, Shakudo grants to Customer, during SOW Term, a revocable, non-exclusive, non-transferable, non-sublicensable, fully paid-up license to use the Deliverables for Customer’s internal use in Canada.
- No Assignment or Transfer of Intellectual Property. Without limiting Section 2 of the Terms and Conditions, Shakudo retains all ownership and intellectual property rights in and to: (a) the Professional Services; (b) the Deliverables; (c) anything developed or delivered by or on behalf of Shakudo under this Professional Services Addendum or any SOW; and (d) any Modifications to (a), (b) or (c). All rights not expressly granted by Shakudo to Customer under this Professional Services Addendum or any SOW are reserved.
- Resource Management. Shakudo will, in its sole discretion, determine the number of personnel and the appropriate skill sets of such personnel necessary to perform the Professional Services. Shakudo ’s resources may include employees of Shakudo or subcontractors. The delegating or subcontracting of Shakudo ’s obligations set out in this Professional Services Addendum will not relieve Shakudo from any obligation or liability under this Professional Services Addendum.
- Addendum Term; Effect of Termination; Suspension.
- Addendum Term. This PS Addendum will become effective upon the PSA Effective Date and will continue for the Term of the Terms and Conditions, unless earlier terminated in accordance with the terms of the Terms and Conditions (“Addendum Term”). For clarity, this PS Addendum will terminate upon any termination or expiration of the Terms and Conditions. For greater certainty, no new SOW may be entered into between the parties after the termination or expiry of the Addendum Term.
- SOW Term. Each SOW will become effective on the effective date set out therein (the “SOW Effective Date”) and, unless otherwise provided in the SOW, will continue for the term indicated in the SOW, unless earlier terminated or suspended in accordance with the terms of the Terms and Conditions or in accordance with Section 6.3 of this Professional Services Addendum (the “SOW Term”). If a SOW Term extends past the termination or expiry of the Addendum Term, then the terms and conditions of this Addendum that apply to or govern such SOW will survive the termination or expiry of the SOW Term for the applicable Professional Services. For greater certainty, no new or renewal SOW may be entered into between the parties after the termination or expiry of this PS Addendum.
- SOW Termination. Without limiting any other termination right set out in the Terms and Conditions, either party may terminate any SOW if the other party breaches on any of the material terms or conditions of such SOW and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any such breach that is incapable of being cured, such termination will be effective immediately.
- Suspension. In addition to Shakudo ’s termination rights set out in the Terms and Conditions, Shakudo will be entitled, in its discretion and upon prior written notice (unless where not practical to give such prior notice) (email acceptable) to Customer, to suspend the Professional Services under the applicable SOW.
- Effect of Termination. Without limiting Section 13.2 of the Terms and Conditions, within ten (10) days of the expiration or termination of this Professional Services Addendum or any SOW, as applicable, Customer will destroy or deliver to Shakudo all copies of the Deliverables delivered thereunder, or any portion thereof, and Shakudo ’s Confidential Information, and an officer of Customer will certify to Shakudo such destruction or delivery. Customer will pay all Fees and related expenses for the portion of Professional Services performed or Deliverables completed as of the effective date of termination.
- Milestones; Deliverables and Acceptance; Customer Dependencies.
- Milestones. For any Deliverable, Service, or other performance obligation of Shakudo described as a milestone in an applicable SOW (each, a “Milestone”), Shakudo will use commercially reasonable efforts to complete such Milestone on or before the deadline specified for such Milestone in the applicable SOW. Any delay in receiving Customer Resources or Customer’s performance of Customer Dependencies will cause Shakudo a delay in performing the Professional Services and will result in a delay in Shakudo ’s ability to meet the Milestones.
- Deliverables and Acceptance. Upon completion of each Deliverable under a SOW, Shakudo will, as applicable: (a) submit a complete copy to Customer; and (b) at Customer’s request, demonstrate its functionality to Customer. Customer is responsible for reviewing and testing all Deliverables in accordance with such SOW pursuant to any acceptance criteria or test plans mutually agreed upon in writing by the Parties for such Deliverable. Customer will provide Shakudo with written notification of acceptance for each Deliverable promptly upon acceptance; however, failure to reject a Deliverable, as set forth below, will be deemed acceptance. If Customer, in its reasonable and good faith judgment, determines that any submitted Deliverable does not satisfy the agreed-upon acceptance criteria as specified in the applicable SOW or as mutually agreed upon in writing by the Parties for such Deliverable, Customer must so notify Shakudo in writing within 10 business days after Shakudo ’s submission of the Deliverable, specifying the deficiencies in detail. Shakudo will use commercially reasonable efforts to correct such deficiencies and resubmit the Deliverable to Customer as soon as practicable. Customer will again review and test the Deliverable against the agreed-upon acceptance criteria, and detail any deficiencies to Shakudo in writing within 10 business days after resubmission of the Deliverable. If a Deliverable fails to meet the functional requirements specified in the applicable SOW after its second resubmission to Customer, Customer may either, as its sole and exclusive remedy: (i) again reject the Deliverable and return it to Shakudo for further correction and resubmission in accordance with the process described above (if the Deliverable is not accepted after two resubmissions, the matter will be escalated to Customer’s executive sponsor for the project associated with the SOW and the Shakudo Engagement Manager) or (ii) terminate the relevant SOW immediately upon written notice and recover all Fees paid under such SOW or for such deficient Deliverable. If the Parties determine that a Deliverable’s functional requirements specified in a SOW require modification (for example, due to incorrect assumptions or changed requirements), they will cooperate in good faith to execute a Change Order for such revised requirements. Customer Dependencies.
- Customer will cooperate with Shakudo in the performance of the Professional Services and in the development of Deliverables, including by providing access (whether onsite or remotely, as specified in the applicable SOW) to Customer’s personnel, systems, equipment, or communications facilities, as reasonably requested by Shakudo from time to time and perform other applicable customer responsibilities set out in Section 7.4 below and in a SOW (“Customer Dependencies”). If Customer has not performed its Customer Dependencies including but not limited to providing all necessary cooperation or information to Shakudo , or Shakudo is otherwise denied or delayed access or information by Customer, then Shakudo will be excused, without liability, from performing any further Professional Services. Such failure to perform Professional Services resulting from Customer’s failures will not relieve Customer from its payment obligations to Shakudo.
- Unless otherwise set out in the applicable SOW, for each SOW, Customer will:
- provide timely access to all information requested by Shakudo for matters related to the Professional Services;
- provide administrator-level access to Shakudo to enable service delivery, installation, and configuration;
- make available at no charge to Shakudo all information and key Customer personnel required by Shakudo in connection with the Professional Services (collectively, “Customer Resources”);
- accept each completed Milestone or Deliverable prior to Shakudo commencing work on the next Milestone or Deliverable; and
- Customer will log all incidents with Shakudo as soon as they become aware of the incident.
- Change Requests.
- Changes. Any service or deliverable not specifically set out in a SOW will be considered out-of-scope and not included in the Professional Services or Deliverables. The parties may request any change to the nature or scope of any Professional Services or Deliverables then-currently provided (each, a “Change”) pursuant to this Section 8.
- Change Order Process. If, after Shakudo ’s commencement of Professional Services set out in a SOW, either party requires a Change, such party will set out the new requirements in writing and deliver such request to the other party. Following a request made by Customer (or, in the case of a request made by Shakudo , concurrently with such request), Shakudo will use commercially reasonable efforts to describe in writing the estimated impact of such Change to the costs, Milestones, timeline, Customer responsibilities, and other relevant aspects of the Professional Services or Deliverables. If Customer agrees with such written description of the estimated impact, then the parties will negotiate in good faith a Change order setting out the detailed terms and conditions pursuant to which the Change will be implemented (“Change Order”). If Customer disagrees with such written description of the estimated impact and the parties are unable to reach agreement on the impact of such proposed Change, then no such Changes to the SOW will be effective, and Shakudo will perform the Professional Services in accordance with the original SOW.
- Limitation of Liability. NOTWITHSTANDING SECTIONS 10.1 (LIMITATION OF LIABILITY) OF THE TERMS AND CONDITIONS, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS PROFESSIONAL SERVICES ADDENDUM OR APPLICABLE SOW, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THE SPECIFIC SOW OUT OF WHICH THE LIABILITY AROSE. Each party’s liability will be further limited as provided in the Terms and Conditions.
- Disclaimers. Without limiting Section 8.2 (Disclaimer) of the Terms and Conditions: (a) Shakudo will have no liability for loss or recovery of data or programs or for Customer’s failure to properly back-up any data or programs; and (b) Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness and consistency of Customer Resources.
- Fees and Expenses. In consideration for the Professional Services or Deliverables performed or provided to Customer under this Professional Services Addendum, Customer will pay to Shakudo the Fees set forth in each applicable SOW. Unless otherwise agreed to by the parties in writing, Shakudo must receive all prepayment amounts listed in a SOW before the commencement of any Professional Services thereunder. Any suspension of the Professional Services by Shakudo pursuant to the terms of the Terms and Conditions including Section 6.3 of this Professional Services Addendum will not excuse Customer from its obligation to make payments under this Addendum or any SOW. Customer agrees to pay all reasonable, pre-approved in writing, out-of-pocket expenses incurred by Shakudo in connection with performing Professional Services or delivering any Deliverables, including all reasonable travel expenses.
- Survival. Upon any termination or expiration of this Professional Services Addendum, provisions contained in this Addendum that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Addendum, including Sections 4.3, 9, 10, 11 and this Section 12, will survive.