- These Terms and Conditions, and any other terms and policies referred to in these Terms and Conditions, form the agreement between Klexos, LLC (referred to as “SaaS Provider”, “we” or “us”) and the user (referred to as “Customer” or “you”), collectively referred to as the Parties or each a Party, (Agreement).
- The Provider owns the Easy Upsell Software (referred to as “app”) and will license the use of the Software to the Customer.
- The Customer wishes to license the SaaS Services known as “Easy Upsell” through the BigCommerce (3rd party) platform.
- This Agreement sets out the terms upon which the SaaS Provider has agreed to grant a license to the Customer to use the SaaS Services. This Agreement is binding on any use of the Services and applies to the Customer from the time that the SaaS Provider provides the Customer with an account to access and use the Services
- By accessing and/or using the Services you:
b. warrant to us that you have the legal capacity to enter into a legally binding agreement with us or (if you are under 18 years of age) you have your parent’s or legal guardian’s permission to access and use the Site and they have agreed to the Terms on your behalf; and
c. agree to use the Services in accordance with this Agreement.
- You must not create a Customer account unless you are at least 18 years of age. If you are a parent or legal guardian permitting a person who is at least 13 years of age but under 18 years of age (a Minor) create a Customer account and/or use the Site, you agree to: (i) supervise the Minor’s use of the Site and their account; (ii) assume all risks associated with, and liabilities resulting from, the Minor’s use of the Site and their Customer account; (iii) ensure that the content on the Site is suitable for the Minor; (iv) ensure all information submitted to us by the Minor is accurate; and (v) provide the consents, representations and warranties contained in the Terms on the Minor’s behalf.
- By using our Services, you acknowledge that you have read, understood, and accepted this Agreement and you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services.
- On or from the Effective Date (the date on which this agreement is accepted by the Customer) and during the Term, the SaaS Provider agrees to provide the Services in accordance with the terms of this Agreement. The Services consist of access to and use of the Easy Upsell app on the BigCommerce platform
- The Customer agrees the SaaS Provider owns or holds the applicable licences to all Intellectual Property Rights including but not limited to copyright in the Software and SaaS Services and any documentation provided with the Services by the SaaS Provider to the Customer including any Customer configuration documentation.
- The SaaS Provider reserves the right to change or remove features of the SaaS Services from time to time. The SaaS Provider will attempt to provide the Customer with advance notice and the Customer agrees that any material alteration is at the SaaS Provider’s discretion.
- The Parties agree that the SaaS Provider:
a. will supply the Services on a non-exclusive basis;
b. does not make any warranty or representation as to the ability of the facilities or services of any third-party suppliers; and
c. is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the Customer Environment or the facilities or services of any third party.
- The SaaS Provider reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.
3. SaaS Service Licence
- In consideration for payment of the Fees, the SaaS Provider grants to the Customer a non-exclusive, non-transferable (except as otherwise permitted under this Agreement), personal, revocable, licence to access and use the SaaS Services in accordance with the Service Provider’s intended purpose for the SaaS Services (SaaS Licence).
- The License is for use in one BigCommerce store. Additional BigCommerce stores, even when owned by the same entity, will need additional Licenses.
- The Customer agrees that the SaaS Licence:
a. commences from the Effective Date or the day the Customer is granted access to the SaaS Services by the SaaS Provider, whichever occurs first;
b. permits the Customer to use the SaaS Services in accordance with the SaaS Services’ normal operating procedures; and
c. permits the Customer to use the SaaS Services in one eCommerce store on the BigCommerce platform
4. License Restrictions
- The Customer must not access or use the SaaS Services except as permitted by the SaaS Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with the SaaS Provider’s Intellectual Property Rights in the SaaS Services or Software. Without limiting the foregoing provisions, the Customer agrees and acknowledges that it must not and will not permit any person to:
- resell, assign, transfer, distribute or provide others with access to the SaaS Services;
- “frame”, “mirror” or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network;
- copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services or Software; or
- alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the SaaS Services or Software.
- The Customer must not use the SaaS Services in any way which is in breach of any statute, regulation, law or legal right of any person within the United States or the jurisdiction in which the Customer or its Personnel are located.
- The Customer grants to the SaaS Provider a limited licence to copy, transmit, store and back-up or otherwise access, use or make reference to any Intellectual Property Rights in the Data:
a. to supply the Services including to enable the Customer, its
Personnel and any Authorised Users to access and use the Services;
b. to do analysis;
c. for diagnostic purposes;
d. to test, enhance and otherwise modify the Services whether requested by the Customer or not;
e. to develop other Services; and
f. as reasonably required for the performance of the SaaS Provider’s obligations under this Agreement.
- The Customer represents and warrants that:
a. any and all Data supplied by the Customer or otherwise accessed by the SaaS Provider through the provision of the Services is the sole and exclusive property of the Customer or the Customer has secured any and all authorisations and rights to use the Data as applicable;
b. its Data does not breach any relevant laws, regulations or codes;
c. its Data does not infringe the Intellectual Property Rights of any third party;
d. it will comply with all applicable laws and regulations in the jurisdiction where the Customer accesses and publishes content using the SaaS Services; and
e. to the extent that the Data contains personal data, it has obtained the necessary consents in order to transfer or permit access to this Data in accordance with applicable privacy and data protection laws.
- The Customer acknowledges and agrees that:
a. any collation, conversion and analysis of Data performed as part of the Services whether by the Services or otherwise is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of Data. The SaaS Provider is not liable for any such errors, omissions, delays or losses. The Customer acknowledges and agrees it is responsible for adopting reasonable measures to limit the impact of such loss or error;
b. The SaaS Provider may relocate the Data to another jurisdiction. The SaaS Provider will use all reasonable endeavours to minimise the effect of such change on the Customer’s access and use of the Services;
c. The SaaS Provider is not responsible for any corruption or loss of any Data; and
d. The SaaS Provider is not responsible for the integrity or existence of any Data on the Customer’s Environment, network or any device controlled by the Customer or its Personnel.
- The Customer agrees to indemnify and hold the SaaS Provider harmless for the corruption or loss of any Data controlled or stored by the Customer or any Related Bodies Corporate.
6. Support and Service Levels
- During the Term, the SaaS Provider will provide limited support services provided that:
a. the Customer provides the SaaS Provider with notice for applicable Services in accordance with any applicable system and processes as set out on the Site, as applicable; and
b. where required, the Customer assists with investigating and ascertaining the cause of the fault and provides to the SaaS Provider all necessary information relevant to the fault (including but not limited to what the Customer or their Personnel has done in relation to the fault).
7. Customer Responsibilities and Obligations
- The Customer will provide all required materials as required by the SaaS Provider from time to time for the SaaS Provider to perform the Services.
- The Customer must, at the Customer’s own expense:
a. provide all reasonable assistance and cooperation to the SaaS Provider in order to enable the SaaS Provider to supply the Services in an efficient and timely manner including but not limited to obtaining from Authorised Users any consents necessary to allow the Customer and its Personnel to engage in the activities described in this Agreement and to allow the SaaS Provider to provide the Services;
b. use reasonable endeavours to ensure the integrity of the Data;
c. permit the SaaS Provider and its Personnel to have reasonable access to the Customer Environment for the purposes of supplying the Services;
d. ensure that only Customer Personnel and Authorised Users will access and use the SaaS Services and such use and access will be in accordance with the terms and conditions of the SaaS Licence; and
e. make any changes to its Customer Environment that may be required to support the delivery and operation of any Services.
- The Customer is responsible for its use of the Services and must ensure that no person uses the Services:
a. to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights;
b. to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
c. in any way that damages, interferes with or interrupts the supply of the Services.
- The Customer acknowledges and agrees that:
a. it is responsible for all users using the Services including its Personnel and any Authorised Users;
b. its use of the Services will be at its own risk;
c. it is responsible for maintaining the security of its account and password. The SaaS Provider cannot and will not be liable for any loss or damage from the Customer’s failure to comply with this security obligation;
d. the SaaS Provider may alter or update the Customer’s account logins and passwords and the logins and passwords of any Authorised Users at any time throughout the Term;
e. the Customer is responsible for all content posted and activity that occurs under their account. This includes content posted by others who have logins or accounts associated with the Customer’s account;
f. if they operate a shared Customer account, make (or allow any third party to make) material available by means of the Services (including shareable links and SCORM objects), the Customer is entirely responsible for the content of, and any harm resulting from, that content. That is the case regardless of what form the content takes, which includes, but is not limited to text, photo, video, audio, or code;
g. the technical processing and transmission of the Service, including the Customer’s content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices;
h. if the SaaS Provider wishes to alter the delivery of the SaaS Services which requires a change to the Customer Environment (including reconfigurations or interface customisations the extent necessary to access or use the SaaS Services) the Customer will give any assistance to the SaaS Provider or make any such changes to the Customer Environment, that the SaaS Provider reasonably requires; and
i. the SaaS Provider may pursue any available equitable or other remedy against the Customer as a result of a breach by the Customer of any provision of this Agreement.
8. Prohibited Use
- The Customer acknowledges and agrees that this Agreement incorporates by reference the terms of any acceptable use policy as set out on the SaaS Provider’s website or as provided to the Customer from time to time.
- The Customer acknowledges and agrees that it must not, and will ensure each Authorised User does not:
a. use the SaaS Services to violate any legal rights of any person, the Customer or other entity in any jurisdiction;
b. use the SaaS Services in relation to crimes such as theft and fraud;
c. use the Services in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy;
d. make any unauthorised copy of any copyrighted material owned or licenced by the SaaS Provider;
e. introduce malicious programs into the SaaS Provider System (e.g. viruses, worms, trojan horses, e-mail bombs);
f. reveal the Customer’s account password to others or allow use of the Customer’s account the to those who are not the Customer’s Personnel or Authorised Users;
g. use the SaaS Services to make fraudulent offers of goods or services;
h. use the SaaS Services to carry out security breaches or disruptions of a network. Security breaches include, but are not limited to, accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorised to access or corrupting any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing/monitoring, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
i. use the SaaS Services to circumvent user authentication or security of any of the Customer’s hosts, networks or accounts or those of the Customer’s customers or suppliers.
- The Customer must pay the SaaS Provider the monthly subscription fee each month in order to continue to have access and use of the app. This payment will be charged automatically to the Customer’s on-file credit or debit card each month. All Fees are in USD$, and are payable in advance.
- If any payment has not been made in accordance with the Payment Terms, the Customer will lose access and use of the application.
- The SaaS Provider may increase the monthly subscription fee by providing written notice to the Customer during the billing period prior to the increase.
- Sales are final and non-refundable. See the full refund policy here.
- Each Party must (and must ensure that its Personnel do) keep confidential; and not use or permit any unauthorised use of all Confidential Information.
- This clause does not apply where:
a. the information is in, or comes into, the public domain (other than by a breach of this clause by the relevant Party);
b. the relevant Party has the prior written consent of the Party that disclosed the Confidential Information;
c. the disclosure is required by law;
d. the disclosure is required in order to comply with this Agreement, provided that the Party disclosing the Confidential Information ensures the recipient complies with the terms of this clause; and
e. the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the Party disclosing the Confidential Information ensures the adviser complies with the terms of this clause.
- Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause. The confidentiality clause will survive the termination or expiration of this Agreement.
11. Intellectual Property Rights
- A Party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the Effective Date (Pre-Existing Material) will not be altered, transferred or assigned by virtue of this Agreement.
- The Customer grants to the SaaS Provider a non-exclusive, royalty free, non-transferable and revocable licence to use any of the Customer’s Intellectual Property Rights including any Pre-Existing Material as reasonably required for the SaaS Provider to provide the Services to the Customer.
- We do not screen content uploaded onto the SaaS Service, but we have the right (but not the obligation) in our sole discretion to refuse or remove any content that is available via the Service that we deem inappropriate, illegal, offensive, threatening, libellous, defamatory, pornographic, obscene, or otherwise objectionable or violate any party’s Intellectual Property Rights or this Agreement.
- We have the discretion (but not obligation) to terminate a Customer’s access to and use of the Services if, we determine that Customer or its Authorised Users are repeat infringer of the Intellectual Property Rights of us or third parties.
- This clause will survive the termination or expiration of this Agreement.
- The SaaS Provider will take all reasonable steps to notify the Customer in writing if it becomes aware of any actual, threatened or suspected breach of Data where such breach involves personal information.
- The Service Provider will retain Customer’s information for as long as Customer account is active or as needed to provide Customer services. Service Provider will retain and use information as necessary to comply with legal obligations, resolve disputes, and enforce agreements.
- This clause will survive the termination or expiration of this Agreement.
13. Representations and Warranties
- Each Party represents and warrants to each other Party:
a. it has full legal capacity and power to enter into this Agreement, to perform its obligations under this Agreement to carry out the transactions contemplated by this Agreement, to own its property and assets and to carry on its business;
b. no Insolvency Event has occurred in respect of it;
c. this Agreement constitutes legal, valid and binding obligations, enforceable in accordance with its terms; and
d. the execution and performance by it of this Agreement and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to it or any document binding on it.
a. The SaaS Provider warrants that to the best of its knowledge the Services do not infringe the Intellectual Property Rights of any third party and there are no actual or threatened proceedings for any intellectual property infringements in relation to the SaaS Services.
b. The SaaS Provider does not warrant that the Services will be error-free or will operate without interruption or that, except as set out in this Agreement, the Services will be performed in the manner intended by the Customer or the Services will meet the requirements of the Customer.
a. Each Party makes the representations and warranties in this clause on each day on which it is a Party.
14. Indemnity and Liability
- Despite anything to the contrary, to the maximum extent permitted by the law:
a. the SaaS Provider’s maximum aggregate Liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and must not exceed, in any Contract Year, the total amount of Fees paid to SaaS Provider in the prior Contract Year; and
b. the SaaS Provider will not be liable to the Customer for: (i) any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data ); (ii) lack of access to or use of or inability to access or use the Service; (iii) any conduct or content of any third party on the Services; (iv) any content obtained from the Services; nor (v) unauthorised access, use or alteration of your transmissions or content, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
- Despite anything to the contrary, to the maximum extent permitted by the law, the SaaS Provider will have no Liability, and the Customer releases and discharges the SaaS Provider from all Liability, arising from or in connection with any:
a. failure or delay in providing the Services;
b. “bugs” in the software;
c. breach of this Agreement; or
d. misuse of the Services,
- The SaaS Provider uses third-party Service Providers to host the Services. The SaaS Provider will not be liable for any interruption to the Services, unavailability or outage, or any interruption, unavailability or outage of the Customer’s Systems, caused by any such third-party service provider.
- The Customer agrees that, to the maximum extent permitted by the law, this Agreement excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this Agreement.
- The Customer agrees to indemnify, and hold harmless, the Service Provider against all Liabilities and Claims arising out of or in connection with:
a. any and all unauthorised use of the SaaS Service;
b. Authorised Users access or use of the Services;
c. injury to or death of any person caused by any act or omission by or on behalf of the Customer or its Personnel; and
d. damage to any real or tangible property caused by any act or omission by or on behalf of the Customer or its personnel.
- This Clause will survive the termination or expiration of this Agreement.
- Commencement: The Term of this Agreement takes effect on and from the Effective Date and continues for the Initial Term, if specified, and any Renewal Term, or otherwise indefinitely, unless this Agreement is terminated earlier in accordance with the terms of this Agreement.
- Applicable to Initial Terms and any Renewal Term: Within the month prior to the expiration of the current billing cycle, either Party may notify the other that it does not wish for the Term to be renewed and in such event, this Agreement will expire at the end of the then current billing cycle. If a Party has not given notice pursuant to this clause, this Agreement is automatically renewed for another Contract Period (Renewal Term).
- Customer may terminate this Agreement by giving SaaS Provider notice before the end of the current billing cycle. Cancelling the subscription within the app does count as notice. Such termination will take effect at the expiration of the then current billing cycle.
- The SaaS Provider may terminate this Agreement immediately by giving written notice to the Customer.
17. Events Following Termination
- Upon termination of this Agreement, the SaaS Provider will revoke access and use of the app from the Customer.
- Upon termination of this Agreement, the Customer will immediately:
a. cease and desist from any use of the Services;
b. return to the SaaS Provider all property, including Confidential Information and Intellectual Property, in its possession that belongs to the SaaS Provider;
c. pay the Fees for all Services completed; and
- This clause will survive the termination or expiration of this Agreement.
18. Dispute Resolution
- Disputes: A Party must not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement(Dispute) without first complying with this clause unless the Dispute relates to compliance with this clause. Notwithstanding the existence of a Dispute, the Parties must continue to perform their obligations under this Agreement.
- Negotiation: In the event of a Dispute, the Party claiming there is a Dispute must give written notice to the other Party or Parties to the Dispute setting out the details of the Dispute and proposing a resolution (Dispute Notice). Within 10 Business Days after receipt of the Dispute Notice, each relevant Party must (if applicable by its senior executives or senior managers who have authority to reach a resolution on its behalf) verbally discuss at least once to attempt to resolve the Dispute in good faith. All aspects of every such conference, except for the occurrence of the conference, will be privileged.
- Mediation: If the relevant Parties are unable to resolve the Dispute with 15 Business Days after receipt of the Dispute Notice, any Party involved in the Dispute may (by written notice to the other Parties) submit the Dispute to mediation administered within the State of Tennessee. The costs of mediation are to be split between the relevant Parties, provided that each Party will bear its own costs in relation to the mediation. If the Dispute has not been settled within 20 Business Days after the appointment of a mediator, or such other period as agreed in writing between the Parties, the Dispute may be referred by any Party involved in the Dispute (by written notice to the other Parties) to litigation.
- This clause will survive the termination or expiration of this Agreement.
19. Sales Tax
- Saas Provider may charge applicable sales tax for the monthly subscription. If SaaS Provider does not charge sales tax, Customer is responsible for paying any sales tax owed to the relevant authority based on the laws of their jurisdiction.
- SaaS Provider may begin to charge sales tax at any time in accordance with applicable tax laws.
- Notices: A notice or other communication given under this Agreement must be: in writing, in English and signed by the sender; and addressed and delivered to the intended recipient by hand, prepaid post or email in accordance with the notice details last notified by the recipient to the Parties.
- Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing.
- Powers, rights, and remedies: Except as provided in this Agreement or permitted by law, the powers, rights, and remedies of a Party under this Agreement are cumulative and in addition to any other powers, rights and remedies the Party may have.
- Consents or approvals: Except as provided in this Agreement, a Party may give, attach conditions to or withhold any consent or approval under this Agreement at its sole and absolute discretion. A Party is not obliged to give reasons for giving or withholding its consent or approval or for giving its consent or approval subject to conditions.
- Assignment: No Party may assign, transfer or otherwise deal with all or any of its rights or obligations under this Agreement without the prior written consent of the other Parties.
- Further assurance: Each Party must promptly do all things and execute all further documents necessary to give full force and effect to this Agreement and their obligations under it. This subclause will survive the termination or expiration of this Agreement.
- Costs and expenses: Each Party must pay its own costs and expenses (including legal costs) in connection with the negotiation, preparation, and execution of this Agreement and any document relating to it.
- Relationship of Parties: This Agreement is not intended to create a partnership, joint venture or agency relationship between the Parties. Nothing in this Agreement gives a Party authority to bind any other Party in any way.
- Links to Third Parties: The Services may contain links to third-party web sites or services that are not owned or controlled by the SaaS Provider. The SaaS Provider has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. The Customer further acknowledges and agree that the SaaS Provider shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.
- Independent legal advice: Each Party acknowledges and agrees that it has had an opportunity to read this Agreement, it agrees to its terms and, prior to executing it, it has been provided with the opportunity to seek independent legal advice about its terms.
- Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable. If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
- Entire Agreement: The Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
- Amendment: This Agreement may only be amended by written document executed by all Parties.
- Cumulative Rights: The rights arising out of this Agreement do not exclude any other rights of either Party. Each indemnity in this Agreement is a continuing obligation that is separate and independent from the other obligations of the Parties under this Agreement. A Party is not obliged to take any action, or incur any expense, before enforcing any indemnity under this Agreement.
- Governing law and jurisdiction: This Agreement is governed by the laws of the State of Tennessee, located in the United States of America. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Tennessee and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.