Account Subscription Agreement

THIS AGREEMENT GOVERNS THE PROCUREMENT AND USE OF OUR SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CHECKING THE BOX INDICATING YOUR CONSENT WHEN CREATING YOUR ACCOUNT, BY COMPLETING AN ORDER FORM WHICH REFERS TO THIS AGREEMENT OR BY USING ANY KIMOBY SERVICES (HEREINAFTER DEFINED), YOU ACCEPT THE TERMS AND CONDITIONS CONTAINED HEREIN. BY ACCEPTING THIS AGREEMENT ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, YOU DECLARE THAT YOU HAVE THE AUTHORITY TO BIND SAID ENTITY TO THE FOLLOWING TERMS.

Our Privacy Policy and other policies, rules, or guidelines set out at kimoby.com, where applicable, are also incorporated into this Agreement.

Unless having obtained Our prior written consent, if You are a direct or indirect competitor of Kimoby, including but not limited to any corporation operating software which allows the communication with clients via text messaging, You cannot have access to these Services. You also shall not have access to these Services for testing their availability performance, or functionalities for all intents and purposes.

1. DEFINITIONS

"Account" refers to an online account which grants a Client and its Users access to Services and Content.

"Agreement" refers to this Account Subscription Agreement.  

"Claim against Us" has the meaning ascribed to in paragraph 10.1 of this Agreement.

"Client" refers to a corporation or any other entity, including a natural person who operates a sole proprietorship or a partnership, having purchased Kimoby's Services, hence You.

"Confidential information" has the meaning ascribed to in paragraph 9.1 of this Agreement.

"Content" refers to the information obtained by Kimoby via public sources or a third party and is made available to the Client through Services.

"Disclosing party" has the meaning ascribed to it in paragraph 9.1 of this Agreement.

"Kimoby" refers to 8522561 Canada Corp. (doing business under the name “Kimoby”), is a Canadian corporation headquartered at 302-633 Saint-Joseph Est, Québec, G1K 3C1, Canada.

"Kimoby Pay" refers to the Service which allows the Client to send invoices and payment requests via text message (SMS) and includes “Kimoby Pay-As-You-Go” and “Kimoby Pay Merchant Connect”.

"Kimoby Promotional Material" refers to all the promotional material and/or marketing relating to Kimoby and its brand or image, including but not limited to the content protected by copyright, hyperlinks, domain names, icons, buttons, banners, document graphics, images, intellectual property, brand and image of Kimoby.

"Non-Kimoby Applications" refers to applications which are not the property of Kimoby.

"Pricing plan" refers to Kimoby's monthly rates and packages, which are available online and can be amended and updated from time to time.

"Order form" refers to the order form, whether paper or online, transmitted by Kimoby or generated after an online subscription to an Account which specifies the Services and Content purchased by You and which will be provided by Us, including all online amendment to the Service or Content purchased (in accordance with what is provided herein, all schedules and appendices).

"Receiving party" has the meaning ascribed to in paragraph 9.1 of this Agreement.

"Segment" refers to a part of a text message containing a maximum of 160 characters (spaces, punctuation, and numbers included), or, if the message contains one or more Special Characters, a part of a text message containing a maximum of 70 characters (spaces, punctuation, and numbers included). Also, a text message can be composed of more than one Segment, depending on the number of characters and whether it contains a Special Character or not. If a text message contains more than one Segment, a segment will then contain a maximum of 153 characters, if no Special Characters are present. If one of the Segments of a text message contains a Special Character, all the Segments of the same message will be considered as having a Special Character, so that each Segment of the message will contain a maximum of 67 characters.

"Services" refers to the products and services purchased by You in an Order Form, including Kimoby Pay as well as any integration with a third party, and made accessible through the Account by Us, including any associated mobile components. Services exclude Non-Kimoby Applications and Content.

"Special Character" refers to a character which is not standard in GSM (7-bit default alphabet).

"Subscription Period" refers to the duration listed in the Order Form, whether renewed or not.

"Taxes" has the meaning ascribed to in paragraph 5.11 of this Agreement.

"Testimonial" refers to a recommendation on behalf of a User or a Client regarding the performance, quality, and/or value of the Kimoby platform.

"Transaction" refers to monetary transactions between the Client and its customer for the products and services that the Client sells.

"Use" refers to the utilization by Users, which includes the transmission of an outgoing text message (SMS), automated messages, targeted campaigns, appointment reminders, monitoring of customer satisfaction, and Kimoby Pay which includes the communication of information about Transactions (including fees and refunds), the receipt of payment for the Transaction, and the adjustments and management of disputes with Your clients (including refunds).

"User" refers to an individual who is authorized by You to use Content or Services that You have purchased and that You (or We, where applicable, at Your request) have provided with a username and password (for Services requiring authentication). A User can include, for example, one of Your employees, consultants, contractors, agents, and third parties with whom You are doing business.

"We", "Us", or "Our"  refer to Kimoby.

"You", "Your", or "Yours" refer to the Client and its affiliates having subscribed to Services via an Order Form.

"Your data" or "Data" refer to the data and electronic information submitted by or for the Client or collected by Kimoby during the Use of Content and Services by the Client, being understood that the Data does not include Non-Kimoby Applications or the Content.

2. PURPOSE

2.1. Services

Kimoby undertakes, on a non-exclusive basis, to provide Services and to make the Content available identified in the Order Form within a reasonable time of 10 business days after purchase of the Services and Content.

2.2. Inclusions

Kimoby undertakes to provide applicable support for Services without supplemental fees and also undertakes to use reasonable efforts to provide online Services with an availability of 24 hours a day, 7 days a week, except for: (i) planned downtime, for which We will provide a prior notice via email or message on Your Account, and (ii) all downtime caused by circumstances outside of Our control, including acts of God, government act, flood, fire, earthquake, civil disturbance, terrorist act, strike or other work conflict (other than those involving Our employees), and failure or delay of Internet service.

2.3. Protection of Your Data

We maintain encrypted backups to ensure the protection of Your Data and all personal information stored on Our servers concerning You and Your clients. These safeguards will include, but not limited to, measures limiting access, use, modification, or disclosure of Your Data by Our staff, except for the purpose of providing Services purchased by You, and of preventing or resolving technical problems. We cannot guarantee that an unauthorized third party will never be able to override these measures or use this data for dishonest or illicit purposes. You acknowledge that You are providing Us with personal information about Yourself and Your clients at Your own risk.

2.4. Security and privacy

You understand and consent that Kimoby may have access to Your Data in order to facilitate Your Use of Services and Content and that Kimoby will use Your Data according to the Agreement and its Privacy Policy

2.5. Our staff

We will be responsible for the work of Our staff, including Our employees and Our service providers, and their compliance with Our obligations under this Agreement, unless otherwise specified herewith.

3. PRICE AND PAYMENTS FOR PURCHASED SERVICES

3.1. Price

You agree to pay the prices specified in Your Order Form. The prices are based on the subscriptions to Services and Content, being understood that there could be supplemental fees if the Use surpasses what was agreed upon in the Pricing Plan. The payment obligations are non-cancellable, the fees paid are non-refundable and the quantities purchased cannot be reduced during the Subscription Period, unless otherwise stated in this Agreement or in the Order Form. In the event that You wish to reduce Your subscription to Services and/or Content, the changes will be effective on the next payment period. However, if You wish to add Services to Your subscription, the changes will be effective immediately and a prorated adjustment will be made on Your bill for the number of days remaining before the next billing period.

3.2. Billing and payment

You agree to provide valid and up-to-date credit card information or other payment method reasonably accepted by Us. If You provide credit card information, You authorize Us to charge this card for all purchased Services in the Order Form for the Subscription Period. These charges must be paid in advance, either annually or according to the billing frequency indicated in the applicable Order Form. If the Order Form specifies that payment will be made through a method other than credit card, We will bill You in advance in accordance with such Order Form. Unless otherwise indicated in the Order Form, the invoiced amounts are due 30 days after the invoice date. You are responsible for providing Us with accurate and complete billing and contact information and notifying Us of any changes. If the invoiced amount is not received in time, without limiting Our rights or remedies, an interest fee of 18% per year will be applied to the unpaid amount, calculated monthly from the due date until total payment is received.  

3.3. Suspension of Service

If You owe Us an amount for more than 30 days, in accordance with this Agreement or any other agreement related to Our Services, We can suspend Your account until a full payment is made. We cannot exercise Our right to suspend Services if You reasonably contest the applicable charges and cooperate in good faith to resolve the dispute.

3.4. Taxes

Our prices do not include taxes, deductions, duties, or similar government assessments of any kind. You are responsible for paying all taxes associated with the purchase of Our Services. If We have the legal obligation to pay or collect taxes for which You are responsible, We will bill You and You will pay this amount unless You provide proof of tax exemption from the appropriate tax authority.

4. DURATION AND TERMINATION

4.1. Duration of this Agreement

This Agreement begins on the date You accept in accordance with what is provided herein and is valid for the Subscription Period until all Your Accounts expire or have been terminated.

4.2. Duration of registration and purchased Accounts.

The Subscription Period of each Account is set in the applicable Order Form. Unless otherwise specified in the Order Form, the Subscription Periods will automatically renew for the shorter of the following options: a period equivalent to the Subscription Period or one year, unless either of the parties gives written notice of non-renewal to the other party at least 30 days before the end of the said Subscription Period. The Clients benefiting from a promotional subscription or single price will keep these advantageous prices despite any renewal, except if specified otherwise in the Purchase Order and subject to any increase in accordance with this paragraph. The price of the Account can increase up to 7% for each renewal period unless We provide You with notice stating otherwise at least 30 days before the date of renewal.

4.3. Exporting and deleting Your Data

Upon Your written request within 30 days of expiration or termination of Your Account, We will make Your Data available for download or export. After this 30-day period, We will have no obligation to keep or provide Your Data, and We will delete or destroy all the copies of Your Data in Our systems or in Our possession, unless prohibited by law. For Kimoby Pay Accounts, certain information will not be destroyed for legal reasons.

5. KIMOBY PAY

5.1. Interpretation

This section of the Agreement applies to Clients whose Services include Kimoby Pay Service.

5.2. Responsibility of client

You are solely responsible for the provision of goods and services sold to Your customers in connection with Your Use of Services, as well as any obligations You may have towards them, and Kimoby disclaims all liability for them.

You are responsible for all actions taken by Your Kimoby Pay Account, including refunds or modification of banking information.

5.3. Suspension or cancellation of Kimoby Pay Account

We reserve the right to suspend or cancel Your Kimoby Pay Account at any time for the following reasons (a) anticipated or excessive disputes, refunds, or adjustments from Your clients; (b) actual or possible fraudulent, illegal, or malicious Use or (c) in cases where We must comply with applicable law or court order. If applicable, it will not be possible for You to recover Your Data in accordance with paragraph 4.3 above, and Your conversations in the Kimoby Pay Account will no longer be accessible.

5.4. Limits of Kimoby's Liability

Kimoby is not responsible for any obligations You owe Your customers, including the obligation to properly describe and deliver the products and services sold to Your customers. You are solely responsible for Your compliance with applicable laws and obligations relating to the provision of products and services to Your customers or the receipt of charitable donations, and Kimoby disclaims all liability for this. This may include providing customer service, communicating and handling consumer returns or complaints, providing receipts, registering Your legal entity or other actions unrelated to the Services. 

This paragraph will survive the termination or expiration of the Account and this Agreement.

5.5. Warning

Kimoby Pay is not a tool against fraud and does not automatically detect cases or attempts of fraud. It is Your responsibility to validate the personal information provided by Your customer in order to prevent any attempted fraud. You are solely responsible for any losses You may suffer as a result of fraud on the part of one of Your customers or a fake account. Kimoby declines all responsibility.

5.6. Kimoby Pay - “Merchant Connect” Option

The “Kimoby Pay Merchant Connect” option integrates with Your current payment solution by automatically logging into Your merchant account. Thus, when You purchase the “Kimoby Pay Merchant Connect” Services, Kimoby strongly encourages You to consult the terms of use and the confidentiality policy relating to Your merchant account in order to know Your obligations regarding said account.

5.7. Stripe Account Agreement - For Clients in Canada

The Services offered to You in “Kimoby Pay-As-You-Go” are provided by Stripe and are subject to the terms set out in the Stripe Connected Account Agreement-Canada , which also includes the terms provided in the Stripe Services Agreement - Canada (for the purpose of this paragraph, collectively referred to as the “Stripe General Conditions of Use”). By accepting this Agreement or continuing to operate as a Client Using “Kimoby Pay-As-You-Go”, You agree to be bound to the Stripe General Conditions of Use, which may occasionally be subject to amendments by Stripe. Because Kimoby Pay allows payments to be made via Stripe, You agree to provide Kimoby with accurate and complete information about You and Your activities and authorize Kimoby to share this information as well as information regarding Transactions made through the payment solution provided by Stripe.

5.8. Stripe Account Agreement - For Clients in the United States

The Services offered to You on “Kimoby Pay-As-You-Go” are provided by Stripe and are subject to the terms set out in the Stripe Connected Account Agreement-United States , which also includes the terms provided for in the Stripe Services Agreement - United States (Stripe Service Agreement) (for the purpose of this paragraph, collectively referred to as the “Stripe General Conditions of Use”). By accepting this Agreement or continuing to operate as a Client Using “Kimoby Pay-As-You-Go”, You agree to be bound to the Stripe General Conditions of Use, which may occasionally be subject to amendments by Stripe. Because Kimoby Pay allows payments to be made via Stripe, You agree to provide Kimoby with accurate and complete information about You and Your activities and authorize Kimoby to share this information as well as information regarding Transactions made through the payment solution provided by Stripe.

5.9. Data processing and confidentiality

You guarantee Us that You are in compliance with applicable laws with regard to the confidentiality of information, that You have obtained the necessary rights and consent before disclosing to Us or allowing Us to collect, use, or disclose any credit cardholder data that You provide or allow Us to collect, and that We will not be in violation of these laws by collecting, receiving, using, or disclosing such information in regard to Our Services. You are solely responsible for informing Your customers that We process Transactions by credit card on Your behalf and thus obtain data about them. 

If You receive information about other people or entities, including cardholders, through Our Services, You should keep such information confidential and use it only in the context of Our Services.

5.10. Prohibition of use

You may not disclose or distribute the information obtained through Kimoby Pay to any third party or use it for marketing purposes unless You receive the express consent of Your customers. You may not disclose credit card numbers to any third party other than when processing a credit card Transaction requested by Your customers.

5.11. Taxes

It is Your responsibility to determine which taxes, if applicable, apply to the sale of Your products and services and/or payments that You receive in regard to Your Use of Our Services (“Taxes”). It is solely Your responsibility to assess, collect, report, or remit the correct amount of Taxes to the appropriate authorities. For clarity purposes, We will not determine whether Taxes apply and We will not remit any Taxes arising from any of Your Transactions to the relevant tax authorities. You acknowledge that We can send certain reports to tax authorities in regard to the Transactions that We process. 

For Clients doing business in the United States, in accordance with the Internal Revenue Service (IRS), merchant acquiring entities and third party settlement organizations must file an information return with the IRS for each calendar year reporting all payments made in settlement of payment card Transactions and third party payment network Transactions that occurred in that calendar year, as required by law.

5.12. Compensation

If the balance of Your “Kimoby Pay-As-You-Go” payable account becomes negative, You irrevocably authorize Kimoby to perform any of the following actions:

  • to debit the bank account associated with your Kimoby Pay account of an amount corresponding to the overdraft of Your Kimoby Pay account;
  • to debit Your credit card of an amount corresponding to the overdraft of Your Kimoby Pay account; or
  • to issue You an invoice for the amount corresponding to  the overdraft of Your Kimoby Pay account, which will be payable upon receipt.

In the event that Your Kimoby Pay account is no longer active and the balance of Your Kimoby Pay account becomes negative for any reason, You hereby acknowledge that You remain responsible for promptly repaying the overdue amount of Your Kimoby Pay account. If this occurs, You irrevocably authorize Us to charge Your credit card for an amount corresponding to the overdraft of Your Kimoby Pay account.


6. ACCESS TO SERVICES AND CONTENT

6.1. Account opening

To access and use Our Services and Content, You must open an Account and provide Your complete legal name, current address, phone number, valid email address, and any other information indicated as necessary. Kimoby can reject Your request for an Account or cancel an existing Account for any reason, at Our discretion.

6.2 Communication

You acknowledge that Kimoby will use Your provided email as the primary method of communication.

7. USE OF CONTENT AND SERVICES

7.1. Accounts

Services and access to Content are purchased through the User Account associated with a Client, unless otherwise specified in the applicable Order Form.

7.2. User limits

According to the chosen Pricing Plan, Service and Content may only be accessed by a certain number of Users. A User’s password cannot be shared with any other individual. The User identification can only be reassigned to a new User who will replace the person who will no longer Use the Services or Content.

7.3. Limitations of Use

Services and Content may be subject to a limitation of Use. For greater precision, the number of Segments, the number of automated messages, and the number of targeted campaigns may be limited according to the Pricing Plan chosen by the Client. If applicable, the limitations of Use will be mentioned in a place provided for this purpose in the Client’s Account. 

Kimoby may, at its sole discretion, with or without notice, limit Your access if Your Use exceeds the Usage outlined in the chosen Pricing Plan.

7.4. Your responsibilities

You (a) will be responsible for the compliance of User Utilization in accordance with this Agreement, (b) will be responsible for the accuracy, quality and legality of Your Data and how You collect such Data, (c) will make reasonable efforts to prevent unauthorized access to the Services and Content or unauthorized Use, and You will promptly notify Us of any unauthorized access or Use. We will not be held responsible if the Use of Services does not meet the requirements of the Telephone Consumer Protection Act (TCPA) or the Canada’s Anti-Spam Law (CASL, C-28).

7.5. Usage restrictions

You will not make Our Services and Content accessible to anyone other than You and Your Users, unless otherwise indicated in the Order Form. You must not sell, resell, offer a license or sublicense, distribute, provide or rent out Services or Content. We do not permit (a) direct or indirect access or Use of any Service or Content in a manner that violates the limitations set out in the Pricing Plan or the use of Our intellectual property, (b) copies of a Service or a part of it, a function or User interface thereof, (c) copies of the Content, except as provided herein or in the Order Form, (d) the reproduction or copying of any part of the Services and Content other than on Your own intranet or for Your internal purposes, (e) access to the Services and Content for the purpose of creating a competitive product or service, or (f) reverse engineering of any Service. Any Use of Services in violation of this Agreement, or the Order Forms, by You or Your Users, which, in Our opinion, threatens the security, integrity or availability of Our Services, may result in the immediate suspension of the Services for You, but We will use reasonable efforts in these circumstances to provide You with notice and an opportunity to remedy such breach, violation or threat prior to suspending the Services.

8. PROPERTY RIGHTS AND LICENSING

8.1. Reservation of rights

Subject to the limited rights expressly granted herein, We and Our licensors and Content providers reserve all of Our/their rights, titles and interests in and to the Services and Content, including all of Our/their intellectual property. No rights are hereby granted to You, other than set forth in this Agreement.

8.2. Access and Use of Content

You have the right to access and Use applicable Content subject to the conditions mentioned in this Agreement and the Order Form.

8.3. Authorization to host Your applications and data

You grant Us and the relevant suppliers a limited time and worldwide permission to host, copy, transmit and display Your Data as well as Non-Kimoby Applications and program codes created by or for You, as reasonably necessary for Us to provide Our Services in accordance with this Agreement. Subject to the limited licenses granted herein, We do not obtain any right, title or interest from You under this Agreement for any such Data, applications or program codes.

8.4. Permission to use Your comments

You grant Us a worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into Our Services any suggestion, request for improvement, recommendation, correction or other comment that You or Your Users have provided Us regarding the operation of Our Services.


9. CONFIDENTIALITY

9.1. Definition

Confidential information” refers to any information disclosed by a party (“Disclosing party”) to the other party (“Receiving party”), whether written or verbal, that is declared confidential or should be considered confidential considering the nature of the information or the circumstances of disclosure. Your Confidential information includes Your Data; Our Confidential information includes Services and Content; and each party’s Confidential information includes the terms and conditions of this Agreement and all Order Forms and information contained therein, as well as business and marketing plans, technology and technical information, product plans and design as well as business processes of the Disclosing party. However, Confidential information does not include information which (i) is or becomes known to the public without breach of any obligation by the Receiving party, (ii) was known to the Receiving party prior to its release by the Disclosing party without breach of any obligation by the Receiving party, (iii) is received from a third party without breach of any obligation by the Receiving party, or (iv) has been developed independently by the Receiving party.

9.2. Confidentiality agreement

The Receiving party undertakes to maintain at all times, even after termination of this Agreement, the confidentiality of any Confidential information disclosed to it by the Disclosing party. The Receiving party undertakes to respect the confidential nature of Confidential information, to not disclose it or allow it to be released to any person without the express consent of the Disclosing party, and to not make any use of the Confidential information, for any reason, except as expressly permitted herein.

10. INDEMNIFICATION

10.1. Indemnification by You

You will defend Us against any claim, lawsuit, or proceeding made or brought against Us by a third party alleging that any of Your Data violates or misappropriates its rights, or arising out of Your Use of Our Services or Content in violation of this Agreement, an Order Form or any applicable law (each being a “Claim against Us”), and You will compensate Us for any damages, attorneys’ fees and charges brought against Us as a result of a Claim against Us, or for any amount paid by Us as a result of a settlement which You have approved in writing, provided that We (a) promptly give You written notice of the Claim against Us, (b) give You absolute control of the defense and settlement of such claim (except that You may settle a Claim against Us only to the extent that the settlement unconditionally releases Us from all liability), and (c) give You all reasonable assistance, at Your expense.

11. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

11.1. Disclaimer of warranties

You acknowledge that the Use of Our Services or Content, or Your inability to Use them, is at Your sole risk. The Services and Content are, unless expressly stated to the contrary by Us, provided “as is” for Your Use, without representation, without warranties and without conditions of any kind, express or implied, including all implied warranties of merchantability, quality, adaptation for a particular use, durability, title, and absence of infringement.

11.2. Exclusion of consequential and related damages

To the extent permitted by law, Kimoby, Our directors, officers, employees, affiliates, agents, contractors, suppliers and service providers cannot be held liable for any direct or indirect loss, claim, incidental, punitive, special, or consequential damages of any kind, including but not limited to loss of profits, revenues, savings, data or any similar damages, whether contractual, tortious, of strict liability or otherwise, resulting from Your Use of the Services or Content, or any other claim related in any way to Your Use of the Services or Content, including but not limited to, any error or omission in any Service or Content, or to loss or damage of any kind arising from Use of Our Services or Content. 

Despite any contrary provisions provided in this Agreement and to the extent permitted by law, if Kimoby was held liable for any damages or prejudices that You may have suffered in connection with the Use of the Services or any Content, Kimoby’s liability could in no case be held to an amount greater than the total amount of subscription rights or similar rights associated with the Use of the Services or the Content paid by the Client over the course of 12 months prior to the initial claim against Kimoby.

12. GRANTING PERMISSION FOR TESTIMONIALS

12.1. Granting of permission

You hereby irrevocably authorize Us to copy, display, publish, or distribute Your Testimonials for the purpose of publicizing Kimoby or for other legal purposes. These statements can be used in print publications, presentation brochures, press releases, case studies, multimedia presentations, on websites, in white papers, Client references, event material, email campaigns or any other distribution medium. You agree not to make any monetary or other claim against Us for the use of the Testimonial. In addition, You waive all right to inspect and approve the final product, including a written copy of Your Testimonial or Your image. You hereby release Us from all claims, demands and valid motives that You, Your representatives, officers, directors, or any other person acting on Your behalf have or may have as a result of this authorization.

12.2. Description of Properties

You authorize Us to use the following material for Testimonials:  

  • Images and Testimonials (including names, biographical information, images, portraits, photos, voices, quotes and interview information, in part or in whole);
  • Trademarks (including the names and logos of the corporation); and
  • Photos of Kimoby Users and corporation facilities.

12.3. Specification of Kimoby Promotional Material

On behalf of Your business or organization and, if the properties include Your image or Testimonial, You authorize Us to use these properties as Kimoby Promotional Material. This includes the right to copy, translate, broadcast, disseminate, distribute, exhibit, perform, publish and display the properties as part of Kimoby Promotional Material. We have no other rights in the properties and recognize that this should not give exclusive interests in them. We do not have any obligation to user or provide compensation for any permission or right granted. We are the exclusive owners of all rights, titles, and interest, including the copyright for Kimoby Promotional Material. 

This permission may be revoked at any time by sending Us a written notice to this effect at Our email admin@kimoby.com. When appropriate, We will refrain from using the property. However, We may continue to use the property belonging to Kimoby Promotional Material, where such materials have been placed in media outlets (including but not limited to magazines, newspapers, direct mail, email campaigns, Web pages, Websites, radio, billboards and television) prior to the notice of termination, and where such placements cannot be interrupted or changed without penalty.

13. General

13.1. Third-Party Integration

If You are using third-party integration, please refer to the corresponding appendix provided with the Order Form.

13.2. Notices

Unless otherwise stated in this Agreement, all notices related to this Agreement will be made by email. Notices about billing will be directed to the appropriate contact person You have designated. All other notices concerning You will be addressed to the person You have designated.

13.3. Applicable law

This Agreement shall be governed by and interpreted in accordance with the laws of the province of Quebec and the laws of Canada applicable therein, without regard to principles of conflicts of laws.

13.4. Exclusive jurisdiction

The parties submit irrevocably and unconditionally to the exclusive jurisdiction of the courts of the Judicial District of Québec, Province of Quebec, with respect to any dispute or claim arising, directly or indirectly, from or in connection with this Agreement.

13.5. Entire Agreement and order of precedence

This Agreement, the Order Form, and all policies and procedures incorporated by reference herein constitute the entire agreement between You and Us for the Use of Our Services and Content, and voids any agreement, proposal or presentation, previous and contemporary, written or oral, relating to this subject. In the event of conflict or inconsistency in the following documents, the order of precedence must be the following: (1) the applicable Order Form, (2) this Agreement, (3) Kimoby’s policies and procedures incorporated by reference herein and (4) any documentation or information mentioned on Kimoby’s Website.

13.6. Precedence

This Agreement is also available in French on Kimoby’s Website. To the extent of any inconsistencies or conflicts between this English Agreement and the French version, the most current French version of this Agreement will prevail.

13.7. Assignement

The Client may not assign its rights or obligations under this Agreement without the prior consent of Kimoby. However, the Client may assign this Agreement in its entirety, as well as all Order Forms, without Kimoby’s prior consent, to its affiliates or as a result of a merger, acquisition, reorganization of business or sale of all or almost all of its assets. If necessary, the Client will have to inform Kimoby without delay. Notwithstanding the above, if the Client is acquired, sells almost all of its assets, or undergoes a change of control in favor of a direct competitor of Kimoby, the latter may terminate this Agreement by written notice. In the event of such termination, We will refund all prepaid fees attributable for the rest of the Subscription Period from the date of termination. Subject to the above, this Agreement binds the parties and their respective heirs, liquidators, directors, successors and authorized assignees.

13.8. Right to amend

Kimoby can amend this Agreement at any time. You will be notified of amendments by Kimoby via email, through Your account and/or on Kimoby’s Website. You acknowledge that any changes to this Agreement will bind You from the 7th day after Kimoby’s amendment (or after the required period, if a longer is required by law). If You choose not to accept the changes made to this Agreement, You must a) notify Kimoby and b) stop using the Services and Content immediately. If You do not provide notice before the changes become effective and You continue using Services, You agree that You consent to the amendment of this Agreement.

13.9. Relationships of parties

Both parties are independent. This Agreement does not create any partnership, franchise, joint venture, agency, fiduciary or working relationship between the two parties.

13.10. Waiver

You expressly waive the application of section 2125 of the Civil Code of Quebec.

13.11. Separability

If any part of this Agreement is held to be contrary to the law by a court of competent jurisdiction, this provision will be considered null and void, and the other provisions of this Agreement will remain in force.


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