Terms of Service

Each Party represents and warrants that (i) it has the right and authority to enter into this Agreement and to comply with and perform its obligations hereunder; and (ii) it has not entered into any other agreement(s) inconsistent with its performance under this Agreement.

CLIENT also represents and warrants that CLIENT shall provide complete and accurate financial and related information to K9.

K9 represents and warrants for a period of thirty (30) days after performance of Services that such Services will be performed in a workmanlike manner in accordance with industry standards. If CLIENT reasonably believes that the Services were performed in a manner that does not comply with this warranty, CLIENT will notify K9 within such thirty (30) day period and in such case K9 will re-perform the non-compliant Services. The foregoing constitutes K9’ sole obligation and CLIENT’s sole remedy for a breach of the foregoing representation and warranty.

Except as stated in this Section 5, the Services are provided without warranty of any kind, either express or implied, including without limitation any implied warranties of condition, merchantability, fitness for a particular purpose, or non-infringement. No oral or written information or advice given by K9, its owner(s), member(s), employee(s) and/or consultant(s) shall create a warranty, and CLIENT may not rely on any such information or advice.

TERMINATION.

K9 may terminate this Agreement for any reason or no reason by providing a written notice of termination to CLIENT (a “Notice of Termination”).

CLIENT may terminate this Agreement by submitting a written request for cancellation to the email address provided by K9 (a “Cancellation Request”), at least ten (10) days prior to the next Monthly Billing Cycle, for monthly clients, or Annual Billing Cycle, for annual clients. CLIENT’s termination of this Agreement shall be effective at the end of the then current Monthly Billing Cycle or Annual Billing Cycle, as applicable, following CLIENT’s submission of a Cancellation Request, or at the end of the month in which Client submits a cancelation request pursuant to Section 6(d) below (the “Termination Date”).

In no event shall CLIENT be entitled to receive any refunds of fees paid by CLIENT for the Monthly Billing Cycle in which CLIENT terminated the Agreement.

If CLIENT purchased a Service Plan at the Annual Rate, and CLIENT terminates the Agreement more than sixty (60) days prior to the end of the Annual Billing Cycle, K9 shall refund the difference between (a) the Annual Rate paid by CLIENT, and (b) the Monthly Rate for CLIENT’s chosen Service Plan, multiplied by the number of months from CLIENT’s purchase of the Service Plan until the Termination Date less any outstanding fees owed by CLIENT to K9 (the “Rate Difference”). K9 shall refund the Rate Difference to CLIENT within thirty (30) days of the Termination Date.

The amount of time from the submission of a Cancellation Request by CLIENT or Notice of Termination by K9 until the Termination Date shall be referred to herein as the “Termination Period.” During the Termination Period, Services then in progress shall be completed if reasonably possible, and no new assignments and/or projects shall be undertaken unless the Parties agree in a separate writing, signed by both Parties, to specific terms governing such services.

Upon termination of this Agreement, CLIENT shall promptly pay all Fees for Services performed through the end of the Term, regardless of whether Services on a specific project have been completed.

INDEPENDENT CONTRACTOR. It is understood, agreed, and acknowledged that K9 is an independent contractor, and that K9 and/or any of its owner(s), employee(s), and/or consultant(s) shall not be considered or deemed, an employee of CLIENT for any purpose. K9 shall have sole control of the manner and means of performing the Services.

DISCLAIMER OF WARRANTIES. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(a) ABOVE, K9 MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Services to both the CLIENT and K9, the risks have been allocated such that CLIENT agrees, to the fullest extent permitted by law, to limit the liability of K9 and K9’s member(s), owner(s), director(s), officer(s), partner(s), employees, consultants, and advisors (collectively, the “K9 Parties”) as set forth in this Section.

IN NO EVENT SHALL THE K9 PARTIES BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY LOSSES OR DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT AND/OR THE SERVICES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO THE CLAIM.

THE LIABILITY OF THE K9 PARTIES FOR ANY CLAIMS, LIABILITIES, OR EXPENSES WHATSOEVER, INCLUDING ATTORNEYS’ FEES AND COSTS AND EXPERT WITNESS FEES AND COSTS, ARISING FROM OR RELATING TO THIS AGREEMENT AND THE SERVICES PERFORMED HEREUNDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, OR OTHERWISE (COLLECTIVELY, THE “CLAIMS”) SHALL IN NO EVENT IN THE AGGREGATE EXCEED THE AMOUNT OF FEES PAID BY CLIENT IN THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT THE CAUSE OF ACTION GIVING RISE TO LIABILITY OCCURRED.

Neither Party may bring any action arising out of the Services and/or otherwise under this Agreement, regardless of form, more than one (1) year after the earlier to occur of (i) the Termination Date; or (ii) the date on which the last Services were rendered under this Agreement.

INDEMNIFICATION. CLIENT shall indemnify and hold harmless the K9 Parties from and against all damages, liabilities or costs including without limitation reasonable attorneys’ fees and defense costs, arising out of or related to: (a) a breach of this Agreement by CLIENT; (b) third-party claims arising from reliance by third-parties on any Services or items delivered by K9 to CLIENT hereunder; (c) any and all acts and/or omissions of CLIENT connected with the Services and/or with this Agreement, including without limitation misrepresentations and/or fraud by CLIENT and/or any and all of its shareholders, members, directors, officers, employees, consultants, and advisors; and/or (d) errors resulting from incomplete or inaccurate information provided by CLIENT.

CONFIDENTIAL INFORMATION.

In the course of receiving or providing Services hereunder, each Party may view or otherwise come into contact with certain nonpublic and proprietary information of the other Party (the “Confidential Information”). CLIENT acknowledges and agrees that the K9 Property (as defined below) constitutes the Confidential Information of K9. The Party receiving the other Party’s Confidential Information (the “Receiving Party”) shall protect the Confidential Information of the disclosing Party (the “Disclosing Party”) exercising at least the same degree of care as it uses with regard to its own confidential information, but in no event less than a reasonable degree of care. The Receiving Party may use the Disclosing Party’s Confidential Information as necessary to receive or perform the Services, and for no other purpose. The Receiving Party may disclose the Disclosing Party’s Confidential Information: (i) to its subcontractors, advisers, attorneys and accountants, provided that such persons are bound by confidentiality obligations comparable to those contained herein (and in such case, the Receiving Party shall be responsible for any disclosure by its and its contractors’ personnel of the Disclosing Party’s Confidential Information); (ii) as may be required by law or regulation, or to respond to governmental inquiries; provided that, to the extent permitted by applicable law or regulation, prior to making any such disclosure, the Receiving Party shall provide the Disclosing Party with prompt written notice of such requirement, and the Receiving Party shall provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, so that the Disclosing Party may seek a protective order or other remedy. If K9 is required pursuant to the request of a legal or regulatory authority or requested by CLIENT to cooperate in an investigation, including without limitation, in participating in interviews, serving as a witness or producing CLIENT’s documents, CLIENT shall pay K9 for the time spent in connection therewith, at the then-current hourly rates.

CLIENT hereby authorizes K9 and hereby provides its consent to K9 to disclose or use CLIENT’s information provided hereunder: (i) for the purpose of providing CLIENT with materials and information, including newsletters or other business-related items; and (ii) for the purpose of sharing CLIENT’s tax return information with others involved in providing the Services hereunder.

“Confidential Information” does not include any data or information that (i) has become generally known to the public other than through disclosure by the Receiving Party; (ii) has been approved for release by written authorization by the Disclosing Party; or (iii) is independently developed by the Receiving Party without use, directly or indirectly, of the Disclosing Party’s Confidential Information. In no case shall the tax treatment or the tax structure of any transaction be treated as confidential as provided in Treas. Reg. sec. 1.6011-4(b)(3). Notwithstanding any other provision to the contrary, K9 may use and disclose any knowledge and ideas acquired in connection with the Services to the extent retained in the unaided memory of its personnel.

Upon the request of the Disclosing Party, the Receiving Party shall return or destroy any and all of the Confidential Information of the Disclosing Party, except for (i) copies retained in Work Paper (as defined below) files retained to comply with K9’ professional or legal obligations or to exercise its rights; and (ii) such Confidential Information located on electronic back-up tapes (in accordance with the Receiving Party’s normal data back-up procedures) where such tapes are not easily accessible to Receiving Party’s employees or personnel. Notwithstanding anything herein to the contrary, K9 shall have the right to retain a copy of CLIENT’s Confidential Information and any summaries, analyses, notes, or extracts prepared by K9 which are based on or contain portions of such Confidential Information of CLIENT to the extent necessary to evidence the Services, provided that such Confidential Information remains subject to the confidentiality obligations hereunder.

INTELLECTUAL PROPERTY. K9 shall retain all right, title and interest in and to the ideas, concepts, know-how, and techniques of K9, including, without limitation, with respect to any report, computer program (source code and object code) or programming, material, documentation, manual, chart, specification, formula, database architecture, template, system model, copyright, diagram, description, screen display, schematic, blueprint drawing, tape, license, listing, invention, record or other materials, and all intellectual property rights relating thereto, regardless of when developed (collectively, the “K9 Property”). To the extent K9 uses any K9 Property in connection with its provision of the Services and items arising therefrom, K9 grants to CLIENT, upon payment in full for the applicable Services, a limited, terminable non-transferrable, royalty-free, non-assignable right to use such K9 Property to the extent included in the Services and items resulting therefrom during the Term, solely in connection with CLIENT’s use of the Services and items arising therefrom (and not on a stand-alone basis), and solely for its internal purposes (and for no other purpose). Except for the foregoing license grant, K9 or its licensors retain all rights in and to all K9 Property. CLIENT shall not copy, disassemble, reuse, reverse engineer or otherwise use the K9 Property except as expressly permitted herein. Upon termination of this Agreement, CLIENT shall promptly return the K9 Property to K9. CLIENT acknowledges that K9 prepares working papers in support of its performance of the Services (“Working Papers”). Working Papers prepared by K9 pursuant to this Agreement belong to K9.

NON-SOLICITATION.

CLIENT covenants that during the Term and for a period of eighteen (18) months thereafter, CLIENT shall not, directly or indirectly, solicit, encourage, and/or otherwise entice, hire or otherwise engage, any current or former employee and/or consultant of K9, to work, or provide services, for any individual and/or entity other than K9 (such as, without limitation, directly for the CLIENT).

If CLIENT breaches its obligation under Section 13(a) above, CLIENT shall promptly pay K9 $70,000 (seventy thousand US dollars) as liquidated damages for each event of breach thereof (for example and without limitation, if CLIENT hires, or takes steps towards hiring, a K9 employee or consultant directly). The Parties agree that quantifying losses arising from CLIENT’s breach of Section 13(a) of this Agreement is inherently difficult insofar as each such breach may impact K9’s reputation, negatively affect employee retention, cause K9 to lose (i) the income value such person is reasonably expected to bring to K9; (ii) valuable financial and other resources that have been expended, and would reasonably have to be expended again, relative to hiring, training, and other opportunity costs in respect to replacing such personnel, and further stipulate that the agreed upon sum is not a penalty, but rather a reasonable measure of damages, based upon the Parties’ business experience and given the nature of the losses that may result from each such breach. This provision is in addition to any other rights and remedies of K9 hereunder.

NON-DISPARAGEMENT. CLIENT shall not engage in any conduct or communication designed to disparage K9, such as, without limitation, making any statements, verbal or written, offline or online, or causing or encouraging others to make any statements, verbal or written, that defame, disparage, or in any way criticize, the personal or business reputation, practices, or conduct of K9 and/or its members, sponsors, products, services, employees, consultants, advisors, and/or CLIENTs. Additionally, CLIENT is and shall remain expressly prohibited from writing and/or publishing any article, book or publication, regardless of its tone, intent and/or content, about K9 and/or its owner(s), employees, consultants, advisors, CLIENTs, and any aspect of its business..

REMEDIES. In the event of breach or threatened breach by CLIENT of any provision of this Agreement, K9 shall be entitled to seek relief by temporary restraining order, temporary injunction, and/or permanent injunction, without posting any bond. The pursuit of any remedy at any time shall not be deemed to exclude the right to, or the pursuit of, any other remedy, whether or not stated herein, or a waiver of any term and/or condition of this Agreement and/or the right to pursue any remedy.

MISCELLANEOUS.

Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). All Notices shall be deemed to have been delivered (i) on the date personally delivered; or (ii) one week after the date deposited in a receptacle maintained by the United States Postal Service for such purpose, postage prepaid, by certified mail, return receipt requested; (iii) upon receipt, after properly sent by a nationally recognized overnight mail courier (such as Federal Express); or (iv) on the date sent by facsimile or email.

Severability. If any provision contained in this Agreement is deemed to be void, illegal or unenforceable, in whole or in part, then the other provisions contained herein shall remain in full force and effect as if the provision deemed void, illegal, or unenforceable had not been contained herein.

Assignment and Subcontracting. CLIENT shall not without K9’ prior written consent assign this Agreement, or any right or obligation hereunder, to any individual and/or entity, and any such attempt will be null and void. For purposes of this provision, a change in control of CLIENT shall constitute an assignment. K9 may assign this Agreement to a parent, subsidiary, affiliate, or to a successor or surviving corporate entity of any such entity, and/or in the event of a merger or consolidation of K9 or in connection with the sale of all or substantially all of its business and/or assets and/or equity ownership, without the prior consent of CLIENT. K9 may use subcontractors in the performance of its obligations hereunder.

Waiver; Modification; Integration; Binding Effect. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either Party. This document contains the entire agreement of the Parties concerning the relationship described herein and supersedes any and all other agreements, either oral or written, between the Parties with respect to such relationship. This Agreement may not be modified, altered or amended except in a writing signed by both Parties. Neither Party has, directly or indirectly, performed or caused to be performed any act or omission which may have the effect of depriving the other Party of the rights and benefits conferred by this Agreement. This Agreement shall be binding and effective upon the Parties and their respective permitted successors-in-interest.

Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the law of the State of New York. Subject to Section 16(h) below, each of the Parties hereby irrevocably consents, and hereby submits, to the personal jurisdiction of the Courts located in the City of New York, County of Kings, for the adjudication and resolution of any dispute, controversy or claim arising out of or in connection with this Agreement.

Jury trial waiver. THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION, OR PROCEEDING ON ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES CONTEMPLATED HEREIN. THE PARTIES HERETO ACKNOWLEDGE THAT EACH MAKES THIS WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH THEIR ATTORNEYS.

Class action waiver. To the extent permitted by law, the Parties agree that any suit, action or proceeding on any matter arising out of or relating to this Agreement or the Services contemplated herein must be pursued on an individual basis only. The Parties waive any right to commence or be a party to any class, collective or representative action or to bring jointly or collectively any claim. To the extent CLIENT is permitted by law or court of law to proceed with a class or representative action against K9, the Parties agree that: (i) CLIENT shall not be entitled to recover attorneys’ fees or costs associated with pursuing the class, collective or representative action; and (ii) the Party who initiates or participates as a member of the class will not submit a claim or otherwise participate in any recovery secured through the class, collective or representative action.

Arbitration. The above notwithstanding, K9 has the sole right to request that any dispute, controversy or claim between K9 and CLIENT, whether arising out of or relating to the construction and interpretation of this Agreement or otherwise (including without limitation claims for fraud, misrepresentation, intentional tort, negligent tort or under any local, state or federal statute or rule), be submitted to arbitration before and in accordance with the commercial rules of the Beth Din of America in New York, New York. K9 may demand that such dispute be submitted to arbitration either by (i) sending a written notice of intent to arbitrate to CLIENT in accordance with the notice provision in this Agreement, or (ii) sending a written notice of intent to arbitrate to the attorney of record for CLIENT, who has brought any action or proceeding before any court or tribunal against K9. Initially, the Parties will split the arbitration filing fee, administration fee and arbitrator fee. If K9 prevails in arbitration, the arbitrator may award to K9 its attorneys’ fees and share of the arbitration filing fee, administration fee and arbitrator fee.

Headings; Gender; No Presumption; No Third Party Beneficiaries; Counterparts. Paragraph headings are for convenience purposes only and are not be used to construe or interpret the provisions of this Agreement. Gender language is to be construed as reasonably applicable within the context. There shall be no presumption against a Party who drafted, or had drafted on its behalf, this Agreement. There are no third party beneficiaries of this Agreement; this Agreement is solely for the Parties’ benefit and not for the benefit of any other person and/or entity, except for successors-in-interest and permitted assigns. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but which together shall constitute one and the same instrument.

Internet Communications. K9 disclaims and waives, and the CLIENT releases K9 from and against liability for the interception or unintentional disclosure of e-mail transmissions or for the unauthorized use or failed delivery of e-mails transmitted or received by K9 pursuant to this Agreement.

Survival. The following provisions shall survive termination of this Agreement: Sections 3(d), 4(c), 6(e) and 7-16 inclusive.

Force Majeure. Other than with respect to the payment of Fees, neither Party shall be liable for any delays or non-performance directly or indirectly resulting from circumstances or causes beyond its reasonable control, including, fire, epidemic or other casualty, act of God, war or other violence, or any law, order or requirement of any governmental agency or authority.