Service Agreement

Last Updated: May 2021

Canalyst Financial Modeling Corporation Service Agreement

This Service Agreement (the “Agreement”) is entered into by and between Canalyst Financial Modeling Corporation, a company registered in British Columbia, Canada, whose registered address is 1700 – 1055 West Hastings Street, Vancouver, British Columbia, V6E 2E9 (“Canalyst”) and the Client as defined in a fully executed Canalyst Service Order form (“Service Order”), as of the Effective Date stated on the Service Order. Canalyst and Client are each referred to as a “Party” and collectively as the “Parties”.

This Agreement governs the access and use of all existing and future products and services (“Services”), which includes all information, materials and content therein (“Materials”), made available to Client by Canalyst via the website http://www.canalyst.com/, or such other website specified to Client by Canalyst from time to time, whether accessed by web application, mobile application, or otherwise (“Sites”).

Any terms referenced herein but not defined in this Agreement may be defined in the Service Order.

1. Subscription Access

Subject to the terms and conditions of this Agreement, Canalyst grants Client access to the Services described in the Service Order (“Subscription”) subject to the terms in this Agreement.  The Materials may be delivered to Client using interactive computer applications (which may include Microsoft Excel, Lotus 1-2-3, open source software, VisiCalc, or some other spreadsheet application) (the “Application”).

2. Grant of License

2.1.         Grant.  Subject to the terms and conditions of this Agreement, Canalyst grants a limited, non-transferable, non-exclusive, fixed-term license to access, download and use the Materials for the authorized commercial purposes (“License”).  However, the License excludes any underlying technology or intellectual property associated with the Application that may be used to deliver the Materials. The License permits the Client to alter, modify, amend, enhance, improve, and manipulate the authorized Materials as set forth in this Agreement (“Authorized Improvements”). Any other use of the Materials is unauthorized (“Unauthorized Improvements”).

2.2.         Ownership of Materials and Improvements.   Canalyst and its licensors retain full title to and ownership of the Materials. The rights provided by Canalyst to Client in and to the Services are limited only to such rights that are expressly provided for in this Agreement.  Except with respect to Client Data contained therein, any Authorized Improvements, Unauthorized Improvements and Feedback shall be deemed as owned and authored by Canalyst. Client waives all moral rights attached to Authorized Improvements, Unauthorized Improvements and Feedback (as defined below).

2.3.         Ownership of Client Data.  Subject to Section 8, Client retains full title and ownership of any data and/or information provided or submitted by or on behalf of Client to the Services and any data and related output created, derived or generated by the Client through the use of the Services (“Client Data”).  Notwithstanding anything to the contrary herein, during the term of this Agreement and following any termination, Client may use, access and display any Authorized Improvements containing Client Data for its internal business purposes only and not for any other purpose, including commercial re-sale or distribution.

2.4.         Authorized Users.  The Subscription and the License granted herein are restricted to Client and the number of users authorized in the Service Order attached hereto (“Authorized Users”). Canalyst will provide access credentials to Client for each Authorized User on an individual basis (“Access Key”) solely for the purposes set forth in this Agreement. Access Keys may not be shared without the express written consent of Canalyst.

2.5.         User Compliance.  Client shall ensure that Authorized Users observe and comply with all obligations and restrictions under this Agreement and the Service Order, and Client hereby assumes full responsibility and liability for the use of the Services, and for any breach of this Agreement, by any Authorized User or any employee, contractor, or affiliate of Client.

3. Responsible Use of the Services 

3.1.         Client represents that it shall not engage in any of the following activities: (a) facilitate access to, distribute, transmit, share, post  or reproduce the Services to or with any person that is not an Authorized User; provided that for internal working purposes, an Authorized User may share Authorized Improvements with other internal employees of his/her company; (b) transfer or share Access Keys with any person that is not an Authorized User; (c) decompile, disassemble or undertake any form of reengineering or reverse-engineering process on any part or whole of the Services or provide assistance to any effort of a third party to do so; (d) remove, cover, or otherwise alter any name or other identifying marks on the Services; (e) use the Services in any way to compete with or interfere with the performance of the Services; or (f) authorize, approve, assist or encourage any violations of this Agreement.

3.2.         No Development.  Client may not use the Services for any development purposes or to develop or use any applications or software that could in any way interfere with the performance of, or interact with, the Services.

4. Fees

4.1.         Fees.  In consideration for the Subscription and License provided herein, the Client shall pay the Company the fees in the amount and according to the terms set forth in the Service Order (“Fees”).

4.2.        Taxes. All Fees are exclusive of any and all applicable taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax), levies or duties (collectively, “Taxes”) which may be imposed in respect of the Services hereunder, except for Taxes imposed on Canalyst’s income.  If Canalyst has a legal obligation to pay or collect Taxes for which Client is responsible under this Section, the appropriate amount will be invoiced to and paid by Client, unless Client provides a valid tax exemption certificate authorized by the appropriate taxing authority.

4.3            Invoice Disputes.  In the event Client disputes any invoiced Fees, Client will provide written notice of the disputed amount within fifteen (15) days after receiving such invoice and timely pay any undisputed portion of such invoice. The parties will cooperate in good faith to resolve any disputed invoice or portion thereof within fifteen (15) days of notice of dispute. Client will promptly reimburse Canalyst for reasonable costs or expenses incurred in connection with any collection efforts undertaken by Canalyst in connection with any past due amount owed under this Agreement.

5. Representations and Warranties

5.1.         Representations and Warranties of Clients.  Client represents and warrants to Canalyst that: (a) this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against Client in accordance with its terms; (b) no authorization or approval from any third party is required in connection with Client’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

5.2.         Representations and Warranties of Canalyst.  Canalyst hereby represents and warrants to Client that: (a) this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against Canalyst in accordance with its terms; (b) no authorization or approval from any third party is required in connection with Canalyst’s execution, delivery or performance of this Agreement; (c) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound; (d) Canalyst has the right to grant the rights and licenses provided for in this Agreement; and (e) Canalyst shall, at its own cost, take all commercially reasonable steps to ensure that the Services’ licensed rights are maintained and preserved during the term of this Agreement.

5.3.           MNPI Representations.  Client will not attempt to elicit or otherwise obtain from Canalyst, and Canalyst will not attempt to provide or otherwise convey to Client (i) any material non-public or confidential information in connection with the Services or otherwise, (ii) any information that the other party has agreed to keep confidential by agreement, employer policy, fiduciary duty or otherwise or (iii) information that was obtained from a person who had an expectation that such information would remain confidential.

5.4.           Notification. Each Party represents and warrants that it will provide prompt notice to the other Party, to the extent legally permissible, in the event that any representations or warranties contained in this Agreement ceases to be accurate and/or true in any material respect.

6. Term and Termination

6.1          Term.    This Agreement shall remain in effect for so long as there is a Service Order in effect (“Term”), unless otherwise terminated as provided for herein.

6.2          Renewal.  Unless this Agreement is terminated as provided for herein, the Service Order will automatically renew for successive terms of the same length and under the same terms (subject to the pre-agreed expiry of any term limited discounts and to any amendment made in accordance with Section 17.6 and except that Canalyst may increase Fees not greater than 3% per year).  Any renewed Service Order will continue to be governed by this Agreement.

6.3.         Termination for Cause.  Either Party may terminate this Agreement “for Cause” upon written notice to the other of a breach of this Agreement by the other Party (or, in the case of a breach by Client, Client or an Authorized User), if such breach is curable and not cured within 10 days following delivery of a notice informing the other Party of the breach (except if the breach is Client repeatedly paying late (two or more times in six months) in which case termination may occur on 5 days’ notice), or if such breach is incurable. Canalyst may also terminate this Agreement “for Cause” in connection with an exercise of its mitigation rights under Section 10.1.

Termination for any reason shall not relieve Client of Client’s obligation to pay any invoiced Fees payable, including any interest which may be accrued thereon.

6.4.         Effect of Termination. The following shall occur upon termination of this Agreement:

a) The Authorized Users will cease accessing the Services, Access Keys will be deactivated and all of the Client’s rights to the Services and Materials therein (whether by Subscription or License) will terminate;

b) Canalyst reserves the right to request that the Client: (i) promptly return to Canalyst all copies of Canalyst Confidential Information other than Authorized Improvements containing Client Data in its possession, or (ii) irretrievably destroy all copies of Canalyst Confidential Information other than Authorized Improvements containing Client Data in its possession; and in either event, Client will promptly certify to Canalyst in writing confirming the return or destruction thereof, as applicable. Notwithstanding the above, Client may retain a copy of the Canalyst Confidential Information solely to the extent necessary to comply with applicable law and/or internal compliance policies, or if such copy is subject to automated or electronic backup systems; provided that under no circumstances may Client access or utilize such retained Canalyst Confidential Information and any such Canalyst Confidential Information continues to be retained after termination in accordance with the confidentiality provisions of this Agreement.

6.5.         Survival.  Any provision of this Agreement which imposes an obligation after termination of this Agreement shall survive the termination of this Agreement.

7. Confidentiality and Nondisparagement 

7.1.         Canalyst Confidential Information.  Client acknowledges that all information relating to the Services or Materials that Client obtains pursuant to this Agreement is of a confidential nature and may contain trade secrets exclusively owned by Canalyst (the “Canalyst Confidential Information”). Canalyst Confidential Information includes without limitation all Materials, Authorized Improvements, Unauthorized Improvements, Feedback (as such term is defined in Section 8), and any software, documents, communications, logic, design, structure, algorithms, assumptions, calculations, formulas, processes, technical documentation, ideas, know-how, discoveries, inventions (whether or not patentable), techniques, mask works, industrial designs, and research and development information connected to or related to the Services in each case Client receives from Canalyst.  Client may disclose Canalyst Confidential Information if required by law, legal process, or regulatory or governmental body, provided that, to the extent practicable and legally permitted, Client gives prompt advance written notice of such requirement to Canalyst.  Reasonable efforts must be made to provide this notice in sufficient time to allow Canalyst to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Client will cooperate in such efforts, at Canalyst’s expense. Notwithstanding the foregoing, Client may disclose Canalyst Confidential Information, without notice to Canalyst, to any governmental or regulatory agency in the course of or in response to a routine inquiry or examination that is not specifically targeted at the Canalyst Confidential Information or Canalyst; provided that Client inform any such authority of the confidential nature of the Canalyst Confidential Information disclosed to them.

7.2.      Client Confidential Information.  Canalyst acknowledges that all information relating to the Client’s use of the Services that Canalyst obtains pursuant to this Agreement, including search history, Service usage and all Client Data, is of a confidential nature and may contain trade secrets exclusively owned by Client (the “Client Confidential Information”).

7.3              Notwithstanding the foregoing, Canalyst Confidential Information and Client Confidential Information shall not include information that is: (i) already lawfully known by the receiving party prior to receiving such information from the disclosing party; (ii) publicly known at the time of the disclosure or becomes publicly known through no unauthorized act of any person or entity; (iii) subsequently disclosed on a non-confidential basis by a third party not having a confidential relationship with the disclosing party and such third party rightfully acquired such information; (iv) independently developed by the receiving party without reference to, or use of, the Services or Materials; or (v) communicated to a third party with the express written consent of the disclosing party.

7.4        Non-Disclosure.

a) Client shall not disclose, during the term of this Agreement or for a period of two (2) years thereafter, any Canalyst Confidential Information to any person, other than its directors, officers, employees, agents, consultants, and financial, legal, accounting and other advisors of the Client, in each case who need to know the Canalyst Confidential Information being disclosed, who are informed of the confidential nature of the Canalyst Confidential Information, who are directed to hold the Canalyst Confidential Information in the strictest confidence and who agree to act in accordance with the terms and conditions of this Agreement. Client shall take all necessary precautions or measures as may be reasonable in the circumstances to prevent improper access to the Canalyst Confidential Information. Client shall not use or exploit, directly or indirectly, the Canalyst Confidential Information for any purpose other than for the purposes provided under this Agreement.

b) Canalyst shall not disclose, during the term of this Agreement or for a period of two (2) years thereafter, any Client Confidential Information to any person, nor will Canalyst use or exploit, directly or indirectly, the Client Confidential Information for any purpose other than for the purpose of providing Services. Canalyst shall take all necessary precautions or measures as may be reasonable in the circumstances to prevent improper access to the Client Confidential Information.

7.5            Nondisparagement.  Client agrees that it will not disparage or impugn the reputation or damage the goodwill or the business of Canalyst.

8. Feedback

Any communications between Client and Canalyst, such as email or other correspondence, in which Client offers suggestions or comments for improving or modifying the Services or any part thereof (“Feedback”) will be deemed to be non-proprietary, and Client agrees that (a) the Feedback is not confidential or proprietary information of any third party and Client has all of the necessary rights to disclose the Feedback to Canalyst, (b) Canalyst may irrevocably freely use, reproduce, publicize and exploit the Feedback, and (c) Client is not entitled to receive any compensation or reimbursement of any kind from Canalyst in relation to such Feedback.  Notwithstanding the foregoing, Canalyst shall not, without consent of Client, attribute any of the Feedback to Client.

9. No Publicity

Canalyst may not reference Client (by name or logo) as a Canalyst client or as a user of the Services publicly without explicit permission by Client to do so.

10. Enforcement 

10.1.      Mitigation.  Canalyst reserves the right to take such steps as it deems reasonably necessary to restrain any unauthorized activity by the Client, which steps may include, without limitation, Subscription and License suspension and termination, and legal action.

10.2.      Equitable Relief.  Client agrees that breach of this Agreement may cause Canalyst irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Canalyst will be entitled to injunctive relief against the Client for such breach or threatened breach, without proving actual damage or posting a bond or other security.

10.3.      Breach of Agreement.  Client shall promptly notify Canalyst if it is aware or reasonably should be aware of any breach or suspected breach of this Agreement, and shall reasonably assist Canalyst to take such actions against the breaching party or suspected breaching party as Canalyst may in its discretion deem necessary.

11. Relationship Between Parties 

The Parties acknowledge and agree that each is an independent party and, as such, neither Party may represent itself as an employee, agent, or representative of the other; nor may it incur any obligations on behalf of the other Party, which is not specifically authorized in this Agreement. This Agreement does not create an association, joint venture, or partnership between the Parties, nor does it impose any partnership liability upon either Party.

12. Privacy and Data Processing 

12.1      Privacy.  As a part of accessing or using the Services and the Sites, Canalyst may collect, use and disclose certain Client Data that constitutes personal information under applicable law. Canalyst’s Privacy Policy, which is incorporated herein by reference, governs such data collection and use practices.

12.2      Data Processing.  The terms of Canalyst’s Data Processing Addendum which are hereby incorporated by reference will apply to the extent any Client Data includes personal data under applicable law.

13. Third Party Contributor Data 

Without limiting and notwithstanding any other provision of this Agreement, Client hereby acknowledges, agrees and covenants for the benefit of Canalyst and for the benefit of each Third Party Contributor, that:

a) Certain data contained or used in the Models (“Third Party Data”) may be provided by third party contributors including CDS Innovations Inc. and QuoteMedia Inc. (“Third Party Contributors”). The Third Party Data contained in the Models is provided subject to the terms and conditions of Canalyst’s contracts with the Third Party Contributors;

b) The Third Party Contributors and their licensors retain full title to and ownership of the Third Party Data contained in the Services, including all Models on the basis set out in Section 2, and the rights provided by Canalyst to Client in and to the Third Party Data in the Services are limited only to such rights that are expressly provided for in this Agreement. Client is authorized to use the Third Party Data for internal purposes only, and is not permitted to distribute or otherwise furnish the Third Party Data or permit anyone to use the Third Party Data except as set forth herein;

c) The Third Party Contributors do not provide investment advice and a reference to a particular investment or security, a credit rating or any observation concerning a security or investment contained within the Third Party Data is not a recommendation to buy, sell or hold such investment or security or make any other investment decision;

d) CANALYST DOES NOT VERIFY THE ACCURACY AND COMPLETENESS OF THIRD PARTY DATA BEFORE USING SUCH THIRD PARTY DATA IN THE MODELS. AS A RESULT, CANALYST DOES NOT PROVIDE ANY GUARANTEE AS TO THE ACCURACY AND COMPLETENESS OF MODELS AND DISCLAIMS ANY LIABILITY CONNECTED TO ANY ERRORS, MISREPRESENTATIONS, INACCURACIES, OR MISCALCULATIONS CONNECTED THERETO;

e) Client shall not make any claim, pursue any action or make any demand against any Third Party Contributor in respect of this Agreement or related to the Third Party Data, irrespective of the cause of such claim, action or demand, including but not limited to breach of contract, tort (including negligence), breach of statutory duty or any other legal theory and, for greater certainty, no Third Party Contributor shall be liable for any loss or damage suffered by Client as a result of any act or failure to act (including willful misconduct or negligence) by such Third Party Contributor, including any direct, indirect, special, incidental or consequential loss, damage, injury, cost or expense, loss of profits or revenue, failure to realize expected profits, revenue or savings or other commercial or economic loss, damage or injury, even if advised of the possibility of same;

f) Access to Third Party Data is subject to termination in the event that any agreement between Canalyst and Third Party Contributors terminates for any reason; and

g) Third Party Contributors may enforce their rights against Client as the third-party beneficiary of this Agreement, even though the Third Party Contributor is not party to this Agreement.

14. Indemnity 

14.1.      Indemnification by Canalyst.  Canalyst hereby agrees to indemnify, defend and hold harmless Client from and against any third party claim that the Services infringe a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (“Claim Against Client”), and will indemnify Client for the resulting costs and damages finally awarded against Client to such third party by a court of competent jurisdiction or agreed to in settlement, provided that Canalyst will not indemnify Client if and only to the extent that such claims arise out of the gross negligence, willful misconduct, fraud, or breach of this Agreement or unauthorized use of the Services by Client. In the event of a Claim Against Client pursuant to this Section 14.1, Canalyst may (at Canalyst’s option and expense): (i) obtain for Client the right to continue using the Services; (ii) modify the Services to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by Canalyst in its sole discretion), terminate this Agreement.

14.2.      Indemnification by Client.  Client hereby agrees to indemnify, defend, and hold harmless Canalyst from and against any and all losses, costs, expenses, claims, or damages (collectively, “Losses”) arising out of any claim, suit, action, or judgment brought against Canalyst by a third party as a result of Client’s, Client’s representatives or Authorized User’s use of the Services, any acts taken by Client, Client’s representatives or Authorized Users beyond the authority granted under this Agreement, or as a result of any breach by Client, Client’s representatives or Authorized User’s of any covenant, warranty or representation made under this Agreement, provided that Client will not indemnify Canalyst if and only to the extent that such Losses arise out of the gross negligence, willful misconduct or fraud by Canalyst.

14.3.      Indemnification Process.  As a condition of receiving an indemnification under this Agreement, the Party seeking indemnification hereunder (the “Indemnified Party”) will provide the other Party (the “Indemnifying Party”) with (a) prompt written notice of the claim; (b) complete control over the defense and settlement of the claim (provided, that the Indemnifying Party will not settle any claim without the Indemnified Party’s prior written permission if the settlement fails to unconditionally release the Indemnified Party from all liability pertaining to such claim, such permission not to be unreasonably withheld, delayed or conditioned); and (c) such assistance in connection with the defense and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request.

14.4.      Exclusive Remedy.  The foregoing indemnification provisions are in addition to, and not in derogation of, any statutory, equitable or common law remedy that Client or Canalyst, as the case may be, may have.

15. Disclaimers 

EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN SECTION 5.2, CANALYST MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, ACCURACY OF MATERIALS, OR THE NON-EXISTENCE OF ERRORS.  THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS ONLY. SERVICES ARE PUBLISHED AS OF ITS DATE ONLY, AND CANALYST HAS NO RESPONSIBILITY TO UPDATE OR AMEND ANY SUCH INFORMATION.  CANALYST DOES NOT PROVIDE FINANCIAL OR INVESTMENT ADVICE, AND THE MATERIALS SHOULD NOT BE RELIED UPON AS SUCH. CANALYST IS NOT A LICENSED FINANCIAL OR INVESTMENT ADVISOR.

THE MATERIALS MAY CONTAIN THIRD PARTY WEBSITE LINKS (THE “LINKS”). CANALYST PROVIDES THE LINKS FOR CONVENIENCE ONLY AND MAKES NO REPRESENTATIONS WHATSOEVER ABOUT ANY SITE WHOSE SERVICES MAY BE ACCESSED THROUGH CANALYST OR WHOSE SERVICES MAY BE DESCRIBED OR OFFERED THROUGH THE SERVICES. THE USE OF LINKS DOES NOT MEAN THAT CANALYST ENDORSES OR ACCEPTS ANY RESPONSIBILITY FOR THE CONTENT, OR USE, OF SUCH THIRD PARTY WEBSITE.

CLIENT EXPRESSLY ACKNOWLEDGES THAT CANALYST IS PROVIDING THE SERVICES PURSUANT TO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH HEREIN AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THIS AGREEMENT. CLIENT EXPRESSLY AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH HEREIN SHALL SURVIVE, AND CONTINUE TO APPLY IN THE CASE OF A FUNDAMENTAL BREACH OR BREACHES OF, THE FAILURE OF ESSENTIAL PURPOSE OF CONTRACT, THE FAILURE OF ANY EXCLUSIVE REMEDY OR THE TERMINATION OR SUSPENSION BY CANALYST OF CLIENT’S USE OF, OR ACCESS TO, THE SERVICES.

16. Liability Limitation 

THE MAXIMUM AGGREGATE LIABILITY OF CANALYST UNDER THIS AGREEMENT HOWEVER ARISING, SHALL BE LIMITED TO THE FEES PAID BY CLIENT TO CANALYST IN THE CURRENT SERVICE ORDER (EXCLUDING ANY RENEWALS OR APPLICABLE TAXES). NO ACTION OR PROCEEDING RELATING TO THIS AGREEMENT MAY BE COMMENCED BY CLIENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES.

IN NO EVENT SHALL CANALYST BE LIABLE TO CLIENT, ITS AUTHORIZED USERS OR TO ANY THIRD PARTY FOR: (1) ANY AMOUNTS REPRESENTING LOSS OF PROFITS OR REVENUES HOWSOEVER ARISING; (2) SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SAME; (3) DAMAGES OR EXPENSES ARISING FROM CHANGES IN OPERATING CHARACTERISTICS OF THE SERVICES WHICH ARE MADE DURING THE TERM OF THIS AGREEMENT; OR (4) DAMAGES ARISING FROM THE USE OF THE SERVICES WITH OTHER SOFTWARE.

17. General 

17.1.      Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein.  Client hereby exclusively submits to the jurisdiction of the courts of British Columbia and agrees not to oppose any action brought in British Columbia on the basis that the courts of British Columbia are not an appropriate or convenient forum for same.

17.2.      Entire Agreement.  This Agreement, which includes the Service Order (as may be renewed from time to time), constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes all previous writings and understandings (including any early access license agreement Client may have previously entered with Canalyst). In the event of a conflict between terms of this Agreement and the Service Order, the terms of this Agreement shall prevail to the extent of such conflict, except as applied to payment terms, where Service Order shall prevail to the extent of such conflict.

17.3.      Severability.  If any provision of this Agreement is or becomes fully or partially invalid or unenforceable for any reason whatsoever, this Agreement is to be considered divisible as to such provision and the remainder of this Agreement shall be valid and binding as if such provision were not included herein.

17.4.      Notice.  All notices, reports, or other communication that the Parties give each other in connection with this Agreement shall be in writing, and shall be delivered by hand, e-mail, or registered mail to the recipient at the Party’s address or e-mail as set forth in the Service Order. Proof of delivery in a prescribed manner will constitute proof of receipt.

17.5.  Assignment.  Canalyst may assign its rights, obligations and duties under this Agreement without notice to Client. Client may assign its rights, obligations and duties under this Agreement only with prior written approval from Canalyst, which approval may be unreasonably withheld.

17.6.  Amendments.  This Agreement may only be amended or modified by a written document signed by Canalyst and Client. Notwithstanding the foregoing, the parties may mutually agree by email correspondence to increase the number of Authorized Users in any Service Order, and adjust the Fees correspondingly.

17.7.  Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.

17.8.  Export Compliance.  Client will not directly or indirectly use, access, export, re-export or transfer the Services: (a) if Client is located in any jurisdiction in which the provision of the Services is prohibited under Canadian, U.S. or other applicable laws (a “Prohibited Jurisdiction”); or, (b) to any government, entity or individual located in any Prohibited Jurisdiction.

17.9.  Counterparts. The execution of this Agreement, which is evidenced by the Parties’ signing of the Service Order, may be done electronically and in one or more counterparts, each of which shall be deemed an original, but all of which taken together constitute one and the same instrument.