These Terms & Conditions (this “Agreement”) govern the relationship between Keen Decision Systems, Inc. (“Keen”), a North Carolina corporation with its principal office located at 700 Park Offices Dr Ste 150, RTP, North Carolina 27709, and the client (“Client”) identified in the account registration form (the “Registration Form”), and Client’s access to and use of the Keen Platform. Each of Keen and Client may be referred to herein individually as a “Party,” and collectively as the “Parties.” Initially capitalized Terms used but not otherwise defined herein shall have the meanings set forth in Section 11.
This Agreement is effective upon the date Client submits a Registration Form referencing this Agreement to Keen. Client’s submission of such Registration Form constitutes Client’s agreement to the terms and conditions set forth in this Agreement, and the terms of such Registration Form are hereby incorporated into this Agreement by reference.
- SaaS Services. Keen hereby grants Client the right for its Authorized Users to access and use the SaaS Services for Client’s internal use. Keen reserves the right, in its sole discretion, to discontinue or make changes to the SaaS Services at any time.
- Use Restrictions; Suspension.
- Use Restrictions. Client shall not, and shall not permit Representatives to, access or use the SaaS Services except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, Client shall not, and shall ensure that its Representatives shall not, except as this Agreement expressly permits: (a) copy, modify or create derivative works or improvements of the SaaS Services or Keen Technology; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any SaaS Services or Keen Technology to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the SaaS Services or Keen Technology, in whole or in part; (d) bypass or breach any security device or protection used by the SaaS Services or Keen Technology or access or use the SaaS Services or Keen Technology other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the SaaS Services or Keen Technology, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the SaaS Services or Keen Technology or Keen’s provision of services to any Third Party, in whole or in part; (g) remove, delete, alter or obscure any trademarks, warranties, or disclaimers or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any SaaS Services or Keen Technology, including any copy thereof; (h) access or use the SaaS Services or Keen Technology in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Third Party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Keen client), or that violates any applicable law; (i) access or use the SaaS Services or Keen Technology for purposes of competitive analysis of the SaaS Services or Keen Technology, the development, provision, or use of a competing software service or product or any other purpose that is to Keen’s detriment or commercial disadvantage; or (j) otherwise access or use the SaaS Services or Keen Technology beyond the scope of the authorization granted under this Agreement.
- Suspension of Services. Keen may, without liability to Client, suspend performance under this Agreement (including by suspending Client’s or any Authorized User’s access to the SaaS Services) with or without notice to Client. This Section 2 does not limit any of Keen’s other rights or remedies, whether at law, in equity or under this Agreement.
- Client Responsibilities
- Cooperation. Client shall: (a) acquire and maintain Internet service and any hardware or software required to access and use the SaaS Services; (b) provide all information, cooperation, and assistance as Keen may reasonably request to enable Keen to make available the SaaS Services; and (c) retain sole responsibility for all access to and use of the SaaS Services or Keen Technology by any Person by or through the Access Credentials or any means controlled by Client or any Authorized User, with or without Client’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
- Corrective Action and Notice. If Client becomes aware of any actual or threatened activity prohibited by Section 2, Client shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the SaaS Services or Keen Technology and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Keen of any such actual or threatened activity.
- Client Data. Client has and will retain sole responsibility for, all Client Data and the content and use thereof. Client represents, warrants, and covenants to Keen that: (a) Client owns or otherwise has, and will have, all necessary rights and consents in and relating to the Client Data so that, as received and used by Keen or its Affiliates in accordance with this Agreement, such Client Data does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any Third Party or violate any applicable law, rule or regulation; and (b) Client Data will not include any Personal Information or PHI, except upon Keen’s prior written consent.
- Intellectual Property Rights
- Keen Technology. As between Client and Keen, all right, title, and interest in and to the Keen Technology, including all Intellectual Property Rights therein, is and shall remain the sole and exclusive property of Keen. Client and Authorized Users may provide Keen with error reports, suggestions, feedback, oral and written reports, ideas, or concepts regarding the SaaS Services (collectively, “Feedback”). To the extent Client or Authorized Users provide Feedback, Client hereby assigns to Keen all right, title, and interest in and to Feedback, including all intellectual property rights embodied therein. Except as set forth in Section 1, nothing in this Agreement grants any right, title, or interest in or to any Intellectual Property Rights in or relating to the Keen Technology, whether expressly, by implication, estoppel or otherwise. Keen reserves all rights in the Keen Technology not explicitly granted herein.
- Client Data. As between Client and Keen, all right, title, and interest in and to the Client Data, including all Intellectual Property Rights therein, is and shall remain the sole and exclusive property of Client. Notwithstanding the foregoing, Client hereby grants to Keen and its Affiliates a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up, transferable, sublicensable, license to access, use, and modify the Client Data for the internal business purposes of Keen and its Affiliates.
- Definition of Confidential Information. “Confidential Information” means all confidential or proprietary information disclosed during the Term of the Agreement by a Party (the “Disclosing Party”) to the other Party or its Representatives (the “Receiving Party”), and which: (a) if disclosed in written, electronic, or tangible form, is prominently marked as “confidential”; or (b) if disclosed in intangible form (g., orally) which cannot be marked as “confidential,” the Receiving Party designates as confidential in a written notice to the Receiving Party promptly after disclosure thereof.
- Exceptions. Notwithstanding Section 1, the term “Confidential Information” shall not include information disclosed to the Receiving Party, to the extent that the Receiving Party can establish that such information: (a) is or becomes part of the public domain, other than by breach of this Agreement by the Receiving Party; (b) was lawfully in the Receiving Party’s or any of its Representatives’ possession at the time of disclosure by the Disclosing Party, from a source other than the Disclosing Party; (c) is provided to the Receiving Party or any of its Representatives without any obligation of confidentiality or restriction on use by a Third Party; or (d) is independently developed or acquired by the Receiving Party or its Representatives without use of the Disclosing Party’s Confidential Information.
- Confidentiality Obligations. The Receiving Party shall take no less than reasonable security measures to maintain the confidentiality of the Disclosing Party’s Confidential Information and prevent the disclosure (except as permitted under this Agreement).
- Permitted Disclosures. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its Representatives, provided that such Representatives are subject to confidentiality obligations with respect to such Confidential Information. The Receiving Party shall be responsible for any disclosure of the Disclosing Party’s Confidential Information in violation of this Agreement by the Receiving Party’s Representatives. Notwithstanding the foregoing, the Receiving Party may also disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is: (a) necessary for the Receiving Party to enforce its rights under this Agreement; or (b) required by Applicable Law or by the order of a court or similar judicial or administrative body of competent jurisdiction, provided that the Receiving Party, as permitted by Applicable Law, (i) promptly notifies the Disclosing Party of such required disclosure in writing, and (ii) reasonably cooperates with the Disclosing Party, at the Disclosing Party’s expense, in any lawful action to contest or limit the scope of such required disclosure.
- Disclaimer of Warranties. THE SAAS SERVICES, OUTPUT, AND KEEN TECHNOLOGY ARE PROVIDED “AS IS,” WITHOUT ANY GUARANTEES OR WARRANTIES OF ANY KIND WHATSOEVER. KEEN HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES (WHETHER WRITTEN, ORAL, EXPRESS, OR IMPLIED), INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CLIENT ACKNOWLEDGES AND AGREES THAT KEEN SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY DECISIONS, ACTIONS, OR OMISSIONS UNDERTAKEN BY CLIENT, ITS REPRESENTATIVES, OR AUTHORIZED USERS AS A RESULT OF ACCESS TO OR USE OF THE SAAS SERVICES, KEEN TECHNOLOGY, OR OUTPUT.
- Indemnification. Client shall indemnify, defend, and hold harmless Keen and its Representatives (collectively, “Keen Indemnified Parties”) from and against any and all Losses incurred by or imposed upon any Keen Indemnified Party in connection with any claims, suits, actions, or other proceedings brought or asserted by a Third Party (each, a “Claim”) (including Claims made or brought by Authorized Users), to the extent arising out of: (a) any use of the SaaS Services, Keen Technology, or Output by Client, its Representatives, or Authorized Users; (b) Keen’s use of Client Data in accordance with this Agreement; (c) Client’s breach of this Agreement; or (d) any negligence, willful misconduct, or violation of applicable laws, rules, or regulations by Client, its Representatives, or Authorized Users in connection with this Agreement.
- Limitations of Liability
- Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KEEN HAVE ANY LIABILITY HEREUNDER, FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KEEN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EXCEED FIVE HUNDRED DOLLARS ($500). THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Term; Termination
- Termination. Keen may terminate this Agreement at any time, with or without cause.
- Effect of Termination or Expiration. Upon any termination of this Agreement, except as expressly otherwise provided herein: (a) all rights of Client and Authorized Users to access and use the SaaS Services will immediately terminate; (b) Client and all Authorized Users shall immediately cease all use of SaaS Services.
- Surviving Terms. The provisions set forth in the following Sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 2, 3, 4, 5, 6, 7, 8, 9.2, 9.3, 10, and 11.
- Miscellaneous
- Use of Name. Neither Party shall use the other Party’s name or logo without such other Party’s prior written consent. Notwithstanding the foregoing, Client hereby consents to Keen’s use of Client’s name and logo in Keen’s marketing and promotional materials and on Keen’s website.
- Independent Contractors. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to create a joint venture or partnership between the Parties or to give either Party the power to act as agent for the other or to enter into any agreement on behalf of the other Party.
- Assignment; Successors. Client shall not assign this Agreement or its rights or obligations hereunder without Keen’s prior written consent, which consent shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties. Any attempted assignment of this Agreement or any rights or obligations hereunder in contravention of this Section 3 shall be void ab initio.
- Notices. Keen shall send notices to Client by Client’s email or via a nationally recognized overnight courier to the email address or physical address associated with Client’s Registration Form. Client shall send notices to Keen via a nationally recognized overnight courier to the following address: PO Box 12137, Durham, North Carolina 27709, Attention: Legal Notices. Notices given in accordance with this Section 4 will be deemed to have been properly given one (1) business day after the date sent.
- Entire Agreement. This Agreement constitutes the entire agreement and understanding between Keen and Client, and supersedes all prior and contemporaneous agreements, documents, and proposals, oral or written, between Keen and Client.
- No Waiver. A Party’s failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
- Amendment. This Agreement may not be amended or modified except by the written consent of both Parties.
- Governing Law; Forum Selection. This Agreement and action related thereto shall be governed by, construed, and interpreted in accordance with the laws of the State of North Carolina, USA, without regard to any choice of law principle that would dictate the application of the law of another jurisdiction. The Parties hereby irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Durham, North Carolina, which shall be the sole forum regarding any actions, suits, or other legal proceedings relating to this Agreement. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT.
- Construction; Interpretation. This Agreement shall be interpreted in accordance with its terms, without any strict construction against or in favor of the drafting Party. The descriptive headings of this Agreement are for convenience only, and shall be of no effect in construing or interpreting any provision. As used in this Agreement, the term “including” (or “includes”) shall be deemed to mean “including without limitation” (or “includes without limitations”), and the word “or” shall be deemed to be disjunctive but not necessarily exclusive.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then: (a) such invalidity or unenforceability will not affect the other provisions of this Agreement; and (b) such invalid or unenforceable provision will be reformed as necessary to make it valid and enforceable, in a manner that most closely approximates the original intent of such provision.
- Certain Definitions
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the SaaS Services.
“Affiliate” means, with respect to a Person, any legal entity which directly or indirectly controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” means the power to direct a Person (or to cause the direction of the management of such Person), whether through ownership of more than fifty percent (50%) of the voting securities of such Person, by contract, or otherwise.
“Authorized User” means Client’s employees, agents, and Third Parties pre-approved in writing by Keen: (a) who are authorized by Client to access and use the SaaS Services under the rights granted to Client pursuant to this Agreement; and (b) for whom access to the SaaS Services has been purchased hereunder.
“Client Data” means any and all information, data, text, content, videos, images, audio clips, photos, graphics, or other types of content, information, or data posted, provided, inputted, or uploaded by or on behalf of Client (including by Authorized Users) to the Keen Platform.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby; or (b) prevent Client or any Authorized User from accessing or using the SaaS Services or Keen Technology as intended by this Agreement.
“Intellectual Property Rights” mean any and all currently known or hereafter existing: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing ((a)-(e)), in each case, in any jurisdiction throughout the world.
“Keen Platform” means a limited-feature version of Keen’s proprietary marketing analytics software-as-a-service platform made available to Client free of charge pursuant to this Agreement.
“Keen Technology” means, collectively: (a) the Keen Platform; (b) (i) the computer software, computer code, scripts, neural networks, artificial intelligence, application programming interfaces, methodologies, processes, templates, work flows, diagrams, tools, algorithms, formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, Third-Party services and other tangible or intangible technical material, information and works of authorship, and (ii) the information technology infrastructure including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Keen or through the use of Third-Party services, in each case ((i) or (ii)) underlying or otherwise used to operate and make available the SaaS Services; (c) all derivative works of any of the foregoing; and (d) all Intellectual Property Rights in or to any of the foregoing. For the avoidance of doubt, Keen Technology does not include Client Data.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees.
“Output” means, except to the extent constituting Keen’s Confidential Information, any output derived or generated from Client’s or its Representatives’ use of the SaaS Services or input of Client Data into the Keen Platform.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means: (a) any information about an identified or identifiable individual; and (b) information that is not specifically about an identifiable individual but, when combined with other information, may identify an individual. Personal Information includes names, email addresses, postal addresses, telephone numbers, government identification numbers, financial account numbers, payment card information, credit report information, biometric information, IP addresses, network and hardware identifiers, and geolocation information. Personal Information does not include the Parties’ business contact information (e.g., business addresses, phone numbers, and email addresses) or contact persons’ names, provided such information is used solely to facilitate the Parties’ communications for administration of this Agreement.
“Protected Health Information” or “PHI” has the meaning given to the term “protected health information” under the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-91), as amended, and the regulations promulgated thereunder (collectively, “HIPAA”).
“Representatives” means, with respect to a Party, such Party’s Affiliates, and its and their respective employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“SaaS Services” means the features and functionalities of the Keen Platform to be provided by Keen on a software as a service basis.
“Third Party” means any Person other than a Party or an Affiliate of a Party. “Third-Party” has the corresponding meaning.