Software Subscription and Services Terms and Conditions

These Software Subscription and Services Terms and Conditions (the “Terms and Conditions”) govern the provision of Services by Keen Decision Systems, Inc., a North Carolina corporation (“Keen”) to the client (the “Client”) identified in the order (the “Order”) executed by Company and the Client and referencing these Terms and Conditions (each of Company and Client, a “party” and collectively, the “parties”).  Each Order specifically describes the Services to be provided by Keen, the fees to be paid by Client, the Term, and any special terms and conditions. By executing an Order the Client agrees to be bound by these Terms and Conditions and the Order (collectively, the “Agreement”). In the event of any conflict between the Terms and Conditions and the Order, the Order shall control.  Capitalized terms not defined in the body of these Terms and Conditions shall have the meaning ascribed to them in Exhibit A attached to these Terms and Conditions.

1. MIDA Services

  1. Access to and Use of MIDA Services.
    Subject to and conditioned on Client’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Keen hereby grants Client the right to access and use the MIDA Services and Documentation during the Term solely for use by Authorized Users for the purpose described in the Order. Such use is limited to Client’s internal use. Authorized Users will have no right to use the MIDA Services except as expressly provided in the Order.  Except as otherwise expressly provided in this Agreement, as between the Parties, Keen has and will retain sole control over the operation, provision, maintenance and management of MIDA Services and Keen Systems.
  2. Reservation of Rights.
    Except for the rights and licenses expressly granted to Client in Section 1.1, nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to the MIDA Services, MIDA Applications or Keen Materials, whether expressly, by implication, estoppel or otherwise.
  3. Changes.
    Keen reserves the right, in its sole discretion, to make any changes to the MIDA Services, MIDA Applications and Keen Materials that it deems necessary or useful to maintain or enhance Keen’s services generally or to comply with applicable Law.
  4. Suspension or Termination of MIDA Services.
    Keen may, directly or indirectly, suspend, terminate or otherwise deny Client’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the MIDA Services, MIDA Applications or Keen Materials, without incurring any resulting obligation or liability, if: (a) Keen receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Keen to do so; or (b) Keen believes, in its reasonable discretion, that: (i) Client or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the MIDA Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; or (ii) Client or any Authorized User is, has been or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the MIDA Services. This Section 1.4 does not limit any of Keen’s other rights or remedies, whether at law, in equity or under this Agreement.
  5. Professional Services. 
    Keen will use commercially reasonable efforts to perform the Professional Services set forth in the Order. 

2. Use Restrictions.

  1. Client will not, and will not permit any other of its Representatives to, access or use the Keen Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Client will not, except as this Agreement expressly permits: (a) copy, modify or create derivative works or improvements of the Keen Materials (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Keen Materials 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 software included in the Keen Materials, in whole or in part; (d) bypass or breach any security device or protection used by the MIDA Services or Keen Systems or access or use the Keen Materials 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 MIDA Services or Keen Systems, 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 MIDA Services, Keen Systems or Keen’s provision of services to any third party, in whole or in part; (g) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Keen Materials, including any copy thereof; (h) access or use the Keen Materials 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 Keen Materials for purposes of competitive analysis of the MIDA Services or MIDA Applications, 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 Keen Materials beyond the scope of the authorization granted under Section 1.1.
  2. Client Systems and Cooperation.
    Client will at all times during the Term: (a) set up, maintain and operate in good repair all Client Systems on or through which the MIDA Services are accessed or used; (b) provide Keen Personnel with such access to Client’s premises and Client Systems as is necessary for Keen to perform the Services; (c) provide all cooperation and assistance as Keen may reasonably request to enable Keen to exercise its rights and perform its obligations under and in connection with this Agreement; and (d) retain sole control over the operation, maintenance and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of Keen Materials by any Person by or through the Client Systems or any other means controlled by Client or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the MIDA Services or Keen; (ii) results obtained from any use of the Keen Materials; and (iii) conclusions, decisions or actions based on such use. Client shall reasonably cooperate with Keen in the performance of the Services.  Keen shall not be responsible for any delays or issues arising from Client’s failure to comply with this Section 2.2.

3. Financial Terms

  1. Services Fees. 
    Client will pay Keen the fees set forth in the Order (“Fees”) in accordance with this Section 3 and the Order.  
  2. Payment Terms. 
    Except as provided in the Order, Client will pay all Fees within thirty (30) days after the date of the invoice therefor. Client will make all payments hereunder in US dollars.   If Client fails to make any payment when due then, in addition to all other remedies that may be available: (a) Keen may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable laws, rules or regulations; (b) Client shall reimburse Keen for all reasonable costs incurred by Keen in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and (c) if such failure continues for thirty (30) days following written notice thereof, Keen may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Client or any other Person by reason of such suspension.
  3. Taxes. 
    All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Keen’s income.

4. Service Levels and Credits

  1. Service Levels.
    Subject to the terms and conditions of this Agreement, Keen will use commercially reasonable efforts to make the MIDA Services Available at least ninety-nine percent (99%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 4.1 (the “Availability Requirement”).  Service Level Failure” means a material failure of the MIDA Services to meet the Availability Requirement. “Available” means the MIDA Services are available for access and use by Client and its Authorized Users and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the MIDA Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Client or its Authorized Users to access or use the MIDA Services that is due, in whole or in part, to any: (a) act or omission by Client or any Authorized User/access to or use of the MIDA Services by Client or any Authorized User, or using Client’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the specifications; (b) Client Failure; (c) Client’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Keen pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension or termination of the Services pursuant to this Agreement. Keen will use commercially reasonable efforts to; (a) schedule downtime for routine maintenance of the MIDA Services between the hours of 11:00 p.m. and 6:00 a.m., Eastern Time; and (b) give Client at least 24 hours prior notice of all scheduled outages of the MIDA Services (“Scheduled Downtime”).

5. Security

  1. Security Obligations.
    Keen will exercise commercially reasonable efforts to prevent unauthorized exposure or disclosure of Client Data, including maintaining, implementing, and complying with commercially reasonable administrative, technical, and physical safeguards. Keen will review its security controls regularly, but no less than annually, and update and maintain them to comply with applicable Laws, technology changes and best practices. 
  2. Client Control and Responsibility.
    Client has and will retain sole responsibility for: (a) all Client Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Client or any Authorized User in connection with the MIDA Services; (c) the Client Systems; (d) the security and use of Client’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Keen Materials directly or indirectly by or through the Client Systems or its or its Authorized Users’ Access Credentials, 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.

6. Confidentiality.

  1. Confidential Information.
    In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers and pricing and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing, all Keen Materials are the Confidential Information of Keen and Client Data is the Confidential Information of Client. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
  2. Protection of Confidential Information.
    As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party will: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by and subject to its compliance with Section 4.3, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 6.2; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 6.
  3. Compelled Disclosures.
    If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6.2; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.3, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

7. Intellectual Property Rights.

  1. MIDA Application and Keen Materials.
    All right, title and interest in and to Keen Materials, including all Intellectual Property Rights therein, are and will remain with Keen. All other rights in and to Keen Materials are expressly reserved by Keen. Client grants to Keen and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license (with rights to sublicense through multiple tiers) to use and incorporate into the Keen Materials any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Authorized Users relating to the operation of the MIDA Services.
  2. Client Data.
    As between Client and Keen, Client is and will remain the sole and exclusive owner of all right, title and interest in and to all Client Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 7.3.
  3. Consent to Use Client Data.
    Client hereby irrevocably grants all such rights and permissions in or relating to Client Data as are necessary or useful to Keen, its subcontractors and Keen Personnel to enforce this Agreement and exercise Keen’s, its subcontractors’ and Keen Personnel’s rights and perform Keen’s, its subcontractors’ and Keen Personnel’s obligations hereunder.

8. Representations and Warranties.

  1. Mutual Representations and Warranties.
    Each Party represents and warrants to the other Party that:  (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its Representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
  2. Client Representations, Warranties and Covenants.
    Client represents, warrants and covenants to Keen that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Keen and Processed in accordance with this Agreement, they do 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.  Client covenants that the MIDA Services will be utilized by Client in full compliance with all applicable Laws.
  3. DISCLAIMER OF WARRANTIES.
    EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8, ALL MIDA SERVICES AND KEEN MATERIALS ARE PROVIDED “AS IS.” KEEN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, KEEN MAKES NO WARRANTY OF ANY KIND THAT THE MIDA SERVICES OR KEEN MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER MIDA SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.

9. Indemnification.

  1. Keen Indemnification.
    Keen will indemnify, defend and hold harmless Client and Client’s officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Client Indemnitee”) from and against any and all Losses incurred by Client resulting from any Action by a third party (other than an Affiliate of a Client Indemnitee) claiming that Client’s use of the MIDA Services (excluding Client Data) in accordance with this Agreement infringes or misappropriates such third party’s U.S. Intellectual Property Rights; provided that Client notifies Keen promptly in writing of any Claim or Keen is not prejudiced by a failure or delay in the provision of such notice, and provided further that Client gives Keen, at Keen’s expense, full and complete authority, information and reasonable assistance in connection with such defense. The foregoing obligation does not apply to the extent that the alleged infringement arises from: (a) Client Data; (b) access to or use of MIDA Applications and Keen Materials in combination with any hardware, system, software, network or other materials or service not provided by Keen or specified for Client’s use in the Documentation; (c) modification of MIDA Applications or Keen Materials other than: (i) by or on behalf of Keen; or (ii) with Keen’s written approval in accordance with Keen’s written specification; or (d) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Client by or on behalf of Keen, whether or not the same results in any Action against or Losses by any Keen Indemnitee.
  2. Client Indemnification: 
    Client will indemnify, defend and hold harmless Keen and its subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Keen Indemnitee”) from and against any and all Losses incurred by such Keen Indemnitee resulting from any Action by a third party (other than an Affiliate of a Keen Indemnitee) that arise out of or result from, or are alleged to arise out of or result from: (a) Client Data, including any Processing of Client Data by or on behalf of Keen in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Client or any Authorized User, including Keen’s compliance with any specifications or directions provided by or on behalf of Client or any Authorized User to the extent prepared without any contribution by Keen; (c) allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Client, any Authorized User or any third party on behalf of Client or any Authorized User, in connection with this Agreement.
  3. Indemnification Procedure.
    Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 9.1 or Section 9.2, as the case may be. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly assume control of the defense and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor will not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent. The Indemnitee’s failure to perform any obligations under this Section 9.3 will not relieve the Indemnitor of its obligations under this Section 9.3 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
  4. Mitigation.
    If any of the MIDA Services or MIDA Applications or Keen Materials are, or in Keen’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Client’s or any Authorized User’s use of the MIDA Services or MIDA Applications or Keen Materials is enjoined or threatened to be enjoined, Keen may, at its option and sole cost and expense:  (a) obtain the right for Client to continue to use the MIDA Services and MIDA Applications or Keen Materials materially as contemplated by this Agreement; (b) modify or replace the MIDA Services and MIDA Applications or Keen Materials, in whole or in part, to seek to make the MIDA Services and MIDA Applications or Keen Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute MIDA Services and MIDA Applications or Keen Materials, as applicable, under this Agreement; or (c) by written notice to Client, terminate this Agreement with respect to all or part of the MIDA Services and MIDA Applications or Keen Materials, and require Client to immediately cease any use of the MIDA Services and MIDA Applications or Keen Materials or any specified part or feature thereof.
  5. Sole Remedy.
    SECTION 9 SETS FORTH CLIENT’S SOLE REMEDIES AND Keen’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE MIDA SERVICES AND MIDA ApplicationS OR KEEN MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

10. Limitations of Liability

  1. IN NO EVENT WILL Keen OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, SUBCONTRACToRS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE MIDA SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR MIDA SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF Keen AND ITS LICENSORS, SERVICE PROVIDERS, SUBCONTRACToRS OR SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO Keen UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11. Term; Termination.

  1. Term.
    Unless earlier terminates as provided herein, this Agreement shall continue until the expiration of the Term.
  2. Termination.
    In addition to any other express termination right set forth elsewhere in this Agreement:
    1. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; and
    2. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  1. Effect of Termination or Expiration.
    Upon any termination (but not expiration of the Term) of this Agreement: (a) the Order shall automatically terminate, (b) all rights, licenses, consents and authorizations granted by either Party to the other hereunder, (c) Keen will cease providing Services thereunder and (d) Client will immediately cease all use of any applicable MIDA Services, MIDA Applications and Keen Materials.  Upon the termination of this Agreement, each Party will return to the other or destroy all Confidential Information of the other Party, provided, however, each Party may retain the other Party’s Confidential Information stored on its backups, archives and disaster recovery systems until such Confidential Information is deleted in the ordinary course; provided all such Confidential Information will remain subject to all confidentiality, requirements of this Agreement.  In no event will termination by either Party relieve Client of its obligation to pay any Fees accruing hereunder prior to the effective date of termination.
  2. 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: Section 3, 6, 7, 9, 10, 11.3, 11.4 and 12.

12. Miscellaneous.

  1. Relationship of the Parties.
    The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party.
  2. Public Announcements.
    Neither Party will issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement without the prior written consent of the other Party, provided, however, that Keen may, without Client’s consent, include Client’s name and other indicia in its lists of Keen’s current or former customers of Keen in promotional and marketing materials.
  3. Notices.
    Any notice, request, consent, claim, demand, waiver or other communications under this Agreement have legal effect only if in writing and addressed to a Party at the address set forth in the Order (or to such other address or such other person that such Party may designate from time to time in accordance with this Section 12.3).  Notices sent in accordance with this Section 12.3 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
  4. Entire Agreement.
    This Agreement, together with the exhibits hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
  5. Assignment.
    Client will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Keen’s prior written consent. No assignment, delegation or transfer will relieve Client of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 12.7 is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
  6. Force Majeure. 
    In no event will Keen be liable or responsible to Client, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Keen’s reasonable control (a “Force Majeure Event”), including acts of nature, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
  7. No Third-Party Beneficiaries.
    Except as set forth in Section 9, this Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
  8. Amendment and Modification; Waiver.
    No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  9. Severability.
    If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  10. Governing Law; Submission to Jurisdiction.
    This Agreement is governed by and construed in accordance with the internal laws of the State of North Carolina, including its statutes of limitations, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of North Carolina. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of North Carolina in each case sitting in the city of Durham and County of Durham, North Carolina, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. MIDA Service of process, summons, notice or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action or other proceeding brought in any such court.

EXHIBIT A

DEFINITIONS

“Access Credentials” means any user name, 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 MIDA Services.

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise.

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Authorized User” means Client’s employees, consultants, contractors and agents (a) who are authorized by Client to access and use the MIDA Services under the rights granted to Client pursuant to this Agreement; and (b) for whom access to the MIDA Services has been purchased hereunder.

“Client Data” means information, data, and other content, in any form or medium, that is collected, downloaded or otherwise received from an Authorized User by or through the MIDA Services. For the avoidance of doubt, Client Data does not include Resultant Data or any other information reflecting the access or use of the MIDA Services by or on behalf of Client or any Authorized User.

“Client Failure” means Client’s delay in performing, or failure to perform, any of its obligations under this Agreement.

“Client Systems” means Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third-party services.

“Documentation” means any manuals, instructions or other documents or materials that Keen provides or makes available to Client in any form or medium and which describe the functionality, components, features or requirements of the MIDA Services or Keen Systems, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

“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 MIDA Services or Keen Systems as intended by this Agreement.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Keen Materials” means the MIDA Services, MIDA Application, Documentation, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any technical or functional descriptions, requirements, plans or reports, that are provided or used by Keen or any subcontractor in connection with the MIDA Services or otherwise comprise or relate to the MIDA Services or Keen Systems. For the avoidance of doubt, Keen Materials include Resultant Data and any information, data or other content derived from Keen’s monitoring of Client’s access to or use of the MIDA Services, but do not include Client Data.

“Keen Personnel” means all individuals involved in the performance of MIDA Services as employees, agents or independent contractors of Keen or any subcontractor.

“Keen Systems” means the information technology infrastructure used by or on behalf of Keen in performing the MIDA Services, 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.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any court or tribunal of competent jurisdiction.

“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.

“MIDA Application” means Keen’s proprietary Marketing Investment Decision Analysis software applications.

“MIDA Services” means making the MIDA Application available remotely to Authorized Users as a software-as-a-service offering as described in the Order.

“Parties” means Keen and Client collectively, and each individually may be referred to as a “Party” to this Agreement.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

“Process,” “Processing” or “Processed” means to take any action or perform any operation or set of operations that the MIDA Services are capable of taking or performing on any data, information or other content.

“Professional Services” means any services required to be provided by Keen pursuant to the Order other than MIDA Services, including, without limitation, implementation services, professional services and consulting services.

“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.

“Resultant Data” means data and information related to Client’s use of the MIDA Services that is used by Keen in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the MIDA Services.

“Services” means Professional Services and MIDA Services.

“Term” means the period set forth in the Order.

Third Party means any Person other than a Party or an Affiliate of a Party.

Effective date of 2/1/21