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