“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