Terms and Conditions

These Terms & Conditions (these “Terms”), effective as of the date set forth above, 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, Durham, North Carolina 27709, and the client (“Client”) identified on the Order Form, and Client’s access to and use of Keen’s proprietary marketing analytics software-as-a-service platform. Each of Keen and Client may be referred to herein individually as a “Party,” and collectively as the “Parties.”

1. Services

1.1 Order Forms. The Order Form shall be incorporated herein by reference upon execution by an authorized representative of each Party. In the event of a conflict between a provision of these Terms and a provision set forth in the Order Form, the Terms in the Order Form shall control.

1.2 SaaS Services. Subject to and in accordance with this Agreement and the Order Form, including without limitation payment of all applicable Fees, Keen shall use commercially reasonable efforts to provide the SaaS Services to Client and Client’s Authorized Users. During the Term, subject to the terms of this Agreement, Keen hereby grants Client the right for its Authorized Users to access and use the SaaS Services for Customer’s internal use. Keen reserves the right, in its sole discretion, to make any changes to the SaaS Services, provided that such changes do not materially adversely affect the functionality of the SaaS Services.

1.3 Access Credentials. Keen shall provide Client (or Authorized Users directly) with Access Credentials within a reasonable time following the execution of an Order Form, and promptly thereafter to new Authorized Users as requested by Client. Notwithstanding the foregoing, any Third-Party contractor of Client who Client desires as an Authorized User must be either identified in the Order Form or pre-approved in writing by Keen before such Access Credentials will be issued, such approval not to be unreasonably withheld.

1.4 Professional Services. Subject to the terms and conditions of this Agreement, Keen will use commercially reasonable efforts to provide the Professional Services, if any, in accordance with the Order Form.

2. Fees; Payment Terms

2.1 Fees; Expenses; Taxes. Client will pay Keen the fees set forth in the Order Form for the Services provided thereunder (“Fees”). Client agrees to reimburse Keen for all out-of-pocket expenses incurred by Keen in connection with its performance of Professional Services (“Expenses”) provided that such Expenses are set forth in the Order Form or have otherwise been pre-approved by Client in writing. Client will be responsible for any federal, state, local or foreign sales, use, excise, value-added or other similar tax, charge, fee, levy, or impost (collectively, “Taxes”) lawfully imposed by a governmental authority arising from the Services or this Agreement that have been properly invoiced by Keen, other than taxes on Keen’s net income. All Fees and Expenses are nonrefundable, and will be paid by Client in U.S. dollars via electronic transfer of immediately available funds to a bank account designated by Keen.

2.2 Invoicing; Payment. Keen shall invoice Client for Fees, Expenses, and related Taxes in accordance with the schedule set forth in the Order Form (each such invoice, an “Invoice”). Unless otherwise set forth in the Order Form, Client will pay all undisputed amounts set forth in an Invoice within thirty (30) days of the date of such Invoice. In the event that any such undisputed amounts are not paid when due, then: (a) such amounts shall accrue simple interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate allowed by law, whichever is less (such accrued interest, “Late Fees”) from the due date until the date payment is received by Keen; and (b) Keen may, in Keen’s sole discretion, suspend the provision of Services, or any portion thereof, without breach of this Agreement or any liability to Client, until payment is received by Keen. Unless this Agreement is terminated for Client’s non-payment pursuant to Section 11.2, Services may be re-instated upon Client’s payment of all outstanding Fees (including Late Fees), provided that Keen may require reasonable credit guarantees before such re-instatement of Services. In the event that any undisputed amounts are unpaid for more than sixty (60) days after the date due, Client is responsible for, and agrees to pay (in addition to the applicable Late Fees), Keen’s reasonable costs and expenses of collection, including, but not limited to, court and attorneys’ fees and expenses.

3. Use Restrictions; Suspension

3.1 Use Restrictions. Client shall not, and shall not permit its Representatives or Authorized Users to, access or use the SaaS Services or Keen Technology 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.

3.2 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) upon notice to Client in the event that: (a) Keen reasonably determines that a threat to the technical security or integrity of the SaaS Services exists, provided that Keen promptly recommences performance upon the cessation of such threat; (b) 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 (c) Keen reasonably believes that Client or any Authorized User has failed to comply with this Agreement, or has been or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any Keen Technology. This Section 3.2 does not limit any of Keen’s other rights or remedies, whether at law, in equity or under this Agreement.

4. Client Responsibilities

4.1 Client Systems; Cooperation. Client shall at all times during the Term: (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 perform its obligations under and in connection with this Agreement; 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. Client understands that Keen’s ability to meet any deadlines set forth in the Order Form is conditioned upon Client’s cooperation with Keen, including without limitation Client’s compliance with this Section 4.1. Client hereby acknowledges and agrees Keen shall not be in breach of this Agreement or the Order Form, and shall not be liable for, delays caused primarily by Client’s failure to provide such cooperation or otherwise comply with Section 4.1, and any such delays shall not affect Client’s payment obligations hereunder.

4.2 Corrective Action and Notice. If Client becomes aware of any actual or threatened activity prohibited by Section 4, 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.

5. Security

5.1 Keen’s Security Obligations. Keen shall implement and maintain commercially reasonable administrative, technical, and physical safeguards intended to prevent unauthorized exposure or disclosure of Client Data. Keen shall review its security controls regularly, but no less than annually, and update and maintain them to ensure they are commercially reasonable.

5.2 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 Services; (c) the Client Systems; and (d) the security and use of Client’s and its Authorized Users’ Access Credentials.  Client shall ensure that its Client-authorized agents or Authorized Users report system availability or other system issues (security or otherwise) to Keen Support by emailing support@keends.com.

6. Confidentiality

6.1 Confidential Information. Each Party (the “Disclosing Party”) may from time to time during the Term disclose to or learn from the other Party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information whether disclosed orally, in writing or visually, that is either marked or designated as confidential or is identified in writing as confidential at the time of disclosure or which the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). Keen’s Confidential Information shall include, without limitation, the terms of this Agreement and information regarding the Keen Technology. Client’s Confidential Information shall include, without limitation, Client Data.

6.2 Confidentiality, Nonuse, and Nondisclosure Obligations. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose except as is necessary for the performance of this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees, contractors, attorneys, and advisors of the Receiving Party who have a need to know such Confidential Information for such purpose and who are subject to confidentiality obligations no less protective of the Disclosing Party’s Confidential Information than those contained in this Section 6. The Receiving Party will: (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information.

6.3 Exceptions. The Receiving Party’s obligations under this Section 6.3 will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (x) approved in writing by the Disclosing Party; (y) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (z) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party, as permitted by applicable law, rules and regulations, notifies the Disclosing Party of such required disclosure in writing promptly, and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

6.4 Return of Confidential Information. Promptly upon the expiration or termination of this Agreement in its entirety or any Order Form, the Receiving Party will destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control which as of such termination no longer relates to any active Order Form, and permanently erase all electronic copies of such Confidential Information. Notwithstanding the foregoing, the Receiving Party shall not be required to delete or destroy any electronic back-up files that have been created solely by the automatic or routine archiving and back-up procedures of the Receiving Party, to the extent created and retained in a manner consistent with its or their standard archiving and back-up procedures. In addition, the Receiving Party shall be entitled to retain one (1) copy of the Disclosing Party’s Confidential Information solely for archival purposes. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by the Receiving Party that it has fully complied with its obligations under this Section 6.4.

6.5 Duration. Notwithstanding the expiration or termination of this Agreement or any Order Form, the Receiving Party’s obligations under this Section 6 shall remain in effect for five (5) years following the expiration or termination of this Agreement or the applicable Order Form. Notwithstanding the foregoing, with respect to any of Disclosing Party’s Confidential Information which constitutes a trade secret under applicable law, the Receiving Party’s obligations under this Section 6 shall remain in effect for so long as such information continues to constitute a trade secret.

7. Intellectual Property Rights

7.1 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.

7.2 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, its Subcontractors, and Keen Personnel a non-exclusive, royalty-free, fully paid-up, assignable, sublicensable, license to access, use, and modify the Client Data to the extent necessary for the performance of Keen’s obligations hereunder.

7.3 Feedback. Client and Authorized Users may provide Keen with error reports, suggestions, feedback, oral and written reports, ideas, or concepts regarding the 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.

7.4 Reservation of Rights. Except as set forth in Section 1.2, 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.

8. Representations, Warranties, and Covenants; Disclaimer

8.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that, as of the Effective Date: (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.

8.2 Additional 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, 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. Client further represents, warrants and covenants that the Services shall be utilized by Client in full compliance with all applicable laws, rules and regulations.

8.3 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.1, ALL SERVICES AND KEEN TECHNOLOGY 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 SERVICES OR KEEN TECHNOLOGY, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, RESULT IN ANY CHANGES IN CLIENT’S REVENUE OR OTHERWISE ACHIEVE ANY PARTICULAR RESULT (REGARDLESS OF ANY FORECASTS OR ESTIMATES GENERATED BY THE SERVICES OR KEEN TECHNOLOGY), BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.

9. Indemnification

9.1 Keen Indemnification. Keen shall defend, indemnify, and hold harmless Client and its Representatives (collectively, “Client Indemnified Parties”) from and against any and all liabilities, losses, damages, penalties, awards, settlements, costs, or expenses (including, without limitation, reasonable attorneys’ fees and other expenses of litigation) (collectively, “Losses”) incurred by or imposed upon any Client Indemnified Party in connection with any claims, suits, actions, or other proceedings asserted by a third party (each, a “Claim”), to the extent arising out of any claim that Client’s use of the Keen Technology infringes any Intellectual Property Rights of a third party. In the event that the Keen Technology or any part thereof becomes subject to (or, in Keen’s sole discretion, is likely to become subject to) any such infringement-related Claim, then Keen may (at Keen’s option and expense): (a) procure for Client the right to continue using the infringing SaaS Service or Keen Technology; (b) modify the infringing SaaS Service or Keen Technology to make them non‑infringing; or (c) replace the infringing SaaS Service or Keen Technology with a non-infringing product or service of substantially equivalent functionality. If the foregoing options ((a)–(c)) are, in Keen’s sole discretion, not available on commercially reasonable terms, then Keen may terminate this Agreement upon written notice to Client and provide Client with a refund of any pre-paid Fees as of such termination. Notwithstanding the foregoing, Keen’s indemnification obligation under this Section 9.1 shall not apply to any Claim: (v) arising from the use or combination of the SaaS Services (or any part thereof) with software, hardware, or other materials not developed or authorized by Keen, if the SaaS Services would not be infringing in the absence of such use or combination; (w) arising from the modification of the SaaS Services performed by any third party not authorized by Keen, if the SaaS Services would not be infringing in the absence of modification; (x) arising from any use of the SaaS Services by Client or any User in a manner outside the scope of any right granted herein or in violation of applicable laws, rules, or regulations, if the Claim would not have arisen but for such use; (y) arising from the gross negligence or willful misconduct of Keen; or (z) for which Client is obligated to indemnify Keen pursuant to Section 9.2. The foregoing states Keen’s entire liability and Client’s exclusive remedy for the infringement or misappropriation of intellectual property rights.

9.2 Client 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 (including Claims made or brought by Users), to the extent arising out of: (a) Client Data, including any Processing of Client Data by or on behalf of Keen in accordance with this Agreement; (b) Client’s use of the SaaS Services; (c) Client’s material breach of this Agreement; or (d) any gross negligence, willful misconduct, or violation of applicable laws, rules or regulations by any Client Indemnified Party in connection with this Agreement. Client’s indemnification obligations under this Section 9.2 shall not apply to any Claims for which Keen is required to indemnify Client pursuant to Section 9.1.

9.3 Indemnification Procedure. With respect to any Claim for which a Party seeks indemnification under this Section 9, the indemnified Party will: (a) promptly provide the indemnifying Party with written notice of such Claim (which notice shall be provided no later than thirty (30) days after the indemnified Party becomes aware of such Claim); (b) permit the indemnifying Party, at its option, to assume control over the investigation, defense, and disposition of such Claim; (c) reasonably cooperate with the indemnifying Party, at the indemnifying Party’s reasonable expense and request, in the investigation, defense, and disposition of such Claim; and (d) promptly furnish the indemnifying Party with copies of all notices and documents (including court papers) received by the indemnified Party in connection with such Claim. In no event shall the indemnifying Party settle or otherwise dispose of a Claim in any manner that admits material fault or wrongdoing by the indemnified Party, or that or incurs any non-indemnified liability on the part of the indemnified Party, without the indemnified Party’s prior written consent. In the event that the indemnifying Party assumes control over the investigation, defense, and disposition of a Claim, the indemnified party shall have the right, but not the obligation, to be represented by counsel of its own selection, at its own expense.

10. Limitations of Liability

10.1 Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY, OR TO ANY THIRD PARTY, 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. NOTWITHSTANDING THE FOREGOING, THIS SECTION 10.1 SHALL NOT APPLY TO: (a) BREACHES OF SECTION 6 (CONFIDENTIALITY); OR (b) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 9.

10.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CLIENT TO KEEN DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, THIS SECTION 10.2 SHALL NOT APPLY TO: (a) BREACHES OF SECTION 6 (CONFIDENTIALITY); (b) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 9; OR (c) CLIENT’S PAYMENT OBLIGATIONS HEREUNDER.

11. Term; Termination

11.1 Term. The Term of this Agreement shall be as set forth in the Order Form. Unless otherwise provided in the Order Form, upon expiration of the Term, the Term shall automatically renew for additional successive periods of the same duration, unless either Party provides written notice of non-renewal to the other Party at least sixty (60) days prior to such expiration, in which case this Agreement shall expire without renewing upon the expiration of the then-current Term. (the “Term”).

11.2 Termination.

Termination for Breach. In the event that either Party materially breaches any provision of these Terms or the Order Form, the non-breaching Party may terminate this Agreement effective upon thirty (30) calendar days’ prior written notice to the breaching Party, provided that such material breach remains uncured upon the expiration of such thirty (30)-day period.

Termination for Insolvency. Either party may terminate this Agreement effective immediately upon written notice to the other Party, in the event that the other Party: (i) files a petition in bankruptcy or for reorganization; (ii) a third party files a petition in bankruptcy or for reorganization against such other Party, which is not dismissed within sixty (60) days; (iii) an assignment is made by such other Party for the benefit of its creditors; or (iv) a receiver, trustee, liquidator, or custodian is appointed with respect to all or a substantial part of such other Party’s assets.

11.3 Effect of Termination or Expiration. Upon any expiration or earlier termination of this Agreement, except as expressly otherwise provided herein: (a) all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate; (b) Client and all Authorized Users shall immediately cease all use of Keen Technology; (c) each Party will (i) cease all use of the other Party’s Confidential Information, and (ii) destroy the other Party’s Confidential Information in accordance with Section 6.4; and (d) within thirty (30) days of such expiration or termination, Client shall pay Keen all Fees and Expenses due for Services performed by Keen as of the effective date of such expiration or termination.

11.4 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 3, 6, 7, 8.3, 9, 10, 11.3, this Section 11.4, and 12.

12. Miscellaneous

12.1 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 at www.keends.com.

12.2 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. Keen may from time to time, in its discretion, engage third parties to perform Services (each, a “Subcontractor”).

12.3 Force Majeure. A Party shall be excused from a delay or failure to perform its obligations under this Agreement (except for its payment obligations arising hereunder) if such delay or failure results from any event beyond such Party’s reasonable control and without its fault or negligence, including, but not limited to acts of God, internet or telecommunications breakdowns, utility or transmission failures, power failures, denial of service attacks, governmental restrictions, acts of the public enemy, insurrections, riots, embargoes, labor disputes, including strikes, lockouts, job actions or boycotts, fires, explosions or floods (each, a “Force Majeure Event”). Any time specified for completion of performance falling due during or subsequent to the occurrence of any such events shall be automatically extended for a period of time equal to the reasonably unavoidable period of such Force Majeure Event.

12.4 Assignment; Successors. Neither Party may assign this Agreement or its rights or obligations hereunder without the other Party’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may, without such consent, assign this Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially all of its business, or in the event of its merger, consolidation, change in control or similar transaction. 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 12.4 shall be void ab initio.

12.5 Notices.

Addresses. All notices related to this Agreement must be in writing, and addressed to the address of the applicable Party as set forth on the Order Form, or to such other address as either Party may instead reasonably designate by written notice to the other Party.

Delivery. All notices related to this Agreement must be delivered: (i) in person; (ii) by nationally recognized overnight courier (g., FedEx); or (iii) by registered or certified mail, postage prepaid, return receipt requested. All notices shall be accompanied by a courtesy copy emailed to the applicable Party (which email shall not constitute notice).

Receipt. Notices given in accordance with this Section 5 will be deemed to have been properly given: (i) if delivered in person, when actually delivered; (ii) if delivered by nationally recognized overnight courier, one (1) business day after the date sent; or (iii) if delivered by registered or certified mail, postage prepaid, return receipt requested, three (3) business days after the date postmarked.

12.6 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.

12.7 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.

12.8 Amendment. This Agreement (including, for the avoidance of doubt, any provisions contained in the Order Form) may not be amended or modified except by the written consent of both Parties.

12.9 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 HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT.

12.10 Remedies; Equitable Relief. Notwithstanding Section 12.9, each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Client, Section 1, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

12.11 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.

12.12 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.

12.13 Signatures; Counterparts. Any documents to be signed by the Parties in connection with this Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via email in “.pdf” form with any electronic signature complying with the U.S. federal ESIGN Act of 2000 (g., DocuSign), or via other transmission method.

13. Key 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 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.

“Agreement” means these Terms and the Order Form, collectively.

“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, or uploaded by or on behalf of Client (including by Authorized Users) to the Keen Platform using the SaaS Services.

“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.

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

“Keen Platform” means Keen’s proprietary marketing analytics software.

“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.

“Order Form” means an order form or other purchasing document signed by an authorized representative of each Party and to which these Terms are attached or incorporated into by reference, setting forth: (a) the SaaS Services to be provided to thereunder, if any; (b); the Professional Services to be provided to thereunder, if any; (c) the Term; and (d) certain other material terms.

“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 Services are capable of taking or performing on any data, information or other content.

“Professional Services” mean any implementation, training, or other services (other than the SaaS Services) to be provided by Keen to Client, as set forth in the Order Form.

“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.

“SaaS Services” means the features and functionalities of the Keen Platform to be provided by Keen on a software as a service basis, as described in the Order Form.

“Services” means, collectively: (a) SaaS Services; and (b) Professional Services.

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