Audette Terms of Service

Audette Terms of Service

These Terms of Service (the "Terms") set forth the terms and conditions under which AUDETTE ANALYTICS INC. ("Audette") provides its Services. These Terms apply as of the effective date specified in the first Order Form between the parties (the "Effective Date"). By accessing any Services, you accept these Terms on behalf of yourself and any entity that you represent.

1. Definitions and Interpretation

1.1 Definitions
"Agreement" means, collectively, these Terms, any Order Form(s), and any other applicable agreements referenced in any Order Form(s) (the "Other Agreements").

"Audette Content" means all content that is not Client Data, including the Documentation and any data, information, reports, programs, templates, material or other content that Audette makes accessible to the Client and its Authorized Users through the Services.

"Authorized Users" means a Client’s employees and contractors, and any other users of the Client as may be authorized by Audette from time to time.

"Client" means the party identified as such on an Order Form.

"Client Data" means any data, information, or other content or materials that the Client or its Authorized Users submit or upload to the Services under a Subscription, but does not include any Audette Content incorporated therein.

"Confidential Information" means any and all information disclosed (whether in writing, orally or by other means, and whether directly or indirectly) by one party (the "Disclosing Party") to the other party (the "Recipient") whether before or after the Effective Date, which is or has been identified as proprietary or confidential at the time of disclosure, or which by the nature of the circumstances surrounding disclosure should in good faith be reasonably understood to be proprietary or confidential, but does not include information which the Recipient can demonstrate: (A) is or becomes generally available to the public through no wrongful act or breach of any obligation of confidentiality by the Recipient; (B) was in the Recipient's possession on a non-confidential basis prior to its being provided to the Recipient by or on behalf of the Disclosing Party; (C) is or becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party and which source, to the knowledge of the Recipient, is not prohibited from disclosing such information by a legal, contractual or fiduciary obligation; (D) is independently developed by the Recipient without the use of the Disclosing Party's information, as evidenced by written records. For certainty, the Client Data is Confidential Information of the Client.

"Documentation" means any and all Audette manuals, instructions, specifications and other documents and materials, in any form or medium, that describe the functionality, components, features or requirements of the Software.

"Fees" means, collectively, the Subscription Fee(s), and all other fees charged by Audette to a Client as set forth in an Order Form.

"Force Majeure Event" means, as to a party, any occurrence, non-occurrence or set of circumstances that is beyond the reasonable control of such party and is not caused by such party's fault, negligence or lack of due diligence, including: pandemic, flood, ice, lightning, earthquake, windstorm or eruption; fire; explosion; invasion, war, civil disturbance, commotion or insurrection; sabotage or vandalism; military or usurped power; or act of God or of a public enemy.

"Initial Term" means the initial term for a Subscription identified as the "Initial Term" in an Order Form.

"Intellectual Property Rights" means: (A) copyrights and copyrightable works, whether registered or unregistered; (B) trademarks, service marks, trade dress, logos, registered designs, trade and business names (including Internet domain names, corporate names and e-mail address names), whether registered or unregistered; (C) patents, patent applications, patent disclosures and inventions (whether patentable or not); (D) trade secrets, processes, methods, data privacy rights, know-how and rights in designs; and (E) all other forms of intellectual property or any other proprietary rights in every jurisdiction worldwide.

"Order Form" means a separate document executed by Audette and the Client that references these Terms, specifies the Services to be provided by Audette to the Client, specifies the Fees for the Services, and is governed by these Terms.

"Pilot Engagement" means a Subscription on a pilot-project basis to test the viability of the Services for the Client.

"Renewal Term" means a renewal term for a Subscription, as may be provided in an Order Form.

"Services" means the provision of a Subscription, the Audette Content and any other services made available to the Client and its Authorized Users by Audette as set forth in an Order Form.

"Software" means Audette’s proprietary decarbonization planning software.

"Subscription" means the right to access and use certain features of the Software pursuant to an Order Form.

"Subscription Fee" means the amount charged by Audette for a Subscription as set forth in an Order Form.

"Subscription Term" means: (A) the Initial Term and each Renewal Term (if any) of a Subscription; or (B) with respect to a Pilot Engagement, the "Use Period" as defined in the Order Form for such Pilot Engagement.

1.2 Interpretation
The Agreement will be construed according to its fair meaning and not strictly for or against either party. Headings are for convenience only. Unless the context requires otherwise, words in the singular include the plural and vice versa. "Including", "include" and "includes" means "without limitation".

2. Services

2.1 Services
Subject to the Agreement and payment of Fees, Audette will provide the Services set forth in an Order Form during the applicable Subscription Term. Audette may engage third party contractors ("Subcontractors") to perform any part of the Services. Audette will remain responsible for Subcontractors and will ensure each is bound by terms equally protective of the Client.

2.2 Audette Responsibilities
Audette will: (i) provide the Services in compliance with applicable laws, including data protection and privacy laws; (ii) maintain industry standard administrative, physical and technical safeguards to protect Client Data; (iii) provide the Services in a professional manner; (iv) use commercially reasonable efforts to make the Services available except for planned downtime or unavailability caused by a Force Majeure Event. Audette represents and warrants that the Services will not infringe or misappropriate any third party Intellectual Property Rights.

2.3 Client Responsibilities

2.3.1 Responsible Use
The Client will use the Services for their intended purposes and in compliance with law. Unless otherwise expressly permitted by Audette, the Client will not: (A) reverse engineer, disassemble, decompile, decode, adapt, or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or related software or data; (B) copy, modify, translate, or create derivative works of the Services; (C) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (D) remove any product identification, proprietary, copyright or other notices from the Services. Audette may suspend access until any breach is remedied.

2.3.2 User Account
Audette may provide an account (the "Account") for access and use of the Services. The Client is responsible for protecting the confidentiality of passwords and login information and for all activities under its Account.

2.3.3 Authorized Users
The Client may allow Authorized Users to access and use the Services, provided the Client causes compliance with the Agreement and remains liable for such access and use.

2.4 Updates
Audette may make updates, bug fixes, modifications, and improvements from time to time, provided such changes do not materially degrade the Services during any Subscription Term.

3. Fees and Payment

3.1 Fees
The Client will pay the Fees in the amounts, at the times and according to the terms set forth in the applicable Order Form, together with Fees for any Renewal Terms. Unless otherwise stated: (i) Audette will invoice on the Effective Date and on each anniversary, as applicable; (ii) all Fees are exclusive of taxes; (iii) all Fees are non-refundable; (iv) invoices are payable within thirty (30) days of the invoice date without deduction, holdback or setoff.

3.2 Failure of Payment
Interest accrues on past due amounts at twelve percent (12%) per annum. If payment obligations are overdue, Audette may: (A) terminate the Agreement on written notice; and/or (B) suspend Services until all amounts are paid.

3.3 Renewal Pricing
For any Renewal Term, the Subscription Fee will be increased at least by the Consumer Price Index (CPI) increase, based on the most recent 12-month average on the US Consumer Price Index Portal.

4. Proprietary Rights

4.1 Client Data
The Client will exclusively own all right, title and interest (including Intellectual Property Rights) in and to Client Data. The Client grants Audette a limited, revocable license to use Client Data to provide the Services. The Client is responsible for the accuracy, completeness, quality, integrity and legality of Client Data and represents and warrants that it has all rights and consents needed and will minimize provision of any personally identifiable information.

4.2 Audette Material
Audette will exclusively own all right, title and interest (including Intellectual Property Rights) in and to: (i) the Software and the Services, and related software, algorithms and tools, including improvements and modifications; (ii) any software, applications, inventions or other technology developed by Audette in connection with the Services; (iii) the Audette Content and the Documentation; and (iv) subject to Section 4.1, the Reports.

4.3 Reports
During a Subscription Term, the Client may access and download reports and materials delivered through the Client’s Account (the "Reports"). Audette grants the Client an irrevocable, perpetual license to any Reports downloaded during a Subscription Term for Internal Use only, and not for any Commercial Purpose. "Internal Use" means internal business purposes only. For certainty, Internal Use includes sharing with third parties (at Client’s discretion) to assist with analysis and implementation. "Commercial Purpose" means redistribution, retransmission, or publication for the benefit of a third party, whether or not for a fee, including: (i) advertising; (ii) use in materials or services for sale or for which fees are paid; (iii) use in any books, news publication, or journal.

4.4 Rights Reserved
Except for the limited rights and licenses expressly granted, all rights are reserved by the respective parties.

5. Confidentiality

5.1 Obligation
Both during and after the term of the Agreement, the Recipient will not disclose or use the Disclosing Party’s Confidential Information, except: (i) as necessary to exercise rights or perform obligations under the Agreement; (ii) as required by a court or governmental order (with prompt notice if permitted); or (iii) as otherwise authorized in writing. The Recipient may share Confidential Information with Representatives who need to know and are bound by confidentiality obligations no less protective. The Recipient is responsible for breaches by its Representatives.

5.2 Security
The Recipient will employ administrative and technical security measures to protect Confidential Information from unauthorized use or disclosure, at least to commercially reasonable standards.

5.3 Return or Deletion
Within thirty (30) days of written request, the Recipient will return or destroy Confidential Information using commercially reasonable means.

5.4 Non-Disclosure Agreement
If the parties entered into a prior NDA: (i) all Confidential Information disclosed under the NDA is deemed disclosed under these Terms; (ii) these Terms replace and supersede the NDA; and (iii) the NDA is terminated.

6. Term and Termination

6.1 Term
The Agreement commences on the Effective Date and continues until the expiry or termination of all Subscription Terms.

6.2 Termination for Cause
Either party may terminate by written notice if the other party: (i) fails to cure a material breach within thirty (30) days after written notice (breach of confidentiality is subject to immediate termination); (ii) ceases operation without a successor; or (iii) seeks or is subject to insolvency or similar proceedings not dismissed within sixty (60) days. Audette may also terminate immediately if the Client breaches payment obligations, breaches Section 2.3.1, or if Client or Authorized Users threaten the security, integrity or availability of the Services.

6.3 Effect of Termination
Upon termination: (i) all Order Forms terminate; (ii) Audette will invoice any accrued and outstanding Fees, and the Client will promptly pay them; (iii) provisions that by their nature should survive will survive, including Sections 3, 4, 5, 6.3, 7, 8 and 10.

7. Indemnity
Each party (the "Indemnitor") will defend, indemnify and hold harmless the other party and their officers, directors, contractors, and employees (the "Indemnitees") from any third-party claims, losses, damages, liabilities, costs and expenses arising from any material breach, non-fulfillment, or misrepresentation by the Indemnitor under the Agreement.

8. Disclaimer and Liability Limitation

8.1 Disclaimer
Except for express representations and warranties in the Agreement, Audette provides the Services "AS IS" and disclaims all guarantees, representations, conditions and warranties, whether implied or statutory, including with respect to validity, accuracy, non-interruption, error-free operation, merchantability, quality, or fitness for a particular purpose.

8.2 Exclusion of Indirect Damages
Neither party will be liable to the other for incidental, punitive, indirect, special or consequential damages (including loss of business, profits, data, savings, or opportunity), however caused and under any theory of liability, whether or not advised of the possibility. This applies to the fullest extent permitted by law.

8.3 Liability Cap
Each party’s maximum aggregate liability arising out of or relating to the Agreement is the aggregate amount of Fees paid by the Client to Audette during the twelve (12) months preceding the first claim (the "Base Cap"), except for: (a) indemnification obligations; or (b) breach of confidentiality (together, "Exceptional Events"). For Exceptional Events, the cap is two (2) times the Base Cap. These limitations do not apply to gross negligence, fraud, willful misconduct, or unpaid Fees. This applies to the fullest extent permitted by law.

9. Insurance
Audette will maintain commercial liability insurance and cyber liability insurance in amounts no less than USD 2,000,000 per occurrence and will provide evidence upon written request.

10. General

10.1 Entire Agreement and Order of Precedence
The Agreement is the entire agreement and supersedes prior communications on its subject. Order of precedence: (i) these Terms; (ii) the Order Form; (iii) the Other Agreements.

10.2 Governing Law and Jurisdiction
If the Client’s address on an Order Form is in the United States, the Agreement is governed by the laws of the State of New York and the parties submit to the exclusive jurisdiction of the State of New York. Otherwise, the Agreement is governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, and the parties submit to the exclusive jurisdiction of the Province of British Columbia.

10.3 Assignment
Neither party may assign without prior written consent, except either party may assign the Agreement in connection with a merger, acquisition, corporate reorganization, change of control, or sale of all or substantially all assets. The Agreement binds and benefits successors and permitted assigns.

10.4 Notices
Notices must be in writing and may be sent by email or registered mail to the addresses in the Order Form. Notices are deemed given upon confirmation of delivery.

10.5 Independent Contractors
The parties are independent contractors and have no authority to bind the other.

10.6 Waiver
No failure or delay in exercising any right operates as a waiver. Waivers must be in writing.

10.7 Severability
If any provision is held unlawful, the remainder remains in effect and the provision will be modified to best accomplish its intent.

10.8 Force Majeure
Audette is not responsible for failure to perform due to a Force Majeure Event, provided it gives prompt notice and uses reasonable efforts to limit delay.

10.9 Injunctive Relief
Breaches of confidentiality or Section 2.3.1 may cause irreparable harm. The non-breaching party may seek specific performance and injunctive or other equitable relief without bond or proof of damages.

10.10 Amendments
Audette may amend these Terms by providing thirty (30) days prior written notice. The Client may terminate during that period by written notice. If the Client does not so terminate, the amendment becomes effective after the notice period.

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