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 will apply as of the effective date specified in the first Order Form between the parties (the “Effective Date”). For certainty, by accessing any Services, you accept these Terms on behalf of yourself and any entity that you represent.  

1. ‍Definitions and Interpretation
   
   1. Definitions.  In addition to any words defined elsewhere in these Terms and in any Order Form, the following words capitalized in these Terms have the meanings set forth below:
      
      1. "Agreement” means, collectively, these Terms, any Order Form(s), and any other applicable agreements referenced in any Order Form(s) (the “Other Agreements”).
      2. “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.
      3. “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.
      4. “Client” means the party identified as such on an Order Form.
      5. “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.
      6. “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.
      7. “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.
      8. “Fees” means, collectively, the Subscription Fee(s), and all other fees charged by Audette to a Client as set forth in an Order Form.
         ‍
      9. “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.
      10. “Initial Term” means the initial term for a Subscription identified as the “Initial Term” in an Order Form.
      11. “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.
      12. “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.
      13. “Pilot Engagement” means a Subscription on a pilot-project basis to test the viability of the Services for the Client.
      14. “Renewal Term” means a renewal term for a Subscription, as may be provided in an Order Form.
      15. “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.
      16. “Software” means Audette’s proprietary decarbonization planning software.
      17. “Subscription” means the right to access and use certain features of the Software pursuant to an Order Form.
      18. “Subscription Fee” means the amount charged by Audette for a Subscription as set forth in an Order Form.
      19. “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.
   2. ‍Interpretation. The language in the Agreement will be in all cases construed simply according to its fair meaning and not strictly for or against either party. Any rule of construction that any ambiguities are to be resolved against the drafting party to any provision of the Agreement will not be employed in the interpretation of the Agreement. The headings and subheadings contained in the Agreement are used solely for convenience and do not constitute part of the Agreement, nor will they be used to aid in any manner in the construction or interpretation of the Agreement. Unless the context requires otherwise, words importing the singular include the plural and vice versa. In the Agreement, “including”, “include” and “includes” means “including without limitation”, “include without limitation” and “includes without limitation” respectively.‍‍
2. ‍Services
   
   1. Services.  Subject to the terms and conditions of the Agreement, and the payment of all applicable Fees, Audette will provide the Client with the Services set forth in an Order Form during the applicable Subscription Term. Audette may from time to time engage third party contractors (each a “Subcontractor”), to perform any part of the Services or any part of its obligations under the Agreement. Audette will: (i) remain directly responsible to the Client for the acts or omissions of each Subcontractor; and (ii) ensure that each Subcontractor is bound in writing to terms equally as protective of the Client as the terms and conditions hereof.‍
   2. Audette Responsibilities.  Audette will: (i) provide the Services in compliance with applicable laws, including applicable data protection and privacy laws; (ii) maintain industry standard administrative, physical and technical safeguards and a secure processing environment to prevent the loss, theft or unauthorized use of or access to any Client Data; (iii) provide the Services in a professional manner; (iv) use commercially reasonable efforts to make the Services available at all times, except for: (i) planned downtime; or (ii) any unavailability caused by a Force Majeure Event. Audette represents and warrants to the Client that the Services will not infringe, or constitute an infringement or misappropriation of, any Intellectual Property Rights or other proprietary rights of any third party. ‍
   3. Client Responsibilities.  
      
      1. Responsible Use.  The Client will only use the Services according to the purposes for which they are provided, and in any event, in compliance with applicable law. In addition, unless otherwise expressly permitted by Audette, the Client will not, directly or indirectly: (A) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any other software, documentation or data related to the Services; (B) copy, modify, translate, or create derivative works of the Services, in whole or in part; (C) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; or (iv) remove any product identification, proprietary, copyright or other notices from the Services. In the event of any breach of this Section, Audette may, without limitation to any of its rights or remedies herein, in law or in equity, suspend access and use of the Services until the breach has been remedied by the Client.
      2. User Account.  Audette may provide the Client with a user account (the “Account”) through which the Client and its Authorized Users may access and use the Services. The Client is responsible for protecting the confidentiality of its Account passwords and other login information, and for any and all activities under its Account.
      3. Authorized Users.  The Client may allow its Authorized Users to access and use the Services; provided that, the Client: (A) causes its Authorized Users to access and use the Services in accordance with the Agreement; and (B) remains liable for all Authorized Users’ access and use of the Services and compliance with the Agreement.‍
   4. Updates.  Audette may, at its option and expense, make updates, bug fixes, modifications, and improvements to the Services from time-to-time, provided that such updates, bug fixes, modifications, or improvements do not materially degrade the Services during any Subscription Term.‍‍
3. ‍Fees and Payment
   
   1. Fees.  Subject to the terms and conditions of the Agreement, the Client will pay to Audette the Fees in the amounts, at the times and according to the terms set forth in the applicable Order Form, together with the subsequent Fees with respect to any Renewal Terms, as may be applicable. Unless otherwise expressly set forth in an Order Form: (i) Audette will invoice the Client for Fees on the Effective Date, and thereafter on each anniversary of the Effective Date, as applicable; all Fees are exclusive of any applicable taxes, which will be invoiced and paid together with the Fees; (iii) all Fees are non-refundable; and (iv) invoices under the Agreement are payable, without deduction, holdback or setoff, within thirty (30) days of the invoice date. ‍
   2. Failure of Payment.  Interest will accrue on amounts past due at a rate of twelve percent (12%) per annum. Without limiting any other remedy available to Audette herein, at law or in equity, in the event that the Client’s payment obligations are overdue and outstanding, Audette may, in its sole discretion: (A) terminate the Agreement immediately upon written notice to the Client; and/or (B) suspend its obligations to the Client relating to the Services until such time as all amounts due and owing under the Agreement are paid in full.‍
   3. Renewal Pricing.  With respect to any Renewal Terms, the Subscription Fee for each Renewal Term will, at a minimum, be increased from the previous term by the amount of the Consumer Price Index (CPI) increase, as defined by the most recent 12-month average on the US Consumer Price Index Portal.‍‍
4. ‍Proprietary Rights
   
   1. Client Data.  The Client: (i) will exclusively own all right, title and interest (including all Intellectual Property Rights) in and to Client Data; (ii) hereby grants to Audette the limited and revocable right and license to use the Client Data for the purposes of providing the Services in accordance with the Agreement; (iii) is responsible for the accuracy, completeness, quality, integrity and legality of all Client Data; (iv) represents and warrants to Audette that the Client and its Authorized Users have all rights, licenses and consents necessary to provide the Client Data to Audette for the purposes of Audette’s provision of the Services in accordance with the Agreement; and (v) represents and warrants to Audette that the Client will minimize its provision of any personally identifiable information with respect to the Services.
   2. Audette Material.  Notwithstanding anything to the contrary in the Agreement, Audette will exclusively own all right, title and interest (including all Intellectual Property Rights) in and to: (i) the Software and the Services, and all software, algorithms and tools relating thereto, and all improvements, enhancements and modifications relating thereto; (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(a), the Reports.‍
   3. Reports.  During a Subscription Term, and subject to the applicable Services purchased, the Client may be able to access, download and store certain results, reports and other materials delivered and accessible through the Client’s Account (the “Reports”). Audette grants to the Client an irrevocable, perpetual license to any Reports downloaded from the Client’s Account during a Subscription Term, which the Client may only use for its Internal Use, and not for any Commercial Purpose. “Internal Use” means internal business purposes and not for any Commercial Purpose. For certainty, Internal Use will include sharing with third parties (at Client’s sole discretion) to assist Client in further analyzing the details in the Reports and implementing same. “Commercial Purpose” means redistribution, retransmission, or publication for the benefit of a third party, regardless of whether it is done in exchange for a fee or other consideration, which may include: (i) advertising; (ii) use in any materials or services for sale or for which fees or charges are paid or received; and (iii) use in any books, news publication, or journal.‍
   4. Rights Reserved.  Except for the limited rights and licenses expressly granted in the Agreement, neither party grants to the other party any Intellectual Property Rights under the Agreement, and all such rights, title and interests are hereby retained and reserved.‍
5. Confidentiality
   
   1. Obligation.  Both during and after the term of the Agreement, the Recipient will not disclose to any person or use for any purpose, the Disclosing Party’s Confidential Information, except: (i) as is necessary for exercising its rights or performing its obligations under the Agreement; (ii) as is necessary pursuant to an order or requirement of a court, administrative agency, or other governmental body of competent jurisdiction (in which case the Recipient will, if permitted under such order or requirement, promptly notify the Disclosing Party of the order or requirement prior to such disclosure in order for the Disclosing Party to have an opportunity to seek a protective order at its cost); or (iii) as otherwise authorized by the Disclosing Party in writing from time to time. The Recipient may share the Disclosing Party’s Confidential Information with its employees, contractors, officers, directors, agents and professional advisors (collectively, “Representatives”), provided they: (A) need to know the Confidential Information; and (B) are bound to the Recipient by confidentiality obligations no less protective than those set out in the Agreement. The Recipient is responsible for any breach of the Agreement by its Representatives.‍
   2. Security.  Recipient will employ at all times administrative and technical security measures to protect the Disclosing Party’s Confidential Information from unauthorized use or disclosure, which security measures will not in any event be less than commercially reasonable standards.‍
   3. Return or Deletion.  Recipient will, within thirty (30) days of written request by the Disclosing Party, return or destroy the Disclosing Party’s Confidential Information using commercially reasonable technological means.‍
   4. Non-Disclosure Agreement.  To the extent that Audette and the Client have entered into a non-disclosure agreement in contemplation of these Terms and the Agreement (the “NDA”): (i) all Confidential Information disclosed under the NDA is deemed to have been disclosed under the Agreement; (ii) the Agreement is deemed to replace and supersede the NDA; and (iii) the NDA is hereby terminated.‍
6. Term and Termination
   
   1. Term.  Unless terminated earlier pursuant to the terms and conditions of the Agreement, the Agreement will commence on the Effective Date and continue in full force and effect until the expiry or termination of all Subscription Terms.‍
   2. Termination for Cause.  Each party may terminate the Agreement by written notice if the other party: (i) fails to cure any material breach of the Agreement within thirty (30) days after written notice detailing the breach, provided that any breach by a party of its confidentiality obligations will be subject to immediate termination by the non-breaching party; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, insolvency, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days). Audette may also terminate the Agreement immediately with written notice if the Client breaches any payment obligations, breaches Sections 2(c)(i) (Responsible Use), or where the Client or its Authorized Users’ access and use of the Services, in Audette discretion, acting reasonably, threatens the security, integrity or availability of the Services. ‍
   3. Effect of Termination.  Upon termination of the Agreement for any reason: (i) all Order Forms will immediately terminate; (ii) Audette will deliver to the Client a final statement of account or invoice for any accrued and outstanding Fees as of the termination date, and the Client will promptly pay any such Fees to Audette, if applicable; and (iii) any provision of the Agreement that provides for a right or an obligation after termination of the Agreement will survive such termination, including Sections: 3, 4, 5, 6(c), 7, 8 and 10 of these Terms.‍
7. Indemnity
   
   ‍Each party (the “Indemnitor”) will defend, indemnify and hold harmless the other party and their officers, directors, contractors, and employees (together, the “Indemnitees”) against and from any and all third-party claims, demands, actions, causes of action, damage, loss, suits, proceedings, costs, liabilities, expenses and charges incurred or suffered by the Indemnitees as a result of or in connection with any material non-fulfillment or breach of any warranty or covenant, or any material misrepresentation, under the Agreement by the Indemnitor.‍
8. Disclaimer and Liability Limitation‍
   
   1. Disclaimer. Except for the express representations and warranties provided in the Agreement, Audette provides the Services “AS IS” and disclaims any and all guarantees, representations, conditions and warranties regarding the Services (which includes, for certainty, the Software and the Reports), whether implied or statutory, oral or otherwise, arising under any law or otherwise, including conditions and warranties with respect to validity, accuracy, non-interruption, error-free operation, merchantability, quality, or fitness for a particular purpose.
   2. Exclusion of Indirect Damages.  In no event will either party have any liability to the other for any incidental, punitive, indirect, special or consequential damages (including damages for loss of business, loss of profits, business interruption, loss of data, lost savings, lost opportunity costs or other similar pecuniary loss), however caused and under any theory of liability (including negligence) and whether or not the other party was advised of the possibility of such damage. This Section will apply to the fullest extent permitted by law.
   3. Liability Cap.  Notwithstanding anything to the contrary in the Agreement, each party's maximum aggregate liability to the other for claims arising out of or relating to the Agreement, whether in breach of contract, in tort or otherwise, is the aggregate amount of Fees paid by the Client to Audette during the twelve (12) month period preceding the date of the first claim in connection with the Agreement (the “Base Cap”), except where such liability arises directly from such party’s: (a) indemnification obligations under the Agreement; or (b) breach of confidentiality obligations under the Agreement (collectively, “Exceptional Events”). With respect to Exceptional Events, each party's maximum aggregate liability to the other is two (2) times the Base Cap. The foregoing limitations of liability will not apply to limit any claim for: (i) gross negligence, fraud or willful misconduct; or (ii) unpaid Fees under the Agreement. This Section will apply to the fullest extent permitted by law.‍‍
9. ‍Insurance
   
   ‍Audette will carry, throughout the term of the Agreement, commercial liability insurance and cyber liability insurance in amounts no less than $2,000,000 per occurrence. Audette will provide copies of the foregoing insurance coverage to the Client upon written request.
10. ‍General‍
    
    1. Entire Agreement.  The Agreement constitutes the entire agreement between the parties with respect to the subject matter herein and supersedes any previous agreement, understanding or communications between the parties related thereto. To the extent of any conflict between an Order Form, these Terms and any Other Agreements, the following order of precedence will apply (highest to lowest): (i) these Terms; (ii) the Order Form; and (iii) the Other Agreements.‍
    2. Governing Law.  If the Client’s address provided in an Order Form is: (a) in the United States, then the Agreement will be governed by the laws of the State of New York, and the parties will exclusively submit to the jurisdiction of the State of New York; or (b) outside of the United States, then the Agreement will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, and the parties will exclusively submit to the jurisdiction of the Province of British Columbia. ‍
    3. Assignment.  Neither party may assign any of its rights or obligations under the Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign the Agreement in its entirety in connection with a merger, acquisition, corporate reorganization, change of control, or sale of all or substantially all of its assets, and any such assignment will not require the consent of the other party. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.‍
    4. Notices.  Notices under the Agreement will be in writing and may be sent by email or registered mail to the addresses set forth in an Order Form. All such notices will be deemed to have been given and received upon confirmation of delivery. ‍
    5. Independent Contractors. The parties are independent contractors. Neither party will be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither party will have any right, power or authority to create any obligation or responsibility on behalf of the other. ‍
    6. Waiver.  No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. Any waiver must be expressly made in writing and signed by the party making the waiver. ‍
    7. Severability.  If all or part of any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the remainder of the Agreement will remain in effect, and the impugned provision will be modified so as to best accomplish its original intent to the maximum extent permitted by applicable law.  ‍
    8. Force Majeure.  Audette will not be responsible for any failure to perform its obligations in the Agreement to the extent due to a Force Majeure Event; provided that, Audette gives the Client prompt written notice of the failure to perform and the reason therefor and uses its reasonable efforts to limit the resulting delay in its performance. ‍
    9. Injunctive Relief.  Each party acknowledges and agrees that should it breach its confidentiality obligations under the Agreement, or the obligations under Section 2(c)(i) (Responsible Use), as applicable, then the other party may suffer harm which may not be adequately compensated by monetary damages. In such event, the non-breaching party may, in addition to any other remedy available in law or equity, seek specific performance and injunctive or other equitable relief without bond or proof of damages.‍
    10. Amendments. Audette may amend the Agreement from time to time by providing the Client with thirty (30) days prior written notice of the amendment to the Agreement. At any time during such thirty (30) day notice period, the Client may terminate the Agreement immediately upon written notice to Audette. However, if notice of termination is not provided during such thirty (30) day notice period, then: (i) the Agreement will be deemed to be duly amended after the expiry of such notice period; and (ii) the Client will be deemed to have accepted and be bound by the amended Agreement.