Partnership Terms & Conditions

These Partnership Terms and Conditions (the “Terms”) govern the services that AUDETTE ANALYTICS INC. (“Audette”) agrees to provide to the Client identified and defined in the Partnership Agreement referencing these Terms and executed by such parties (the “Partnership Agreement”, and together with these Terms and any other agreements and schedules expressly referenced in the Partnership Agreement, the “Agreement”). Any capitalized terms used but not defined herein may be defined in the Partnership Agreement, and such definitions apply hereto.

Audette and the client hereby agree as follows:

1. Provision of Services

(a) Services. Subject to the terms and conditions herein, and in exchange for the Fees (defined in Section 2), Audette will provide the Client with the Services expressly set out in the Partnership Agreement during the Term (defined in Section 5). Audette may from time to time engage third parties (each a “Subcontractor”) , such as independent contractors, affiliates, service providers, licensees and agents, to perform any part of the Services or any part of its obligations under the Agreement. Audette will: (a) remain directly responsible to the Client for the acts or omissions of each Subcontractor; and (b) ensure that each Subcontractor is bound in writing to terms equally as protective of the Client as the terms and conditions hereof.

(b) Responsibilities. Audette will: (a) provide the Services in compliance with applicable laws, including without limitation, applicable data protection and privacy laws; (b) 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 (defined in Section 3.1); (c) provide the Services in a professional manner; (d) 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 (defined in Section 9). Audette 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. 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.

2.  Fees

Subject to the terms and conditions herein, the Client will pay to Audette the fees in the amounts, at the times and according to the terms set out in the Partnership Agreement, together with the subsequent fees for any Renewal Terms, as may be applicable (collectively, the “Fees”). With respect to any Renewal Terms, the applicable fees for each Renewal Term will, at a minimum, be increased from the previous term by the amount of the Canada Consumer Price Index (CPI) increase, as defined by the most recent 12-month average on the Consumer Price Index Portal. Unless otherwise expressly set out in the Partnership Agreement: (a) all Fees are exclusive of any applicable taxes, which will be invoiced and paid together with the Fees; and (b) invoices under the Agreement are payable, without deduction, holdback or setoff, upon receipt, except where such Fees invoiced are disputed by the Client in good faith (invoice disputes will not affect the undisputed portions of the Fees payable by the Client). Without limiting any other remedy available to Audette, in the event that the Client’s payment obligations are overdue and outstanding for a period of thirty (30) days, Audette may, in its sole discretion, immediately 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. Data Ownership and Proprietary Rights

(a) Client Data. Client will exclusively own all right, title and interest (including without limitation all intellectual property rights) in and to the information and data provided by the Client and its users to the Platform (collectively, the “Client Data”) Audette will have the limited, revocable right and license to use the Client Data for the purposes of providing the Services in accordance with the Agreement. The Client represents and warrants to Audette that it has all rights, licenses and consents necessary to provide the Client Data to Audette for the purposes of Audette’s provision of the Services. The Client represents and warrants to Audette that it will not provide any Client Data that contains any personally identifiable information.

(b) Audette Material. Notwithstanding anything to the contrary in the Agreement, Audette will exclusively own all right, title and interest (including without limitation all intellectual property rights) in and to (a) the Services (including the Platform), all software, algorithms, and tools relating thereto, and all improvements, enhancements and modifications relating thereto, and (b) any software, applications, inventions or other technology developed by Audette in connection with the Services.

(c) Reports. During the Term, the Client may download, retrieve and store certain results, reports and other materials delivered and accessible through the Client’s account on the Platform (the “Reports”). Subject to Section 3.1, Audette will exclusively own all right, title and interest (including without limitation all intellectual property rights) in and to the Reports. Audette grants to the Client an irrevocable, perpetual license to any Reports downloaded from the Client’s account on the Platform during the 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, without limitation, 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, without limitation (a) advertising; (b) use in any materials or services for sale or for which fees or charges are paid or received; and (c) use in any books, news publication, or journal.

(d) Rights Reserved. Except for the 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.Except for the 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.Except for the 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.

4.  Confidentiality

(a) "Confidential Information" will mean any and all information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by one party (the “Disclosing Party”) to the other (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: (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient; (ii) was in Recipient's possession on a non-confidential basis prior to its being provided to the Recipient by or on behalf of the Disclosing Party; (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or which source, to the knowledge of the Recipient, is not prohibited from disclosing such information by a legal, contractual or fiduciary obligation; (iv) is independently developed by the Recipient without the use of the Disclosing Party's information. For certainty, Client Data is Confidential Information of the Client.

(b) Obligation.  Both parties agree that, both during and after the Term, the Recipient will not disclose to any person or use for any purpose, Disclosing Party’s Confidential Information, except: (a) as necessary to provide or receive the Services as provided in the Agreement; (b) as required 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 (c) as otherwise authorized by the Disclosing Party in writing from time to time.

(c) Return.  Recipient will, upon request by the Disclosing Party, return or destroy the Confidential Information, as directed by the Disclosing Party in writing, using commercially reasonable technological means, within thirty (30) days.

5. Term

The term of the Agreement is the period of time that begins on the Effective Date, as specified in the Partnership Agreement, and continues until such time as the Agreement is terminated as expressly provided for in these Terms, or as is otherwise expressly provided for in the Partnership Agreement (the “Term”). Any provision of the Agreement that provides for a right or an obligation after termination of the Agreement will survive such termination, including without limitation, Sections: 2, 3, 4, 6 and 7 of these Terms.

6. 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.

7. Disclaimer and Liability Limitation

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 without limitation, the Platform and the Reports), whether implied or statutory, oral or otherwise, arising under any law or otherwise, including without limitation conditions and warranties with respect to validity, accuracy, non-interruption, error-free operation, merchantability, quality, or fitness for a particular purpose.

In no event will either party have any liability to the other for any incidental, punitive, indirect, special or consequential damages (including, without limitation, 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.

Notwithstanding anything 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 total aggregate amount paid by the Client to Audette during the twelve (12) month period preceding the date of a claim (the “Base Cap”), except where such liability arises directly from such party’s: (a) indemnification obligations under Section 6 of these Terms; or (b) breach of confidentiality obligations under Section 4 of these Terms (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.

8. Insurance

If the Client’s address provided in the Partnership Agreement 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. Notices under the Agreement will be in writing and may be sent by email or registered mail to the address set out in the Partnership Agreement. All such notices will be deemed to have been given and received upon confirmation of delivery. 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. 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. 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. 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, Audette may assign the Agreement in its entirety in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its shares or assets. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Audette will not be responsible for any failure to perform its obligations in the Agreement to the extent due to unforeseen circumstances or causes beyond its reasonable control (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. 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.

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9. General

If the Client’s address provided in the Partnership Agreement 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. Notices under the Agreement will be in writing and may be sent by email or registered mail to the address set out in the Partnership Agreement. All such notices will be deemed to have been given and received upon confirmation of delivery. 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. 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. 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. 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, Audette may assign the Agreement in its entirety in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its shares or assets. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Audette will not be responsible for any failure to perform its obligations in the Agreement to the extent due to unforeseen circumstances or causes beyond its reasonable control (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. 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.

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