This ANVL TERMS OF SERVICE is a master agreement and consists of the general terms and conditions set forth herein, and the terms set forth in an applicable Order Form (defined below) or under an applicable Statement of Work (defined below) (collectively, the “Agreement”). Unless expressly set forth in an Order Form or Statement of Work, the terms and conditions set forth in this ANVL TERMS OF SERVICE shall control in the event of a conflict between the terms and conditions herein, and any Order Form or Statement of Work.
The Agreement is effective as of the date set forth on an applicable Order Form (“Effective Date”), by and between Anvl, Inc. (“Vendor”), and the client party as set forth on an applicable Order Form (“Client”). From time to time in the Agreement, Client and Vendor shall be referred to collectively as, the “Parties” and each individually as, a “Party”.
There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
SECTION 1. Definitions. Terms defined in this Section 1 and parenthetically defined elsewhere shall have the same meaning throughout the Agreement.
“Benchmark Data” means statistical, system, usage, and configuration data regarding the Client’s compliance with this Agreement and Client’s usage of the Services.
“Client Content” means any reports, information, files, documents, data or other content that Client or its end users shares with Vendor through the Services.
“Effective Date” shall mean the earliest date this Agreement is executed by both Vendor and Client.
“Order Form” means the order form document that is executed by both parties and is subject to, governed by, and incorporates by reference, this ANVL TERMS OF SERVICE, and sets forth the Services and Professional Services Vendor shall provide to Client.
“Professional Services” means the professional services provided by Vendor to Client under Statement of Work that describes the professional services to be provided by Vendor, which may include, but is not limited to, any implementation, data conversion, set-up, consulting, training, interface, and advisory services. Professional Services includes Support Services.
“Services” means the object code form of ANVL, running on one or more computer servers maintained by Vendor or maintained by a third party on behalf of Vendor and made available to Client over the Internet.
“Statement of Work” means a document executed by an authorized representative of each party that sets forth the Services, Professional Services, Support Services, and other materials being provided thereunder subject to the terms and conditions of this Agreement, a sample of which is attached hereto as Exhibit A.
“Support Services” means the support and maintenance services provided by Vendor to Client, as set forth in Exhibit B hereto, or under a Statement of Work or Order Form that describes the support and maintenance services to be provided by Vendor, which may include, but is not limited to, any training, troubleshooting, help-desk, strategic business assistance and onboarding support services.
“Work Product” means all patentable subject matter, patent rights, copyrightable subject matter, copyrights, trademarks, trade secrets, know-how, ideas, suggestions, discoveries, designs, processes, computer products, software (both object code and source code), works of authorship, algorithms, formulas, methods, programming, techniques, flowcharts, reports, and all other inventions or developments created during the performance of this Agreement, including, without limitation, during the performance of Professional Services.
SECTION 2. Services
License Grant. Provided that Client pays all the required fees under this Agreement and complies with all other terms of this Agreement, Vendor hereby grants to Client a non-exclusive, terminable, non-transferable right and license to access and use the Services pursuant to this Agreement. Client shall not use or otherwise access the Services in a manner that exceeds Client’s authorized use and permitted capacity as set forth in this Agreement.
Restrictions. Client shall not use the Services beyond the scope of the rights granted in this Agreement. Client shall be solely liable for its users’/customers’ access to the Services and any misuse of the Services by such users/customers. Client shall not directly or indirectly alter, modify, adapt, translate, copy, distribute, reverse engineer, decompile, disassemble, or create any derivative works of the Services. Client shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in the Services. Client shall be responsible for obtaining and purchasing all equipment, Internet access services, modifying its network, and doing all other things necessary in order to use the Services.
SECTION 3. Client’s Obligations. Client will provide commercially reasonable cooperation with Vendor to assist Vendor in provision of the Services. Vendor shall authorize access to and assign unique passwords and user names to Client’s end users of the Services (“Client Accounts”). Client shall be responsible for its end user’s acts and omissions, and any other activity occurring through the Client Accounts, including unauthorized activity. Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall promptly notify Vendor in the event of any unauthorized access or use of the Services and any loss or theft or unauthorized use of any of the Client Accounts. Client shall comply with all applicable local, state, federal, and foreign laws, treaties, and regulations applicable to Client’s use of the Services, including without limitation those related to privacy, electronic communications, and anti-spam legislation.
SECTION 4. Professional Services. All Professional Services rendered by Vendor shall be governed by the terms and conditions of this Agreement and the applicable Statement of Work.
Performance of Professional Services. Professional Services may, at the discretion of Vendor, be performed at: (i) Client’s offices, Vendor’s offices or elsewhere; and (ii) the times designated by Vendor. Client shall provide Vendor with copies of all materials in Client’s possession that Vendor may reasonably request to assist Vendor in rendering Professional Services hereunder. In addition to all other remedies it has available to it at law or in equity, Vendor may suspend the provision of Professional Services during any period when Client has failed to timely pay Vendor any amount due under this Agreement and such failure continues for a period of ten (10) or more days following Client’s receipt of notice or a reminder invoice from Vendor concerning such nonpayment.
Client Delay and Changes. Vendor shall not be responsible for any delays in the performance of the Professional Services caused by Client. For any Professional Services for which Client’s participation is contemplated, Client and Vendor shall agree upon the dates to perform such Professional Services. Vendor will have no obligation to provide Professional Services other than those specified in any Statement of Work. Client may request additional Professional Services by a separate Statement of Work describing the additional Professional Services to be provided. Unless the parties agree to other rates set forth in a fully-executed Statement of Work, Client will pay for additional work and/or work that falls outside of the scope of a Statement of Work at Vendor then-current hourly rates.
Support Services: During the Term, and provided Client has paid for such Support Services, Client shall be entitled to receive Support Services. Vendor shall provide any such Support Services in accordance with the support terms as set forth in Exhibit B.
SECTION 5. Payment Terms.
Services Fees. In order to obtain access to the Services for the Initial Term, Client shall pay a subscription fee as set forth in the applicable Order Form or Statement of Work, within thirty (30) days of execution of this Agreement (the “Subscription Fee”). Notwithstanding the foregoing, the parties may agree in writing to renew this Agreement for longer periods at other mutually agreed upon rates. Client shall pay the Subscription Fee for each Renewal Term within thirty (30) days after the start of such Renewal Term.
Payments for Professional Services. Vendor will invoice Client for Professional Services as set forth in the applicable Order Form or Statement of Work, within thirty (30) days of execution of this Agreement (the “Services Fee”). Client shall pay undisputed invoices, or the undisputed portion of any disputed invoice, within thirty (30) days of the invoice date. In order to dispute an invoice or an amount on an invoice, Client must provide written notice to Vendor of such dispute prior to the applicable due date for the payment of such fee and such dispute must be reasonable and in good faith. On such invoices, Vendor shall charge Client for reasonable travel, lodging and meal expenses, and any other reasonable expenses incurred on behalf of Client in rendering the Professional Services.
Taxes. Client shall pay all taxes (including without limitation sales, use, property, excise, value added, and gross receipts) levied on this Agreement, except taxes based on Vendor’s income. Vendor reserves the right to suspend Client’s access and/or use of the Services and to cease providing Professional Services for any accounts for which any payment of fees is due and unpaid, provided, however, that Vendor provides Client a delinquency notice of such nonpayment and at least thirty (30) days have passed since the transmission of such delinquency notice without full payment of the unpaid fees by Client. Client also shall pay to Vendor all reasonable expenses incurred by Vendor in connection with exercising any of its rights under this Agreement or applicable law with respect to the collection of payment due to Vendor (excluding with respect to amounts reasonably disputed by Client in good faith), including reasonable attorneys’ fees, court costs, and collection agency fees.
SECTION 6. Intellectual Property Rights.
Proprietary Rights. Unless set forth on an applicable Order Form or Statement of Work, Client acknowledges and agrees that Vendor retains sole and exclusive ownership of all right, title, and interest in and to: (i) Work Product; and (ii) the Services, including any modification, improvement, enhancement, or configuration made to the Services, regardless of who creates, suggests, and/or contributes in any such modification, improvement, enhancement, or configuration. Client agrees to assign and hereby does assign all right (including all copyrights, patent rights and other intellectual property rights), title and interest in Work Product to Vendor. Provided that Client complies with all the terms of this Agreement, Client shall have a nonexclusive, nontransferable license to use the Work Product solely to support its business operations under the same terms, conditions and restrictions of the rights granted to the Services under Section 2(a).
Client Content. Client acknowledges that Client’s use of the Services may require the processing and transmission of Client Content to Vendor. Client shall own all title and intellectual property rights in and to the Client Content. Notwithstanding the foregoing, when Client or its end users uploads, submits, or stores Client Content through the Services, Client grants Vendor a worldwide license to use, host, store, reproduce, modify, and create derivative works from the Client Content to provide, support, and improve the Services. Vendor is not responsible for any electronic communications and/or Client Content which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third party networks (other than third parties providing computing or storage services under this Agreement on behalf of Vendor). Without limiting Client’s rights and remedies under this Agreement, Client acknowledges that Client Content and information regarding Client’s account will be processed by Vendor and stored and processed using online hosting services selected by Vendor. Notwithstanding anything to the contrary in this Agreement, Client authorizes and agrees that Vendor may collect Benchmark Data and such Benchmark Data shall be the property of Vendor. Vendor shall have the right to retain, use, distribute, sell, and otherwise exploit such Benchmark Data.
Feedback. Vendor encourages Client to provide suggestions, proposals, ideas, recommendations or other feedback regarding improvements to Vendor’s services and related resources. To the extent Client provides such feedback, Client grants to Vendor a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit feedback (including by incorporation of such feedback into the Services) without restriction.
SECTION 7. Warranties. Vendor represents and warrants that: (a) it has the full corporate right, power and authority to enter into this Agreement; (b) the execution of this Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a Party or by which it is bound; (c) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of Vendor, in accordance with its terms; and (d) it shall provide the Professional Services in a workmanlike, professional manner. CLIENT ACKNOWLEDGES THAT THE SERVICES AND ANY INFORMATION OR OTHER DATA WITHIN THE SERVICES ARE BEING PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, VENDOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
SECTION 8. Indemnification. Client shall indemnify and defend Vendor, at Client’s own expense, against any suit or proceeding brought against Vendor by a third party arising from or related to: (a) Client’s violation of any law; (b) loss or damage to property, or personal injury or death of any employee, contractor, or other Client user; or (c) an allegation that the Client Content or Vendor’s use of the Client Content in accordance with this Agreement violates any law or regulation or infringes third party intellectual property rights. Vendor shall indemnify and defend Client, at Vendor’s own expense, against any claim, suit or proceeding brought against Client that, if true, would constitute a breach of Vendor’s warranty provided in Sections 7. (a) through (d) (a “Claim”). To qualify for such defense and payment, Client must (a) give Vendor prompt written notice of any such Claim; (b) allow Vendor to solely control the defense and all related settlement negotiations for any such Claim; and (c) fully cooperate with Vendor in such defense and settlement negotiations.
SECTION 9. Limitation of Liability. EXCEPT FOR INDEMNITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST REVENUE OR LOST PROFITS), EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. EXCEPT FOR INDEMNITY OBLIGATIONS, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THIS AGREEMENT WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE WILL BE LIMITED TO THE AGGREGATE AMOUNT OF FEES PAYABLE UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.
SECTION 10. Confidentiality.
Definition. “Confidential Information” means any nonpublic information (written, oral or electronic) disclosed by one Party to the other Party and shall be deemed to include the following information of the respective Parties, without limitation: (a) the terms and conditions of this Agreement; (b) customer lists, the names of customer contacts, Client Content, business plans, technical data, product ideas, personnel, contracts and financial information; (c) patents, trade secrets, techniques, processes, know-how, business methodologies, schematics, employee suggestions, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements; (d) information about costs, profits, markets and sales; (e) plans for future development and new product concepts; (f) all documents, books, papers, drawings, models sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be disclosed, as well as written or oral instructions or comments; or (g) any data or information stored in the Services.
Non-Disclosure. Each Party agrees not to use, disclose, sell, license, publish, reproduce or otherwise make available the Confidential Information of the other Party to any third party, and further agrees not to use the Confidential Information of the other Party except and only to the extent necessary to perform their respective obligations under this Agreement. Each Party agrees to secure and protect the other Party’s Confidential Information in a manner consistent with the maintenance of such Party’s own confidential and proprietary rights in the information (and in any event reasonable measures) and to take appropriate action by instruction or agreement with its employees, consultants, affiliates or other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section.
Exclusions. The obligation to treat information as Confidential Information shall not apply to information which: (a) is publicly available through no action of the receiving Party; (b) was rightfully in the receiving Party’s possession on a non-confidential basis independent of its relationship with the disclosing Party prior to the first disclosure by the disclosing Party to the receiving Party as evidenced by the receiving Party’s then-existing written records; (c) has been or is developed by or become known to the receiving Party without access to any of the disclosing Party’s Confidential Information and outside the scope of any agreement with disclosing Party with the receiving Party having the burden of proof to demonstrate independent creation; (d) has been obtained rightfully from third Parties not bound by an obligation of confidentiality.
Data. Client shall own all Client Content and other information and data provided to Vendor through the Services; notwithstanding the foregoing, Vendor shall be permitted to retain de-identified, anonymous Client Content and other information and data perpetually for legally permissible purposes including development of algorithms, derivative works, and other machine learning and artificial intelligence to improve the Services and to provide Professional Services, in each case as permitted by applicable law. Vendor agrees to refrain from sharing any personally identifiable information with third parties except as may be agreed by Client in writing.
SECTION 11. Term and Termination.
Term. The initial term of the Agreement shall be as set forth on the Order Form (the “Initial Term”). Thereafter, the term of the Agreement shall renew as set forth on the Order Form (each, a “Renewal Term”), unless one Party provides written notice to the other Party at least sixty (60) days in advance of the end of the then-existing term that it does not wish to renew the Agreement.
Termination for Cause. In the event that Client or Vendor breaches any material provision of this Agreement and fails to cure such breach within fifteen (15) days after written notice thereof (which notice reasonably details the alleged breach), the non-breaching Party may terminate this Agreement immediately by written notice to the other Party. In the event that Client or Vendor (i) becomes insolvent; (ii) files a petition in bankruptcy for Chapter 7 relief, or has such a petition filed against it (and fails to lift any stay imposed thereby within sixty (60) days after such stay becomes effective); (iii) has a receiver appointed with respect to all or substantially all of its assets; (iv) makes an assignment for the benefit of creditors or (v) ceases to do business in the ordinary course, the other Party may terminate this Agreement immediately by notice in writing. All notices required by this Section shall be in accordance with the notice requirements.
Rights upon Termination. Client acknowledges that in the event of a termination for cause, Vendor does not retain and shall not be responsible for any damage to or loss of Client Content or other data. In the event this Agreement is terminated for any reason, Client shall pay Vendor for all Services provided to Client up to and including the date of termination. Upon termination of this Agreement, Client’s access to the Services and the licenses granted herein shall immediately terminate.
SECTION 12. General.
Law, Jurisdiction, and Venue. This Agreement shall be governed and construed according to the laws of the State of Indiana. The Parties agree that the exclusive jurisdiction or any lawsuit related to or arising under this Agreement shall be in the Circuit Court for Marion County, Indiana or the United States District Court for the Southern District of Indiana, Indianapolis Division.
Assignment. Except as otherwise provided in this Section 12(b), neither Party may assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld; any unauthorized assignment or delegation will be null and void. A Party may, without notice to or consent from the other Party, assign this Agreement in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction, provided that the assignee confirms in writing that it has assumed all obligations of the assignor under this Agreement. This Agreement will be binding upon and inure to the benefit of the Parties’ permitted successors and assigns.
Notices. Any notice either Party desires to give the other Party hereunder shall be in writing. All notices shall be given by delivery to the Parties at their physical or email addresses set forth on the Order Form, unless such addresses are changed by written notice.
Independent Parties. This Agreement is by and between independent parties. Nothing in this Agreement shall be construed or interpreted to give rise to an agency, partnership, franchise, employment, or joint venture.
Force Majeure. Neither Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, weather and other Acts of God, government restrictions, acts of terrorism, wars, insurrections and/or any other cause beyond the control of the Party whose performance is affected, however, if the duration of the delay caused by such an event shall exceed fifteen (15) days, the Party who was to benefit from the performance of such act shall have the right to terminate this Agreement by giving written notice, according to this Agreement.
General. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements with respect to such subject matter, whether express or implied, written or oral. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement. This Agreement may not be modified except by written agreement signed duly authorized representatives of both Parties. This Agreement shall not be construed against any Party by reason of its preparation. If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. In this event, the Parties may replace the unenforceable provision with a mutually agreeable enforceable provision that preserves the original intent and position of the Parties. Any other provisions that survive by their nature shall survive the expiration or termination of this Agreement for any reason. No term or provision of the Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. No consent by any Party to, or waiver of, a breach or default by the other, whether express or implied, shall constitute a consent to, waiver of, or excuse for any different or subsequent breach or default.