Terms of Service
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. THEY GOVERN YOUR ACCESS TO AND USE OF THE ANCHOROCK SERVICES PROVIDED BY ANCHOROCK SOLUTIONS, INC. AND ITS AFFILIATES (THE “COMPANY”).
Unless otherwise defined herein, the capitalized terms used in this Agreement shall have the following definitions.
- “Agreement” means collectively (i) these Terms and Conditions; (ii) the initial Order Form and any follow-on Order Forms; and (iii) any addenda signed by both Provider and Customer.
- “Ancillary Services” means any technical, consulting, or professional services provided by Provider or designated individuals that falls outside of Service as defined in 1.19 below.
- “Business Day” means Monday through Friday, 8:00 am to 8:00 pm eastern U.S. time, excluding any day that banks in the United States are required or permitted to be closed.
- “Customer” includes the Customer whose name is set forth in the Agreement and Order Form and any affiliated entity which controls, is controlled by, or is under common control with Customer, provided all such entities ordering or using Provider’s Service have agreed to be bound by the terms and conditions of this Agreement.
- “Customer Data” means all text, files, data, output, programs, information, or other information or material that Customer owns and provides or uses in conjunction with the Service, excluding any Resultant Data.
- “Customer Equipment” means Customer’s computer hardware, software and network infrastructure used to access the Service.
- “Data Safeguards” has the meaning set forth in Section 5.4.
- “Derivative Work” means a work of authorship based on one or more pre-existing works, such as a revision, modification, abridgement, condensation, expansion, or any other form in which the pre-existing work may be recast, transformed, or adapted.
- “Disclosing Party” has the meaning set forth in Section 5.1.
- “Documentation” means all information, materials, instructions, user guides, manuals, help files, and other descriptive product information, whether in electronic, paper or other equivalent form, provided with the Service.
- “Effective Date” means the date of this Agreement as set forth on the cover page hereof.
- “Feedback” has the meaning set forth in Section 4.3.
- “Force Majeure” has the meaning set forth in Section 11.3.
- “Intellectual Property Rights” means, collectively, rights under patent, trademark, copyright, and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including moral rights and similar rights.
- “Order Form” means Provider’s standard Order Form that (i) specifies the Services licensed by Customer; (ii) references this Agreement; and (iii) is signed by authorized representatives of both Parties and deemed incorporated into this Agreement. It is contemplated by the Parties that there may be multiple Order Forms entered into in association with this Agreement.
- “Receiving Party” has the meaning set forth in Section 5.1.
- “Resultant Data” means data, analysis and information related to Customer and its Users’ use of the Service that is collected and used by Provider in an aggregate and anonymized manner, including, but not limited to, Provider’s compiling and statistical analysis of performance information related to the provision and operation of the Service.
- “Service” means Provider’s service offering set forth the applicable Order Form and all incidental products and services thereto, including (i) access to Provider’s network infrastructure, software, software updates, Documentation and any Support or other services that Provider provides through its data center; and (ii) Provider’s (or its contractors’) data processing, storage, and transmission services.
- “Software” means the object code version of the Provider’s software, made available through the Service under this Agreement. Software may include but is not limited to marketing project management software and updates and additional releases.
- “Subscription Fees” mean the fees paid by Customer for the right to use the Service and receive Support during the applicable Term.
- “Support” means the support services provided by Provider in accordance with this Agreement (if any) and any support policies (if any) in place by Provider from time-to-time.
- “Taxes” has the meaning set forth in Section 6.5.
- “Term” means, collectively, the applicable period specified in the Order Form for which Customer has contracted to receive the Service (this period is the “Initial Term”) and any “Renewal Term” thereafter, as more specifically set forth in Section 10.1.
- “Trademarks” means, collectively, the trademarks and service marks owned by Provider and the respective logos of the pages in the site. All other trademarks and trade names are the property of their respective owners and shall be treated as their proprietary property.
- “User(s)” means Customers, Customer’s employees, consultants, contractors or agents who are authorized to use the Service for their internal use and not for redistribution, re-marketing, time-sharing, or service bureau use and (i) have been supplied user identifications and passwords to the Service or (ii) have been given direct access to the Service (End-User has system log-in access).
- License Grant. Subject to the terms of this Agreement, Provider hereby grants Customer a limited term, royalty-free (other than the fees specified in this Agreement), non-sublicensable, non-transferable, and non-exclusive license to deploy, implement, run, access and use the Service in accordance with the Documentation solely for Customer’s internal business purposes. The license granted hereunder is limited to the applicable Order Form attached to this Agreement under Addendum A. All rights not expressly granted to Licensee herein are hereby reserved by Provider.
- Use Limitations. Customer may not modify, copy, transmit, reproduce, publish, license or create a Derivative Work from, transfer, or sell any information, products, or services obtained from or available as part of or in conjunction with the Service. As a condition of Customer’s use of Provider’s Service, Customer warrants that the Service will not be used for any purpose that is knowingly unlawful under these terms, conditions, and notices.
- Updates. Provider may provide software updates and new releases to the Service, including correction of “bugs,” certain improvements to existing functionality, and new features at no additional charge to its customers who are current in payment of Subscription Fees. The subscription to the Service does not include the right to receive updates that are designated by Provider as new products, modules or options for which Provider charges a separate fee. Provider, at its sole discretion, may determine the time that any upgrade, reissue or new software release will be made generally available to existing Customers.
- Ancillary Services. Provider and Customer may agree to Ancillary Services in one or more mutually executed statements of work or addenda to this Agreement. Each such statement of work or addendum will be attached to this Agreement and shall incorporate the terms of this Agreement.
USE OF THE SERVICE AND USE GUIDELINES.
- Customer Responsibilities. Customer is responsible for all activities that occur under Customer’s Users’ accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, (ii) Customer is responsible for providing unique identification for each User of the system, selecting strong passwords for each account, periodically changing passwords and promptly removing or modifying access for Users whose employment status or job duties change. Customer’s Users may not knowingly upload malware or other malicious software to the Service. Customer is responsible for promptly notifying Provider if it becomes aware of a security incident in conjunction with its use of the Service which would impact the confidentiality, integrity, or availability of the Service.
- Customer Equipment. Provider is not responsible for (i) obtaining and maintaining any Customer Equipment needed to connect to, access or otherwise use the Service; (ii) paying third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while using the Service; and (iii) ensuring that the Customer Equipment is compatible with the Service and complies with all configuration requirements set forth in the Documentation.
- Authorized Users. Customer shall not exceed the maximum number of authorized Users set forth on the applicable Order Form for the Service. Additional amounts of authorized Users may be added during the Term at the same price per User applicable to the Service, prorated for the remainder of the Term in effect at the time the additional authorized Users are added. The quantity of authorized Users of the Service purchased cannot be decreased during the then-current Term.
- Ownership. The Service and other Intellectual Property Rights (including but not limited to software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information) of Provider, its licensors and third party providers and all copies and parts thereof, whether any of the foregoing are pre-existing, developed in the course of this Agreement (such as Derivative Works), or otherwise, are and shall at all times remain the sole and exclusive property of Provider or the respective third party, including without limitation the Documentation, Resultant Data, all patents, all copyrights, Provider’s Trademarks, and all other Intellectual Property Rights embodied therein or appurtenant thereto. There are no implied rights and all other rights not expressly granted herein are reserved. Unless otherwise agreed to in writing by the Parties, all license, right or interest to the Service, its associated Intellectual Property Rights, the Resultant Data and any Derivative Works from the Service shall be the sole property of Provider.
- Customer Data. All Customer Data is owned exclusively by the Customer. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Provider and its vendors or subcontractors to enforce this Agreement, exercise their rights or perform their obligations hereunder. Provider may access Customer’s Users’ accounts, including Customer Data therein, to deliver the Service, respond to technical problems, create Resultant Data, or for any other reason at the Customer’s request. Customer retains all right, title and interest (including, without limitation, copyright, Trademark and other Intellectual Property Rights) in and to the Customer Data that is uploaded or created by Customer or its Users and any exports thereof.
- Service Suggestions. Provider shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information (“Feedback”) provided to Provider by Customer or its Users and relating to the operation of the Service. If Provider makes any improvements to Provider’s Service based on Customer or its Users’ Feedback, Provider shall be the sole and exclusive owner of such improvements, and Customer shall have no right, title or interest in such improvements.
CONFIDENTIALITY AND DATA SECURITY.
- Confidentiality. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, Provider’s Intellectual Property Rights, business and marketing plans, technology and technical information, product designs, and business processes. The Receiving Party shall not disclose the Confidential Information of the Disclosing Party to anyone except those employees or contractors of the Receiving Party who have a need to know such Confidential Information under this Agreement and are under confidentiality obligations at least as restrictive as the terms of this Agreement. The Receiving Party is responsible for breaches of this Section 5 by its employees and contractors. The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
- Non-Confidential Information. Notwithstanding any provision contained in this Agreement, neither Party shall be required to maintain in confidence any of the following: (i) any Resultant Data; (ii) information that, at the time of or after disclosure, becomes part of the public domain without restriction, except by breach of this Agreement; (iii) information that the Receiving Party can demonstrate resulted from its own research and development, independent of and without reference to disclosure from the Disclosing Party; or (iv) information that the Receiving Party receives from third parties, provided such information was not obtained by such third parties from the Disclosing Party on a confidential basis.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 5, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
FEES & PAYMENT.
- Subscription Fees and Payment. Customer shall pay all Subscription Fees (as well as any other fees for Ancillary Services) specified in all executed Order Form(s) hereunder, without deduction or setoff, in exchange for the Service and the Support (if any). Except as otherwise provided, all Subscription Fees are quoted and due in US dollars and are non-refundable except as required as a result of Provider’s breach of this Agreement. Subscriptions to the Service purchased cannot be decreased during the relevant Term specified in the Order Form, unless otherwise agreed in a written amendment signed by the Parties. Subscription Fees for the Service shall be invoiced in advance and otherwise in accordance with the payment terms set forth in the relevant Order Form. Provider may change or increase the prices it charges the Customer for the Service upon providing notice at least thirty (30) days prior to such increase. Any increase or change in prices for the Service shall only occur upon such notice and on any subsequent anniversary of the date set forth on the Order Form.
- Other Direct Fees. Unless otherwise stated in writing, Customer shall reimburse Provider for all reasonable travel and other related expenses pre-authorized by Customer and incurred by Provider in the performance of any Ancillary Services.
- Late Fees. A finance charge of 1.5% per month shall accrue, or, if less, the maximum amount allowed by law, and may be charged on past due accounts. Customer shall pay any attorneys’ fees, court costs, or other costs incurred in collection of delinquent amounts.
- Suspension of Service. If Customer’s account is 15 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Provider reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
- Taxes. Unless otherwise stated, Provider’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Provider may be required to charge sales tax pursuant to certain state and local tax laws. Any applicable sales tax charges for the first year of the Service only are listed on the invoice. The appropriate amount of Taxes shall be invoiced to and paid by Customer each year on the contract anniversary date, unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. If Provider is required to collect a tax, it must specify that tax on an invoice. In all other cases, Customer is responsible for determining and paying taxes it owes.
WARRANTIES AND DISCLAIMER.
7.1 Warranties. Provider represents, warrants, and covenants to Customer that Provider will perform the Service in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
7.2 Disclaimer. Except as expressly provided herein, the Service and any Ancillary Services are provided “as is” and without warranties of any kind either expressed or implied. To the fullest extent of the applicable law, Provider and its affiliates disclaim all warranties of merchantability and fitness for a particular purpose. Provider does not warrant that the Service will be uninterrupted or error free, or that defects will be corrected. Customer, not Provider, creates certain content and adds materials to the Service; therefore, Provider makes no warranties or representations regarding – and assumes no liability for – the completeness, accuracy, reliability, or any uses of that content and material. Customer (and not Provider) assumes the entire cost of all necessary servicing, repair or correction.
- Indemnification by Provider. Subject to this Agreement, Provider shall defend, indemnify and hold Customer harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought by Customer or against Customer by a third party arising out of or related to an allegation that the use of the Service as contemplated hereunder infringes the Intellectual Property Rights of a third party; provided, that Customer shall (i) promptly give written notice of the Claim to Provider; (ii) give Provider sole control of the defense and settlement of the Claim (provided that Provider may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (iii) provide to Provider, at Provider’s cost, all reasonable assistance.
- Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Provider harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Provider by a third party alleging that the Customer Data or Customer’s use of the Service (as opposed to the Service itself) infringes the Intellectual Property Rights of, or has otherwise harmed, a third party; provided, that Provider (i) promptly gives written notice of the Claim to Customer; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Provider of all liability); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance.
LIMITATION OF LIABILITY.
- Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER TO PROVIDER FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
- Exclusion of Consequential and Related Damages. EXCEPT FOR (I) DAMAGES RELATED TO CLAIMS THAT ARE THE SUBJECT OF INDEMNIFICATION UNDER THIS AGREEMENT; (II) DAMAGES RELATED TO CLAIMS BASED ON EITHER PARTY’S BREACH OF ITS OBLIGATIONS SET FORTH IN SECTION 5 (CONFIDENTIALITY); OR (III) DAMAGES RELATED TO EITHER PARTY’S UNAUTHORIZED USE, DISTRIBUTION, OR DISCLOSURE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
TERM AND TERMINATION.
- Term. Unless terminated earlier in accordance with Section 10.2, the Term of this Agreement commences on the Effective Date and continues until the “Subscription Term” specified in the applicable Order Form has expired (the “Initial Term”). Except as otherwise specified in an applicable Order Form, the Initial Term shall automatically renew for additional periods (each, a “Renewal Term”), each of which being equal to the then-expiring Initial Term (or Renewal Term) or one (1) year (whichever is longer), unless either Party gives the other Party written notice of non-renewal at least thirty (30) days before the commencement of the Renewal Term.
- Termination for Cause. Notwithstanding the foregoing, this Agreement may be terminated by either Party immediately upon written notice if the other Party: (i) becomes insolvent or ceases doing business for a period greater than ninety (90) days; or (ii) materially breaches any of its obligations under this Agreement and fails to cure such breach within thirty (30) days following written notice to such Party.
- Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Provider prior to the effective date of termination.
- Return of Customer Data. Upon request by Customer made within 30 days of the effective date of termination, Provider shall, at no additional charge to Customer, make available for export or download in Provider’s standard export format (available to Provider’s other customers utilizing the Service) a file of Customer Data. After such 30-day period, Provider shall have no obligation to maintain or provide any Customer Data or materials.
- Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 2.2, 4, 5, 6, 7, 8, 9, 10 and 11; and any other terms that, by its nature, ought to survive termination, will survive the expiration or termination of this Agreement.
- Effect of Termination. Upon the effective date of termination of this Agreement: (i) Provider shall immediately cease providing the Service to Customer; (ii) Customer’s license to use the Service shall cease; (iii) any and all payment obligations of Customer incurred prior to the date of termination shall immediately become due; (iv) within thirty (30) days of such termination each Party will return all copies of Confidential Information of the other Party in its possession, except as required to comply with any applicable legal or accounting record keeping requirement; (v) upon Customer’s written request, Provider shall acknowledge to Customer in writing that all active Customer Data has been removed and deleted from its systems within 120 days of termination; and (vi) Provider shall delete all backed-up Customer Data from Provider’s systems within 180 days of termination of this Agreement.
- Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
- Force Majeure. Neither Party shall be liable for failure to perform or for delay in performance hereunder due to causes beyond its reasonable control (each a “Force Majeure”), including, but not limited to, acts of God, fires, floods, earthquakes, accidents, strikes, acts of war, acts of terrorism, riot, embargoes, fuel crises, acts of civil or military authorities, or intervention by governmental authority, provided that such Party gives prompt written notice thereof to the other Party. Any failure occasioned by the foregoing shall be remedied as soon as reasonably possible.
- Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second Business Day after mailing to the address set forth for the receiving Party in the preamble; (iii) the second Business Day after sending by confirmed facsimile; or (iv) the second Business Day after sending by email. Notices to either Party shall be addressed to the attention of its CEO, CFO, SVP of Finance, or signor of this Agreement with a copy to its General Counsel.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets not involving a direct competitor of the other Party. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Governing Law and Venue. This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules. The state and federal courts located in Santa Clara County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In the event of any suits or actions or other proceedings to enforce the terms of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and other costs and expenses incurred therein.
- Publicity. The Parties may issue one or more announcements at mutually agreed upon times concerning the relationship between the Parties. Provider may also include Customer’s name in a list of its customers provided that Customer’s name and logo are not displayed any more prominently than the name or logo of any other customer.
- Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- Entire Agreement. This Agreement, including all addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the Parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict between the provisions in this Agreement or any Order Form executed hereunder, the terms of such Order Form shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Provider’s Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void
- Modifications. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted.