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This Master Subscription Agreement (this “Agreement”) is made and entered into between Anvilogic, Inc. (“Anvilogic”) and Customer (defined below). This Agreement sets forth the terms pursuant to which Customer will be permitted to use and receive access to the Platform (defined below) and receive certain Professional Services (defined below), in each case as identified in one or more Orders (defined below). Each of Anvilogic and Customer is a “Party” and together, the “Parties.”
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, USING (OR MAKING ANY PAYMENT FOR) THE PLATFORM (DEFINED BELOW), ENGAGING COMPANY TO PROVIDE PROFESSIONAL SERVICES, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (A) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“CUSTOMER”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES (DEFINED BELOW) TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLATFORM OR RECEIVE ANY PROFESSIONAL SERVICES.
1.1 Products and Services; Orders. This Agreement sets forth the terms and conditions under which Anvilogic may make available to Customer Anvilogic’s cyber threat detection platform consisting of a software-as-a-service product (the “Hosted Services”), downloadable software for use on Customer’s premises (the “Software”), application programming interfaces for use in connection with the Hosted Services (the “APIs”), or Deliverables (defined below) (collectively, the “Platform”) or provide the Professional Services, each as expressly identified in a quote, order form, statement of work, online ordering process or other ordering document that (a) is executed by the Parties and (b) expressly references and incorporates these Master Terms (defined below) (each, an “Order”). Each Order is subject to the terms of, and is deemed incorporated into, this Agreement.
Addenda. The Platform and Professional Services will be provided pursuant to a signed Order. An Order may reference one or more additional documents that contain terms relevant to the Platform or Professional Services (each, an “Addendum”). All Addenda are deemed incorporated into this Agreement. Additionally, Anvilogic’s Privacy Policy available at https://www.anvilogic.com/legal/privacy-policy is hereby incorporated by reference into this Agreement.
1.2 Order Term. Unless earlier terminated in accordance with this Agreement or the applicable Order, each Order will continue for the initial term specified in such Order (“Initial Order Term”) and, if such Order provides for automatic renewal, then, unless either Party provides the other with notice of non-renewal, upon the date of expiration of the then-current term, such Order will automatically renew for successive terms (each, a “Renewal Term”) equal in length to the Initial Order Term or such other length of Renewal Term period as set forth in the Order (the Initial Order Term and each Renewal Term, if any, collectively, the “Order Term” of such Order). Notice of non-renewal of an Order must be provided by a Party at least [30] days prior to the end of the Initial Order Term or then-current Renewal Term, as applicable (or such other period as expressly specified on the applicable Order). Renewal of any Order may be conditioned on and subject to Customer’s agreement to changes to these Master Terms and applicable Addenda. Termination of this Agreement will terminate all Order Terms then in effect unless otherwise specified on the applicable Order. Orders that are solely for Professional Services will remain in effect until the Professional Services are completed (unless earlier terminated in accordance with this Agreement or the Order) and will not automatically renew, nor will any Professional Services included on any other Order automatically renew for a Renewal Term unless otherwise expressly specified on the applicable Order. Customer acknowledges that its access to the Platform (or certain features thereof) may be automatically disabled upon expiration of the applicable Order Term.
1.3 Order of Precedence. Any conflict between an Order, an Addendum, or Sections 1–10 of this Agreement (the “Master Terms”) will be resolved according to the following order of precedence: (a) the Order; (b) the Addendum; and (c) the Master Terms.
(a) Hosted Services. During the Order Term, Customer may access the Hosted Services solely (i) by the number of authorized users set forth in the Order, and (ii) in accordance with all applicable Documentation (defined below) and the restrictions set forth in this Agreement (including the applicable Order).
(b) [API. If the Order indicates that Customer will receive access to an API then, during the Order Term, Anvilogic hereby grants Customer a non-exclusive, non-transferable and non-sublicensable right and license under Anvilogic’s rights in that API to access and use such API solely in accordance with all applicable Documentation and the restrictions set forth in this Agreement (including the applicable Order). Without limiting the foregoing, Customer will comply with any volume or other usage-based restrictions described in an Order, Addendum, or Documentation.]
(c) Software. During the Order Term, Anvilogic hereby grants to Customer a non-exclusive, non-transferable, non-sub-licensable right and license under Anvilogic’s rights in the Software to install and operate such Software in accordance with all applicable Documentation and the restrictions set forth in this Agreement (including the applicable Order).[1]
2.2 Support. Subject to the terms of this Agreement, Anvilogic will use commercially reasonable efforts to the following service levels (the “Support Services”): (a) 99.5% uptime, excluding (i) maintenance and (ii) factors outside Anvilogic’s reasonable control, measured on a rolling 6-month basis; (b) email or phone (not onsite) support during normal business hours of 9am-6pm PST, excluding US holidays; (c) a disaster recovery plan intended to restore service within 24 hours; and (d) commercially reasonable security measures intended to protect Customer Data against unauthorized use; provided that Customer is solely responsible for maintaining its equipment, timely transmission of, and the accuracy, quality, integrity, and reliability of, Customer Data. If Customer purchases premium support in the Order, then the premium support terms incorporated in such Order will apply and the Support Services will not apply.
2.3 Additional Features. Customer acknowledges that not all of the features or functionality of the Platform may be available at Customer’s subscription level irrespective of whether such feature or functionality is described in the Documentation, and that access to such features or functionality may require payment of additional fees or the purchase of additional licenses.
2.4 Evaluation. If an Order indicates that Customer will receive access to the Platform for evaluation or proof-of-concept purposes, then Customer may use the Platform only for the purpose of evaluating the functions and performance of the Platform, solely for the designated time period for the evaluation or trial, and subject to any additional usage restrictions specified on the applicable Order, and Anvilogic will not be obligated to provide Support Services in connection with such evaluation or proof-of-concept use. Customer acknowledges that evaluation or proof-of-concept versions of the Platform may be automatically disabled upon expiration of the designated trial period (at the end of which Customer’s right to use the Platform under the applicable Order also expires), and that any data stored on the Platform may become unavailable at that time.
2.5 Beta Platforms. If an Order indicates that Customer will receive access to the Platform in beta form, then Customer may use the Platform only for the purpose of providing feedback to Anvilogic, solely for the designated time period for the beta use, and subject to any additional usage restrictions specified on the applicable Order. If the Order indicates Customer is receiving access to a beta version of the Platform, the terms of the following Sections will not apply: 2.2 (Support Services), 3 (Professional Services), 7.1 (Warranties), and 8.1 to 8.5 (Indemnity by Anvilogic). Customer acknowledges that beta versions of the Platform may be automatically disabled upon expiration of the designated beta period (at the end of which Customer’s right to use the Platform under the applicable Order also expires), and that any data stored on the Platform may become unavailable at that time.
2.6 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties (or other persons not authorized by this Agreement) to use the Platform or the Documentation; (b) use the Platform to provide services to third parties (e.g., as a service bureau); (c) use the Platform for any benchmarking activity or in connection with the development of a competitive product; (d) circumvent or disable any security or other technological features or measures of the Platform or use the Platform in a manner that Anvilogic reasonably believes poses a threat to the security of Anvilogic-controlled computer systems; (e) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from the Platform (except to the extent that applicable law prevents the prohibition of such activities); (f) use or access the Platform in a manner that materially impacts or burdens Anvilogic or Anvilogic’s servers and other computer systems, or that interferes with Anvilogic’s ability to make available the Platform to any third party; or (g) use the Platform in violation of Anvilogic’s then-current published Acceptable Use Policy, as may be updated from time to time.
2.7 Documentation. To the extent that the Platform is accompanied by any Anvilogic-provided user manuals, help files, specification sheets, or other documentation, in whatever form, relating to the Platform (“Documentation”), Anvilogic hereby grants to Customer a non-exclusive, non-transferable, non-sub-licensable right and license under Anvilogic’s rights in the Documentation to use such Documentation solely to enable Customer to exercise its rights under the applicable license to or grant of access and usage rights for the Platform set forth in Section 2.1.
2.8 Third-Party Products. To the extent that the Platform includes or is accompanied by third-party software or other products (e.g., cloud hosting instances or data analysis tools) that Anvilogic provides to Customer or that is otherwise identified in the Documentation as being required to use properly the Platform (“Third-Party Products”), the Third-Party Products and their use by Customer are subject to all license and other terms that accompany such Third-Party Products. Customer will abide by and comply with all such terms. Without limiting the foregoing, if Anvilogic enables Customer to access a hosted environment offered by a third-party cloud or platform service provider, then Customer must agree to the applicable service provider’s terms and conditions prior to accessing such hosted environment, and Customer will comply at all times with such terms and conditions. The Platform may include code and components licensed under an open source license, as further described at https://www.anvilogic.com/tpp or such other location specified by Anvilogic.
2.9 Compliance with Laws. Customer will use the Platform and Documentation in compliance with all applicable laws and regulations.
2.10 Protection against Unauthorized Use. Customer will prevent any unauthorized use of the Platform and Documentation and will immediately notify Anvilogic in writing of any unauthorized use of which Customer becomes aware. Customer will immediately terminate any unauthorized use by persons having access to the Platform or Documentation through Customer.
2.11 Data
(a) Ownership. As between Anvilogic and Customer, Customer retains all right, title, and interest, including all intellectual property rights, in and to (a) any data or information that Customer uploads or inputs into the Platform or otherwise makes available to Anvilogic, including in connection with Customer’s use of the Platform or receipt of Professional Services and (b) data that is generated and made available to Customer by the Platform through use of the data described in part (a) above ((a) and (b) collectively, “Customer Data”). As between the Parties, Anvilogic owns all right, title, and interest, including all intellectual property rights, in and to the Platform, Documentation, Deliverables, and any improvements to any Anvilogic products or services made as a result of Anvilogic’s use, processing, or generation of Customer Data. During the Term, Customer may request that Anvilogic make available to Customer a copy of Customer Data stored in the Platform, and Anvilogic may agree to do so for an additional fee.
(b) License. Customer hereby grants Anvilogic a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose the Customer Data: (x) during the Term, for the purpose of exercising Anvilogic’s rights and performing its obligations under this Agreement, (y) in perpetuity, in accordance with the sharing preferences Customer selects via the functionality of the Platform, and (z) in perpetuity, in a form that does not identify Customer as the source thereof, including without limitation meta-data and derived analytics (“Analytic Data”), for its business purposes, including to develop and improve Anvilogic’s and its Affiliates’ products and services. Customer acknowledges that, although Customer may update sharing preferences with respect to Customer Data, these preferences will only apply prospectively, and any Customer Data that has already been shared with other users of the Platform will remain available in accordance with Customer’s prior sharing preference. Customer represents and warrants that Customer has all rights necessary to grant Anvilogic the licenses set forth in this Section 2.11 and to enable Anvilogic to exercise its rights under the same without violation or infringement of the rights of any third party.
(c) Deletion. Customer may request deletion of Customer Data, excluding Analytic Data, from the Platform at any time; provided that Anvilogic will have no obligation to delete the Analytic Data. Anvilogic will delete such data within 30 days of receiving an applicable deletion request.
2.12 Feedback. If Customer provides any feedback to Anvilogic concerning the functionality and performance of the Platform, any Documentation, or the Professional Services (including identifying potential errors and improvements), Customer hereby assigns to Anvilogic all right, title, and interest in and to the feedback, and Anvilogic is free to use the feedback without payment or restriction.
2.13 Audit. Customer will create and maintain complete and accurate records containing all information necessary to enable Anvilogic to verify Customer’s compliance with this Agreement. During the Term and for a period of one year thereafter, Anvilogic will have the right, at its own expense, upon at least 5 calendar days’ prior notice, to periodically inspect and audit Customer’s use of the Platform for the purpose of determining Customer’s compliance with the terms and conditions of this Agreement. Customer will cooperate with Anvilogic in the performance of any such audit, and will provide to Anvilogic or a third party designated by Anvilogic such access to Customer’s relevant records, data, information, personnel, computer systems and / or facilities as Anvilogic may reasonably request for such limited purposes. Anvilogic will bear the costs of any such audit unless such audit determines that Customer has violated the terms and conditions of this Agreement, in which case (a) Customer will reimburse Anvilogic for all expenses incurred in connection with the audit, (b) Customer will pay Anvilogic all fees that are applicable to Customer’s unauthorized use (e.g., additional seat licenses to cover use in excess of Customer’s previously purchased seat licenses), and (c) Anvilogic may immediately terminate this Agreement for cause, in addition to any and all remedies available to Anvilogic in law or equity.
3.1 Provision of Professional Services. Subject to the terms of this Agreement, Anvilogic will use commercially reasonable efforts to provide any implementation, installation, configuration, customization, or other professional services expressly identified on an Order (which may be in the form of a Statement of Work) (the “Professional Services”). Anvilogic shall perform the Professional Services in a professional manner in accordance with industry standards.
3.2 Deliverables. Anvilogic retains all right, title, and interest, including all intellectual property rights, in and to any work product or other materials created by Anvilogic in connection with its performance of Professional Services (“Deliverables”). If Anvilogic provides any Deliverables to Customer pursuant to the applicable Order, Anvilogic hereby grants to Customer a non-exclusive, royalty-free, fully paid up, worldwide license under Anvilogic’s rights in the Deliverables to use and exploit such Deliverables in connection with the Platform and Professional Services during the Term (defined below).
3.3 Modifications. The terms of this Section 3.3 will apply to any Order for Professional Services that does not expressly set forth a procedure in accordance with which the Parties may make changes to such Order. Customer may request a modification to the Professional Services to be performed pursuant to any particular Order by written request to Anvilogic specifying the desired modifications (each a “Change Order”). Anvilogic will, within a reasonable time following receipt of such Change Order request, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Professional Services pursuant to the Order. If Customer accepts a Change Order in writing within 10 days after receiving it, such modifications in the Change Order shall be performed under the terms of this Agreement.
3.4 Personnel
(a) Suitability. Anvilogic will assign employees and subcontractors with qualifications suitable for the work described in the relevant Order. Anvilogic may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
(b) Customer Responsibilities. Customer will make available in a timely manner at no charge to Anvilogic all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of Customer required by Anvilogic for the performance of the Professional Services. Customer is responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness, and consistency of all such data, materials, and information. Customer will provide, at no charge to Anvilogic, office space, services, and equipment as Anvilogic reasonably requires to perform the Professional Services.
(c) Non-solicitation. The employees and consultants of Anvilogic who perform the Professional Services are a valuable asset to Anvilogic and are difficult to replace. Accordingly, Customer agrees that, during the Term of the Agreement, and for a period of one year after completion of the Professional Services under an Order, it shall not solicit for employment or engagement (whether as an employee, independent contractor or consultant) any Anvilogic employee or consultant who performed any of the Professional Services under that Order. Customer is not restricted from hiring any personnel that respond to public job advertisements or similar general solicitations.
4.1 Fees and Payment Terms. Customer will pay Anvilogic the fees and any other amounts owing under this Agreement as specified in the applicable Order, including, where applicable, any early termination fees specified on the Order. Unless otherwise specified in such Order, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Anvilogic to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason.
4.2 Taxes. Other than net income taxes imposed on Anvilogic, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by Anvilogic after all such Taxes are paid are equal to the amounts to which Anvilogic would have been entitled in accordance with this Agreement if such additional Taxes did not exist.
4.3 Professional Services Charges. Except as otherwise specified in the applicable Order, Customer will pay Anvilogic at Anvilogic’s then-standard hourly rates as well as any other fees required by the applicable Order. In addition, for each Order including Professional Services, Customer will reimburse Anvilogic for (a) reasonable travel and living expenses incurred by Anvilogic’s employees and contractors for travel from Anvilogic’s offices in connection with the performance of the Professional Services; (b) reasonable international telephone charges (if applicable) that are necessary to the performance of Professional Services under this Agreement; and (c) any other expenses for which reimbursement is contemplated in the applicable Order. Except as provided above, each Party will be responsible for its own expenses incurred in rendering performance under this Agreement and each applicable Order.
5.1 Term. This Agreement will remain in effect until terminated in accordance with this Section 5 (the “Term”).
5.2 Termination for Convenience. Either Party may terminate this Agreement for convenience immediately upon notice to the other Party at any time that no Order is in effect.
5.3 Termination for Material Breach. Either Party may immediately terminate this Agreement or one or more Orders if the other Party does not cure its material breach of this Agreement or the applicable Order(s) within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 5.3 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. Notwithstanding the foregoing, Anvilogic may immediately terminate this Agreement upon notice to Customer if Anvilogic reasonably believes that Customer has made or distributed any unauthorized copies of the Platform, has violated Section 2.6, has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge Anvilogic’s intellectual property rights, including rights in and to the Platform. Without limiting any other provision of this Section 5.3, if Customer fails to timely pay any fees, Anvilogic may, without limitation to any of its other rights or remedies, suspend access to the Platform or performance of the Professional Services under all Orders until it receives all amounts due.
5.4 Termination for Bankruptcy or Insolvency. Either Party may terminate this Agreement or one or more Orders if the other Party ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is declared bankrupt, or is the subject of any liquidation or insolvency proceeding which is not dismissed within one hundred twenty (120) days, or makes any assignment for the benefit of creditors.
5.5 Post-Termination Obligations. If this Agreement is terminated for any reason: (a) Customer will pay to Anvilogic any fees or other amounts that have accrued prior to the effective date of the termination; (b) any and all liabilities accrued prior to the effective date of the termination will survive; and (c) Customer will provide Anvilogic with a written certification signed by an authorized Customer representative certifying that all use of the Platform and Documentation by Customer has been discontinued and that all Software and Confidential Information in Customer’s possession or control has been returned or destroyed.
5.6 Survival. Notwithstanding anything to the contrary herein, Sections 1, 2.11, 2.12, 3.4(c), 4, 5.5, 5.6, 6, 7, 8, 9, and 10 will survive termination or expiration of this Agreement.
6.1 Definition. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Disclosing Party”) to or by the other Party (“Receiving Party”), whether orally, visually, 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. “Confidential Information” of a Disclosing Party includes such Disclosing Party’s business and marketing plans, technology and technical information, product plans and designs, and business processes. Without limiting the foregoing, Anvilogic’s “Confidential Information” includes the Platform, all Documentation, all Anvilogic technical information, and all information concerning Platform-related database structure information and schema. However, “Confidential Information” does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, Anvilogic is permitted to disclose Confidential Information of Customer on a need to know basis to employees, contractors, and agents of its Affiliates. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. “Affiliate” means any corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations.
7.1 Limited Anvilogic Warranties. Anvilogic hereby warrants, for the benefit of Customer only, that the Software will materially conform to the applicable Documentation (the “Software Warranty”) for a period of 30 days after the Software is first made available to Customer (the “Warranty Period”), provided that the Software Warranty will not apply to failures to conform to the applicable Documentation to the extent such failures arise, in whole or in part, from any modification of the applicable Software by Customer or any third party or any combination of the applicable Software with APIs, software, hardware, or other technology not provided by Anvilogic under the applicable Order. If any defect or error covered by the Software Warranty occurs, Customer will provide Anvilogic with sufficient detail to allow Anvilogic to reproduce the defect or error. If notified in writing by Customer during the Warranty Period, Anvilogic will, at its sole option, either (a) correct such error or defect in the Software, at no cost to Customer and within a reasonable time, by issuing corrected instructions, a restriction, or a bypass or (b) accept return of the Software and refund any license or subscription fees previously paid by Customer in connection with such Software, and in Customer’s right to use the Software will terminate. The foregoing sentence sets forth Customer’s sole and exclusive remedy for Anvilogic’s breach of the warranty described in the first sentence of this Section 7.1. Anvilogic is not responsible for any defect or error not reported during the Warranty Period or any defect or error caused by the Platform that Customer has modified, misused, or damaged.
7.2 Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
7.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7 OR AN ORDER OR ADDENDUM, COMPANY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PLATFORM OR PROFESSIONAL SERVICES. COMPANY DOES NOT WARRANT THAT THE PLATFORM, DOCUMENTATION, OR PROFESSIONAL SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE PLATFORM OR PROVISION OF THE PROFESSIONAL SERVICES WILL BE SECURE OR UNINTERRUPTED. COMPANY DOES NOT WARRANT THAT any information PROVIDED BY THE PLATFORM or documentation, OR IN CONNECTION WITH THE PROFESSIONAL SERVICES, IS accuraTE OR COMPLETE OR THAT any SUCH information WILL ALWAYS BE AVAILABLE. COMPANY EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER’S USE OF THE PLATFORM OR DOCUMENTATION OR RECEIPT OF THE PROFESSIONAL SERVICES.
8.1 Defense by Anvilogic. Anvilogic will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of the Platform, or Anvilogic’s provision of the Professional Services, infringes or misappropriates any copyright or trademark if: (a) Customer gives Anvilogic prompt written notice of the Claim; (b) Customer grants Anvilogic full and complete control over the defense and settlement of the Claim; (c) Customer provides assistance in connection with the defense and settlement of the Claim as Anvilogic may reasonably request; and (d) Customer complies with any settlement or court order made in connection with the Claim. Customer will not defend or settle any Claim subject to indemnification under this Section
8.1 without Anvilogic’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Anvilogic will have sole control over the defense and settlement of the Claim.
8.2 Indemnification by Anvilogic. Anvilogic will indemnify Customer from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Anvilogic’s consent after Anvilogic has accepted defense of the Claim); and (c) all amounts that Anvilogic agrees to pay to any third party to settle any Claim under Section 8.1.
8.3 Exclusions from Obligations. Anvilogic will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): (a) use of the Platform in combination with other products or services not provided by Anvilogic if such infringement or misappropriation would not have arisen but for such combination; (b) the Platform or the Professional Services are provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Platform by Customer for purposes not intended or outside the scope of the license granted to Customer; (d) Customer’s failure to use the Platform in accordance with instructions provided by Anvilogic, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Platform not made or authorized in writing by Anvilogic where such infringement or misappropriation would not have occurred absent such modification.
8.4 Remedy. If Anvilogic becomes aware of, or anticipates, a Claim subject to indemnification under Sections 8.1 and 8.2, then Anvilogic may, at its option (a) modify the components of the Platform so that they become non-infringing, or substitute functionally equivalent products; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate the affected Order(s) on written notice to Customer and refund to Customer any pre-paid but unused fees (which, in the case of perpetual licenses, will be calculated based on 3-year straight-line basis).
8.5 Limited Remedy. Sections 8.1, 8.2, 8.3, and 8.4 state Anvilogic’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Platform or the Professional Services.
8.6 Defense by Customer. Customer will defend Anvilogic from any actual or threatened third-party Claim arising out of or based upon Customer’s use of the Platform, provision of the Customer Data, or breach of any of the provisions of this Agreement, or that is an Excluded Claim, if: (a) Anvilogic gives Customer prompt written notice of the Claim; (b) Anvilogic grants Customer full and complete control over the defense and settlement of the Claim; (c) Anvilogic provides assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and (d) Anvilogic complies with any settlement or court order made in connection with the Claim. Anvilogic will not defend or settle any Claim subject to indemnification under this Section 8.6 without Customer’s prior written consent. Anvilogic will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.
8.7 Indemnification by Customer. Customer will indemnify Anvilogic from and pa:y (a) all damages, costs, and attorneys’ fees finally awarded against Anvilogic in any Claim under Section 8.6; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Anvilogic in connection with the defense of a Claim under Section 8.6 (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, (c) all amounts that Customer agrees to pay to any third party to settle any Claim under Section 8.6.
9.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR ANY LOSS OF DATA STORED IN, OR IN CONNECTION WITH, THE PLATFORM.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO COMPANY UNDER THE ORDER WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
9.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY COMPANY TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
10.1 Relationship. Anvilogic will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
10.2 Use of Brand Name. Anvilogic may use the name, brand, or logo of Customer (or Customer’s parent company) solely for the purpose of identifying Customer as a licensee or customer of Anvilogic in a ‘customer’ section of Anvilogic’s website, brochures, or other promotional materials, or as part of a list of Anvilogic’s customers in a press release or other public relations materials. Any such limited use by Anvilogic shall include proper attribution to Customer or its parent company of any trademark or logo of Customer or its parent company and shall in no way suggest that Anvilogic is affiliated with, or speaking on behalf of, Customer or Customer’s parent company. Any other press releases or marketing materials referring to the trademarks or logos of Customer shall require mutual approval in writing prior to public dissemination thereof.
10.3 Assignability. Neither Party may assign its right, duties, or obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Anvilogic may assign this Agreement to an Affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates. A Change of Control shall be deemed to cause an assignment of this Agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
10.4 Export. Customer will comply with all applicable export and import laws, rules, and regulations in connection with Customer’s activities under this Agreement. Customer acknowledges that it is Customer’s responsibility to obtain any required licenses to export and re-export the Platform. The Platform, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer represents and warrants that the Platform is not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.
10.5 U.S. Government Restricted Rights. The Software is commercial computer software, as that term is defined in 48 C.F.R. §2.101. Accordingly, if the Customer is the U.S. Government or any contractor therefor, Customer will receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
10.6 Subcontractors. Anvilogic may utilize subcontractors or other third parties to perform its duties under this Agreement so long as Anvilogic remains responsible for all of its obligations under this Agreement.
10.7 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth on the applicable Order and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 10.7. Notices are deemed given 2 business days following the date of mailing or 1 business day following delivery to a courier.
10.8 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement (except for failure to make payments when due) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
10.9 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Santa Clara County, California in connection with any action arising out of or in connection with this Agreement.
10.10 Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
10.11 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Platform under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Platform will immediately terminate.
10.12 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;”; (b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (f) whenever the context may require, any pronouns used in this Agreement will include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. References to “$” and “dollars” are to the currency of the United States of America. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
10.13 Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the Parties relating to other products or services of Anvilogic that are not described in an Order and with respect to which Customer has executed a separate agreement with Anvilogic that remains in effect. No employee, agent, or other representative of Anvilogic has any authority to bind Anvilogic with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. Anvilogic will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Anvilogic specifically provides a written acceptance of such provision signed by an authorized agent of Anvilogic.
