Effective Date: May 27, 2021
Welcome to Anrok, the website and online services of Anrok, Inc. (“Anrok”). These Terms and Conditions explain the terms by which Anrok’s online services, website, associated domains, software, APIs, and all other services under Anrok’s control, provided on or in connection with the foregoing (collectively, the “Platform Services“) may be used.
These Terms and Conditions (together with all Order Forms, the “Agreement”), effective as of the date on which you enter an Order Form with Anrok or click a button or check a box (or similar action) acknowledging your acceptance of this Agreement (the “Effective Date”), are by and between Anrok and the entity on whose behalf the individual accepting this Agreement accepts this Agreement (“Customer”). The individual accepting this Agreement hereby represents and warrants that it is duly authorized by the entity on whose behalf it accepts this Agreement to so accept this Agreement. Anrok and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
The Parties agree as follows:
1.1 “Aggregated Data” means data and information related to or derived from Customer Data or Customer’s use of the Platform Services that is used by Anrok in an aggregate and anonymized manner, including to compile statistical and performance information related to the Platform Services.
1.2 “Anrok IP” means the Platform Services, the Documentation, Deliverables, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Anrok IP includes Aggregated Data but does not include Customer Data.
1.3 “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Platform Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Platform Services has been purchased hereunder.
1.4 “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Platform Services; provided that, for purposes of clarity, Customer Data does not include Aggregated Data.
1.5 “Deliverable” means a deliverable identified as a “Deliverable” under a Statement of Work.
1.6 “Documentation” means Anrok’s end user documentation relating to the Platform Services.
1.7 “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.
1.8 “Order Form” means an order form entered into by the Parties that incorporates this Agreement by reference.
1.9 “Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal data”, “personally identifiable information”, or something similar under applicable laws, rules, or regulations relating to data privacy.
1.10 “Professional Services” mean any professional services provided by Anrok, as set forth in any applicable Statement of Work, which may include integration and implementation services.
1.11 “Services” means, collectively, the Platform Services and any Professional Services.
1.12 “Statement of Work” means any written statement of work identifying Professional Services that Anrok will provide to Customer.
1.13 “Third-Party Products” means any third-party products provided with, integrated with, or incorporated into the Platform Services.
1.14 “Usage Limitations” means the usage limitations set forth in this Agreement and the Order Form, including without limitation any limitations on the number of Authorized Users (if any), and the applicable product, pricing, and support tiers agreed-upon by the Parties.
2. Access and Use of Platform Services.
2.1 Eligibility. The Agreement is between Anrok and Customer. If Customer does not agree to the Agreement, Customer may not use the Platform Services. Customer may use the Platform Services only if Customer can form a binding contract with Anrok, and only in compliance with the Agreement and all applicable local, state, national and international laws, rules and regulations. Customer is responsible for the acts of others utilizing its access to the Platform Services and will be held responsible for violations of the Platform Services by persons who gain access to the Platform Services using Customer’s account on the Platform Services (“Account”) or shared access.
2.2 Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with the terms and conditions of this Agreement, including without limitation the Usage Limitations, Anrok will make available to Customer during the Subscription Period, on a non-exclusive, non-transferable (except in compliance with Section 11.8), and non-sublicensable basis, access to and use of the Platform Services, solely for use by Authorized Users. Such use is limited to Customer’s internal business purposes and the features and functionalities specified in the Order Form. Anrok may, without prior notice, change the Platform Services, stop providing the Platform Services or features of the Platform Services, or create usage limits for the Platform Services. Anrok shall provide to Customer the necessary access credentials to allow Customer to access the Platform Services.
2.3 Documentation License. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, Anrok hereby grants to Customer a non-exclusive, non-transferable (except in compliance with Section 11.8), and non-sublicensable license to use the Documentation during the Subscription Period solely for Customer’s internal business purposes in connection with its use of the Platform Services.
2.4 Accounts. Customer’s Account gives Customer access to the Platform Services that Anrok may establish and maintain from time to time in Anrok’s sole discretion. Customer may never use the Account of another customer without permission. When creating an Account, Customer must provide accurate and complete information, and must keep this information up to date on a continuous basis. Customer is solely responsible for the activity that occurs on its Account, and must keep its Account password secure. Anrok encourages the use of strong passwords (unguessable passwords of sufficient length and entropy) with Accounts. Customer must notify Anrok immediately of any breach of security or unauthorized use of its Account. Anrok will not be liable for any losses caused by any unauthorized use of any Account. Customer consents to Anrok’s use of any email address it provides to Anrok to send notices related to the Platform Services, including any notices required by law, in lieu of communication by postal mail. Anrok may also use Customer’s email address to send other messages, such as changes to features of the Platform Services and special offers. Customer may opt out or change its preferences by contacting Anrok. Customer acknowledges that opting out may prevent Customer from receiving email messages regarding updates, improvements, or offers.
2.5 Use Restrictions. Customer shall not use the Platform Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of any Anrok IP, whether in whole or in part, including without limitation by automated or non-automated “scraping”; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform Services or Documentation to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform Services, in whole or in part; (iv) collect or harvest any Personal Information, including account names, from the Platform Services except through any relevant Platform Services functions (e.g., through a data export function); (v) impersonate another person or otherwise misrepresent its affiliation with a person or entity, conduct fraud, hide or attempt to hide its identity; (vi) remove any proprietary notices from any Anrok IP; (vii) use any Anrok IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (viii) access or use any Anrok IP for purposes of competitive analysis of Anrok or the Platform Services, the development, provision, or use of a competing software service or product, or any other purpose that is to Anrok’s detriment or commercial disadvantage; (ix) bypass or breach any security device or protection used by the Platform Services or access or use the Platform Services other than by an Authorized User through the use of valid access credentials; or (x) input, upload, transmit, or otherwise provide to or through the Platform Services any information or materials that are unlawful or injurious, or that contain, transmit, or activate any Harmful Code.
2.6 Reservation of Rights. Anrok reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Anrok IP. For the avoidance of doubt, as between Anrok and Customer, to the extent a compilation of information provided by any governmental agency is created by Anrok, Anrok owns all right, title and interest to such compilation.
2.7 Suspension of Platform Services. Anrok may, directly or indirectly, suspend or otherwise deny Customer's, or any Authorized User's access to or use of all or any part of the Platform Services, without incurring any resulting obligation or liability, if: (a) Anrok receives a judicial or other governmental demand or order, subpoena, or law enforcement request to do so; or (b) Anrok believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Platform Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; (ii) Customer or any Authorized User is or has been, involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Platform Services; or (iii) this Agreement expires or is terminated. This Section 2.7 does not limit any of Anrok’s other rights or remedies, whether at law, in equity, or under this Agreement.
2.8 Aggregated Data. Notwithstanding anything to the contrary in this Agreement, Anrok may monitor Customer’s use of the Platform Services and collect and compile Aggregated Data. As between Anrok and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Anrok. Customer acknowledges that Anrok may compile Aggregated Data based on Customer Data input into the Platform Services. Customer agrees that Anrok may (i) make Aggregated Data available to third parties including its other customers in compliance with applicable law, and (ii) use Aggregated Data to produce results for Customer, to maintain, evaluate, develop and improve the Platform Services, for any other internal business purposes of Anrok, and to the extent and in the manner otherwise permitted under applicable law.
3. Customer Responsibilities.
3.1 General. Customer is responsible and liable for all uses of the Platform Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Platform Services and shall cause Authorized Users to comply with such provisions.
3.2 Cooperation. Customer will cooperate reasonably and in good faith with Anrok in its performance of Professional Services. Such cooperation includes, without limitation: (a) allocating sufficient resources, timely performing any tasks reasonably requested by Anrok, and timely responding to Anrok’s inquiries, in each case to enable Anrok to perform the Professional Services; (b) timely delivering any necessary materials and performing its obligations as identified on the applicable Statement of Work; (c) assigning an internal project manager for each Statement of Work to serve as a primary contact for Anrok; and (d) providing complete, accurate, and timely information, data, and feedback as reasonably required by Anrok.
3.3 Third-Party Products. Anrok may from time to time make Third-Party Products available to Customer or Anrok may allow for certain Third-Party Products to be integrated with the Platform Services to allow for the transmission of Customer Data from such Third-Party Products into the Platform Services. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. By authorizing Anrok to transmit Customer Data from Third-Party Products into the Platform Services, Customer represents and warrants to Anrok that it has all right, power, and authority to provide such authorization. By connecting its Account with a Third-Party Product, Customer gives Anrok permission to access and use Customer’s information from that Third-Party Product as permitted by the terms and conditions of that Third-Party Product, and to store Customer’s log-in credentials for that Third-Party Product.
3.4 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Platform Services; (iii) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (iv) the security and use of Customer's and its Authorized Users' access credentials; and (v) all access to and use of the Platform Services directly or indirectly by or through the Customer Systems or the Customer’s or its Authorized Users' access credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
4. Fees and Taxes.
4.1 Fees. Customer shall pay Anrok the fees (“Fees”) identified at www.anrok.com/pricing for taxable sales calculated by Anrok. Such Fees will be calculated and charged to the customer at the time a sales tax return is filed by Anrok. Any changes to the pricing will be communicated in writing by Anrok to the Customer 30 days prior to the effectiveness of such pricing. If such pricing change is not acceptable to Customer, Customer may cancel Anrok’s Platform Services prior to the effective date of such pricing change. Customer’s continued use of the Platform Services after the date of the pricing change constitutes Customer’s agreement to those changes. Fees paid by Customer are non-refundable.
4.2 Payment method. Customer agrees and authorizes Anrok to debit Customer’s designated bank account for all Fees as they become payable. Anrok at its own discretion is authorized to debit Customer Fees with Customer Remittances or debit Customer Fees separately from Remittances. If Anrok is unable to collect fees due because of insufficient funds in the Customer’s bank account or for any other reason, Customer agrees to immediately pay the amount due plus any applicable exceptions processing fees, bank fees or charges for return items, plus interest at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law, in addition to attorneys’ fees, court costs, and collection agency fees.
4.3 Taxes and Government Fees. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Anrok’s income. To the extent that Anrok is required by law to pay any such taxes, duties, or other charges to any governmental or regulatory authority, Anrok may invoice Customer for such taxes, duties, or other charges and Customer will pay such invoiced amounts in accordance with this Agreement.
4.4 Remittances - Customer understands that Anrok’s Platform Service will automatically process sales tax remittances (“Remittances”) on the Customer’s behalf. Accordingly, Customer authorizes Anrok to initiate debit entries to Customer’s designated bank account in such amounts that are necessary to i) fund Customer’s sales tax obligations to the applicable jurisdictions identified by the Customer with Anrok’s Platform Service; ii) verify the bank account through a test deposit or debit authorization; and iii) pay any other amount that is owing under this agreement or in connection with Anrok’s service. Anrok is not responsible for determining whether the bank accounts of any Customer have deposit or withdrawal restrictions. Customer understands that if the Customer does not have sufficient funds in the bank account to pay the Remittances, then Anrok will not be able to pay out the Remittances to the applicable jurisdictions and Anrok will not be liable for any consequences or claims directly or indirectly arising from such failure to pay and Anrok may (i) debit the bank account or any other account owned in whole or in part by Customer to pay disbursements, fees or charges, sales taxes, or other amounts due; (ii) refuse to pay any unremitted Remittances to the applicable tax agencies, in which case the Remittance liability will become Customer’s sole responsibility; (iii) refuse to perform further Platform Services; and/or (iv) immediately terminate this Agreement. For any amounts due and unpaid, Anrok may assess finance charges on such amounts and recover certain fees and costs of collection associated with such amounts in accordance with Section 4.2 of this contract.
5. Confidential Information.
5.1 Definition. From time to time during the Subscription Period, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (i) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (ii) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Except for Personal Information, Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information.
5.2 Duty. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.
5.3 Return of Materials; Effects of Termination/Expiration. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership; Feedback.
6.1 Anrok IP. Customer acknowledges that, as between Customer and Anrok, Anrok owns all right, title, and interest, including all intellectual property rights, in and to the Anrok IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
6.2 Customer Data. Anrok acknowledges that, as between Anrok and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Anrok a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Anrok to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Data. Customer may export the Customer Data at any time through the features and functionalities made available via the Platform Services.
6.3 Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Anrok by mail, email, telephone, or otherwise, suggesting or recommending changes to the Anrok IP or the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Anrok is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback so long as Anrok does not identify Customer as the source of the Feedback without Customer’s prior approval. Customer hereby assigns to Anrok on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Anrok is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Anrok is not required to use any Feedback.
7. Warranties; Accuracy Guarantee; Disclaimers.
7.1 Accuracy Guarantee. Anrok provides the following accuracy guarantee (the “Accuracy Guarantee”):
If Customer suffers a negative audit finding that results in penalties, interest, and/or uncollected sales tax resulting directly from an incorrect sales tax calculation result returned by Anrok (“Covered Losses”), then, subject to the exceptions set forth in subsection (b) below, Anrok shall pay Customer the lesser of: (i) the amount of the Covered Losses, as specified in the final assessment notice received from the applicable taxing authority after all administrative appeals and abatement options are exhausted; or (ii) the amount of Fees paid during the calendar year immediately preceding the negative audit finding (exclusive of activation fees, fees for ancillary services, and any other one-time or other non-recurring fees).
The following conditions and limitations apply to the Accuracy Guarantee:
Customer must have properly set up, configured, and maintained its Account and Customer Data and correctly classified items sold by Customer.
Customer must have provided timely, accurate, and complete information as necessary for Anrok to perform accurate calculations.
The Order Form to which the alleged incorrect result relates must be current and effective.
Customer must provide notice to Anrok no later than the earlier of either (A) ten (10) calendar days after the taxing authority’s finding of a negative audit assessment; or (B) forty-five (45) calendar days after the date that the taxing authority initially identifies to Customer an issue that arises from the alleged incorrect result provided by Anrok. Such notice must be sent to email@example.com.
Customer must provide, in a complete and timely manner, all assistance requested by Anrok in confirming the nature and occurrence of the alleged error, including providing Anrok with access to Customer’s relevant financial reporting records, transaction logs, reports, and all other relevant information reasonably related to the alleged error. Upon first becoming aware of a potential error related to an incorrect result by Anrok, Customer must take reasonable steps to mitigate its losses, including but not limited to, changing taxability determinations or calculations for ongoing transactions and rebilling customers for the uncollected tax.
Anrok will not be responsible for the incorrect result to the extent that it was caused by the failure of the applicable taxing authority to timely and accurately provide or update correct and current tax rates, boundaries, rules, and classifications.
If the audit finding implicates other issues in addition to the alleged incorrect result provided by Anrok, the Covered Losses will be limited to the percentage of the final assessment amount equal to the percentage of the final assessment directly attributable solely to the alleged incorrect result.
Anrok shall pay the Covered Losses to Customer within thirty (30) calendar days after the date that Customer receives the final assessment notice from the applicable taxing authority, and after all administrative appeals and abatement options have been exhausted. Anrok may also, in its sole discretion, make the payment at an earlier date.
(f) The Accuracy Guarantee only applies to sales tax calculation results with a tax date on or after January 1, 2019.
7.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ANROK IP IS PROVIDED “AS IS” AND ANROK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ANROK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ANROK MAKES NO WARRANTY OF ANY KIND THAT THE ANROK IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANROK DOES NOT PROVIDE LEGAL OR PROFESSIONAL TAX OPINIONS OR LEGAL OR MANAGEMENT ADVICE. CUSTOMER AGREES THAT CUSTOMER USES AND RELIES UPON THE SERVICES, INCLUDING WITHOUT LIMITATION ALL MARKETING CONTENT AND HELP CENTER INFORMATION MADE AVAILABLE BY ANROK, AT CUSTOMER’S OWN RISK AND ACKNOWLEDGES THAT ANROK CANNOT GUARANTEE THAT ANY DATA OR INFORMATION CONTAINED IN THE SERVICES OR ON ANY ANROK WEBSITE IS COMPLETE, ACCURATE, OR CURRENT.
8.1 Anrok Indemnification.
Anrok shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Platform Services, or any use of the Platform Services in accordance with this Agreement, infringes or misappropriates such third party’s U.S. copyrights or trade secrets; provided that Customer promptly notifies Anrok in writing of the claim, cooperates with Anrok, and allows Anrok sole authority to control the defense and settlement of such claim.
If such a claim is made or appears possible, Customer agrees to permit Anrok, at Anrok’s sole discretion: to (i) modify or replace the Platform Services, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue use. If Anrok determines that neither alternative is reasonably commercially available, Anrok may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
This Section 8.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Platform Services in combination with data, software, hardware, equipment, or technology not provided by Anrok or authorized by Anrok in writing; (ii) modifications to the Platform Services not made by Anrok; (iii) Customer Data; or (iv) Third-Party Products.
8.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Anrok’s option, defend Anrok from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s U.S. intellectual property or other rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Platform Services in a manner not authorized by this Agreement; or (iii) use of the Platform Services in combination with data, software, hardware, equipment or technology not provided by Anrok or authorized by Anrok in writing; in each case provided that Customer may not settle any Third-Party Claim against Anrok unless Anrok consents to such settlement, and further provided that Anrok will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
8.3 Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND ANROK’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Limitations of Liability. EXCEPT FOR: (I) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (II) A PARTY’S INDEMNITY OBLIGATIONS; OR (III) A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT (“Excluded Liabilities”), (A) IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (1) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (2) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (3) LOSS OF GOODWILL OR REPUTATION; (4) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (5) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE; AND (B) IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND/OR PAYABLE TO ANROK UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM; PROVIDED THAT, NOTWITHSTANDING THE FOREGOING, ANROK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO ANY EXCLUDED LIABILITIES WILL NOT EXCEED THREE TIMES (3X) THE TOTAL AMOUNTS PAID AND/OR PAYABLE TO ANROK BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
10. Term and Termination.
10.1 Term. The term of this Agreement begins on the Effective Date and, will continue in effect until terminated by either party pursuant to Section 10.2.
10.2 Termination. In addition to any other express termination right set forth in this Agreement:
Anrok may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after Anrok’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2.5 or Section 5;
either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; or
either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
10.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Anrok IP and, without limiting Customer’s obligations under Section 4, Customer shall delete, destroy, or return all copies of the Anrok IP and certify in writing to Anrok that the Anrok IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
10.4 Survival. This Section 10.4 and Sections 1, 4, 6, 10.3, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11.1 Entire Agreement. This Agreement, together with any applicable Statements of Work and other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; and (ii) second, any other documents incorporated herein by reference.
11.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement or as identified on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized signed for on delivery courier (with all fees pre-paid), or email (with confirmation of transmission). All email Notices to Anrok must be sent to firstname.lastname@example.org. Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
11.3 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, plague, epidemic, pandemic, infectious disease outbreaks or other public health crises, including quarantine or other workplace or employee restrictions, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
11.4 Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11.5 Waiver. No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
11.6 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.7 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder must be instituted in the federal courts of the United States or the courts of the State of California in each case located in San Francisco, California and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
11.8 Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Anrok. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
11.9 Export Regulation. The Platform Services utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Platform Services or the underlying software or technology to, or make the Platform Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Platform Services or the underlying software or technology available outside the U.S.
11.10 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2.5, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
11.11 Publicity. Anrok may identify Customer as a user of the Platform Services and may use Customer’s name, logo, and other trademarks in Anrok’s customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer). If Customer would not like Anrok to exercise the foregoing publicity rights, Customer must email email@example.com stating that it does not wish to be used as a reference. Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval.
11.13 Contact. Please contact Anrok at firstname.lastname@example.org with any questions regarding this Agreement.