ANKLESARIA MASTER SERVICES AGREEMENT (MSA)
THIS MASTER SERVICES AGREEMENT (HERINAFTER “MSA”) BETWEEN ANKLESARIA SOLUTIONS LLC (D/B/A ANKLESARIA HEREINAFTER REFERRED TO AS “ANKLESARIA”) WITH REGISTERED OFFICE AT 1172 CUCHARA DRIVE, DEL MAR, CA 92014 USA and YOU
(HERINAFTER REFERRED TO AS “CUSTOMER” or “USER” or “YOU”). THIS MASTER SERVICES AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Services Agreement.
“Beta Services” means AIM&DRIVE or functionality that may be made available to Customer to try at its option which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Content” means information obtained by ANKLESARIA from publicly available sources or its third- party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf,such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
“Customer Data” means electronic data and information submitted by or for Customer to ANKLESARIA, excluding Content and Non-ANKLESARIA Applications.
“Documentation” means the applicable ANKLESARIA training documentation and user help guides, as updated online from time to time.
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including,
for example, viruses, worms, time bombs and Trojan horses.
“Non-ANKLESARIA Application” means Web-based, mobile, offline, or other software functionality that interoperates with a Service, which is provided by Customer or a third party. Non-ANKLESARIA Applications, other than those obtained or provided by the Customer, will be identifiable as such.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and ANKLESARIA or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form
“Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal. “Services” exclude Content and Non-ANKLESARIA Applications.
“ANKLESARIA” means the company described in the “ANKLESARIA Contracting Entity, Notices, Governing Law, and Venue” section below.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by ANKLESARIA without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, ANKLESARIA at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors, and agents of Customer, and third parties with which Customer transacts business.
ANKLESARIA RESPONSIBILITIES
ANKLESARIA will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Service Order Forms (b) provide applicable ANKLESARIA standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which ANKLESARIA shall give advance electronic notice), and (ii) any
unavailability caused by circumstances beyond ANKLESARIA’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving ANKLESARIA employees), Internet service provider failure or delay, Non-ANKLESARIA Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to ANKLESARIA’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s and Users’ use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.
ANKLESARIA will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access
to or disclosure of Customer Data (other than by Customer or Users). Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, ANKLESARIA will make Customer Data available to Customer for export or download. After such 30-day period, ANKLESARIA will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
ANKLESARIA will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with ANKLESARIA’s obligations under this Agreement, except as otherwise specified in this Agreement.
From time to time, ANKLESARIA may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not in its sole discretion.
USE OF SERVICES AND CONTENT
Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by ANKLESARIA regarding future functionality or features.
Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, ANKLESARIA may collaborate with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding ANKLESARIA’s efforts, Customer is unable or unwilling to abide
by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon ANKLESARIA’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non- ANKLESARIA Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify ANKLESARIA promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement and the related Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of
service of any Non-ANKLESARIA Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in ANKLESARIA’s judgment threatens the security, integrity, or availability of ANKLESARIA’s services, may result in ANKLESARIA’s immediate suspension of the Services, however ANKLESARIA will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-ANKLESARIA Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non- ANKLESARIA Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of ANKLESARIA “Intellectual Property” except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitiveproduct or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
If Customer receives notice, including from ANKLESARIA, that Content or a Non- ANKLESARIA Application may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External Facing Services Policy, Customer will promptly do so. If Customer does not take required action, including deleting any Content Customer may have downloaded from the Services, in accordance with the above, or if in ANKLESARIA’s judgment continued violation is likely to reoccur, ANKLESARIA may disable the applicable Content, Service and/or Non-ANKLESARIA Application. If requested by ANKLESARIA, Customer shall confirm deletion and discontinuance of use of such Content and/or Non- ANKLESARIA Application in writing and ANKLESARIA shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if ANKLESARIA is required by any third-party rights holder to remove Content or receives information that Content provided to Customer may violate applicable law or third-party rights, ANKLESARIA may discontinue Customer’s access to Content through the Services.
NON-ANKLESARIA PRODUCTS AND SERVICES
ANKLESARIA or third parties may make available (for example, through industry standard information links or Marketplace or otherwise) third-party products or services, including, for example, Non-ANKLESARIA Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-ANKLESARIA provider, product or service is solely between Customer and the applicable non-ANKLESARIA provider. ANKLESARIA does not warrant or support Non-ANKLESARIA Applications or other non-ANKLESARIA products or services, whether or not they are designated by ANKLESARIA as “certified” or otherwise, unless expressly provided otherwise in an Order Form. ANKLESARIA is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-ANKLESARIA Application or its provider.
The Services may contain features designed to interoperate with Non-ANKLESARIA Applications. ANKLESARIA cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non- ANKLESARIA Application cease to make the Non-ANKLESARIA Application available for interoperation with the corresponding Service features in a manner acceptable to ANKLESARIA.
FEES AND PAYMENT
Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non- refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
Customer will provide ANKLESARIA with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to ANKLESARIA. If Customer provides credit card information to ANKLESARIA, Customer authorizes ANKLESARIA to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, ANKLESARIA will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to ANKLESARIA and notifying ANKLESARIA of any changes to such information.
ANKLESARIA will not exercise any rights for payment collection if Customer is disputing
the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
ANKLESARIA's fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If ANKLESARIA has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, ANKLESARIA will invoice Customer and Customer will pay that amount unless Customer provides ANKLESARIA with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, ANKLESARIA is solely responsible for taxes assessable against it based on its income, property, and employees.
PROPRIETARY RIGHTS AND LICENSES
Subject to the limited rights expressly granted hereunder, ANKLESARIA, its Affiliates, its licensors, and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related Intellectual Property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement, and the Documentation.
Customer grants ANKLESARIA, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-ANKLESARIA Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for ANKLESARIA to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-ANKLESARIA Application with a Service, Customer grants ANKLESARIA permission to allow the Non-ANKLESARIA
Application and its provider to access Customer Data and information about Customer’s usage of the Non-ANKLESARIA Application as appropriate for the interoperation of that Non-ANKLESARIA Application with the Service. Subject to the limited licenses granted herein, ANKLESARIA acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-ANKLESARIA Application or such program code.
Customer grants to ANKLESARIA and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Users relating to the operation of ANKLESARIA’s or its Affiliates’ services.
CONFIDENTIALITY
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, which 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 Customer includes Customer Data; Confidential Information of ANKLESARIA includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional ANKLESARIA.
As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such
Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, ANKLESARIA may disclose the terms of this Agreement and any applicable Order Form to a contractor or Non-ANKLESARIA Application Provider to the extent necessary to perform ANKLESARIA’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
ANKLESARIA warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, (b) ANKLESARIA will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the
applicable Documentation, and (d) subject to the “Integration with Non-ANKLESARIA Applications” section above, ANKLESARIA will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon
Termination” sections below.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES PROVIDED FREE OF CHARGE, CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
MUTUAL INDEMNIFICATION
ANKLESARIA will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from anydamages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by ANKLESARIA in writing of, a Claim Against Customer, provided Customer (a) promptly gives ANKLESARIA written notice of the Claim Against Customer,
(b) gives ANKLESARIA sole control of the defense and settlement of the Claim Against Customer (except that ANKLESARIA may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives ANKLESARIA all reasonable assistance, at ANKLESARIA’s expense. If ANKLESARIA receives information about an infringement or misappropriation claim related to a Service, ANKLESARIA may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer
claimed to infringe or misappropriate, without breaching ANKLESARIA’s warranties under “ANKLESARIA Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (I) the allegation does not state with specificity
that the Services are the basis of the Claim Against Customer; (II) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by ANKLESARIA, if the Services or use thereof would not infringe without such combination; (III) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or ( IV) a Claim against Customer arises from Content, a Non-ANKLESARIA Application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.
Customer will defend ANKLESARIA and its Affiliates against any claim, demand, suit or proceeding made or brought against ANKLESARIA by a third party (a) alleging that the combination of a Non-ANKLESARIA Application or configuration provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from (i) Customer’s use of the Services or Content in an
unlawful manner or in violation of the Agreement, the Documentation, or Order Form, (ii) any Customer Data or Customer’s use of Customer Data with the Services, or (iii) a Non- ANKLESARIA Application provided by Customer (each a “Claim Against ANKLESARIA ”), and will indemnify ANKLESARIA from any damages, attorney fees and costs finally awarded against ANKLESARIA as a result of, or for any amounts paid by ANKLESARIA under a settlement approved by Customer in writing of, a Claim Against ANKLESARIA, provided ANKLESARIA (a) promptly gives Customer written notice of the Claim Against ANKLESARIA, (b) gives Customer sole control of the defense and settlement of the Claim
Against ANKLESARIA (except that Customer may not settle any Claim Against ANKLESARIA unless it unconditionally releases ANKLESARIA of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against ANKLESARIA arises from ANKLESARIA’s breach of this Agreement, the Documentation, or applicable Order Forms.
This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
LIMITATION OF LIABILITY
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR
TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
TERM AND TERMINATION
This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one-year terms, unless either party gives the other written notice (email acceptable) at least 90 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced
subscriptions will be at ANKLESARIA’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. This Agreement may be terminated in whole or in part, at Customer’s convenience by serving a ninety (90) days prior written notice to Anklesaria.
If this Agreement is terminated by Customer in accordance with the “Termination” section above, ANKLESARIA will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by ANKLESARIA in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to ANKLESARIA for the period prior to the effective date of termination.
The sections titled “Free Trial,” “Fees and Payment,” “Proprietary Rights and Licenses,”
“Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-ANKLESARIA Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as ANKLESARIA retains possession of Customer Data.
GENERAL PROVISIONS
The Services, Content, other ANKLESARIA technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions.
ANKLESARIA and Customer each represents that it is not on any U.S. government denied- party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Syria, or Crimea) or in violation of any U.S. export law or regulation.
Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
This Agreement is the entire agreement between ANKLESARIA and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be:
(1) the applicable Service Order Form and (2) this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
There are no third-party beneficiaries under this Agreement.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed invalid, and the remaining provisions of this Agreement will remain in effect.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in
connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, ANKLESARIA will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
The ANKLESARIA entity entering into this Agreement, the address to which Customer should direct notices under this Agreement, will be based on the ANKLESARIA address. This MSA shall be governed and construed in accordance with the laws of the State of Delaware, excluding any conflict of laws principle that would refer to the laws of another jurisdiction.
Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.