This Anaconda Master Subscription Agreement, including any exhibits, schedules, appendices, and addenda (collectively, the “Agreement”), is between Anaconda, Inc., a Delaware corporation with a principal place of business at 1108 Lavaca Street Suite 110-645, Austin, TX 78701 (“Anaconda”), and the individual or entity (“Customer”) acquiring and/or providing access to the Anaconda Product(s) under the terms of this Agreement, and applies to any Subscriptions, Software, Support Services, Professional Services, and add-ons or upgrades to the Product(s) acquired therein, except to the extent those specifically have different term. This Agreement is entered into (the “Effective Date”) on the earliest of (1) when Customer clicks and/or signs an “I Accept,” “Sign up” or similar button, check box, or signature block referencing this Agreement, (2) when Customer uses or provides access to Anaconda’s Product(s) to an End User, or (3) when Customer enters into an Order Form and/or Statement of Work with Anaconda under the terms of this Agreement.
BY INSTALLING, DOWNLOADING, OR OTHERWISE ACCESSING THE PRODUCT(S) CUSTOMER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS CUSTOMER’S EMPLOYER, CUSTOMER REPRESENTS THAT CUSTOMER HAS THE LEGAL AUTHORITY TO BIND THAT ENTITY. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE PRODUCT(S) EITHER ITSELF OR ON BEHALF OF THE ENTITY.
Capitalized terms used in this Agreement and not otherwise defined herein are defined at https://anaconda.com/definitions.
CUSTOMER ACCESS AND USE TERMS
- Access and Use Rights. The Product is licensed, not sold, to Customer by Anaconda under the terms of this Agreement and the Order Form. The scope of license granted by Anaconda to Customer for the Product is set out in this Section 2, including any additional terms incorporated by reference herein.
General License Grant. Subject to the terms of this Agreement and the limitations set forth in the applicable Order Form, Anaconda hereby grants Customer a limited, non-exclusive, non-transferable license, without rights to sublicense, to use the Products during the Subscription Term, exclusively for (i) internal business purposes and (ii) external business purposes as long as the Application(s) developed with the Product(s) remain the property of the Customer. If Customer has ordered a copy of the Product(s) for On-Premise download and installation, Anaconda also grants Customer, during the Subscription Term (iii) the right to install the Software on servers it manages, and (iv) the right to make a reasonable number of copies of the Product solely for backup purposes. Anaconda further grants Customer the right to make copies of the Documentation solely for Customer’s internal business purposes. Anaconda retains all rights not expressly granted to Customer in this Agreement. In addition to the restrictions set forth in Section 2.3, Customer will not use or deploy the Product in excess of the License Units for which Customer has paid the applicable license Fee.
On-Premise Components. With regards to the On-Premise components and related Documentation, Anaconda grants to Customer, and Customer accepts, a nonexclusive, non-assignable, and nontransferable limited license during the Subscription Term, to use the On-Premise components and related Documentation solely in conjunction with the licensed Products for Customer’s internal business purposes, and subject to the terms and conditions of this Agreement. With respect to the Documentation, Customer may make a reasonable number of copies of the Documentation applicable to the Product(s) solely as reasonably needed for Customer’s internal business use in accordance with the express use rights specified herein.
Limitation on Customer Rights. Without limiting the other terms and conditions in Section 2 of this Agreement, Customer acknowledges and agrees that no rights or any other interests are provided to Customer with respect to: (i) rights in or to the Product(s) beyond those rights specified in the Order Form, (ii) rights to provide access to or use of the Product(s) to any other party, including, without limitation, any uses in the nature of a service bureau or application services provider (“ASP”), (iii) rights to obtain possession of copies of any component of the Anaconda Cloud or any Software used to provide or perform the Subscriptions, except with respect to the On-Premise component(s) and then only as expressly provided for in this Section, or (iv) representations, warranties or other third-party beneficiary rights from any Anaconda third-party vendor.
Open-Source Software. If any part of the Product(s) contains or utilizes Open-Source Software then such Open-Source Software is distributed or made available under the terms of the open-source license agreements referenced in the applicable distribution, help, notice, about, or source files. Copyrights and other proprietary rights to the Open-Source Software are held by the copyright holders identified in the applicable distribution, help, notice, about, or source files.
Third Party Use. Customer may allow Customer’s agents, contractors and outsourcing service providers (each a “Permitted Third Party”) to use the Product(s) licensed to Customer hereunder solely for Customer’s benefit in accordance with the terms of this Agreement and Customer is responsible for any such Permitted Third Party’s compliance with this Agreement in such use. Any breach by any Permitted Third Party of the terms of this Agreement will be considered Customer’s breach.
Proprietary Rights. As between Customer, Anaconda, and Anaconda’s licensors, Affiliates and/or its licensors own all right, title and interest to all Anaconda Technology, graphics, user and visual interfaces, images, code, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of the Product and its content, and the Anaconda Marks. This Agreement does not permit Customer to distribute any product or service using the Anaconda Marks, including in connection with any Third-Party Products. Anaconda will retain all title to all copies of the Product provided to Customer or made by Customer. There are no implied rights or licenses in this Agreement. All rights are expressly reserved by Anaconda. Except for the limited rights expressly granted to Customer hereunder, Anaconda reserves all rights, title and interest in and to the Anaconda Technology. Customer hereby grants, and, if applicable, will cause all Affiliates to grant, Anaconda a non-exclusive, royalty-free, worldwide, transferable, irrevocable, sublicensable, perpetual, license to use or incorporate into the Anaconda Technology any Customer Feedback. All Customer Feedback is provided by Customer on an “AS IS” basis without warranty or indemnity of any kind. Anaconda®, and any other product and service names and logos used or displayed in or on the Product(s) are registered or unregistered trademarks of Anaconda (collectively, “Anaconda Marks”), and may not be used by Customer without Anaconda’s prior written consent. Customer must not attempt, now or in the future, to claim any rights in the Anaconda Marks or use the Anaconda Marks to disparage or misrepresent Anaconda, or the Product(s).
Acceptable Use. Customer’s use of the Product(s) and all Customer Content must at all times comply with Anaconda’s Acceptable Use Policy (located at https://www.anaconda.com/acceptable-use-policy). Unless otherwise authorized under this Agreement, Customer may not (and will not allow any third party to): (a) sell, rent, lease, license, sublicense, distribute, pledge, assign or otherwise transfer in whole or in part the Products or any interest in them to another party; (b) provide, disclose, divulge or make available to, or permit use of the Subscription in whole or in part by any third party other than those that support Customer with developing Applications without Anaconda’ prior written consent; (c) sell, rent, lease, license, sublicense, offer as a paid or free subscription, or include in a service bureau or outsourcing offering, distribute, pledge, assign or otherwise transfer in whole or in part the Applications built with the Products; (d) install or use the Software in a manner that circumvents or interferes with the operation of the technological measure that controls the access to the Software (e) modify, translate, adapt or create derivative works based on the Software; (f) export or re-export the Software or any derivative work thereof; (g) remove or modify any Software markings or any notice of Anaconda’ proprietary rights; (h) use the Software to develop, test, host, or run and operate Applications on behalf of third-parties to this Agreement, without Anaconda’ prior written consent; (i) use the Software to provide third party training; (j) disclose results of any Subscription benchmark tests to any third party without Anaconda’ prior written consent; (k) use the Software in any way that is contrary to the terms and conditions of this Agreement; or (l) use the Software for any unlawful purposes. Except to the extent expressly permitted by this Agreement or applicable law, and to the extent that Anaconda is not permitted by that applicable law to exclude or limit the following rights, Customer may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Products, in whole or in part.
Usernames and Passwords. Customer is responsible for maintaining the confidentiality of all Authorized Users’ usernames and passwords created by or assigned to Customer’s Account (“Credentials”) and is solely responsible for all activities that occur under such Credentials. Anaconda reserves the right to terminate any Credentials that Anaconda reasonably determines may have been used by an unauthorized third party and will provide immediate notice of such termination to Customer and promptly replace such Credentials upon request. Credentials may not be shared or used by more than one individual Authorized User but may be reassigned to a new Authorized User. Upon termination or expiration of the Agreement, all Credentials will be deactivated.
Third-Party Products. Customer may access or use, at Customer’s sole discretion, certain third-party products and services that interoperate with the Product(s) including, but not limited to: (a) third-party tools and packages found in the Anaconda open-source repository (the “Anaconda Repository”) located at http://www.repo.anaconda.com/, (b) third-party service integrations made available through the Anaconda Product(s) dashboard or APIs, and (c) third-party products or services that Customer authorizes to access Customer’s Anaconda Account using OAuth or other Credentials (collectively, “Third-Party Products”). Each Third-Party Product is governed by the terms of service, end user license agreement, privacy policies, and/or any other applicable terms and policies of the third-party provider. Customer’s access or use of Third-Party Products is solely between Customer and the applicable Third-Party Product provider. Anaconda does not make any representations, warranties, or guarantees regarding the Third-Party Products or the providers thereof, including, but not limited to, the Third-Party Products’ continued availability, security, and integrity. Third-Party Products are made available by Anaconda on an “AS IS” and “AS AVAILABLE” basis, and Anaconda may cease providing them in the Repository at any time without entitling Customer to any refund, credit, or other compensation. Unless otherwise specified in writing by Anaconda, Anaconda will not be directly or indirectly responsible or liable in any manner, for any harms, damages, loss, lost profits, special, or consequential damages, or claims, arising out of or in connection with the installation of, use of, or reliance on the performance of any of the Third-Party Products.
Beta Products. If Customer is provided access to the Product solely for purposes of considering the purchase of a Subscription to the Product, using the Product through the “free” or “trial” option of Anaconda’s website, or if an Order Form specifies that an evaluation Subscription is being granted thereunder (an “Evaluation”), Anaconda hereby grants to Customer, and Customer accepts, a nonexclusive, non-transferable, non-sub-licensable, non-production, revocable, limited right to use the Product, free of charge, for the sole purpose of evaluating whether to purchase a Product Subscription, subject to the terms hereof. Unless otherwise stated in writing at the start of the Evaluation, the Evaluation period is limited to a maximum of thirty (30) days, unless Anaconda has extended such period at its sole discretion or unless a different period is stated at the start of the Evaluation or in an applicable Order Form. If Customer is a current subscriber to the Product who has agreed to participate in testing (a “Beta Test”) of a pending release of the Product or certain features or functionality of the Product prior to general release for purposes of identifying issues and providing Feedback (as defined below), the Beta Test term is limited to the period communicated by Anaconda to Customer, unless such period is extended at Anaconda’s sole discretion. UNDER EVALUATIONS AND BETA TESTS, THE PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OR INDEMNITY OF ANY KIND. Any configurations or Customer Data entered into an Evaluation or Beta Test, and any such customizations made by or for Customer, may be permanently lost.
Purchase Through Authorized Reseller. If Customer purchases access to Product(s) from an Authorized Partner, such as a reseller (“Reseller”) or OEM partner (“OEM”), and notwithstanding anything set forth otherwise in this Agreement: (a) in addition to Customer’s compliance with the Agreement, Customer’s right to access and use such Product(s) is subject to the terms and conditions of Customer’s written agreement with the Authorized Partner (the “Partner Agreement”), including Customer’s obligation to timely pay Fees to the Authorized Partner; (b) Customer will execute all Order Forms directly with the Authorized Partner and not Anaconda; and (c) the terms and conditions of Section 3 are not applicable between Anaconda and Customer and instead will be set forth in the Partner Agreement. Any refund, payments, and service credits which Anaconda may or must provide to Customer in accordance with the terms of the Partner Agreement will be provided by Anaconda to Authorized Partner and Customer acknowledges that it must seek such refunds, payments and credits from the Authorized Partner only. Furthermore, Customer’s right to terminate or cancel its subscription to any Product(s) is solely as set forth in the Partner Agreement. In the event that the Authorized Partner ceases at any time to be an Authorized Partner, including for a failure to pay for any Product(s), Customer’s continued use of Product(s) may be conditioned upon Customer executing a written agreement for such Product(s) directly with Anaconda, and paying the outstanding Fees, if any, that Authorized Partner did not remit to Anaconda on Customer’s behalf. Authorized Partners are not authorized to modify the Agreement or make any promises or commitments on Anaconda’s behalf, and Anaconda is not bound by any obligations to Customer other than as set forth in the Agreement. Anaconda may temporarily suspend or terminate delivery of Product(s) to Customer upon notice upon the written direction of the Authorized Partner.
Verification of Product Usage. Upon Anaconda’s request (such request not to be made more than twice during any twelve (12) month period without good cause), Customer agrees to promptly deliver to Anaconda (a) any usage files and reports generated by the Product to permit us to verify the number of License Units actually used by Customer during the applicable License Term; and/or (b) a certification signed by one of Customer’s officers regarding the number of License Units actually used by Customer during the applicable Subscription Term. Notwithstanding the foregoing, Customer agrees to reasonably cooperate with Anaconda to verify the number of License Units actually used by Customer during the applicable Subscription Term, including, without limitation, cooperating with any reviews Anaconda conducts in accordance with Section 3.4. If Anaconda confirms that Customer has exceeded the number of License Units for the applicable Subscription Term, in addition to any other remedies available under this Agreement or applicable law, Customer agrees to pay the then-current license Fees for the additional License Units used by Customer. If and when Customer adds additional License Units to Customer’s license, Customer will pay Anaconda (or Anaconda’s Authorized Partner, if applicable) for such additional License Units added to any license.
- Professional & Support Services.
Professional Services. Anaconda offers Professional Services to implement, customize, and configure Customer’s licensed Product(s). These Professional Services are purchased under an Order Form and are subject to the payment of the Fees therein and the terms of the PSA.
- Support Services. The specific Support Services included with a licensed Product will be identified in the applicable Order Form. Anaconda will provide the purchased level of Support Services in accordance with the terms of the Support Policy referenced in the Order Form.
Support Service Levels. During the applicable Subscription Term, Anaconda will provide Customer with Support Services for the licensed Product as listed APPENDIX A of the Support Policy at the “Standard” level, or as otherwise described in the applicable Order Form.
SLA. If the Product identified in the Order Form is a Subscription, then, unless otherwise expressly stated in the Order, Anaconda will exercise commercially reasonable efforts to provide the Subscription to Customer in accordance with the SLA located in APPENDIX B of the Support Policy.
FEES AND PAYMENT
Fees. Customer will pay the amounts set forth in all Order Form(s) (collectively, the “Fees”). An Order Form will state the specific license Fees and the number of License Units licensed to deploy or use the Product. License Fees are based on Product purchased, not actual usage (subject always to Section 3.4 and Section 2.8). The number of License Units purchased cannot be decreased during the relevant Subscription Term. License Fees will be paid in advance either in full or in accordance with any different billing frequency stated in the applicable Order Form. Except as explicitly set forth Section 8.1 and 9.1(d) all Fees are non-cancellable and non-refundable. In the event that Customer disputes all or some of the invoiced Fees (“Fee Dispute”), Customer will provide a written notice to Anaconda that reasonably describes the nature of the Fee Dispute within thirty (30) days of receiving the applicable invoice. The Parties will use good faith efforts to resolve the Fee Dispute. If the Parties are unable to resolve the Fee Dispute within sixty (60) days of Customer’s receipt of the disputed invoice, then the Parties will be free to exercise any legal or contractual remedies available to them.
Payment Terms. Unless otherwise specified in an Order Form, Anaconda will invoice Customer annually in advance for the Product(s) on the start date as set forth in the respective Order Form(s). Each invoice will be due and payable upon receipt by Customer. If Customer has not paid the invoice amount within thirty (30) days of receipt, Anaconda will be entitled to (a) withhold performance and discontinue Customer’s access to the Product(s) until all undisputed amounts due are paid in full; and (b) turn Customer over for collection to a third-party agency, if Customer fails to pay all undisputed amounts due within thirty (30) days after Anaconda notifies Customer of non-payment of undisputed amounts. In the event Customer acquires or is acquired by another existing Anaconda customer (“Customer Acquirer”) during the Term, the respective Agreements and Fees applicable to Customer and Customer Acquirer will remain unchanged and unaffected unless and until otherwise agreed to by all affected parties.
Taxes. The Fees do not include, and may not be reduced to account for, any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial, or national jurisdiction (whether domestic or foreign) (collectively “Taxes”). Customer is responsible for paying all Taxes imposed on the Product(s) provided under the Agreement. If Anaconda is found to have a legal obligation to pay or collect Taxes for which Customer is responsible under the Agreement, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides Anaconda with a valid tax exemption certificate authorized by the appropriate taxing authority.
Audit. Customer shall keep complete and accurate records of all its obligations hereunder. Customer shall allow Anaconda or its agent reasonable access to audit Customer’s records and systems solely to verify general compliance with the terms and conditions of this Agreement, including, without limitation, Customer and/or Anaconda running Anaconda provided utilities to determine actual usage. Anaconda shall conduct such audits during Customer’s normal business hours with reasonable notice, or as otherwise reasonably requested by Customer.
CUSTOMER OBLIGATIONS AND DATA RESPONSIBILITY
General Customer Obligations. Customer will: (a) be responsible for configuring the encryption for all Customer Data (excluding Customer Account Information) that it transmits through the Product(s); (b) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Product(s); (c) notify Anaconda promptly in writing of any unauthorized access or use of the Product(s) or Credentials; and (d) be solely responsible for Customer-devised or Customer-implemented rules (and associated misconfigurations and outages) and actions taken by Customer that might result in denial of Product(s), availability issues, or performance degradation.
Customer Data Responsibility. Except for Customer Account Information, Customer is solely responsible for keeping and maintaining its own copies of Customer Data. Anaconda is not obligated to Customer to maintain any copies thereof and may delete Customer Data at any time after seventy-two (72) hours from the time such Customer Data is captured by Anaconda, except for any Customer Account Information included therein that is reasonably required for the operation of the Product(s) during the Subscription Term. EXCEPT WITH RESPECT TO ANACONDA’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7.1, UNDER NO CIRCUMSTANCE WILL ANACONDA BE LIABLE FOR ANY LOSS OR DELETION OF CUSTOMER DATA.
USE AND PROCESSING OF CUSTOMER DATA
Customer Data. The ordinary operation of the Product(s) requires Customer Data to pass through Anaconda’s network. The Agreement does not transfer or convey to Anaconda or any third party any right, title or interest in and to the Customer Data, or any associated Intellectual Property Rights, except for a worldwide, non-exclusive, limited right of use (including to store, copy, transmit and display) solely as permitted under the Agreement and as required to provide the Product(s), revocable in accordance with the terms of the Agreement. To the extent that Anaconda processes Customer Data on behalf of Customer that includes Personal Data, Anaconda will handle such Personal Data in compliance with the DPA.
Product Data. Anaconda retains all right, title, and interest in the Product Data, and shall have the right to use Product Data for purposes of providing, maintaining, developing, and improving its Product(s). Anaconda may monitor and inspect the traffic on the Anaconda network, including any related logs, as necessary to perform the Services and to derive and compile threat data. To the extent the Product Data includes any Personal Data, Anaconda will handle such Personal Data in compliance with Applicable Data Protection Laws. Anaconda may use and retain Customer Account Information for business purposes related to the Agreement and to the extent necessary to meet Anaconda’s legal compliance obligations (including, for audit and anti-fraud purposes).
Customer Content and Applications. As necessary for Anaconda (a) to provide Customer with the Support Services and Updates; and (b) to operate, manage and improve the Products, Customer hereby grants to Anaconda the right and a license to host, copy, transmit and display Customer Content and Applications in accordance with this Agreement and limited to such purposes only.
Product Security. Anaconda will implement industry leading security safeguards for the protection of Customer Confidential Information, including Customer Content transferred to and stored within the Hosted Product(s). These safeguards include commercially reasonable administrative, technical, and organizational measures to protect Customer Content against destruction, loss, alteration, unauthorized disclosure, or unauthorized access, including such things as information security policies and procedures, security awareness training, threat and vulnerability management, incident response and breach notification, and vendor risk management. Anaconda’s technical safeguards are further described in the IT Security Addendum
Term. The Agreement will commence on the Effective Date and will remain in effect until the expiration of all applicable Order Form(s) issued under the Agreement, unless earlier terminated pursuant to this Section 6. Unless a Party provides written notice of its intent not to renew the Agreement at least thirty (30) days prior to the expiration of the Initial Term, or the then-current renewal term (the “Renewal Term”), the Agreement will automatically renew for successive Renewal Terms thereafter. The mutual execution of any Order Form pursuant to this Agreement will act to extend the then-current Subscription Term to end concurrently with the term of such Order Form. Customer acknowledges and agrees that if an Affiliate of Customer executes an Order Form pursuant to this Agreement (each, an “Affiliate Order”), such Affiliate Order will extend the then-current Subscription Term of the Agreement with respect to such Affiliate, as well as Customer. Termination of any Affiliate Order will not terminate the Agreement, as the Agreement may be terminated at the request of Customer only pursuant to this Section 6.1 and Section 6.2.
Termination. Either Party may at any time terminate the Agreement, upon written notice to the other Party: (a) the other Party has materially breached any provision of the Agreement, and such breach cannot be cured, or, if curable, such breach remains uncured thirty (30) days after receipt of notice from the non-breaching Party specifying such breach in reasonable detail; (b) immediately upon written notice if the other Party commits a non-remediable, material breach; or (c) immediately upon written notice, if the other Party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other Party’s property, or the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other Party and is not dismissed within ninety (90) days, or the other Party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
Effect of Termination. Upon expiration or termination of the Agreement: (a) Customer’s right to use and access the Product(s) under the terms of this Agreement will be terminated subject to Section 6.4; (b) all Credentials associated with the Customer’s Authorized Users will be deactivated or downgraded to Anaconda’s free plan; (c) Customer will immediately discontinue use of the Product(s); (d) Customer will immediately pay all outstanding Fees due to Anaconda through the date of termination or expiration; and (e) each Party will upon request of the other Party promptly return or destroy all Confidential Information of the other Party to the extent such return or destruction is reasonably feasible. Section 1 (Definitions), 2.2 (Proprietary Rights), 3 (Fees and Payments) (with respect to payment obligations incurred during the Subscription Term), 6.3 (Effect of Termination), 7 (Confidentiality), 8 (Warranties), 9 (Indemnification), and 11 (General) of this Agreement will survive any such expiration or termination of the Agreement.
Access to Logs On Termination. For up to seventy-two (72) hours following expiration or termination of Customer’s access to the Product(s), Anaconda will use reasonable efforts to continue to make available to Customer the Customer Logs. Other than as set forth in this Section 6.4, upon termination of the Agreement, Customer’s right to access or receive log data via the Product(s) will immediately cease.
Confidential Information. The unauthorized disclosure or use of Confidential Information of a Discloser or of a Discloser’s third-party licensors, and all information and services related thereto, would cause great injury and harm to the owner thereof. Therefore, each party agrees to take all appropriate action to ensure the confidentiality and security of the other party’s Confidential Information, but in any event no less than the same standard of care it uses to protect its own Confidential Information of like kind and value. Without limiting the generality of the foregoing, Customer and Anaconda each agree that it: (a) shall maintain the other’s Confidential Information in the strictest confidence, including compliance with reasonable remote access security requirements; (b) shall not disclose, display, publish, transmit, or otherwise make available such Confidential Information or take the benefit thereof, in whole or in part, except in confidence to its own Personnel on a need-to-know basis; and (c) except as expressly permitted hereunder, shall not copy, duplicate, replicate, transform, or reproduce such Confidential Information. Notwithstanding anything to the contrary in this Section, neither Party shall be liable to the other for damages resulting from disclosure of any Confidential Information required by law, regulation or valid court order; provided, to the extent legally permitted, prior written notice is provided to the other Party sufficiently in advance of such required disclosure to allow the other Party to respond and take reasonable and lawful action to avoid and/or minimize the degree of such disclosure or seek appropriate protective orders.
Return of Confidential Information. As between the Parties, Confidential Information shall remain the property of the Discloser. At any time, upon Discloser’s reasonable request, Recipient shall promptly (and in any event within thirty (30) days) return to Discloser or destroy, at the election of the Discloser, any Confidential Information of the Discloser. In addition, within thirty (30) days after termination of this Agreement, Recipient shall (a) promptly return all tangible materials containing such Confidential Information to Discloser, (b) remove all Confidential Information (and any copies thereof) from any computer systems of the Recipient, its contractors and its distributors, and (c) confirm in writing that all materials containing Confidential Information have been destroyed or returned to Discloser, as applicable, by Recipient. Recipient shall cause its affiliates, agents, contractors, and employees to strictly comply with the foregoing.
- Limited Performance Warranties.
Product Compliance with Documentation. Anaconda warrants to Customer that, for ninety (90) days from delivery (in the case of an On-Premise Product) or for the duration of the license (in the case of a Subscription), the Product will comply with the applicable Documentation in all material respects. Customer’s exclusive remedy, and Anaconda’s sole liability, with respect to any breach of this warranty will be for Anaconda to use commercially reasonable efforts to promptly correct the non-compliance (provided that Customer notify Anaconda in writing within the warranty period and allow Anaconda a reasonable cure period). If Anaconda, at its discretion, reasonably determines that correction is not economically or technically feasible, Anaconda may terminate Customer’s license to the Product and provide Customer a full refund of the fees paid to Anaconda with respect to the Product (in the case of an On-Premise Product) or a refund of the prepaid fees for the unused portion of the license period (in the case of a Subscription). Delivery of additional copies of, or Updates to, the Product will not restart or otherwise affect the warranty period.
For Professional Services. Anaconda warrants to Customer that for a period of thirty (30) days after performance, the Professional Services provided hereunder were performed in a timely and professional manner by qualified Personnel. Customer’s exclusive remedy for a breach of the foregoing shall be for Anaconda to re-perform the affected Professional Services or waive or refund (as appropriate) the Fee paid to Anaconda for such Professional Services. Notwithstanding the foregoing, Anaconda shall have no obligations under this subsection unless Anaconda receives Customer’s notice during the applicable warranty period.
Disclaimer. THE LIMITED WARRANTIES AND EXCLUSIVE REMEDIES SET FORTH IN SECTION 8.1 ARE MADE FOR THE BENEFIT OF CUSTOMER ONLY AND ARE EXPRESSLY SUBJECT TO: (I) SATISFACTION OF ANY PAYMENT OBLIGATIONS TO ANACONDA, AND (II) SECTION 2 IN THE “CUSTOMER ACCESS AND USE TERMS.” EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, ANACONDA MAKES NO AND DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS AND OTHER TERMS, WRITTEN OR ORAL, OR EXPRESS, IMPLIED, STATUTORY, COLLATERAL OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES AND TERMS OF MERCHANTABILITY, QUALITY, TITLE, INTEROPERABILITY, DATA ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY PRODUCT(S), OR ANY COMPONENTS THEREOF. WITHOUT LIMITING THE FOREGOING, ANACONDA DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF ANY PRODUCT(S) SHALL BE UNINTERRUPTED OR ERROR-FREE. FOR THE AVOIDANCE OF DOUBT, SECTION 8.1 SHALL NOT APPLY TO ANY BETA, PILOT OR OTHER TRIAL SUBSCRIPTIONS, NON-PRODUCTION ENVIRONMENTS, MOBILE APPS OR PORTAL SERVICES, EACH OF WHICH ARE PROVIDED ‘AS IS’ AND WITHOUT WARRANTY OF ANY KIND. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT THE PRODUCTS ARE NOT DESIGNED, INTENDED OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.
Internet Delays. THE PRODUCT(S) MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ANACONDA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
- Limited Performance Warranties.
By Anaconda. Anaconda will defend, indemnify, and hold harmless Customer and its licensors, suppliers, officers, directors, employees and agents from and against any and all damage, cost, liability and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims of third parties arising from or that are based upon an allegation that Customer’s use of the Product(s) infringes any United States Intellectual Property Right. If any portion of a Product that Customer subscribes to becomes, or in Anaconda’s opinion is likely to become, the subject of a claim of infringement, Anaconda may, at Anaconda’s option: (a) procure for Customer the right to continue using the Product(s); (b) replace the Product(s) with non-infringing products which do not materially impair the functionality of the Product(s) for Customer; (c) modify the Product so that it becomes non-infringing; or (d) terminate the Product(s) and provide a pro rata refund any Fees already paid by Customer to Anaconda to cover the remainder of the Subscription Term, and upon such termination, Customer will immediately cease all use of the Product(s). Notwithstanding the foregoing, Anaconda will have no obligation under this Section 9.1 or otherwise with respect to any infringement claim based upon: (i) any use of the Product(s) not in accordance with the Agreement or the Documentation; (ii) Anaconda’s conformance to Customer’s unique specifications performed at Customer’s request; (iii) any use of the Product(s) in combination with third party products, equipment, software or content not supplied by Anaconda; (iv) any modification of the Product(s) by any person other than Anaconda or its authorized agents; or (v) use of the Open-Source Software or Third-Party Products. THIS SUBSECTION SETS FORTH ANACONDA’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
By Customer. Customer will defend, indemnify and hold harmless Anaconda and its Affiliates, licensors, suppliers, officers, directors, employees and agents from and against any and all damage, cost, liability and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims of third parties arising from or that are based upon: (a) Customer’s use of the Product(s) in a manner not permitted by the Agreement or the Documentation; (b) Customer Data or Customer Content(including without limitation any activities or aspects thereof or commerce conducted thereon); (c) a Customer’s non-compliance with applicable laws; or (d) Customer’s failure to pay any Taxes imposed by taxing authorities as required in Section 3.3.
Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified Party will promptly notify the indemnifying Party in writing of any threatened or actual claim or suit; provided, that failure to provide such prompt notice will not release the indemnifying Party from its indemnity obligations except to the extent the indemnifying Party is materially prejudiced thereby; (b) the indemnifying Party will have sole control of the defense or settlement of any claim or suit; (c) the indemnified Party will cooperate with the indemnifying Party (at the indemnifying Party’s expense) to facilitate the settlement or defense of any claim or suit; and (d) the indemnifying Party will not settle any claim or suit in a manner which results in an admission of liability by the indemnified Party, without the indemnified Party’s prior written consent.
LIMITATION OF LIABILITY
Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER LAW, IN NO EVENT WILL ANACONDA OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE, GOODWILL, PERSONAL OR PROPERTY DAMAGE, OR THE COST OF PROCURING SUBSTITUTE PRODUCTS) RESULTING FROM OR IN CONNECTION WITH THE AGREEMENT OR CUSTOMER’S USE, OR INABILITY TO USE THE PRODUCTS HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, EVEN IF ANACONDA HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
Limit of Damages. EXCEPT WITH RESPECT TO ANACONDA’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 9, THE MAXIMUM LIABILITY OF ANACONDA ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT WILL BE LIMITED TO AND WILL NOT EXCEED IN THE AGGREGATE, THE FEES PAID BY CUSTOMER TO ANACONDA DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST CLAIM TO ARISE UNDER THE AGREEMENT. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THE AGREEMENT WILL NOT INCREASE ANACONDA’S LIABILITY. EXCEPT WHERE PROHIBITED BY LAW, NO CLAIM REGARDLESS OF FORM, WHICH IN ANY WAY ARISES OUT OF THE AGREEMENT MAY BE MADE, NOR ACTION BASED UPON SUCH CLAIM BE BROUGHT BY CUSTOMER, MORE THAN ONE (1) YEAR AFTER THE TERMINATION OR EXPIRATION OF THE AGREEMENT. IN NO EVENT WILL ANACONDA’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT.
Governing Law and Venue. The Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Texas, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the exclusive, personal jurisdiction of, and venue in, the state and federal courts of Austin, Texas. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
Assignment. A Party to this Agreement may not assign, delegate, or otherwise transfer any or all of its rights or obligations under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, either Party may from time to time assign this Agreement in whole only to: (a) its Affiliates; or (b) an acquirer of all or substantially all of its business or assets; provided that such Affiliate or acquirer assumes all of the obligations hereunder in writing and, in the case of an assignment by Customer, such assignment or acquisition shall not expand the scope of the Product subscription as set forth on the applicable Order Form nor shall the Product be permitted to be used for any business operations other than as were using the Product immediately prior to such assignment or acquisition.
Notices. All notices and demands hereunder shall be in writing and shall be delivered to the address of the Recipient referenced below (or at such different address as may be designated by such Party by written notice to the other Party). All notices or demands shall be served by personal service or sent by certified, registered or signed-for mail, return receipt requested, by reputable national or international private express courier, or by electronic transmission, with confirmation received, to the email address specified below, and shall be deemed complete upon receipt: To Anaconda: the address listed in the applicable Order Form or by email to [email protected] To Customer: the address and contact information listed in the applicable Order Form.
Relationship of the Parties. Customer and Anaconda shall operate as independent contractors and not as partners, joint venturers, agents, or employees of the other. Neither Party shall have any right or authority or assume or create any obligations or make any representations or warranties on behalf of the other Party, whether expressed or implied, or to bind the other Party in any respect whatsoever.
Dispute Resolution. In the case of any disputes under the Agreement, the Parties will first attempt in good faith to resolve their dispute informally, or by means of commercial mediation, without the necessity of a formal proceeding.
Compliance with Laws. Customer will comply with all applicable Laws. Customer agrees that it is responsible for determining whether use of the Product(s) will satisfy Customer's individual compliance obligations. Customer will not use the Product(s) for any reason if Customer or any party that owns or controls Customer, are subject to sanctions or otherwise designated on any list of prohibited or restricted parties (collectively, “Designated Nationals”). Customer will not use the Product(s) to export or re-export any information or technology to any country, individual, or entity to which such export or re-export is restricted or prohibited (collectively, “Embargoed Countries”), which lists of Embargoed Countries and Designated Nationals are subject to change without notice. Customer acknowledges the Product(s) may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. Customer further acknowledges that performance of the Agreement may be subject to U.S. and non-U.S. anti-corruption and anti-bribery laws, rules, and regulations. Customer therefore covenants that it will make no payments, including charitable donations, of money or anything of value, nor will such be offered, promised or paid, directly or indirectly, to any person or entity (a) to improperly influence the acts of such person or entity, (b) to induce such person or entity to use its influence with a government to obtain or retain business, or (c) to gain an improper advantage in connection with any business venture or contract in which Anaconda is a participant.
Publicity. Customer agrees that Anaconda may use Customer’s name and logo and indicate that Customer is a customer of Anaconda on its website and through its marketing materials Any such attribution will be consistent with Customer’s style guidelines or requirements as communicated to Anaconda.
Force Majeure. Except for payment obligations, neither Party shall have any liability under the Agreement to the extent that the performance of its obligations is delayed, hindered or prevented by an event or circumstance outside the reasonable control of the Party, including fire, storm, flood, earthquake, adverse weather conditions, pandemic, explosions, Acts of God, terrorism or the threat thereof, nuclear, chemical or biological contamination, compliance with any law, governmental controls, restrictions or prohibitions general strikes, lock-outs, industrial action or employment dispute not caused by or specific or limited to the affected Party, protests, public disorder, general interruptions in communications or power supply, and denial of service attacks (such an event or circumstance, an event of “Force Majeure”).
Entire Agreement. This Agreement (including all Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the Parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related Customer- issued purchase orders, vendor forms, invoices, policies, confirmation or similar form, even if signed by the Parties hereafter, will have no effect under this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of this Agreement will control unless otherwise explicitly set forth in an Order Form. This Agreement may be executed in one or more counterparts, each of which will be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy will have the same force and effect as execution of an original, and a facsimile/ electronic signature will be deemed an original and valid signature. No modification, consent or waiver under this Agreement will be effective unless in writing and signed by both Parties. The failure of either Party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language will be controlling in all respects.
The Parties hereto have caused this Agreement to be signed in their names by their duly authorized representatives as of the date signed below.
|Signer Name||#[SIGNER_NAME]#||Signer Name|
|Signer Title||#[SIGNER_TITLE]#||Signer Title|
|Date Signed||Date Signed|