END USER LICENSE AGREEMENT
The Subscriber’s (“You” or “Your”) license to download, use, copy, distribute, or change the Software Product is subject to all the terms and conditions of this End User License Agreement (“Agreement”).
1.1. “Anaconda Distribution” means the Open Source Tools offered and made available by Anaconda within the installation of the Licensed Software, further identified as “In Installer” under the applicable operating system reference at: https://docs.anaconda.com/anac.... This collection of Open Source Tools does not include any components included in the Licensed Software or Repository Open Source Tools.
1.2. “Anaconda Repository” means an open data science hub containing a collection of Open Source Tools used in data science and available for public use.
1.3. “Core Dependencies” means Open Source Tools or Third Party Software upon which the functionality of the Licensed Software is dependent.
1.4. “Documentation” means the most current version of any Anaconda-supplied documentation that describes the use, function, or technical details of the Licensed Software (e.g., reference manuals, user manuals, on-line help files, and training manuals) and is provided to Subscriber for use with the Licensed Software in accordance with this Agreement.
1.5. “Licensed Software” means, as of the Effective Date, the most current executable object code release of the software and its Core Dependencies, described in the applicable Transaction Document.
1.6. “Repository Open Source Tools” means a collection of Open Source Tools mirrored from the Anaconda Repository at implementation of the Licensed Software, further identified at https://repo.continuum.io/pkgs.... This collection of Open Source Tools does not include any components used in the Licensed Software or identified in the Anaconda Distribution.
1.7. “Scope Limitations” means the limitations on the scope of licenses granted to Subscriber under this Agreement that are described in the applicable Transaction Document.
1.8. “Support Services” means the support and maintenance services described in Anaconda’s Enterprise Software Technical Support SLA, at https://www.anaconda.com/suppo...;
1.9. “Third-Party Software” means certain software licensed from third parties and provided by Anaconda in connection with Subscriber’s use of the Licensed Software.
1.10. “Transaction Document” means means any duly authorized purchase order for the Licensed Software.
1.11. “Unauthorized Use” means any use, possession, knowledge, viewing, inspections, examination, copying, disclosure, or other activity involving any part of the Licensed Software or Documentation that is not expressly authorized under this Agreement or otherwise in writing by Anaconda.
2. LICENSE GRANTS
2.1. License to the Licensed Software. Subject to the terms and conditions of this Agreement and Subscriber’s compliance therewith, Anaconda grants to Subscriber a limited, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement in accordance with Section 11.6) license, without right of sublicense, during the term of this Agreement to internally install and internally use the Licensed Software in accordance with the Scope Limitations. Each of the rights granted in this Section 2.1 is subject to the Scope Limitations and contingent upon Subscriber’s compliance with the Scope Limitations.
2.2. License to the Documentation. Subject to the terms and conditions of this Agreement, Anaconda grants to Subscriber, a limited, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement in accordance with Section 11.6) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with the use of the Licensed Software in accordance with this Agreement.
2.3. All Licensed Software. All Licensed Software shall be licensed to Subscriber by Anaconda under the terms and conditions of this Agreement and any applicable Transaction Document; provided however that in any event that there are terms in any Transaction Document or other document(s) which conflict with this Agreement, or introduce additional terms to this Agreement, the terms of this Agreement shall prevail as changes or additions to this Agreement can only be initiated and executed as formal amendments to this Agreement by authorized representatives of Anaconda and Subscriber.
2.4. Reservation of Rights. The Licensed Software and Documentation are licensed, not sold, by Anaconda to Subscriber, and nothing in this Agreement will be interpreted or construed as a sale or purchase of the Licensed Software or Documentation. Subscriber will not have any rights in or to the Licensed Software or Documentation not expressly granted to Subscriber in accordance with this Agreement. Anaconda retains all copyright, patent and other intellectual property rights in and to the Licensed Software and Documentation. Subscriber acknowledges that the Licensed Software and Documentation, all copies of the Licensed Software and Documentation, any derivative works, compilations, and collective works of the Licensed Software and Documentation, and any know-how and trade secrets related to the Licensed Software and Documentation are the sole and exclusive property of Anaconda and contain Anaconda’s confidential and proprietary materials. Subscriber will maintain the confidentiality of and not disclose to any third-party Anaconda’s confidential or proprietary information.
2.5. Open Source Tools. “Open Source Tools” means any “open source” code (as defined by the Open Source Initiative), “free” code (as defined by the Free Software Foundation), or a community source code. Any Third-Party Software or Open Source Tools provided to Subscriber by Anaconda in connection with Subscriber’s use of the Licensed Software, excluding Core Dependencies, are provided “as is” and “with all faults” pursuant to the terms of the applicable third-party license agreement or open source license. Except for Anaconda’s express warranties under Section 7 and indemnification obligations for the Licensed Software under Section 8.2, Anaconda assumes no responsibility for, and specifically disclaims any liability or obligation with respect to Third-Party Software and Open Source Tools, excluding Core Dependencies.
2.6. Beta License. Some offerings and features may be available to Subscriber as a preview, or as an alpha, beta or other pre-release version (each, a “Beta Offering”). All rights for Beta Offerings are solely for internal testing and
evaluation. Subscriber acknowledges and agrees that: (a) the Beta Offering included in the Licensed Software has not been commercially released by Anaconda; (b) components of the Beta Offering may not operate properly, be in final form or fully functional; (c) components of the Beta Offering may contain errors, design flaws or other problems; (d) it may not be possible to make the Beta Offering features fully functional; (e) the information obtained using the Beta Offering may not be accurate; (f) use of the Beta Offering may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) Anaconda is under no obligation to release a commercial version of any of the components of the Beta Offering; (h) Anaconda has the right unilaterally to abandon development of any components of the Beta Offering, at any time and without any obligation or liability to Subscriber; (i) Subscriber should not rely on any component of the Beta Offering for any reason; and (j) Anaconda may, but is not obligated to, provide support for the Beta Offering or correct any bugs, defects, or errors in the Beta Offering. Regardless of whether Anaconda provides technical support for the Beta Offering, the SLA will not apply to the Beta Offering unless specified otherwise in the applicable Order Form. Subscriber is solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by any components of the Beta Offering. Subscriber will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of Subscriber’s use of the Beta Offering.
3. DELIVERY, DEPLOYMENT, AND SUPPORT SERVICES
3.1. Delivery. Anaconda has delivered, or will deliver to Subscriber within a reasonable time after the Effective Date, the Licensed Software and Documentation.
3.2. Deployment Services. Unless otherwise provided for in the applicable Transaction Document, Subscriber is solely responsible for the deployment of the Licensed Software for operation, including installation, configuration, integration, and testing.
3.3. Support Services. For so long as Subscriber is current with its payment of the fees specified in the applicable Transaction Document, Anaconda will provide Subscriber with Support Services for the Licensed Software during the term of this Agreement.
4. SUBSCRIBER OBLIGATIONS
4.1. General Restrictions. Except as otherwise explicitly provided in this Agreement, or as may be expressly permitted by applicable law, Subscriber will not, and will not permit, encourage, or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or attempt to derive the source code of the Licensed Software; (b) rent, lease, or sublicense the Licensed Software; (c) use the Licensed Software on a service bureau or application service provider basis; (d) provide, divulge, disclose, or make available to, or permit the use of the Licensed Software by any third party; nor (e) circumvent or disable any technological features or measures in the Licensed Software.
4.2. Proprietary Rights Notices. Subscriber will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on any part of the Licensed Software or Documentation. Subscriber must include all copyright and other proprietary rights notices as are currently contained on each part of the Licensed Software, Indemnified Open Source Tools and Documentation when reproducing any part of the Licensed Software, Indemnified Open Source Tools and/or Documentation.
4.3. Compliance with Laws. Subscriber will at all times comply with all applicable laws, statutes, ordinances, and regulations in connection with its use of the Licensed Software and Indemnified Open Source Tools.
4.4. Protection from Unauthorized Use. Subscriber acknowledges that the Licensed Software and Documentation furnished to Subscriber by Anaconda involve valuable proprietary rights of Anaconda. Subscriber will take appropriate steps and precautions for the protection of the Licensed Software and Documentation. Without limiting the generality of the foregoing, Subscriber will use its best efforts to prevent any Unauthorized Use and immediately notify Anaconda in writing of any Unauthorized Use that comes to Subscriber’s attention. If anyone who obtains access to the Licensed Software or Documentation directly or indirectly through Subscriber or any of its employees, agents, representatives, or contractors engages in Unauthorized Use, Subscriber will take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the applicable Licensed Software or Documentation in the possession or control of the person or entity engaging in such Unauthorized Use. Subscriber will provide to Anaconda such cooperation and assistance related to any such Unauthorized Use as Anaconda may reasonably request.
4.5. Publicity. Anaconda may list Subscriber as a customer of Anaconda and use Subscriber’s name and logo for marketing or promotional purposes and in other communication with existing or potential Anaconda customers.
5. FEES AND PAYMENT
5.1. Fees and Payment Terms. Subscriber will pay Anaconda the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in the applicable Transaction Document. Unless otherwise specified in the applicable Transaction Document, Subscriber will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Anaconda to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against any amounts due to Subscriber for any reason. All amounts in this Agreement are denominated in United States dollars, and Subscriber must pay all amounts in United States dollars.
5.2. Taxes. Other than federal and state net income taxes imposed on Anaconda, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Anaconda after all such taxes are paid are equal to the amounts that Anaconda would have been entitled to in accordance with this Agreement as if the taxes did not exist.
5.3. Usage Logs. Subscriber agrees to provide Anaconda access to usage logs of the Licensed Software upon request. Anaconda will give Subscriber written notice of any non-compliance revealed in its examination of such logs, including any use of the Licensed Software beyond that authorized under this Agreement and, without limiting Anaconda’s remedies arising from such unauthorized use, Subscriber shall promptly: (i) remedy such unauthorized use and (ii) pay Anaconda any additional fees due, at the then current rates Subscriber is paying to Anaconda. Anaconda agrees that any audit or access to Subscriber’s premises will be in a manner that minimizes interference with Subscriber’s business operations
6. TERM AND TERMINATION
6.1. Term. This Agreement will commence upon the Effective Date and continue until terminated in accordance with the terms herein. At the end of the initial term of each Transaction Document or any renewal term thereunder, the term of the applicable Transaction Document will automatically renew for additional one (1) year terms unless a Party notifies the other Party in writing of its intent not to renew the term at least sixty (60) days before the end of the initial term or then-current renewal term. Should this the applicable Transaction Document term auto-renew, the renewal term shall be subject to Anaconda’s then current fees at the time of renewal, providing Subscriber’s licensing requirements remain unchanged from the initial term or then-expiring renewal term. Subscriber will communicate any and all licensing requirement changes to Anaconda within thirty (30) days of auto-renewal from term to term and Anaconda will communicate any corresponding fee increases resulting from the changes, if any.
6.2. Notice of Material Breach or Default. If either Party commits a material breach of any of its obligations under this Agreement, then the other Party may give the defaulting Party written notice of the material breach and of the non-defaulting Party’s intention to terminate this Agreement if the material breach is not cured within thirty (30) days (or such later date as may be specified in such notice). Without the limiting the foregoing, any failure by Subscriber to timely pay to Anaconda any amounts owing under this Agreement will constitute a material breach of this Agreement.
6.3. Notice of Termination. If the defaulting Party fails to cure a material breach specified in any notice under Section 6.2 within thirty (30) days (or such later date as may be specified in such notice), then the non-defaulting Party may terminate this Agreement by giving the defaulting Party written notice of termination. If Subscriber fails to timely pay any fees, Anaconda may, without limitation to any of it others rights or remedies, suspend performance or Support Services until it receives all amounts due.
6.4. Immediate Termination. Notwithstanding anything to the contrary in Sections 6.2 and 6.3 above, if Subscriber breaches Sections 2, 4.1, or 4.4, Anaconda may immediately terminate this Agreement upon notice to Subscriber.
6.5. Post-Termination Obligations. If this Agreement or any licenses in this Agreement are terminated for any reason, (a) Subscriber will immediately pay to Anaconda any fees, reimbursable expenses, compensation, or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Subscriber will destroy all copies of the Licensed Software and Documentation within five (5) days of such termination, and immediately thereafter, provide Anaconda with a written certification signed by an authorized Subscriber representative certifying that all copies of such Licensed Software and Documentation have been destroyed and all use of such Licensed Software and Documentation has been discontinued.
6.6. Survival. Sections, 1, 2.4, 2.4, 4, 5, 6.5, 6.6, 7.2, 8.1, and 9-11 will survive any expiration or termination of this Agreement.
7. WARRANTIES AND DISCLAIMER
7.1. Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms: and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
7.2. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, ANACONDA MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS
TO ANY MATTER WHATSOEVER. ANACONDA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. ANACONDA DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE LICENSED SOFTWARE, THIRD-PARTY SOFTWARE OR DOCUMENTATION. ANACONDA DOES NOT WARRANT THAT THE LICENSED SOFTWARE, THIRD-PARTY SOFTWARE OR DOCUMENTATION IS ERROR-FREE OR THAT OPERATION OF THE LICENSED SOFTWARE OR THIRD-PARTY SOFTWARE WILL BE SECURE OR UNINTERRUPTED. ANACONDA DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE LICENSED SOFTWARE OR THIRD-PARTY SOFTWARE IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE LICENSED SOFTWARE OR THIRD-PARTY SOFTWARE WILL ALWAYS BE AVAILABLE. ANACONDA EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE LICENSED SOFTWARE, THIRD-PARTY SOFTWARE OR DOCUMENTATION.
8.1. Subscriber Indemnification.
(a) Defense. Subscriber will defend Anaconda from any actual or threatened third-party claim arising out of or based upon Subscriber’s use of the Licensed Software or Indemnified Open Source Tools, or Subscriber’s breach of any of the provisions of this Agreement. In the event it seeks indemnification for such a claim, (i) Anaconda shall give Subscriber prompt written notice of the claim, (ii) Anaconda shall grant Subscriber full and complete control over the defense and settlement of the claim; (iii) Anaconda shall provide assistance in connection with the defense and settlement of the claim as Subscriber may reasonably request; and (iv) Anaconda shall comply with any settlement or court order made in connection with the claim. Supplier may not settle any such claim without the consent of Anaconda, which consent shall not be unreasonably withheld or delayed. Anaconda will have the right to participate in the defense of the claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the claim.
(b) Indemnification. Subscriber will indemnify Anaconda from and pay: (i) all damages, costs, and attorneys’ fees finally awarded against Anaconda in any claim under Section 8.1(a); (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Anaconda in connection with the defense of a claim under Section 8.1(a) (other than attorneys’ fees and costs incurred pursuant to the last sentence of Section 8.1(a) after Subscriber has accepted defense of the claim); and (iii) all amounts that Subscriber agrees to pay to any third party to settle any claim under Section 8.1(a).
8.2. Anaconda Indemnification.
(a) Defense. Anaconda will defend Subscriber from any actual or threatened third-party claim that the Licensed Software infringes any U.S. patent issued as of the Effective Date or any copyright of any third party during the term of this Agreement. In the event it seeks indemnification for such a claim: (i) Subscriber shall give Anaconda prompt written notice of the claim; (ii) Anaconda shall have full and complete control over the defense and settlement of the claim; (iii) Subscriber shall provide assistance in connection with the defense and settlement of the claim as Anaconda may reasonably request including any requests for usage logs and installation records; and (iv) Subscriber shall comply with any settlement or court order made in connection with the claim; provided that Anaconda may not settle any such claim without the consent of Subscriber, which consent shall not be unreasonably withheld or delayed..
(b) Indemnification. Anaconda will indemnify Subscriber against: (i) damages, costs, and attorneys’ fees finally awarded against Subscriber in any proceeding under Section 8.2(a); (ii) out-of-pocket (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Anaconda’s consent after Anaconda has accepted defense of such claim); and (iii) if any proceeding arising under Section 8.2(a) is settled, amounts paid to any third party as agreed to by Anaconda in settlement of any such claims.
(c) Mitigation of Infringement Action. If Subscriber’s use of the Licensed Software is, or in Anaconda’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 8.2(a), then Anaconda may either (i) procure the continuing right of Subscriber to use the Licensed Software; (ii) replace or modify the Licensed Software in a functionally equivalent manner so that it no longer infringes; or if Anaconda determines that neither (i) nor (ii) is commercially reasonable, Anaconda may (iii) terminate this Agreement and, refund to Subscriber all subscription fees pre-paid by Subscriber for the terminated Licensed Software that are attributable the period of time between the date of termination and the remaining days in the then-current initial or renewal term.
(d) Exclusions. Anaconda will have no obligation under this Section 8.2 for any infringement that arises out of or is based upon: (i) the combination, operation, or use of the Licensed Software with an application, software platform, or hardware not provided by Anaconda; (ii) designs, requirements, or specifications for the Licensed Software required by or provided by Subscriber; (iii) use of the Licensed Software outside of the scope of the license granted to the Subscriber or the terms of this Agreement; (iv) Subscriber’s failure to use the latest release of the Licensed Software provided by Anaconda (or such other version as instructed by Anaconda), or to comply with instructions provided by Anaconda; (vi) Unauthorized Use of the Licensed Software. Subscriber will reimburse, indemnify, and hold harmless Anaconda for any costs or damages that result from the foregoing actions. Anaconda’s indemnification obligations are contingent upon Subscriber’s compliance with the terms of this Agreement, including the payment of all amounts due.
(e) Exclusive Remedy. THIS SECTION 8.2 STATES ANACONDA’S SOLE AND EXCLUSIVE LIABILITY, AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY, FOR THE ACTUAL OR ALLEGED INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT BY THE LICENSED SOFTWARE.
9. LIMITATIONS OF LIABILITY
9.1. Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ANACONDA WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER OR ANY OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF ANACONDA IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL ANACONDA’S TOTAL LIABILITY FOR ALL KINDS OF CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED 300% OF THE TOTAL AMOUNT PAID OR PAYABLE BY SUBSCRIBER TO ANACONDA UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
9.3. Anaconda Distribution and Repository. EXCLUDING OPEN SOURCE TOOLS AND THIRD-PARTY SOFTWARE CONTAINED IN THE CORE DEPENDENCIES, ANACONDA HEREBY DISCLAIMS ANY AND ALL INDEMNITIES AND LIAIBLITIES FOR ANY AND ALL KINDS OF CLAIMS ARISING OUT OF OR RELATED TO OPEN SOURCE TOOLS, THIRD-PARTY SOFTWARE, ANACONDA DISTRIBUTION, OR RESPOSITORY OPEN SOURCE TOOLS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE.
9.4. Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties or exclusion of damages is to allocate the risks of this Agreement between the Parties. This allocation is reflected in the pricing offered by Anaconda to Subscriber and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 9 will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
10. GDPR COMPLIANCE
10.1. General. This Section 10 addresses Anaconda’s compliance with protection obligations concerning Personal Data collected from Subscribers of the European Union for whom Anaconda processes said data in the provision of product and services under this Agreement.
10.2. Definitions. In this Section 10, the terms “processing”, “processor”, “data subject”, and “Personal Data” shall have the meanings given in the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“the Regulation”).
10.3. Scope. With respect to Subscriber’s Personal Data, Anaconda shall serve as processor. Anaconda will not assume any responsibility for determining the purposes for which and the manner in which Subscriber’s Personal Data is processed. Anaconda and its subcontractors will not process Subscriber’s Personal Data for their own purposes, nor include Subscriber’s Personal Data in any product or service offered by Anaconda to third parties.
10.4. Data Type and Purpose. For the limited and specific purpose of providing product and related services under this Agreement as well as billing and future communications related to said product and services (“Authorized Purpose”), Anaconda will process the following types of Subscriber’s Personal Data: (i) name, (ii) title, (iii) email address, (iv) phone number, (v) company name, (vi) mailing address, (vii) IP address, and (viii) geo location. Anaconda shall retain said Personal Data only for the period of time required to manage Subscriber’s software subscription and related services, resolve disputes, and implement and enforce our Agreement.
10.5. Obligations over Personal Data. Anaconda will and ensure that its subcontractors will:
10.5.1. process Subscriber Personal Data in accordance with the requirements as imposed under applicable law and the Regulation on processors;
10.5.2. process Subscriber Personal Data only in accordance with documented instructions from Subscriber (which may be specific instructions or instructions of a general nature as set out in the
Agreement or as otherwise notified by Subscriber to Anaconda during the term of the Agreement), including with regard to transfers of Subscriber Personal Data to a country outside the European Economic Area (EEA);
10.5.3. unless otherwise requested by Subscriber, process Subscriber Personal Data only to the extent, and in such manner, as is necessary for the provision of services hereunder;
10.5.4. implement appropriate technical and organizational measures to protect Subscriber Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration, or disclosure;
10.5.5. when implementing and updating such technical and organizational measures ensuring a level of security appropriate to the risk;
10.5.6. assist Subscriber by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Subscriber’s obligation to respond to requests for exercising data subjects’ rights established in Chapter III of the Regulation;
10.5.7. notify Subscriber without undue delay after becoming aware of a Personal Data breach (meaning a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Subscriber Personal Data transmitted, stored or otherwise processed) and keep Subscriber informed of any related developments. The notification to Subscriber shall include, at minimum: a) nature of the breach, b) the impacted data categories, c) the identified and potential consequences of the breach and d) the measures Anaconda takes to mitigate the consequences of the breach. Anaconda shall take any measure necessary to mitigate (potential) damage resulting from the breach;
10.5.8. at the direction of Subscriber, securely delete or return all Subscriber Personal Data to Subscriber after the end of the provision of services under this Agreement relating to processing unless applicable law requires storage of Subscriber’s Personal Data;
10.5.9. make available to Subscriber all information necessary to demonstrate compliance with the obligations established in this Section 10.
10.6. Anaconda shall ensure:
10.6.1. the reliability of any employees and subcontractor personnel who have access to Subscriber’s Personal Data;
10.6.2. that persons authorized to process Subscriber’s Personal Data have committed themselves to confidentiality and that they treat Subscriber’s Personal Data as confidential information.
10.7. Data Subject Request. Anaconda shall promptly inform Subscriber if it receives a request from a data subject concerning any information that may be contained in Subscriber’s Personal Data.
10.8. Trans-Border Transfer. Anaconda will not process or permit the processing of Subscriber’s Personal Data outside the European Economic Area other than in the pursuit of the Authorized Purpose herein, without Subscriber’s consent, which consent may be expressed in the Agreement.
11.1. Independent Contractors. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to (a) act as agent or (b) direct or control the day-to-day activities of the other. All financial and other obligations associated with each Party’s business are the sole responsibility of that Party.
11.2. Export. The Licensed Software may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Subscriber must comply strictly with all such regulations in other countries. Subscriber must comply strictly with all such regulations that are now or later in effect and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import the Licensed Software or Documentation, as needed.
11.3. Subcontractors. Anaconda may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Anaconda remains responsible for all of its obligations under this Agreement.
11.4. Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act, Subscriber and its employees and agents will not directly or indirectly make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision (including a decision not to act) of an official of any government, including the United States Government, or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Anaconda in obtaining, retaining, or directing any business.
11.5. Force Majeure. Anaconda will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Anaconda’s reasonable control, so long as Anaconda uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
11.6. Assignability. Subscriber may not assign its rights, duties, or obligations under this Agreement without Anaconda’s prior consent. Any attempt by Subscriber to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void. Anaconda may freely assign its rights, duties, or obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
11.7. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier.
11.8. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Texas, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consent to the exclusive jurisdiction and venue of the federal, state, and local courts in Travis County, Texas, in connection with any action arising out of or in connection with this Agreement.
11.9. Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach.
11.10. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any limitation or restriction on the grant of any license to Subscriber under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
11.11. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which will be considered an original and all of which together will be construed as and constitute the same agreement.
11.12. Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the Agreement between the Parties regarding the licensing of the Licensed Software. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior non-disclosure or comparable agreement between the Parties relating to professional services relating to the Licensed Software that Anaconda may provide. Any terms and conditions contained in a proposal, quotation, invoice, purchase order acknowledgement, or any similar document of Subscriber’s shall not constitute a part of this Agreement and are hereby rejected, unless such terms and conditions are specifically and expressly incorporated in this Agreement. Any purported acceptance containing additional or different terms shall be deemed to be an acceptance of the terms and conditions contained in this document, notwithstanding such additional or different terms. No employee, agent, or other representative of Anaconda has any authority to bind Anaconda with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of the Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. Anaconda will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise.