This Master Enkrypt Subscription Agreement (this “Agreement“) is between Anaconda, Inc. (“Anaconda”), and the individual or entity acquiring access to Anaconda’s proprietary AI security software platform (the “Enkrypt Platform”) (“Customer”). This Agreement governs Customer’s access to and use of the Enkrypt Platform.
By installing, downloading, or otherwise accessing the Enkrypt Platform, 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, 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 to the terms of this Agreement, Customer may not install, download, access, or use the Enkrypt Platform either itself or on behalf of the entity.
1.DEFINITIONS
“Affiliates” means any corporation or other business entity which controls, is controlled by or is under common control by either party through the ownership of more than fifty percent (50%) of the outstanding voting stock of the controlled corporation or more than fifty percent (50%) of the equity interests of a non-corporate entity.
“Applicable Privacy Law” means all data protection and privacy laws and regulations applicable to the respective party’s processing of Personal Data in the jurisdictions where (a) the Enkrypt Platform is accessed or used, (b) Customer is established, or (c) data subjects whose Personal Data is processed are located, including, where applicable, laws and regulations of the European Union, the European Economic Area and their member states, Switzerland, the United Kingdom and the United States and its states.
“Authorized Users” means Customer’s employees, contractors, and agents who are authorized by Customer to access and use the Enkrypt Platform under the rights granted to Customer pursuant to this Agreement, subject to the user limitations specified in the applicable Order Form.
“Confidential Information” means any non-public information disclosed by one party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally, in writing, or by inspection, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure. Confidential Information includes, without limitation, business plans, technical data, product designs, pricing, customer lists, financial information, trade secrets, and the terms of this Agreement. Confidential Information does not include information that: (a) is or becomes publicly available without breach of this Agreement; (b) was known to the Receiving Party prior to disclosure; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is lawfully obtained from a third party without restriction on disclosure.
“Customer Data” means any data, content, or information uploaded, transmitted, or otherwise provided by or on behalf of Customer or its Authorized Users to the Enkrypt Platform, including Personal Data. Customer Data does not include Usage Data.
“Documentation” means the user guides, technical manuals, API documentation, and other materials made available by Anaconda describing the features, functionality, and use of the Enkrypt Platform, as may be updated by Anaconda from time to time.
“Intellectual Property Rights” means copyrights, trademarks, service marks, patents, trade secrets, know-how, moral rights and all other proprietary rights, including registrations, applications, renewals and extensions of such rights existing anywhere in the world, whether registered or unregistered.
“Order Form” means an ordering document, online checkout, purchase flow, or other ordering process accepted by Customer and Anaconda specifying the Enkrypt Platform subscription purchased by Customer, including the subscription tier, number of Authorized Users or other usage metrics, Subscription Term, fees, and any Professional Services. Each Order Form shall reference or otherwise incorporate this Agreement and is subject to its terms. Order Forms may be accepted by the parties’ Affiliates, in which case such Affiliate shall be bound by the terms of this Agreement as if it were an original party.
“Personal Data” means any information relating to an identified or identifiable natural person, as defined under Applicable Privacy Law.
“Professional Services” means implementation, configuration, integration, training, or other professional services that Anaconda may provide to Customer as specified in an Order Form or separate statement of work.
“Security Incident” means any confirmed unauthorized access or breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access to Customer Data that compromises the security, confidentiality, or integrity of such Customer Data. For purposes of this definition, an incident shall be deemed “confirmed” when Anaconda has completed a reasonable investigation and determined, based on available evidence, that unauthorized access or a breach has occurred.
“Subscription Term” means the period during which Customer has the right to access and use the Enkrypt Platform, as specified in the applicable Order Form, including any renewal terms.
“Usage Data” means data and information related to Customer’s use of the Enkrypt Platform that is collected and processed by Anaconda in an aggregated and anonymized manner, including usage statistics, performance metrics, and technical logs, that does not identify Customer or any individual.
2. ENKRYPT PLATFORM LICENSE AND USE
2.1 License Grant. Subject to the terms and conditions of this Agreement and Customer’s payment of all applicable fees, Anaconda grants to Customer a non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to access and use the Enkrypt Platform solely for Customer’s internal business purposes, in accordance with the Documentation and the usage limitations specified in the applicable Order Form.
2.2 Authorized Users. Customer may permit its Authorized Users to access and use the Enkrypt Platform, provided that Customer shall: (a) ensure that all Authorized Users comply with the terms of this Agreement; (b) be responsible for all acts and omissions of its Authorized Users; and (c) not exceed the number of Authorized Users or other usage limitations specified in the applicable Order Form.
2.3 Use Restrictions. Customer shall not, and shall not permit any third party to: (a) sublicense, sell, resell, transfer, assign, or distribute the Enkrypt Platform or any rights therein; (b) modify, copy, or create derivative works based on the Enkrypt Platform; (c) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or underlying algorithms of the Enkrypt Platform, except to the extent expressly permitted by applicable law; (d) access the Enkrypt Platform for the purpose of building a competitive product or service or copying its features or user interface; (e) use the Enkrypt Platform in violation of applicable law or in a manner that infringes the rights of any third party; (f) interfere with or disrupt the integrity or performance of the Enkrypt Platform; (g) attempt to gain unauthorized access to the Enkrypt Platform or its related systems or networks; or (h) use the Enkrypt Platform to transmit malicious code or conduct any form of security attack.
2.4 Customer Responsibilities. Customer is responsible for: (a) obtaining and maintaining all equipment, software, and internet connectivity necessary to access the Enkrypt Platform; (b) maintaining the security of its account credentials and promptly notifying Anaconda of any unauthorized access; and (c) ensuring that its use of the Enkrypt Platform complies with all applicable laws and regulations.
2.5 Enkrypt Platform Availability. Anaconda shall use commercially reasonable efforts to make the Enkrypt Platform available in accordance with the service level terms. In the event of any conflict between this Agreement and the Service Level Agreement, the Service Level Agreement shall govern with respect to Enkrypt Platform availability.
2.6 Updates and Modifications. Anaconda may, in its sole discretion, modify, update, or enhance the Enkrypt Platform from time to time. Anaconda shall not materially reduce the core functionality of the Enkrypt Platform during a Subscription Term without Customer’s consent, except where required by law, security concerns, or third-party licensing constraints.
2.7 Subcontractors. Anaconda may engage subcontractors to assist in providing the Enkrypt Platform and related services, provided that: (a) Anaconda shall remain fully responsible for the performance of any subcontractor; (b) any subcontractor with access to Customer Data shall be bound by confidentiality and data protection obligations no less protective than those in this Agreement; and (c) Anaconda’s use of industry-standard third-party infrastructure and hosting services (such as cloud computing platforms) shall not require Customer consent.
3. FEES AND PAYMENT
3.1 Fees. Customer shall pay Anaconda the fees specified in each Order Form (“Fees“). Unless otherwise stated in the Order Form:
a) Fees are quoted and payable in U.S. dollars;
b) Fees are invoiced annually in advance upon acceptance of the Order Form or on each renewal date;
c) All Fees are non-refundable except as expressly set forth in this Agreement; and
d) Fees are exclusive of applicable taxes.
3.2 Payment Terms. Customer shall pay all invoiced amounts within thirty (30) days of the invoice date. If Customer disputes any portion of an invoice in good faith, Customer shall: (a) notify Anaconda in writing of the disputed amount and the basis for such dispute within fifteen (15) days of the invoice date; (b) pay all undisputed amounts by the due date; and (c) work in good faith with Anaconda to resolve the dispute within thirty (30) days. Failure to dispute an invoice within such fifteen (15) day period shall constitute acceptance of the invoice.
3.3 Late Payments. Any undisputed amounts not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is less. If Customer’s account is more than thirty (30) days overdue, Anaconda may, upon written notice to Customer, suspend Customer’s access to the Enkrypt Platform until all outstanding amounts are paid in full, without liability to Customer for any resulting disruption.
3.4 Taxes. Customer is responsible for all applicable sales, use, VAT, GST, withholding, and similar taxes arising from this Agreement, excluding taxes based on Anaconda’s net income. If Customer is required by law to withhold taxes from payments to Anaconda, Customer shall: (a) deduct such taxes from the payment; (b) pay the withheld amount to the appropriate governmental authority; (c) provide Anaconda with official tax receipts or other documentation sufficient to enable Anaconda to claim applicable credits or refunds; and (d) cooperate with Anaconda to minimize withholding taxes to the extent permitted by law.
3.5 Fee Increases. Anaconda may increase Fees upon renewal of the Subscription Term by providing Customer with at least sixty (60) days’ written notice prior to the renewal date. If Customer does not agree to the increased Fees, Customer may elect not to renew pursuant to Section 11 (Term and Termination).
3.6 Professional Services. If Customer purchases Professional Services, such services shall be described in an Order Form or a separate statement of work and billed as specified therein. Unless otherwise agreed, Professional Services shall be invoiced monthly in arrears based on time and materials at the rates specified in the applicable Order Form.
4. PROPRIETARY RIGHTS
4.1 Anaconda Ownership. As between the parties, Anaconda owns and retains all right, title, and interest in and to the Enkrypt Platform, Documentation, and all related technology, software, algorithms, models, interfaces, improvements, enhancements, modifications, and derivative works thereof, including all Intellectual Property Rights therein (collectively, “Anaconda IP“). No rights are granted to Customer except as expressly set forth in this Agreement. Customer acknowledges that the Enkrypt Platform is licensed, not sold, and that Customer acquires no ownership interest in the Enkrypt Platform or any Anaconda IP under this Agreement.
4.2 Customer Ownership. As between the parties, Customer owns and retains all right, title, and interest in and to Customer Data, including all Intellectual Property Rights therein. Customer grants to Anaconda a non-exclusive, worldwide, royalty-free license during the Subscription Term to use, process, transmit, and store Customer Data solely to the extent necessary to provide the Enkrypt Platform and perform its obligations under this Agreement.
4.3 Usage Data. Anaconda may collect, analyze, and use Usage Data to operate, improve, and enhance the Enkrypt Platform and Anaconda’s products and services generally. Anaconda may use Usage Data in aggregated and anonymized form for benchmarking, analytics, and other lawful business purposes, provided that such data does not identify Customer or any individual. As between the parties, Anaconda owns all Usage Data.
4.4 Feedback. If Customer provides any suggestions, ideas, enhancement requests, recommendations, or other feedback regarding the Enkrypt Platform (“Feedback“), Customer hereby grants Anaconda a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, non-exclusive license to use, reproduce, modify, create derivative works from, distribute, and otherwise exploit such Feedback for any purpose without restriction or obligation to Customer.
4.5 Reservation of Rights. Except for the limited license rights expressly granted herein, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to any Anaconda IP.
4.6 No Agency. The parties are independent contractors. Neither party is the legal representative, agent, joint venturer, partner, employee, or employer of the other party for any purpose, and neither party has any right, power, or authority to assume, create, or incur any obligation or liability on behalf of the other party.
4.7 Professional Services IP. If Customer purchases Professional Services:
a) Anaconda shall own all tools, methodologies, know-how, and reusable components developed or used by Anaconda in performing Professional Services, including any improvements thereto (“Anaconda Tools“);
b) To the extent Professional Services result in custom deliverables specifically created for Customer and identified as such in the applicable Order Form or statement of work (“Custom Deliverables“), Anaconda hereby assigns to Customer all Intellectual Property Rights in such Custom Deliverables upon full payment of the applicable fees; and
c) Anaconda retains a non-exclusive, perpetual, royalty-free license to use any general knowledge, skills, experience, ideas, concepts, or techniques acquired or developed during the performance of Professional Services.
5. REPRESENTATIONS AND WARRANTIES
5.1 Mutual Representations and Warranties. Each party represents and warrants to the other, and Customer represents and warrants by accessing or using the Enkrypt Platform, that:
a) if it is an entity, it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization;
b) it has full power and authority to enter into, accept, and perform its obligations under this Agreement;
c) this Agreement has been duly authorized by all necessary corporate or other action and, upon Customer’s acceptance as described above, constitutes a legal, valid, and binding obligation enforceable in accordance with its terms; and
d) its acceptance of and performance under this Agreement does not and will not violate any other agreement to which it is bound.
5.2 Anaconda Representations and Warranties. Anaconda represents and warrants to Customer that:
5.2.1 Anaconda has obtained all consents, permits, licenses, and authorizations necessary to provide the Enkrypt Platform and perform its obligations under this Agreement.
5.2.2 The Enkrypt Platform will perform materially in accordance with the Documentation during the Subscription Term. In the event of a breach of this warranty, Customer shall notify Anaconda in writing within thirty (30) days of discovering the non-conformance, with reasonable details of the issue. Upon receipt of such notice, Anaconda shall, at its option: (a) use commercially reasonable efforts to correct the non-conformance; or (b) if Anaconda is unable to correct the non-conformance within sixty (60) days, Customer may terminate the affected Order Form and receive a pro-rata refund of prepaid fees for the remainder of the Subscription Term.
5.2.3 Anaconda will perform any Professional Services in a professional and workmanlike manner consistent with industry standards. If Professional Services fail to conform to this warranty, Customer shall notify Anaconda within fifteen (15) days of delivery, and Anaconda shall re-perform the non-conforming services at no additional charge.
5.2.4 To Anaconda’s knowledge, the Enkrypt Platform, when used in accordance with this Agreement and the Documentation, does not infringe any third party’s Intellectual Property Rights. Anaconda’s obligations with respect to any claim of infringement are set forth solely in Section 7.
5.2.5 Anaconda maintains commercially reasonable administrative, technical, and physical safeguards designed to protect Customer Data against unauthorized access, use, or disclosure.
5.3 Customer Representations and Warranties. Customer represents and warrants to Anaconda that:
5.3.1 Customer owns or has obtained all necessary rights, consents, and permissions to provide Customer Data to Anaconda and to grant Anaconda the rights to use Customer Data as contemplated by this Agreement.
5.3.2 Customer Data, and Customer’s use of the Enkrypt Platform, will not: (a) violate any applicable law or regulation; (b) infringe or misappropriate any third party’s Intellectual Property Rights or other rights; or (c) contain any viruses, malware, or other harmful code.
5.3.3 Customer will use the Enkrypt Platform solely in accordance with this Agreement, the Documentation, and all applicable laws, including Applicable Privacy Law and export control laws.
5.3.4 Customer will not permit any Authorized User to access or use the Enkrypt Platform in violation of applicable export control or sanctions laws, including by users located in embargoed countries or regions or on any applicable denied party list.
5.4 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, THE ENKRYPT PLATFORM AND ALL RELATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ANACONDA HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. ANACONDA DOES NOT WARRANT THAT THE ENKRYPT PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR THAT ALL ERRORS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT THE ENKRYPT PLATFORM IS NOT DESIGNED OR INTENDED FOR USE IN HIGH-RISK ACTIVITIES REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, AIR TRAFFIC CONTROL, LIFE SUPPORT SYSTEMS, OR WEAPONS SYSTEMS.
6. INSURANCE
6.1 Anaconda Insurance. During the Subscription Term and for a period of one (1) year thereafter, Anaconda shall maintain, at its own expense, the following insurance coverages with carriers rated at least A-, VII by A.M. Best:
(a) Commercial General Liability Insurance with limits of at least $1,000,000 per occurrence and $2,000,000 in the aggregate, covering bodily injury, property damage, and personal injury;
(b) Technology Errors & Omissions / Professional Liability Insurance with limits of at least $1,000,000 per claim and in the aggregate, covering claims arising from errors, omissions, or negligent acts in the provision of the Enkrypt Platform and related services;
(c) Cyber Liability / Network Security Insurance with limits of at least $1,000,000 per claim and in the aggregate, covering claims arising from data breaches, unauthorized access, security failures, and privacy violations; and
(d) Workers’ Compensation Insurance as required by applicable law, and Employer’s Liability Insurance with limits of at least $500,000 per occurrence.
6.2 Policy Requirements. Each insurance policy required under this Section 6 shall:
(a) be maintained for the duration of the Subscription Term and, for claims-made policies, have a retroactive date no later than the effective date of the applicable Order Form or Subscription Term and continue coverage for at least one (1) year following termination or expiration of this Agreement;
(b) provide that the policy shall not be canceled or materially modified without at least thirty (30) days’ prior written notice to Customer (or ten (10) days for non-payment of premiums); and
(c) upon Customer’s written request, Anaconda shall furnish certificates of insurance evidencing the coverages required hereunder.
6.3 No Limitation of Liability. The insurance requirements set forth in this Section 6 shall not be construed to limit Anaconda’s liability under this Agreement, nor shall the failure to maintain such insurance relieve Anaconda of its obligations hereunder.
6.4 Customer Insurance. Customer shall be responsible for maintaining appropriate insurance coverage for its own business operations, including coverage for any Customer Data prior to its transmission to the Enkrypt Platform.
7. INDEMNIFICATION
7.1 Indemnification by Anaconda. Anaconda shall defend, indemnify, and hold harmless Customer and its officers, directors, employees, and agents (collectively, “Customer Indemnitees“) from and against any third-party claim, suit, or proceeding (“Claim“) arising from:
(a) Infringement. Any Claim that the Enkrypt Platform, as provided by Anaconda and used in accordance with this Agreement, infringes or misappropriates any patent, copyright, trademark, or trade secret of a third party; or
(b) Gross Negligence or Willful Misconduct. Any Claim arising from Anaconda’s gross negligence or willful misconduct in the performance of its obligations under this Agreement.
7.2 Infringement Remedies. If the Enkrypt Platform becomes, or in Anaconda’s reasonable judgment is likely to become, the subject of an infringement Claim, Anaconda may, at its sole option and expense: (a) procure for Customer the right to continue using the Enkrypt Platform; (b) modify the Enkrypt Platform to make it non-infringing without materially reducing its functionality; or (c) replace the Enkrypt Platform with a non-infringing alternative with substantially equivalent functionality. If none of the foregoing options is reasonably available, Anaconda may terminate the affected Order Form upon written notice and refund to Customer any prepaid fees for the terminated portion of the Subscription Term.
7.3 Exclusions from Anaconda Indemnification. Anaconda shall have no obligation under Section 7.1(a) to the extent a Claim arises from:
(a) Customer’s modification of the Enkrypt Platform or combination of the Enkrypt Platform with any products, services, data, or technology not provided by Anaconda, where the Claim would not have arisen but for such modification or combination;
(b) Customer’s use of the Enkrypt Platform in violation of this Agreement or the Documentation;
(c) Customer’s failure to implement any update, patch, or replacement provided by Anaconda, where such update, patch, or replacement would have avoided the Claim;
(d) Customer Data or any content provided by Customer; or
(e) Use of the Enkrypt Platform after Anaconda has notified Customer to cease use due to an infringement Claim.
7.4 Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Anaconda and its officers, directors, employees, and agents (collectively, “Anaconda Indemnitees“) from and against any third-party Claim arising from:
(a) Customer Data. Any Claim that Customer Data, or Anaconda’s use thereof in accordance with this Agreement, infringes or misappropriates any Intellectual Property Rights or other rights of a third party, or violates Applicable Privacy Law;
(b) Customer’s Use. Any Claim arising from Customer’s use of the Enkrypt Platform in violation of this Agreement, the Documentation, or applicable law, including any Claim arising from Customer’s violation of the use restrictions in Section 2.3;
(c) Customer’s End Users. Any Claim brought by Customer’s end users, customers, or other third parties arising from Customer’s products or services that incorporate or rely upon the Enkrypt Platform; or
(d) Gross Negligence or Willful Misconduct. Any Claim arising from Customer’s gross negligence or willful misconduct.
7.5 Indemnification Procedure. The indemnifying party’s obligations under this Section 7 are conditioned upon the indemnified party:
(a) providing prompt written notice of the Claim to the indemnifying party (provided that failure to provide prompt notice shall not relieve the indemnifying party of its obligations except to the extent it is materially prejudiced by such failure);
(b) granting the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party shall not settle any Claim in a manner that admits fault or liability on the part of the indemnified party, or imposes any obligation on the indemnified party, without the indemnified party’s prior written consent); and
(c) reasonably cooperating with the indemnifying party in the defense of the Claim, at the indemnifying party’s expense.
7.6 Sole Remedy. THIS SECTION 7 STATES EACH PARTY’S SOLE AND EXCLUSIVE REMEDY, AND THE OTHER PARTY’S ENTIRE LIABILITY, WITH RESPECT TO ANY THIRD-PARTY CLAIMS FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
8. LIMITATION OF LIABILITY
8.1 Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Limitation on Direct Damages. EXCEPT AS PROVIDED IN SECTION 8.3 (EXCEPTIONS TO LIMITATIONS), EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER TO ANACONDA UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8.3 Exceptions to Limitations. THE LIMITATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 SHALL NOT APPLY TO:
(a) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9 (CONFIDENTIAL INFORMATION);
(b) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 (INDEMNIFICATION), PROVIDED THAT SUCH LIABILITY SHALL NOT EXCEED THREE (3) TIMES THE FEES PAID OR PAYABLE BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM (THE “INDEMNITY CAP“);
(c) CUSTOMER’S BREACH OF SECTION 2.3 (USE RESTRICTIONS) OR INFRINGEMENT OR MISAPPROPRIATION OF ANACONDA’S INTELLECTUAL PROPERTY RIGHTS;
(d) ANACONDA’S INFRINGEMENT OR MISAPPROPRIATION OF CUSTOMER’S INTELLECTUAL PROPERTY RIGHTS;
(e) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT;
(f) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD; OR
(g) LIABILITY THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
8.4 Nature of Limitations. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 REFLECT A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE FEES CHARGED UNDER THIS AGREEMENT REFLECT THIS ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY HEREIN. THE LIMITATIONS SET FORTH IN THIS SECTION 8 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.5 Application to Affiliates. FOR PURPOSES OF THIS SECTION 8, “PARTY” INCLUDES SUCH PARTY’S AFFILIATES, AND ANY CLAIM AGAINST A PARTY’S AFFILIATES SHALL BE SUBJECT TO THE SAME LIMITATIONS AND EXCLUSIONS SET FORTH HEREIN.
9. CONFIDENTIAL INFORMATION
9.1 Definition. “Confidential Information” has the meaning set forth in Section 1 (Definitions). For the avoidance of doubt, Confidential Information includes:
(a) With respect to Anaconda: the Enkrypt Platform (including its source code, architecture, algorithms, and security measures), Documentation, pricing, product roadmaps, technical specifications, and the terms of this Agreement; and
(b) With respect to Customer: Customer Data, business plans, financial information, and customer lists.
9.2 Obligations. The Receiving Party shall:
(a) use the Confidential Information solely for the purposes of exercising its rights and performing its obligations under this Agreement;
(b) protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information of similar nature, but in no event less than reasonable care;
(c) not disclose the Confidential Information to any third party except as expressly permitted herein;
(d) limit access to the Confidential Information to those of its employees, contractors, and agents (“Representatives“) who have a need to know for purposes consistent with this Agreement and who are bound by confidentiality obligations no less protective than those contained herein; and
(e) be responsible for any breach of this Section 9 by its Representatives.
9.3 Permitted Disclosures. Notwithstanding Section 9.2, the Receiving Party may disclose Confidential Information:
(a) to its professional advisors (including lawyers, accountants, and auditors) who are bound by professional duties of confidentiality;
(b) to a potential acquirer, investor, or lender under a written non-disclosure agreement, solely in connection with a bona fide due diligence process;
(c) as required by applicable law, regulation, court order, or governmental authority, provided that the Receiving Party (to the extent legally permitted): (i) gives the Disclosing Party prompt written notice of such requirement; (ii) cooperates with the Disclosing Party’s efforts to obtain a protective order or other appropriate remedy; and (iii) discloses only that portion of the Confidential Information that is legally required to be disclosed; or
(d) with the prior written consent of the Disclosing Party.
9.4 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate:
(a) is or becomes publicly available through no fault or breach by the Receiving Party;
(b) was rightfully known to the Receiving Party prior to disclosure by the Disclosing Party, without restriction on disclosure;
(c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation;
(d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or
(e) is approved for release in writing by the Disclosing Party.
9.5 Return or Destruction.Upon termination or expiration of this Agreement, or upon the Disclosing Party’s earlier written request, the Receiving Party shall promptly:
(a) return or destroy all Confidential Information of the Disclosing Party in its possession or control; and
(b) upon request, certify in writing that it has complied with this Section 9.5.
Notwithstanding the foregoing, the Receiving Party may retain: (i) copies of Confidential Information to the extent required by applicable law or regulation, or by its document retention policies for legal, compliance, or archival purposes; and (ii) Confidential Information contained in automated backup systems, provided that such retained Confidential Information shall remain subject to the confidentiality obligations of this Agreement.
9.6 Duration. The obligations under this Section 9 shall survive for a period of five (5) years following the termination or expiration of this Agreement; provided, however, that with respect to any Confidential Information that constitutes a trade secret under applicable law, such obligations shall continue for as long as such information remains a trade secret.
9.7 Injunctive Relief. The parties acknowledge that any breach or threatened breach of this Section 9 may cause irreparable harm for which monetary damages would be an inadequate remedy. Accordingly, the Disclosing Party shall be entitled to seek equitable relief, including injunction and specific performance, in addition to any other remedies available at law or in equity, without the necessity of proving actual damages or posting a bond.
9.8 Prior Agreements. This Section 9 supersedes any prior non-disclosure agreement between the parties relating to the subject matter hereof. To the extent any prior non-disclosure agreement contains obligations that are more protective of the Disclosing Party’s Confidential Information, such obligations shall continue in effect.
10. DATA PROTECTION
10.1 Definitions. For purposes of this Section 10:
(a) “Personal Data” has the meaning given in Applicable Privacy Law, and includes any data relating to an identified or identifiable natural person that is processed by Anaconda on behalf of Customer in connection with the Enkrypt Platform.
(b) “Process” or “Processing” means any operation performed on Personal Data, including collection, storage, use, disclosure, transfer, or deletion.
10.2 Roles of the Parties. With respect to Customer Data containing Personal Data:
(a) Customer is the data controller (or “business” under applicable US privacy laws) and determines the purposes and means of Processing Personal Data.
(b) Anaconda is the data processor (or “service provider” under applicable US privacy laws) and Processes Personal Data solely on behalf of and in accordance with Customer’s documented instructions.
10.3 Data Processing Addendum. The parties agree to the terms of the Data Processing Addendum, which is incorporated by reference into this Agreement. In the event of any conflict between the DPA and this Agreement with respect to the Processing of Personal Data, the DPA shall govern.
10.4 Anaconda Obligations. Anaconda shall:
(a) Process Personal Data only in accordance with Customer’s documented instructions and as necessary to provide the Enkrypt Platform, unless required otherwise by applicable law (in which case, Anaconda shall notify Customer of such legal requirement before Processing, unless prohibited by law);
(b) implement and maintain appropriate technical and organizational security measures to protect Personal Data against unauthorized access, use, disclosure, alteration, or destruction;
(c) ensure that personnel authorized to Process Personal Data are subject to appropriate confidentiality obligations;
(d) notify Customer without undue delay (and in any event within seventy-two (72) hours) upon becoming aware of any Security Incident involving Personal Data, and provide reasonable cooperation and information to enable Customer to fulfill its breach notification obligations under Applicable Privacy Law;
(e) upon Customer’s reasonable request and at Customer’s expense, provide reasonable assistance to Customer in responding to data subject requests, data protection impact assessments, and consultations with data protection authorities;
(f) upon termination or expiration of this Agreement, delete or return all Personal Data to Customer in accordance with Section 11, unless retention is required by applicable law; and
(g) make available to Customer, upon reasonable request and subject to confidentiality obligations, information reasonably necessary to demonstrate Anaconda’s compliance with this Section 10.
10.5 Sub-Processors. Customer authorizes Anaconda to engage sub-processors to Process Personal Data, subject to the following conditions:
(a) Anaconda shall maintain a list of sub-processors;
(b) Anaconda shall notify Customer of any new sub-processor at least thirty (30) days prior to such sub-processor Processing Personal Data, and Customer may object to such sub-processor on reasonable data protection grounds within such period;
(c) Anaconda shall ensure that each sub-processor is bound by data protection obligations no less protective than those in this Agreement and the DPA.
10.6 International Data Transfers. To the extent that Personal Data is transferred from a jurisdiction that restricts cross-border data transfers (including the European Economic Area, United Kingdom, or Switzerland) to a jurisdiction not recognized as providing adequate data protection, the parties shall ensure that appropriate transfer mechanisms are in place.
10.7 Customer Obligations. Customer represents and warrants that:
(a) Customer has obtained all necessary rights, consents, and authorizations required under Applicable Privacy Law to provide Personal Data to Anaconda and to authorize Anaconda’s Processing of such Personal Data as contemplated by this Agreement;
(b) Customer’s instructions to Anaconda regarding the Processing of Personal Data shall comply with Applicable Privacy Law;
(c) Customer shall not provide to Anaconda, and shall ensure that Customer Data does not include, any sensitive or special categories of Personal Data (such as health data, biometric data, or data revealing racial or ethnic origin) unless expressly agreed in writing and reflected in the applicable Order Form and DPA; and
(d) Customer shall promptly notify Anaconda of any data subject requests, complaints, or regulatory inquiries that require Anaconda’s assistance.
10.8 Regulatory Investigations. In the event of an investigation by a data protection authority or similar regulator regarding Personal Data Processed under this Agreement:
(a) Each party shall promptly notify the other party (to the extent legally permitted);
(b) The parties shall cooperate in good faith to respond to such investigation; and
(c) Anaconda shall provide reasonable assistance to Customer at Customer’s expense, except to the extent the investigation arises from Anaconda’s breach of this Agreement, in which case Anaconda shall bear its own costs.
10.9 Remedies. In the event of a material breach of this Section 10 by Anaconda that is not cured within thirty (30) days of written notice:
(a) Customer may suspend the transfer of Personal Data to Anaconda until the breach is cured;
(b) Customer may require Anaconda to cease Processing the affected Personal Data; or
(c) If the breach remains uncured for thirty (30) days, Customer may terminate the affected Order Form upon written notice and receive a pro-rata refund of prepaid fees for the terminated portion of the Subscription Term.
Anaconda shall have equivalent remedies in the event of a material breach of Customer’s obligations under this Section 10.
11. TERM AND TERMINATION
11.1 Term of Agreement. This Agreement shall commence when Customer first accepts this Agreement by installing, downloading, accessing, or using the Enkrypt Platform, or on the effective date of the first Order Form, whichever occurs first, and shall continue in effect until all Order Forms have expired or been terminated, unless earlier terminated in accordance with this Section 11.
11.2 Subscription Term. Each Order Form shall specify the initial subscription term for the Enkrypt Platform (“Initial Subscription Term“). Unless otherwise specified in the Order Form or either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term, each Order Form shall automatically renew for successive periods equal to the Initial Subscription Term (each, a “Renewal Term,” and together with the Initial Subscription Term, the “Subscription Term“). Any renewal shall be at Anaconda’s then-current pricing, subject to Section 3.5 (Fee Increases).
11.3 Termination for Cause. Either party may terminate this Agreement or any Order Form upon written notice if:
(a) the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice specifying the breach in reasonable detail; or
(b) the other party becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to bankruptcy or similar proceedings.
11.4 Termination for Non-Payment. If Customer fails to pay any undisputed fees when due and such failure continues for fifteen (15) days after written notice from Anaconda, Anaconda may, in addition to any other remedies:
(a) suspend Customer’s access to the Enkrypt Platform until all outstanding amounts are paid; and/or
(b) terminate the affected Order Form upon written notice.
11.5 Termination for Cause by Anaconda. Anaconda may terminate this Agreement or any Order Form immediately upon written notice if Customer:
(a) breaches Section 2.3 (Use Restrictions) or infringes or misappropriates Anaconda’s Intellectual Property Rights; or
(b) uses the Enkrypt Platform in a manner that poses a security risk to Anaconda or any third party, or that may subject Anaconda to liability.
11.6 Effect of Termination.
(a) Accrued Obligations. Termination or expiration of this Agreement shall not relieve either party of any obligations accrued prior to the effective date of termination, including Customer’s obligation to pay all fees due through the end of the then-current Subscription Term.
(b) No Refunds. Except as expressly set forth in this Agreement (including Sections 5.2.2, 7.2, and 10.9), all fees are non-refundable, and termination by Customer for any reason (other than Anaconda’s uncured material breach) shall not entitle Customer to any refund of prepaid fees.
(c) Customer Data. Upon Customer’s written request made within thirty (30) days following termination or expiration, Anaconda shall make Customer Data available for export in a standard, machine-readable format. After such thirty (30) day period, Anaconda shall have no obligation to retain Customer Data and may delete it in accordance with its standard data retention practices, unless retention is required by applicable law.
(d) Return of Confidential Information. Each party shall return or destroy the other party’s Confidential Information in accordance with Section 9.5 (Return or Destruction).
(e) Access Termination. Upon termination or expiration, Customer’s right to access and use the Enkrypt Platform shall immediately cease, and Customer shall cease all use of the Enkrypt Platform and Documentation.
11.7 Survival. The following provisions shall survive termination or expiration of this Agreement: Section 1 (Definitions), Section 3 (Fees and Payment) with respect to amounts accrued prior to termination, Section 4.1 (Anaconda Ownership), Section 4.2 (Customer Ownership), Section 4.3 (Usage Data), Section 4.4 (Feedback), Section 5.4 (Disclaimer of Warranties), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 9 (Confidential Information), Section 10 (Data Protection) to the extent applicable to retained data, Section 11.6 (Effect of Termination), Section 11.7 (Survival), and Section 12 (General Provisions).
12. GENERAL PROVISIONS
12.1 Publicity.
(a) Neither party shall issue any press release or public announcement regarding this Agreement without the other party’s prior written consent.
(b) Notwithstanding the foregoing, Anaconda may include Customer’s name and logo in Anaconda’s customer lists, marketing materials, and website, and may issue a press release announcing Customer as a customer of Anaconda, subject to Customer’s prior written approval of any specific quotes or case study content.
(c) Either party may disclose the existence of this Agreement and its general nature (but not specific pricing or other confidential terms) in response to inquiries from investors, potential acquirers, or as required by applicable law.
12.2 Force Majeure. Neither party shall be liable for any failure or delay in performing its obligations under this Agreement (other than payment obligations) to the extent such failure or delay results from circumstances beyond the party’s reasonable control, including but not limited to: acts of God, natural disasters, fire, flood, earthquake, pandemic or epidemic, war, terrorism, civil unrest, labor disputes, government actions, internet or telecommunications failures, cyberattacks, or failures of third-party service providers (including cloud infrastructure providers). The affected party shall provide prompt notice to the other party and use reasonable efforts to mitigate the effects and resume performance. If a force majeure event continues for more than sixty (60) days, either party may terminate the affected Order Form upon written notice without liability.
12.3 Assignment.
(a) Neither party may assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed.
(b) Notwithstanding the foregoing, either party may assign this Agreement without consent: (i) to an Affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that the assignee agrees in writing to be bound by the terms of this Agreement.
(c) Any assignment in violation of this Section 12.3 shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
12.4 Entire Agreement. This Agreement, together with all Order Forms, Statements of Work, Attachments, the DPA, and any online ordering or acceptance terms expressly incorporated by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, representations, and understandings, whether written or oral. Any pre-printed or additional terms on any purchase order, acknowledgment, or similar document issued by Customer shall have no effect and are hereby rejected.
12.5 Order of Precedence. In the event of any conflict or inconsistency among the documents forming this Agreement, the following order of precedence shall apply (in descending order): (a) the Statement of Work (SOW); (b) the DPA (with respect to data protection matters only); (c) the applicable Order Form; (d) any Attachments; and (e) the main body of this Agreement.
12.6 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, or if modification is not possible, shall be severed from this Agreement. The remaining provisions shall continue in full force and effect.
12.7 Waiver. No failure or delay by either party in exercising any right or remedy under this Agreement shall constitute a waiver thereof. Any waiver must be in writing and authorized by the waiving party, and shall be limited to the specific instance and purpose for which it is given.
12.8 Amendment. Anaconda may update this Agreement from time to time by posting a revised version online or otherwise making it available to Customer; provided that any material adverse changes will not apply to an active Subscription Term until the next renewal or new Order Form unless Customer otherwise accepts the updated Agreement. This Agreement may also be amended or modified by a written instrument or Order Form accepted by authorized representatives of both parties that expressly references this Agreement.
12.9 Notices. All notices, requests, and other communications under this Agreement shall be in writing and shall be deemed given: (a) upon personal delivery; (b) one (1) business day after deposit with a nationally recognized overnight courier; (c) three (3) business days after mailing by certified or registered mail, return receipt requested; or (d) upon confirmation of receipt if sent by email (excluding automated replies). Notices shall be addressed to the parties at the addresses set forth in the applicable Order Form, or to such other address as a party may designate by written notice. Routine operational communications (such as support requests) may be sent by email to the addresses specified by the parties.
12.10 Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the parties. Neither party has the authority to bind the other or incur obligations on the other’s behalf.
12.11 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles.
12.12 Dispute Resolution.
(a) Informal Resolution. Before initiating any formal dispute resolution, the parties shall attempt to resolve any dispute arising out of or relating to this Agreement through good-faith negotiations between senior executives of each party. Either party may initiate such negotiations by providing written notice to the other party describing the dispute. The parties shall have thirty (30) days from the date of such notice to reach a resolution.
(b) Jurisdiction and Venue. If the dispute is not resolved through informal negotiations, each party irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in Wilmington, Delaware for any action arising out of or relating to this Agreement.
(c) Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT.
12.13 Export Compliance. Each party shall comply with all applicable export control and sanctions laws and regulations, including the U.S. Export Administration Regulations and the sanctions programs administered by the U.S. Office of Foreign Assets Control (OFAC). Customer shall not access or use the Enkrypt Platform, or permit access or use by any Authorized User, in any embargoed country or region, or by any person on any applicable restricted party list.
12.14 Anti-Corruption. Each party represents and warrants that it shall comply with all applicable anti-corruption and anti-bribery laws, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. Neither party shall, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money or anything of value to any government official, political party, or any other person for the purpose of influencing any act or decision to obtain an improper advantage.
12.15 U.S. Government Rights. If Customer is a U.S. government entity or the Enkrypt Platform is being acquired for use by or on behalf of the U.S. government, the Enkrypt Platform is “commercial computer software” and the Documentation is “commercial computer software documentation” as those terms are defined in 48 C.F.R. §2.101. The Enkrypt Platform and Documentation are licensed to the U.S. government under the same terms and conditions as licensed to all other end users.
12.16 Electronic Acceptance. Customer’s installation, download, access to, use of, or other electronic acceptance of the Enkrypt Platform or this Agreement constitutes Customer’s acceptance of this Agreement. Any Order Form may be accepted through an online ordering process, electronic signature, or other written or electronic means authorized by Anaconda.