This Enterprise Service Agreement (this “Agreement”) is a binding legal agreement between you (“Customer”) and Anaconda, Inc. (“Anaconda”), and sets forth the terms and conditions under which Anaconda will provide Customer with the Enterprise Services (as defined below).  By clicking “I accept”, entering into an Order Form, or otherwise accessing or using the Enterprise Services in any way, Customer represents that: (1) Customer has read, understands, and agrees to be bound by this Agreement; and (2) Customer has the authority to enter into this Agreement, as an individual and/or on behalf of the entity that Customer represents, as applicable.  If Customer is entering into this Agreement on behalf of an entity, then “Customer” as used herein will refer to such entity.  This Agreement will become effective upon the date of Customer’s acceptance hereof (the “Effective Date”).  If Customer does not agree to be bound by this Agreement, Customer may not access or use the Enterprise Services. 

WHEREAS, Anaconda has developed, and hosts, operates, and supports, an agentic coding platform, downloadable extension, API and associated endpoints, and related software and services (“Kilo Platform”) through which its customers can build, ship, resell, and iterate using open-source coding tools; and 

WHEREAS, Customer desires to access the Enterprise Services, and Anaconda desires to make such Enterprise Services available to Customer, subject to the terms and conditions set forth in this Agreement; 

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Anaconda and Customer (each a “Party” and collectively, the “Parties”) hereby agree as follows:

1. DEFINITIONS

The definitions for some of the defined terms used in this Agreement are set forth below.  The definitions for other defined terms are set forth elsewhere in this Agreement.  

  1. “AI Model” has the meaning given in the User Terms.
  2. “Applicable Laws” means all laws, statutes, ordinances, regulations and rules applicable to a Party.
  3. “Documentation” means any technical materials made available by Anaconda to Customer, whether in hard copy or electronic form, describing the use and operation of the Kilo Platform, as may be updated from time to time.
  4. “Enterprise Services” means Anaconda’s provision to Customer of access to and use of the Kilo Platform as set forth herein, including as described in the User Terms, and all related hosting, maintenance, and support services made available by Anaconda to Customer hereunder. 
  5. “Fees” mean the fees due to Anaconda for the Enterprise Services, including Usage Fees.
  6. “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights and moral rights; (b) Marks; (c) trade secret rights; (d) patents and patent rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
  7. “Marks” means an entity’s names, trade names, trademarks, service marks, logos, and other brand identifiers owned and used as indicia of identity by such entity, and all rights in and to the foregoing.
    1. “Order Form” means an order form between Anaconda and Customer, on Anaconda’s then-standard form, which expressly incorporates this Agreement by reference.
    2. “Performance Data” means technical, statistical, and performance data generated by our customers’ and end users’ use of the Kilo Platform and Enterprise Services, and does not include any Customer Data from or in connection with which such Performance Data may have been derived.
    3. “User Data” means any data provided to or otherwise collected by the Kilo Platform by or with respect to an Admin User or Authorized User.  
    4. “User Terms” means the Anaconda Terms of Use Agreement as available at https://kilo.ai/terms and as may be updated from time to time (the “User Terms”).  

2. SERVICES; RESTRICTIONS; EULAS; MODIFICATIONS

  1. Enterprise Services.  Subject to the terms and conditions of this Agreement, Anaconda shall provide the Enterprise Services to Customer.  On or as soon as reasonably practicable after the Effective Date, Anaconda shall provide to Customer the Access Protocols to allow Customer to access and make the Kilo Platform available to Admin Users and Authorized Users.  Customer’s Admin Users and Authorized Users will be granted access to the Kilo Platform in accordance with this Agreement and any additional terms or restrictions set by Customer through the Kilo Platform. 
  2. Hosting.  Anaconda shall provide for the hosting of the Kilo Platform, provided that nothing herein shall be construed to require Anaconda to provide for, or bear any responsibility with respect to, any Customer or Admin User telecommunications or computer network hardware, software, services or access.  Customer shall be responsible for obtaining Internet connections and other third-party software and services necessary for it to access the Enterprise Services. 
  3. Restrictions on Use.  Customer will not (and will not authorize, permit, or encourage any Admin Users, Authorized Users, or other third parties to): (i) allow anyone other than Admin Users and Authorized Users to access and use the Kilo Platform, in each case solely in connection with Customer’s business; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Kilo Platform unless the governing license or Applicable Laws require Anaconda to give Customer the right to do so; provided, however, that Customer must first request such information from Anaconda; (iii) modify, adapt, or translate the Kilo Platform; (iv) make any copies of the Kilo Platform; (v) resell, loan, lease, distribute, or sublicense the Kilo Platform or any portion thereof; (vi) remove or modify any proprietary marking or restrictive legends placed on the Kilo Platform; (vi) use or otherwise access the Kilo Platform for the purpose of developing a competing service; (viii) use the Kilo Platform in violation of any Applicable Law or for any purpose not specifically permitted in this Agreement; (ix) introduce into the Kilo Platform any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; (x) provide false or misleading information to Anaconda; or (y) permit multiple individuals to share any Authorized User Account or otherwise attempt to circumvent any restrictions on Account use, except with Anaconda’s prior written consent.
  4. User Terms.  Customer shall ensure that each Authorized User acknowledges, accepts, and complies with the User Terms.  In the event of any conflict between the User Terms and this Agreement, this Agreement shall govern to the extent of such conflict. 
  5. Modifications; No Contingency for Future Commitments.  Anaconda may, in its sole discretion, modify the Kilo Platform or any portion thereof from time to time by adding, deleting, or modifying features to improve the user experience; provided, however, that during the Term, such additions, deletions, or modifications to features will not materially decrease the overall functionality of the Enterprise Services.  Unless otherwise expressly agreed by the Parties in writing, Customer agrees that payment of the Fees under this Agreement is not contingent on the delivery of any future functionalities or features of the Enterprise Services, or any other future commitments with respect to the matters contemplated hereunder, except as expressly set forth in this Agreement.     
  6. Compliance.  Anaconda has the right, but not the obligation, to monitor Customer’s and its Admin Users’ and Authorized Users’ compliance with this Agreement and all Applicable Laws.  If Customer, Admin Users, or any Authorized Users are using the Kilo Platform in any manner not in compliance with this Agreement, it shall be deemed a breach by Customer of this Agreement.
  7. Third-Party Services.  The Kilo Platform may include, or be dependent on, AI Models, third-party data, device graphs, software components, application programming interfaces, and other Third-Party Components.  Anaconda agrees that throughout the Term, Anaconda will make commercially reasonable efforts to maintain all rights and licenses in and to any Third-Party Components provided by Anaconda that are necessary to ensure that Customer can use the Kilo Platform in the manner contemplated in this Agreement.  Subject to the foregoing, Customer is solely responsible for reviewing and complying with the terms of any Third-Party Component used by Customer. ANACONDA, NOT BEING THE OWNER, OPERATOR, SUPPLIER, OR PRODUCER OF THE THIRD-PARTY COMPONENTS NOR THEIR AGENT, DOES NOT ENDORSE ANY THIRD-PARTY COMPONENTS, AND MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE THIRD-PARTY COMPONENTS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
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3. INTELLECTUAL PROPERTY, CUSTOMER DATA, AND DATA

  1. Ownership.  All right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to the Kilo Platform, the Documentation, and any other information, data, or analytics provided by Anaconda, and all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain the sole and exclusive property of Anaconda.  Subject to Section 3.3, as between the Parties, all right, title, and interest in and to the Customer Data, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain the sole and exclusive property of Customer.
  2. License Grant.  Subject to the terms and conditions of this Agreement, Anaconda grants to Customer a non-exclusive, non-transferable license, solely during the Term (as defined below) and solely for Customer’s internal business purposes, and not for the benefit of any third party (other than Admin Users and Authorized Users), to: (a) to access and use the Kilo Platform in accordance with the Documentation; and (b) use and reproduce a reasonable number of copies of the Documentation solely as necessary to support Customer’s use of the Enterprise Services.
  3. Customer Data.  Subject to the terms and conditions of this Agreement, Customer hereby grants to Anaconda an irrevocable, non-exclusive, transferable, sublicensable, royalty-free right and license during the Term to store, access, reproduce, execute, archive, modify, perform, display, distribute, and use the Customer Data as reasonably necessary to perform the Enterprise Services and to provide and improve the Kilo Platform and Anaconda’s other products and services.  Certain features of the Enterprise Service may allow Customer to limit the use of Customer Data through the Service, including to restrict AI Models from using such Customer Data as training data. Anaconda will comply with all such use restrictions set by Customer, whether through the Admin Portal or otherwise through the Kilo Platform. As between Anaconda and Customer, Customer will have sole responsibility for the accuracy, quality, and legality of the Customer Data.  With respect to Anaconda’s use of any of Customer’s Marks, all good will arising therefrom shall inure solely to Customer’s benefit, and Anaconda shall use all Marks in accordance with any branding guidelines provided to Anaconda in writing by Customer.
  4. Performance Data.  Anaconda monitors the performance and use of the Kilo Platform by our customers and end users and collects Performance Data in connection therewith.  Customer acknowledges and agrees that all Performance Data is owned by Anaconda and Anaconda may use Performance Data without restriction.  
  5. Data Security.  Anaconda shall process User Data in accordance with the terms of Anaconda’s data processing addendum (the “DPA”).  The DPA is incorporated into and made a part of this Agreement. 
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4. FEES AND PAYMENT

  1. Fees and Payments.  Unless otherwise set forth in an Order Form, the Fees for the Enterprise Services are as set forth on the Kilo Platform at the time Customer signs up or as otherwise accessible through the Admin Portal, and as may be updated from time to time upon notice to Customer.  Any updated Fees will go into effect in the billing cycle following such update, and Customer’s ongoing use of any Enterprise Services following such update shall constitute Customer’s acceptance to the updated Fees. Notwithstanding the foregoing, Credits shall be billed at the current per-token pricing provided by the applicable AI Model, unless otherwise agreed by Anaconda in writing, and Customer agrees to pay such Fees as incurred. If Customer does not wish to accept any updated Fees, Customer’s sole remedy is to immediately stop using the affected Enterprise Services and/or to terminate this Agreement.  All amounts are due and payable to Anaconda within thirty (30) days from the date of invoice.  All Fees (including Usage Fees) are non-cancelable, and non-refundable. 
  2. Free Trials and Promotions.  Any free trial or other promotion (“Promotion”) offered in writing by Anaconda that provides Customer-level access to the Enterprise Services or other preferential fee rates of any sort must be used within the specified time of the Promotion.  At the end of the Promotion period, your use of the applicable Enterprise Services or other preferential access will expire and any further use of the Enterprise Services on such preferential terms is prohibited unless you pay the then-current applicable Fee.
  3. Taxes.  All amounts payable under this Agreement are exclusive of sales and use taxes, value added taxes, and all other taxes and duties (except for any taxes on Anaconda’s income, which shall be paid by Anaconda), the costs of which such taxes and duties shall be invoiced by Anaconda and paid by Customer in accordance with Section 4.1. Customer will make all payments of amounts due to Anaconda free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of amounts due to Anaconda will be Customer’s sole responsibility, and Customer will provide Anaconda with official receipts issued by the appropriate taxing authority, or such other evidence as Anaconda may reasonably request, to establish that such taxes have been paid.  Customer shall indemnify and hold harmless Anaconda in connection with any proceedings brought by any taxing authorities arising from Customer’s failure to pay the taxes for which Customer is responsible hereunder.
  4. Late Payments.  In the event Customer fails to timely or completely pay any amount due Anaconda pursuant to this Agreement (except for amounts disputed by Customer in good faith), interest at the rate of one and one half percent (1.5%) per month will accrue on all past due amounts until such amounts, including accrued interest, are paid in full.  Customer shall promptly reimburse Anaconda for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees actually incurred by Anaconda, to the extent necessitated by a refusal by Customer to pay Anaconda any undisputed amounts as and when due.  In the event that any undisputed payment due to Anaconda is over thirty (30) days past due, Anaconda reserves the right to suspend Customer’s access to the Enterprise Services.  
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5. TERM AND TERMINATION

  1. Term.  The term of this Agreement begins on the Effective Date hereof and will remain in effect for one (1) year, unless sooner terminated pursuant to this Section 5 (the “Initial Term”).  At the expiration of the Initial Term, this Agreement will automatically renew for one (1)-year terms unless either Party gives the other Party at least thirty (30) days’ notice of non-renewal (each a “Renewal Term” and all such Renewal Terms together with the Initial Term, the “Term”).
  2. Termination for Cause.  Unless otherwise provided herein, this Agreement may be terminated only as follows: (i) in the event of a material breach of this Agreement by a Party, the other Party may terminate this Agreement by giving thirty (30) days’ prior written notice to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party has cured the breach before the expiration of such thirty (30) day period; (ii) this Agreement is terminable immediately without notice by a Party if the other Party: (a) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (b) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within sixty (60) days of the filing of such proceeding; (c) makes an assignment for the benefit of creditors; or (d) undergoes any dissolution or cessation of business due to insolvency; and (iii) Anaconda may terminate this Agreement upon written notice to Customer under the limited circumstances set forth in Section 9.3 below.
  3. Effect of Expiration or Termination.  Upon expiration or termination of this Agreement: (i) Customer shall pay Anaconda for all amounts due and payable hereunder as of the effective date of termination or expiration; (ii) all rights granted to Customer hereunder will immediately cease, and Customer and its Admin Users and Authorized Users will immediately cease all access and use of the Enterprise Services (iii) Anaconda will delete or make unavailable Customer’s and Authorized Users’ Accounts; and (iv) subject to the licenses provided herein, each Party shall either return to the other Party (or, at such other Party’s instruction, destroy and provide such other Party with written certification of the destruction of) the other Party’s Confidential Information; provided that each Party may retain Confidential Information in accordance with its document retention policies, provided further that such Party’s obligations of confidentiality will continue to apply to such Confidential Information.
  4. Survival.  The following provisions will survive expiration or termination of this Agreement:  Section 1 (“Definitions”), Section 2.3 (“Restrictions on Use”), Section 2.7 (“Third-Party Services”), Section 3 (“Intellectual Property, Customer Data, and Data”), Section 4 (“Fees and Payment”), Section 5.3 (“Effect of Expiration or Termination”), this Section 5.4  (“Survival”), Section 6 (“Confidentiality; Feedback”), Section 7.3 (“Disclaimer”), Section 8 (“Limitation of Liability”), Section 9 (“Indemnification”), and Section 10 (“General Provisions”).   
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6. CONFIDENTIALITY

  1. Confidential Information.  During the Term, each Party (the “Disclosing Party”) may provide the other Party (the “Receiving Party”) with certain non-public information regarding the Disclosing Party’s business, technology, products, or services that is marked or designated by the Disclosing Party as “confidential” or “proprietary” at the time of disclosure or that would reasonably be understood to be confidential given the nature of the information disclosed or the circumstances of disclosure (collectively, “Confidential Information”).  Without limiting the generality of the foregoing, Confidential Information will include: (i) with respect to Anaconda, the Kilo Platform, and any and all non-public source code, Documentation, designs, techniques, models, research, development, ideas, processes, procedures, updates, or modifications relating thereto, and any other non-public information or material regarding Anaconda’s legal or business affairs, financing, customers, properties, pricing, technology, or data; (ii) with respect to Customer, the Customer Data and any other non-public information or material regarding Customer’s legal or business affairs, financing, customers, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement.  Notwithstanding any of the foregoing, Confidential Information does not include information which:  (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; (b) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party (as evidenced by contemporaneous documentation); or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
  2. Use and Disclosure of Confidential Information.  The Receiving Party will protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information of similar nature and import (but in no event no less than a reasonable degree of care).  The Receiving Party will, with respect to any Confidential Information of the Disclosing Party: (i) use such Confidential Information only in connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; (ii) subject to the terms of this Section 6, restrict disclosure of such Confidential Information within the Receiving Party’s organization to only those employees and consultants of the Receiving Party who have a need to know such Confidential Information in connection with the Receiving Party’s performance of this Agreement and who are bound by obligations of confidentiality comparable to those set forth herein; (iii) not use such Confidential Information for Receiving Party’s, or a third party’s, own benefit; and (iv) except as expressly contemplated under the preceding clause (ii), not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so; provided, however, that the Parties may disclose the terms of this Agreement if such disclosure is in connection with any audit, financing transaction, or due diligence inquiry provided the recipients are subject to obligations of confidentiality at least as restrictive as those contained herein.  The Receiving Party will be responsible to the Disclosing Party for any violation of this Section by any employee or consultant of the Receiving Party.
  3. Required Disclosures.  Notwithstanding anything herein to the contrary, Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for Receiving Party to enforce its rights under this Agreement or is required by Applicable Law or by the order of a court or similar judicial or administrative body of competent jurisdiction, provided that Receiving Party promptly notifies Disclosing Party in writing of such required disclosure (to the extent permitted by law), cooperates with Disclosing Party if Disclosing Party seeks an appropriate protective order, and limits disclosure to solely that Confidential Information reasonably required to be disclosed.
  4. Irreparable Injury.  Each Party acknowledges that the other Party may be irreparably harmed by any breach of this Section, and agrees that such other Party may seek, in any court of appropriate jurisdiction, an injunction and/or any other equitable relief necessary to prevent or cure any such actual or threatened breach thereof, without the necessity of proving monetary damages or posting a bond or other security.  The preceding sentence shall in no way limit any other legal or equitable remedy, including monetary damages, the non-breaching Party would otherwise have under or with regard to this Agreement.
  5. Feedback.  Anaconda welcomes and encourages Customer, Admin Users, and Authorized Users to provide feedback, comments, and suggestions for improvements to the Kilo Platform, Enterprise Services, or any of Anaconda’s other products and services (collectively, “Feedback”).  With respect to any Feedback provided, Customer acknowledges and agrees that Anaconda shall be free to use and disclose any ideas, concepts, know-how, techniques, or other materials contained in the Feedback for any purpose whatsoever, including, but not limited to, the development, production, and marketing of products and services that incorporate such information, without any obligations of confidentiality or any compensation or attribution to Customer, any Admin User, any Authorized User, or any other party.     
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7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

  1. Mutual Representations and Warranties.  Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder. 
  2. Customer Warranty.  Customer represents, warrants and covenants that: (a) it has all necessary rights, approvals and consents to make the Customer Data available to Anaconda for use hereunder and that Anaconda’s use of same will not be unlawful or otherwise violate the rights of a third party; (b) any Customer Data shall not contain any viruses, worms or other malicious computer programming codes that may damage or disable any network, systems or data of Anaconda or any other third party; and (c) any Customer Data made available hereunder or other use of the Enterprise Services or Kilo Platform by Customer or any Admin User or Authorized User will not (i) breach the terms of any contract with any AI Model; (ii) infringe any right of any third party (including, without limitation, any patent, copyright, trademark, trade secret, contractual, privacy or publicity right); or (iii) otherwise violate Applicable Law, rule, or regulation.  Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and User Data made available by Customer, any Admin User, or any Authorized User, whether or not authorized by Customer.  Customer shall be responsible for delivery of all Customer Data to Anaconda, and Anaconda shall not be responsible for any liability or loss (including any loss of data) arising from Customer’s delivery of (or failure to deliver) the same.
  3. Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE ENTERPRISE SERVICES, THE PLATFORM, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND ANACONDA MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ASSUMES ALL LIABILITY FOR ANY INTERACTIONS BY OR BETWEEN CUSTOMER’S ADMIN USERS AND/OR AUTHORIZED USERS, AND ANACONDA WILL NOT BE RESPONSIBLE FOR ANY LIABILITY INCURRED AS A RESULT OF SUCH USE OR INTERACTIONS.  TO THE EXTENT THAT ANACONDA MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.  
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8. LIMITATION OF LIABILITY

EXCEPT IN CONNECTION WITH A PARTY’S INDEMNITY OBLIGATIONS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE AND OWING, OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED PURSUANT TO APPLICABLE LAW: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.  The Parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.  The Parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.

9. INDEMNIFICATION

  1. Indemnification by Anaconda.  Subject to Section 9.2, Anaconda will defend, indemnify, and hold harmless Customer and its officers, directors, managers, and employees from and against any and all losses, liabilities, damages, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred in connection with any third-party action, claim, or proceeding (each, a “Claim”) alleging that the use of the Kilo Platform in accordance with this Agreement infringes or misappropriates any third-party U.S. copyright or trademark rights (“IP Infringement Claim”); provided, however, that the foregoing obligations shall be subject to Customer: (i) promptly notifying Anaconda of the Claim (provided that failure to provide prompt written notice of the Claim will not alleviate Anaconda of its obligations under this Section 9.1 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing Anaconda, at Anaconda’s expense, with reasonable cooperation in the defense of the Claim; and (iii) providing Anaconda with sole control over the defense and negotiations for a settlement or compromise.
  2. Exceptions to Anaconda Indemnification Obligations.  Anaconda shall not be obligated to indemnify, defend, or hold harmless the Customer for an IP Infringement Claim to the extent arising from or related to: (a) claims from or related to any third-party AI Model, (b) use by Customer or any Admin User or Authorized User of the Kilo Platform not in accordance with this Agreement (including without limitation the User Terms, as applicable), or in any manner or for any purpose for which the Kilo Platform was not designed; (c) any unauthorized modifications, alterations, or implementations of the Kilo Platform made by or at the request of Customer; or (d) any use of the Kilo Platform in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by Anaconda.
  3. Infringement Claims.  In the event that Anaconda reasonably determines that the Kilo Platform is likely to be the subject of an IP Infringement Claim, Anaconda shall have the right (but not the obligation), at its own expense and option, to: (i) procure for Customer the right to continue to use the Kilo Platform as set forth hereunder; (ii) replace the infringing components of the Kilo Platform with other components with the same or similar functionality that are reasonably acceptable to Customer; or (iii) suitably modify the Kilo Platform so that it is non-infringing and reasonably acceptable to Customer.  If none of the foregoing options is available to Anaconda on commercially reasonable terms, Anaconda may terminate this Agreement without further liability to Customer, in which case Anaconda shall promptly provide Customer with a pro-rata refund of any Fees paid, but not used, by Customer.  This Section 9.3, together with the indemnity provided under Section 9.1, states Customer’s sole and exclusive remedy, and Anaconda’s sole and exclusive liability, regarding infringement or misappropriation of any Intellectual Property Rights of a third party.
  4. Indemnification by Customer.  Customer will defend, indemnify, and hold harmless Anaconda and its officers, directors, managers, and employees from and against any and all Losses incurred in connection with any Claim: (a) arising from Customer’s, or its Admin Users’, gross negligence or willful misconduct; (b) arising from Customer’s, or its Admin Users’ or Authorized Users’, breach of the Agreement; (c) arising from or related to any Third-Party Component; or (d) arising from any Customer Data, including any asserting that such Customer Data infringes, violates, or misappropriates any third-party Intellectual Property Rights; provided, however, that the foregoing obligations shall be subject to Anaconda: (i) promptly notifying Customer of the Claim (provided that failure to provide prompt written notice of the Claim will not alleviate Customer of its obligations under this Section 9.4 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing Customer, at Customer’s expense, with reasonable cooperation in the defense of the Claim; and (iii) providing Customer with sole control over the defense and negotiations for a settlement or compromise.    
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10. GENERAL PROVISIONS

  1. Publicity.  Anaconda reserves the right to reference Customer as a user of the Enterprise Services on its website and in its customer lists, and to use Customer’s Marks in connection therewith.
  2. Open Source Software.  Certain elements of the Enterprise Services are subject to “open source” or “free software licenses” (for the purposes of this section, “Open Source Software”).  Customer acknowledges that certain elements of such Open Source Software are owned by third parties.  No Open Source Software is licensed under any provision of this Agreement under which Anaconda grants Customer any license to use the Enterprise Services; instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software (for the purposes of this section, each an “OSS License”).  Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any OSS License.  If required by any OSS License, Anaconda shall make relevant pieces of Open Source Software available to Customer in source code format upon written request.
  3. Assignment.  Customer may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of Anaconda.  Anaconda may freely assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, with or without notice to Customer.  Any assignment or other transfer in violation of this Section 10.3 will be null and void.  Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
  4. Waiver.  No failure or delay by either Party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver by such Party of any such right or remedy; nor shall a waiver by a Party of any provision of this Agreement on one occasion be deemed a waiver of any other provision or of such provision on any other occasion.
  5. Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard for choice of law provisions thereof.  
  6. Exclusive Forum.  The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in New Castle County, Delaware for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
  7. Notices.  All notices required under this Agreement (other than routine operational communications) must be in writing.  Notices shall be effective upon: (i) actual delivery to the other Party, if delivered in person, or by facsimile, or by national overnight courier; or (ii) five (5) business days after being mailed via U.S. postal service, postage prepaid.  
  8. Third Party Beneficiaries.  A person who is not a Party to this Agreement shall not be entitled to rely on, or enforce, any of its terms.
  9. Independent Contractors.  The Parties are independent contractors.  Neither Party shall be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
  10. Export.  Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Anaconda, or any products utilizing such data, in violation of the United States export laws or regulations.
  11. Severability.  If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision shall be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement shall remain in full force and effect.  Any provision of this Agreement, which is unenforceable in any jurisdiction, shall be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
  12. Force Majeure.  Except for Customer’s obligations to pay any sums due hereunder, neither Party shall be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, earthquakes, strikes, lockouts or other labor disputes, shortages of materials or resources, invasions, riots, closing of public highways, civil unrest, war, acts of terrorism, mass disease, epidemic or pandemic (e.g., COVID-19), public health requirements, government-imposed quarantines or other governmental interventions.
  13. Entire Agreement.  This Agreement, together with all other agreements which are incorporated herein and made a part hereof by this reference, contains the entire understanding of the Parties with respect to the subject matter hereof and supersede all prior agreements and commitments with respect thereto.  There are no other oral or written understandings, terms, or conditions, and neither Party has relied upon any representation, express or implied, not contained in this Agreement.  Except as otherwise set forth herein, no modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by authorized signatories of Customer and Anaconda.
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