By accessing or using the Service(s) or Websites, or authorizing
or permitting any User or End-User to access or use the Service(s)
or Websites, You agree to be bound by these Terms. If You are
entering into these Terms on behalf of a company, organization, or
another legal entity (an “Entity”), You are agreeing to these
Terms for that Entity and representing to Us that You have the
authority to bind such Entity and its Affiliates to these Terms,
in which case the terms, “You", “Your” or related capitalized
terms used herein shall refer to such entity and its Affiliates.
If You do not have such authority, or if You do not agree with
these Terms, You must not accept these Terms and may not access or
use the Service(s) or Websites.
You, as an individual, must be 18 years or older to access or use
the Websites and the Service(s).
1. anydone Services
1.1. Services Overview : anydone's Services are a
suite of
messaging software-as-a-service solutions offered through a
single platform. The Services are designed to enable Customer to
manage communications with People through the entire lifecycle
of their relationship with Customer and to provide a Dashboard
for accessing and managing Customer Data regarding those People.
Customer may import and export Customer Data between the
Services and certain Third-Party Platforms through supported
integrations. The Services also include anydone Code deployed on
Customer Properties to enable live chat and messaging
functionality.
1.2. Provision of Services : Each Service is provided
on a
subscription basis for a set term designated on the Order Form
(each, a "Subscription Term"). anydone may also offer
Professional Services (as defined in Section 12) related to
certain Services. Customers will purchase and anydone will
provide the specific Services and related Professional Services
(if any) as specified in the applicable Order Form.
1.3. Access to Services : Customers may access and
use the
Services solely for its own benefit and in accordance with the
terms and conditions of this Agreement, the Documentation and
any scope of use restrictions designated in the applicable Order
Form (including without limitation the number of People
tracked). Use of and access to the Services is permitted only by
Permitted Users. If Customer is given API keys or passwords to
access the Services on anydone's systems, Customer will require
that all Permitted Users keep API keys, user ID and password
information strictly confidential and not share such information
with any unauthorized person. User IDs are granted to
individuals, named persons and may not be shared. If a Customer
is accessing the Services using credentials provided by a third
party (e.g., Google), then Customer will comply with all
applicable terms and conditions of such third party regarding
provisioning and use of such credentials. Customers will be
responsible for any and all actions taken using Customer's
accounts and passwords. If any Permitted User who has access to
a user ID is no longer an employee (or Contractor, as set forth
below) of Customer, then Customer will immediately delete such
user ID and otherwise terminate such Permitted User's access to
the Service. The right to use the Services includes the right to
deploy anydone Code on Customer Properties in order to enable
messaging, chat and similar functionality and to collect
Customer Data for use with the Services as further described
below.
1.4. anydone Apps : To the extent anydone provides
anydone Apps
for use with the Services, subject to all of the terms and
conditions of this Agreement, anydone grants to Customer a
limited, non-transferable, non-sublicensable, non-exclusive
license during any applicable Subscription Term to use the
object code form of the anydone Apps internally, but only in
connection with Customer's use of the Service and otherwise in
accordance with the Documentation and this Agreement.
1.5. Deployment of anydone Code : Subject to all of
the terms
and conditions of this Agreement, anydone grants to Customer a
limited, non-transferable, non-sublicensable, non-exclusive
license during any applicable Subscription Term to copy the
anydone Code in the form provided by anydone on Customer
Properties solely to support Customer's use of the Service and
otherwise in accordance with the Documentation and this
Agreement. Customers must implement anydone Code on the Customer
Properties in order to enable features of the Services.
Customers will implement all anydone Code in strict accordance
with the Documentation and other instructions provided by
anydone. Customer acknowledges that any changes made to the
Customer Properties after initial implementation of anydone Code
may cause the Services to cease working or function improperly
and that anydone will have no responsibility for the impact of
any such Customer changes.
1.6. Contractors and Affiliates : Customer may permit
its
Contractors and its Affiliates' employees and Contractors to
serve as Permitted Users, provided Customer remains responsible
for compliance by such individuals with all of the terms and
conditions of this Agreement, and any use of the Services by
such individuals is for the sole benefit of Customer.
1.7. General Restrictions : Customer will not (and
will not
permit any third party to):
(a) rent, lease, provide access
to
or sublicense the Services to a third party;
(b)
use
the
Services to provide, or incorporate the Services into, any
product or service provided to a third party;
(c)
reverse
engineer, decompile, disassemble, or otherwise seek to obtain
the source code or non-public APIs to the Services, except to
the extent expressly permitted by applicable law (and then only
upon advance notice to anydone);
(d) copy or modify the Services
or any Documentation, or create any derivative work from any of
the foregoing;
(e) remove or obscure any proprietary or other
notices contained in the Services (including without limitation
(i) the "Powered by anydone" designation that may appear as part
of the deployment of the Services on Customer Properties and
(ii) notices on any reports or data printed from the Services);
or
(f) publicly disseminate information regarding the
performance of the Services.
1.8. anydone APIs : If anydone makes access to any
APIs
available as part of the Services, anydone reserves the right to
place limits on access to such APIs (e.g., limits on numbers of
calls or requests). Further, anydone may monitor Customer's
usage of such APIs and limit the number of calls or requests
Customer may make if anydone believes that Customer's usage is
in breach of this Agreement or may negatively affect the
Services (or otherwise impose liability on anydone).
1.9. Trial Subscriptions : If Customer receives free
access or a
trial or evaluation subscription to the Service (a "Trial
Subscription"), then Customer may use the Services in accordance
with the terms and conditions of this Agreement for a period of
thirty (30) days or such other period granted by anydone (the
"Trial Period"). Trial Subscriptions are permitted solely for
Customers use to determine whether to purchase a paid
subscription to the Services. Trial Subscriptions may not
include all functionality and features accessible as part of a
paid Subscription Term. If Customer does not enter into a paid
Subscription Term, this Agreement and Customer's right to access
and use the Services will terminate at the end of the Trial
Period. anydone has the right to terminate a Trial Subscription
at any time for any reason.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
anydone WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER
OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
2. Customer Data
2.1. Rights in Customer Data : As between the
parties, the
Customer will retain all right, title and interest (including
any and all intellectual property rights) in and to the Customer
Data as provided to anydone. Subject to the terms of this
Agreement, Customer hereby grants to anydone a non-exclusive,
worldwide, royalty-free right to use, copy, store, transmit,
modify, create derivative works of and display the Customer Data
solely to the extent necessary to provide the Services to
Customer.
2.2. Storage of Customer Data : anydone does not
provide an
archiving service. anydone agrees only that it will not
intentionally delete any Customer Data from any Service prior to
termination of Customer's applicable Subscription Term. anydone
expressly disclaims all other obligations with respect to
storage.
2.3. Customer Obligations
:
a) In General. Customers are solely responsible for the
accuracy, content and legality of all Customer Data:
Customer represents and warrants to anydone that Customer has
all
necessary rights, consents and permissions to collect, share and
use all Customer Data as contemplated in this Agreement
(including granting anydone the rights in Section 2.1 (Rights in
Customer Data)) and that no Customer Data will violate or
infringe (i) any third party intellectual property, publicity,
privacy or other rights, (ii) any Laws, or (iii) any terms of
service, privacy policies or other agreements governing the
Customer Properties or Customer's accounts with any Third-Party
Platforms. Customer further represents and warrants that all
Customer Data complies with the AUP(Acceptable Use Policy).
Customer will be fully responsible for any Customer Data
submitted to the Services by any Person as if it was submitted
by Customer.
b) No Sensitive Personal Information: Customer
specifically
agrees not to use the Services to collect, store, process or
transmit any Sensitive Personal Information. anydone will have
no liability under this Agreement for Sensitive Personal
Information, notwithstanding anything to the contrary herein.
c) Compliance with Laws. Customer agrees to comply with all
applicable Laws in its use of the Services. Without limiting the
generality of the foregoing, Customer will not engage in any
unsolicited advertising, marketing, or other activities using
the Services.
d) Disclosures on Customer Properties. Customer acknowledges
that the anydone Code causes a unique cookie ID to be associated
with each Person who accesses the Customer Properties, which
cookie ID enables anydone to provide the Services. Customer will
include on each Customer Property a link to its privacy policy
that discloses Customer's use of third party tracking technology
to collect data about People as described in this Agreement.
Customer's privacy policy must disclose how, and for what
purposes, the data collected through anydone Code will be used
or shared with anydone as part of the Services. Customers must
also provide People with clear and comprehensive information
about the storing and accessing of cookies or other information
on the Peoples' devices where such activity occurs in connection
with the Services and as required by applicable Laws. For
clarity, as between Customer and anydone, Customer will be
solely responsible for obtaining the necessary clearances,
consents and approvals from People under all applicable Laws.
e) Social Media Data.
i. FullContact; Opt-Out. The Services use third-party services
provided by FullContact, Inc. ("FullContact") to enable Customer
to retrieve publicly-available information about People
including without limitation social media information, profile
information, gender, company, job titles, photos, physical
addresses, and website URLs ("Social Media Data") based on
People's email addresses input into the Services. Customers may
opt out of having People's email addresses sent to FullContact
via the Dashboard.
ii. Restrictions.Customer agrees not to use any Social Media
Data obtained via the Services for the purposes of cookie
tracking, ad exchanges, ad networks, data brokerages, sending
electronic communications (including email) in violation of
applicable Law, or any other activity or purpose that may be
identified as prohibited by anydone from time to time.
iii. Disclosures.Customer agrees to obtain all necessary
clearances, consents and approvals from People in order to use
Social Media Data as required under all applicable Laws,
including without limitation by disclosing in Customer's privacy
policy information about the collection and use of People's
email addresses as set forth in this Section.
2.4. Indemnification by Customer : Customer will indemnify,
defend and hold harmless anydone from and against any and all
claims, costs, damages, losses, liabilities and expenses
(including reasonable attorneys' fees and costs) arising out of
or in connection with any claim arising from or relating to any
Customer Data or breach or alleged breach by Customer of Section
1.3 (Customer Obligations). This indemnification obligation is
subject to Customer receiving (i) prompt written notice of such
claim (but in any event notice in sufficient time for Customer
to respond without prejudice); (ii) the exclusive right to
control and direct the investigation, defense, or settlement of
such claim; and (iii) all necessary cooperation of anydone at
Customer's expense. Notwithstanding the foregoing sentence, (a)
anydone may participate in the defense of any claim by counsel
of its own choosing, at its cost and expense and (b) Customer
will not settle any claim without anydone's prior written
consent, unless the settlement fully and unconditionally
releases anydone and does not require anydone to pay any amount,
take any action, or admit any liability.
2.5. Aggregated Anonymous Data : Notwithstanding anything to the
contrary herein, Customer agrees that anydone may obtain and
aggregate technical and other data about Customers use of the
Services that is non-personally identifiable with respect to
Customer ("Aggregated Anonymous Data"), and anydone may use the
Aggregated Anonymous Data to analyze, improve, support and
operate the Services and otherwise for any business purpose
during and after the term of this Agreement, including without
limitation to generate industry benchmark or best practice
guidance, recommendations or similar reports for distribution to
and consumption by Customer and other anydone customers. For
clarity, this Section 2.5 does not give anydone the right to
identify Customer as the source of any Aggregated Anonymous
Data.
2.6. EU-U.S. Privacy Shield : This Section 2.6 applies only if
Customer has entered into this Agreement with anydone, Inc. as
set forth above. anydone, Inc. participates in the EU-U.S.
Privacy Shield framework. For more information, please see
anydone's EU-U.S.
3. Security
anydone agrees to use commercially reasonable technical and
organizational measures designed to prevent unauthorized access,
use, alteration or disclosure of any Service or Customer Data.
However, anydone will have no responsibility for errors in
transmission, unauthorized third-party access or other causes
beyond anydone's control.
4. Third-Party Platforms
The Services may support integrations with certain Third-Party
Platforms. In order for the Services to communicate with such
Third-Party Platforms, Customers may be required to input
credentials in order for the Services to access and receive
relevant information from such Third-Party Platforms. By
enabling use of the Services with any Third-Party Platform,
Customer authorizes anydone to access Customer's accounts with
such Third-Party Platform for the purposes described in this
Agreement. Customer is solely responsible for complying with any
relevant terms and conditions of the Third-Party Platforms and
maintaining appropriate accounts in good standing with the
providers of the Third-Party Platforms. Customer acknowledges
and agrees that anydone has no responsibility or liability for
any Third-Party Platform or any Customer Data exported to a
Third-Party Platform. anydone does not guarantee that the
Services will maintain integrations with any Third-Party
Platform and anydone may disable integrations of the Services
with any Third-Party Platform at any time with or without notice
to the Customer. For clarity, this Agreement governs Customer's
use of and access to the Services, even if accessed through an
integration with a Third-Party Platform.
5. Your Responsibilities
5.1. Your Account: Subject to any limitation on the number of
individual Users available under the Service Plan to which You
subscribed, access, and use of the Service(s) is restricted to
the specified number of individual Users permitted under Your
subscription to the Service(s). Each User shall be identified
using unique login information such as usernames and passwords
(“User Login”) and such User Login shall be used only by one
individual. If You are a managed service provider and You wish
to use the same User Login across Accounts that You manage for
Your clients, You acknowledge that it is Your sole
responsibility to obtain necessary consents from such clients.
Without prejudice to Our obligations under Sections 9 and 10 of
these Terms, You are solely responsible for the confidentiality
of Service Data and User Login at Your end. You should,
therefore, not share Your User Login with any third parties. In
any event, unless You notify Us of any unauthorized use or
suspicious activity in Your Account, You are responsible for all
activities that occur under Your Account. Group Companies will
not be liable for any damage or loss that may result from Your
failure to protect Your login information, including Your
password. Without limiting the foregoing, You are solely
responsible for ensuring that Your use of the Service(s) to
store and transmit Service Data is compliant with all applicable
laws and regulations. You also maintain all responsibility for
determining whether the Service(s) or the information generated
thereby is accurate or sufficient for Your purposes.
5.2. Your use of the Service(s): You agree not to (a) license,
sublicense, sell, resell, rent, lease, transfer, assign,
distribute, time share or otherwise commercially exploit or make
the Service(s) available to any third party, other than Users
and End-Users in furtherance of Your internal business purposes
as expressly permitted by these Terms; (b) use the Service(s) to
Process data on behalf of any third party other than Your Users
and End-Users; (c) modify, adapt, or hack the Service(s) or
otherwise attempt to gain or gain unauthorized access to the
Service(s) or related systems or networks; (d) falsely imply any
sponsorship or association with Us; (e) use the Service(s) in
any unlawful manner, including but not limited to violation of
any person’s privacy rights; (f) use the Service(s) to send
unsolicited communications junk mail, spam, pyramid schemes or
other forms of duplicative or unsolicited messages; (g) use the
Service(s) to store or transmit any content that infringes upon
any person’s intellectual property rights; (h) use the
Service(s) in any manner that interferes with or disrupts the
integrity or performance of the Service(s) and its components;
(i) attempt to decipher, decompile, reverse engineer,
disassemble, reproduce, or copy or otherwise access or discover
the source code or underlying program of any Software making up
the Service(s); (j) use the Service(s) to knowingly post,
transmit, upload, link to, send or store any content that is
unlawful, racist, hateful, abusive, libelous, obscene, or
discriminatory; (k) use the Service(s) to store or transmit any
“protected health information” as that term is defined in 45
C.F.R. 160.103 unless expressly agreed to otherwise in writing
by Us; (l) use the Service(s) to knowingly post, transmit,
upload, link to, send or store any viruses, malware, Trojan
horses, time bombs, or any other similar harmful software
(“Malicious Software”); (m) establish a link to Our Websites in
such a way as to suggest any form of association, approval or
endorsement on Our part where none exists; (n) use the
Service(s) for the purposes of cookie tracking, ad exchanges, ad
networks, data brokerages, or sending electronic communications
(including e-mail) in violation of applicable law; (o) use of
the Service(s) for any purpose prohibited by applicable export
laws and regulations, including without limitation, nuclear,
chemical, or biological weapons proliferation, or development of
missile technology; (p) try to use, or use the Service(s) in
violation of these Terms.
5.3. You shall be responsible for any loss of data or attempted
or actual access or use of the Service(s) through Your Account
in violation of these Terms.
5.4. If We inform You that a specified activity or purpose is
prohibited concerning the Service(s), You will ensure that You
immediately cease use of the Service(s) for such prohibited
activity or purpose.
6. Changes to the service(s) and websites
6.1 Our Service(s) : We may update the Service(s) from time to
time and You may receive notifications of such upgrades,
enhancements, or updates (“Updates”). Any new or modified
features added to or augmenting or otherwise modifying the
Service(s) or other updates, modifications or enhancements to
the Service(s) are also subject to these Terms and We reserve
the right to deploy Updates at any time.
6.2 Websites : We may also change content on Our Websites at any
time. However, please note that any of the content on Our
Websites may be out of date at any given time, and We are under
no obligation to update it. For clarity, this sub-section refers
to Our Websites excluding the Service(s). We may discontinue or
change any part of Our Websites, that does not affect the
Service(s), without notifying You. Our Websites may contain
links to websites, content, and resources provided by third
parties (“Third-Party Links”). These Third-Party Links are
governed by their terms and privacy policies and You agree that
We have no control over these Third-Party Links and are not
responsible for Your access or use of these Third-Party Links.
7. Intellectual Property Rights
7.1 Ownership of IPR: Except for the rights granted to You under
Section 1, all rights, title and interest in and to all Our
patents, inventions, copyrights, trademarks, domain names, trade
secrets, know-how, and any other intellectual property and/or
proprietary rights in or related to the Service(s), including
the Websites, and any part of it (collectively, “Intellectual
Property Rights”) shall belong to and remain exclusively with
Us. We are the owner or the licensee of all Intellectual
Property Rights in Our Websites, and the content or material
published on it. Those works are protected by copyright laws and
treaties around the world. You must not use any part of the
content on Our Websites for commercial purposes without
obtaining a license to do so from Us or Our licensors. Further,
We claim no intellectual property rights over the content You
upload or provide to the Service(s).
7.2 Grant of License to Us: We shall have a royalty-free,
worldwide, transferable, sub-licensable, irrevocable, and
perpetual license to incorporate into the Service(s) or Websites
or otherwise use any suggestions, enhancement requests,
recommendations, or other feedback We receive from You.
7.3 Grant of License to You: Our product and service names and
logos used or displayed on the Service(s) or Websites are Our
registered or unregistered trademarks (collectively, “Marks”),
and You may only use such Marks to identify You as a user of the
Service(s) You have subscribed to.
7.4 Reservation of Rights: All rights not expressly provided to
You herein are reserved.
7.5 Logo: You hereby grant Us a revocable, worldwide,
non-exclusive, royalty-free license to use, reproduce, publish,
and display Your name, logo, and marks on Our Websites,
marketing materials, and/or earnings announcement materials by
any standard trademark usage guidelines that You provide.
8. Ownership
8.1. anydone Technology : This is a subscription agreement for
access to and use of the Services. The customer acknowledges
that it is obtaining only a limited right to the Services and
that irrespective of any use of the words "purchase", "sale" or
like terms in this Agreement no ownership rights are being
conveyed to the Customer under this Agreement. Customer agrees
that anydone or its suppliers retain all right, title and
interest (including all patent, copyright, trademark, trade
secret, and other intellectual property rights) in and to the
Services and all Documentation, professional services
deliverables, and any related and underlying technology and
documentation and any derivative works, modifications or
improvements of any of the foregoing, including as may
incorporate Feedback (collectively, "anydone Technology").
Except as expressly outlined in this Agreement, no rights in any
anydone Technology are granted to the Customer. Further, the
Customer acknowledges that the Services are offered as an
on-line, hosted solution and that the Customer has no right to
obtain a copy of any of the Services, except for anydone Code
and the anydone Apps in the format provided by anydone.
8.2. Feedback : Customers, from time to time, may submit
Feedback to anydone. anydone may freely use or exploit Feedback
in connection with any of its products or services.
9. Subscription Term, Fees & Payment
9.1. Subscription Term and Renewals : Unless otherwise specified
on the applicable Order Form, each Subscription Term will
automatically renew for additional twelve-month periods unless
either party gives the other written notice of termination at
least thirty (30) days before the expiration of the then-current
Subscription Term.
9.2. Fees and Payment: All fees are as outlined in the
applicable Order Form and will be paid by Customer within thirty
(30) days of invoice, unless (a) Customer is paying via Credit
Card (as defined below) or (b) otherwise specified in the
applicable Order Form. Except as expressly set forth in Section
11 (Limited Warranty) and (Indemnification), all fees are
non-refundable. The rates in the Order Form are valid for the
initial twelve (12) month period of each Subscription Term and
thereafter may be subject to an automatic adjustment increase of
up to ten percent (10%) per year. The customer is responsible
for paying all Taxes, and all Taxes are excluded from any fees
set forth in the applicable Order Form. If Customer is required
by law to withhold any Taxes from Customer's payment, the fees
payable by Customer will be increased as necessary so that after
making any required withholdings.
9.3. Payment Via Credit Card: If you are purchasing the Services
via credit card, debit card or other payment card ("Credit
Card"), the following terms apply:
Recurring Billing Authorization. By providing Credit Card
information and agreeing to purchase any Services, Customer
hereby authorizes anydone (or its designee) to automatically
charge the Customer's Credit Card on the same date of each
calendar month (or the closest prior date, if there are fewer
days in a particular month) during the Subscription Term for all
fees accrued as of that date (if any) by the applicable Order
Form. Customer acknowledges and agrees that the amount billed
and charged each month may vary depending on the Customer's use
of the Services and may include subscription fees for the
remainder of the Customer's applicable billing period and
overage fees for the prior month.
Foreign Transaction Fees. Customer acknowledges that for certain
Credit Cards, the issuer of Customer's Credit Card may be
charged a foreign transaction fee or other charges.
Invalid Payment. If a payment is not successfully settled due to
expiration of a Credit Card, insufficient funds, or otherwise,
Customer remains responsible for any amounts not remitted to
anydone and anydone may, in its sole discretion, either (i)
invoice Customer directly for the deficient amount, (ii)
continue billing the Credit Card once it has been updated by
Customer (if applicable) or (iii) terminate this Agreement.
Changing Credit Card Information. At any time, customers may
change their Credit Card information by entering updated Credit
Card information via the "Settings" page on the Dashboard.
Termination of Recurring Billing. In addition to any termination
rights set forth in this Agreement, Customer may terminate the
Subscription Term by sending anydone notice of non-renewal to by
Section 7.1 (Subscription Term and Renewals) or, if Customer's
Subscription Term is on a monthly basis (or if otherwise
permitted by anydone), by terminating via the "Settings" page on
the Dashboard, with termination effective at the end of the
current Subscription Term. As outlined in Section 2.9 (Trial
Subscriptions), if Customer does not enter into a paid
Subscription Term following a Trial Period, this Agreement and
Customer's right to access and use the Services will terminate
at the end of the Trial Period and Customer's Credit Card will
not be charged.
Payment of Outstanding Fees. Upon any termination or expiration
of the Subscription Term, anydone will charge Customer's Credit
Card (or invoice Customer directly) for any outstanding fees for
Customer's use of the Services during the Subscription Term,
after which anydone will not charge Customer's Credit Card for
any additional fees.
9.4. Suspension of Service: If Customer's account is thirty (30)
days or more overdue, in addition to any of its other rights or
remedies (including but not limited to any termination rights
set forth herein), anydone reserves the right to suspend
Customer's access to the applicable Service (and any related
services) without liability to Customer until such amounts are
paid in full. anydone also reserves the right to suspend
Customer's access to the Services without liability to Customer
if Customer's use of the Services violates the AUP (Acceptable
Use Policy).
10. Term and Termination
10.1. Term: This Agreement is effective as of the Effective Date
and expires on the date of expiration or termination of all
Subscription Terms.
10.2. Termination for Cause : Either party may terminate this
Agreement (including all related Order Forms) if the other party
(a) fails to cure any material breach of this Agreement
(including a failure to pay fees) within thirty (30) days after
written notice; (b) ceases operation without a successor; or (c)
seeks protection under any bankruptcy, receivership, trust deed,
creditors' arrangement, composition, or comparable proceeding,
or if any such proceeding is instituted against that party (and
not dismissed within sixty (60) days thereafter).
10.3. Effect of Termination: Upon any expiration or termination
of this Agreement, Customer will immediately cease any and all
use of and access to all Services (including any and all related
anydone Technology) and delete (or, at anydone's request,
return) any and all copies of the Documentation, any anydone
passwords or access codes and any other anydone Confidential
Information in its possession. Provided this Agreement was not
terminated for Customer's breach, Customer may retain and use
internally copies of all reports exported from any Service prior
to termination. Customer acknowledges that following termination
it will have no further access to any Customer Data input into
any Service, and that anydone may delete any such data as may
have been stored by anydone at any time. Except where an
exclusive remedy is specified, the exercise of either party of
any remedy under this Agreement, including termination, will be
without prejudice to any other remedies it may have under this
Agreement, by law or otherwise.
11. Limited Warranty
11.1. Limited Warranty : anydone warrants, for Customer's
benefit only, that each Service will operate in substantial
conformity with the applicable Documentation. anydone's sole
liability (and Customer's sole and exclusive remedy) for any
breach of this warranty will be, at no charge to Customer, for
anydone to use commercially reasonable efforts to correct the
reported non-conformity, or if anydone determines such remedy to
be impracticable, either party may terminate the applicable
Subscription Term and Customer will receive as its sole remedy a
refund of any fees Customer has pre-paid for use of such Service
for the terminated portion of the applicable Subscription Term.
The limited warranty set forth in this Section 9.1 will not
apply: (i) unless Customer makes a claim within thirty (30) days
of the date on which Customer first noticed the non-conformity,
(ii) if the error was caused by misuse, unauthorized
modifications or third-party hardware, software or services, or
(iii) to use provided on a no-charge, trial or evaluation basis.
11.2. Warranty Disclaimer:. EXCEPT FOR THE LIMITED WARRANTY IN
SECTION 11.1, ALL Services and PROFESSIONAL SERVICES ARE
PROVIDED "AS IS''. NEITHER anydone NOR ITS SUPPLIERS MAKES ANY
OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY,
TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
anydone does not warrant that Customer's use of THE Services
will be uninterrupted or error-free, nor does anydone warrant
that it will review the Customer Data for accuracy or that it
will preserve or maintain the Customer Data without loss OR
CORRUPTION. anydone SHALL NOT BE LIABLE FOR THE RESULTS OF ANY
COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE
SENT USING THE SERVICES. anydone SHALL NOT BE LIABLE FOR DELAYS,
INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN
USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY
PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF
ANYDONE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE
DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE
LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
12.Confidential Information
Each party (as "Receiving Party") agrees that all code,
inventions, know-how, business, technical and financial
information it obtains from the disclosing party ("Disclosing
Party") constitute the confidential property of the Disclosing
Party ("Confidential Information"), provided that it is
identified as confidential at the time of disclosure or should
be reasonably known by the Receiving Party to be confidential or
proprietary due to the nature of the information disclosed and
the circumstances surrounding the disclosure. Any anydone,
performance information relating to any Service, and the terms
and conditions of this Agreement will be deemed Confidential
Information of anydone without any marking or further
designation. Except as expressly authorized herein, the
Receiving Party will (1) hold in confidence and not disclose any
Confidential Information to third parties and (2) not use
Confidential Information for any purpose other than fulfilling
its obligations and exercising its rights under this Agreement.
The Receiving Party may disclose Confidential Information to its
employees, agents, contractors and other representatives having
a legitimate need to know (including, for anydone, the
subcontractors referenced in Section 17.8 (Subcontractors)),
provided that such representatives are bound to confidentiality
obligations no less protective of the Disclosing Party than this
Section 15 and that the Receiving Party remains responsible for
compliance by any such representative with the terms of this
Section 12. The Receiving Party's confidentiality obligations
will not apply to information that the Receiving Party can
document: (i) was rightfully in its possession or known to it
prior to receipt of the Confidential Information; (ii) is or has
become public knowledge through no fault of the Receiving Party;
(iii) is rightfully obtained by the Receiving Party from a third
party without breach of any confidentiality obligation; or (iv)
is independently developed by employees of the Receiving Party
who had no access to such information. The Receiving Party may
make disclosures to the extent required by law or court order,
provided the Receiving Party notifies the Disclosing Party in
advance and cooperates in any effort to obtain confidential
treatment. The Receiving Party acknowledges that disclosure of
Confidential Information would cause substantial harm for which
damages alone would not be a sufficient remedy, and therefore
that upon any such disclosure by the Receiving Party the
Disclosing Party will be entitled to seek appropriate equitable
relief in addition to whatever other remedies it might have at
law.
13. Miscellaneous
If any provision of this Agreement is found to be unenforceable
or invalid, that provision will be limited or eliminated to the
minimum extent necessary so that this Agreement will otherwise
remain in full force and effect and enforceable. This Agreement
is not assignable, transferable or sublicensable by either party
except with the other’s prior written consent, except that.
anydone may transfer and assign any of its rights and
obligations under this Agreement without consent in connection
with a reorganization, merger, consolidation, acquisition, or
other restructuring involving all or substantially all of its
voting securities or assets. Both parties agree that this
Agreement is the complete and exclusive statement of the mutual
understanding of the parties and supersedes and cancels all
previous written and oral agreements, communications and other
understandings relating to the subject matter of this Agreement,
and that all waivers and modifications must be in a writing
signed by both parties, except as otherwise provided herein. No
agency, partnership, joint venture, or employment is created as
a result of this Agreement and Customer does not have any
authority of any kind to bind anydone in any respect whatsoever.
In any action or proceeding to enforce rights under this
Agreement, the substantially prevailing party will be entitled
to recover costs and attorneys’ fees. All notices under this
Agreement will be in writing and will be deemed to have been
duly given when received, if personally delivered; when receipt
is electronically confirmed, if transmitted by facsimile or
e-mail; the day after it is sent, if sent for next day delivery
by recognized overnight delivery service; and upon receipt, if
sent by certified or registered mail, return receipt requested.
The parties agree that any material breach of Section 2 or 3 may
cause irreparable injury and that injunctive relief in a court
of competent jurisdiction will be appropriate to prevent an
initial or continuing breach of Section 2 or 3 in addition to
any other relief to which the owner of such Confidential
Information may be entitled. anydone is permitted to disclose
that Customer is one of its customers to any third-party at its
sole discretion. This Agreement shall be governed by the laws of
the State of California without regard to its conflict of laws
provisions. The federal and state courts sitting in San
Francisco, California, U.S.A. will have proper and exclusive
jurisdiction and venue with respect to any disputes arising from
or related to the subject matter of this Agreement.
