This Software as a Service (SaaS) Agreement (the “Agreement”), dated as of the date of Customer signup. (the “Effective Date”), is by and between Anomaly Studios, LLC, a Tennessee liability company (”Provider”), and (”Customer”), identified by the authorized agent who originally signed up for services.
WHEREAS, Customer wishes to procure from Provider the software services described herein, and Provider wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
”Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services.
”Action” has the meaning set forth in Section 15.1.
”Agreement” has the meaning set forth in the preamble.
”Authorized User” means each of the individuals authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement as described on Schedule B.
”Availability Requirement” has the meaning set forth in Section 5.1.
”Available” has the meaning set forth in Section 5.1.
”Confidential Information” has the meaning set forth in Section 12.1.
”Customer” has the meaning set forth in the preamble.
”Customer Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services
”Customer Failure” has the meaning set forth in Section 4.2.
”Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
”Disclosing Party” has the meaning set forth in Section 12.1.
”Documentation” means any manuals, instructions or other documents or materials listed in Schedule C that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
”Effective Date” has the meaning set forth in the preamble.
”Exceptions” has the meaning set forth in Section 5.1.
”Fees” has the meaning set forth in Section 10.1.
”Force Majeure Event” has the meaning set forth in Section 17.1.
”Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.
”Hosted Services” has the meaning set forth in Section 2.1.
”Indemnitee” has the meaning set forth in Section 15.3.
”Indemnitor” has the meaning set forth in Section 15.3.
”Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
”Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction, except for those relating to or covering Intellectual Property Rights.
”Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
”Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer as expressly permitted on Schedule A.
”Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, association or other entity.
”Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
”Provider” has the meaning set forth in the preamble.
”Provider Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
”Provider Materials” means the Service Software, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials do not include Customer Data.
”Provider Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.
”Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
”Receiving Party” has the meaning set forth in Section 12.1.
”Reimbursable Expenses” has the meaning set forth in Section 10.3.
”Representatives” means, with respect to a party, that party’s employees, independent contractors, officers, directors, and legal advisors.
”Scheduled Downtime” has the meaning set forth in Section 5.3.
”Service Credit” has the meaning set forth in Section 5.2.
”Service Level Failure” has the meaning set forth in Section 5.1.
”Service Period” has the meaning set forth in Section 5.1.
”Service Software” means the Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.
”Services” has the meaning set forth in Section 2.1.
”Specifications” means the specifications for the Services set forth in Schedule C and the Documentation.
”Subcontractor” has the meaning set forth in Section 2.5.
”Support Schedule” has the meaning set forth in Section 5.4.
”Support Services” has the meaning set forth in Section 5.4.
”Term” has the meaning set forth in Section 13.1.
”Territory” means the United States.
”Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.
2.1 Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, Provider shall provide to Customer and its Authorized Users the services described in the attached Schedule A and this Agreement (collectively, the “Services”) in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users (”Hosted Services”) in substantial conformity with the Specifications.
2.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a)Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Support Services and Service maintenance, upgrades, corrections and repairs; and
(b)Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, all equipment at Customer’s facilities required by Provider in order to provide the Services, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.
2.3 Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. The parties’ initial service managers are identified in Schedule B. Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party’s service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
2.4 Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider’s services to its customers, (ii) the competitive strength of or market for Provider’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in accordance with the change procedure set forth in Schedule D. No requested changes will be effective unless and until memorialized in a written change order signed by both parties, except that Customer may increase or decrease the number of Authorized Users for any Services pursuant to Exhibit A.
2.5 Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).
2.6 Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities or is responsible in any way for a security breach relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 2.6 does not limit any of Provider’s other rights or remedies, whether at law, in equity or under this Agreement.
3.1 Authorization. Subject to and conditioned on Customer’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Provider hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Services and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications. This authorization is non-exclusive.
3.2 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with Provider and the respective rights holders in the Third Party Materials.
3.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Services or Provider Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;
(h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law; or
(k) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1.
4.1Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer’s premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2 Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
4.4 Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior six (6) months employed or engaged by Provider or any Subcontractor and involved in any respect with the Services or the performance of this Agreement. In the event of a violation of this Section 4.4, Provider will be entitled to liquidated damages equal to the compensation paid by Provider to the applicable employee or contractor during the prior twelve (12) months.
5.1 Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Hosted Services Available at least ninety-nine and nine-tenths percent (99.9%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 5.1 (the “Availability Requirement”). “Service Level Failure” means a material failure of the Hosted Services to meet the Availability Requirement. “Available” means the Hosted Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Hosted Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Hosted Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User/access to or use of the Hosted Services by Customer or any Authorized User, or using Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) Customer Failure; (c) Customer’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension or termination of the Services pursuant to Section 2.6.
5.2 Service Level Failures and Remedies. In the event of a Service Level Failure, Provider shall issue a credit to Customer that is equal to a pro-rata daily amount of the monthly Fees for the Hosted Services due for the Service Period the Service Level Failure occurred (each a “Service Credit”), subject to the following:
(a) Provider has no obligation to issue any Service Credit unless (i) Customer reports the Service Failure to Provider immediately on becoming aware of it; and (ii) requests such Service Credit in writing within three (3) days of the Service Level Failure; and
(b) in no event will a Service Level Credit for any Service Period exceed fifty percent (50%) of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.
Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar quarter following the Service Period in which the Service Level Failure occurred. This Section 5.2 sets forth Provider’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.
5.3 Scheduled Downtime. Provider will use commercially reasonable efforts to; (a) schedule downtime for routine maintenance of the Hosted Services between the hours of 2 a.m. and 5 a.m. Central Standard Time; and (b) give Customer at least twenty-four (24) hours prior notice of all scheduled outages of the Hosted Services (”Scheduled Downtime”).
5.4 Service Support. The Services include Provider’s standard customer support services (”Support Services”) in accordance with the Provider service support schedule, a current copy of which is attached as Schedule E (the “Support Schedule”). Provider may amend the Support Schedule from time to time in its sole discretion. Customer may purchase enhanced support services separately at Provider’s then current rates.
6: Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA including but not limited to text, images, files, user accounts, video, and any form of data.
9.1 Provider Systems and Security Obligations. Provider will employ security measures in accordance with applicable industry practice.
9.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (”Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. Furthermore, Customer is solely responsible for ensuring that all data and information downloaded through any of the Services is free from Harmful Code. Provider shall have no liability for any breach of security or integrity of the Customer Systems as a result of any Harmful Code downloaded by Customer or any Authorized User.
9.3 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.
10.1 Fees. Customer shall pay Provider the fees set forth in Schedule A (”Fees”) in accordance with this Section 10.
10.2 Fee Increases. Provider may increase Fees by no more than three percent (3%) and no more than once annually after the first contract year of the Term by providing written notice to Customer at least sixty (60) calendar days prior to such increase, and Schedule A will be deemed amended accordingly.
10.3 Reimbursable Expenses. Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services (”Reimbursable Expenses”).
10.4 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
10.5 Payment. Customer shall pay all Fees and Reimbursable Expenses within fifteen (15) days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars. Customer shall make payments in the manner set forth on Schedule A or in such other manner as the parties may agree.
10.6 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and
(c) if such failure continues for thirty (30) days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
10.7 No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
11.1 Services and Provider Materials. All right, title and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Provider Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3 All other rights in and to the Services and Provider Materials (including Third-Party Materials) are expressly reserved by Provider and the respective third-party licensors. Any inclusion of Customer Data in the Services shall not be deemed to grant Customer or any Authorized User any rights in the Services apart from those expressly granted herein. Customer agrees not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publish, adapt, edit, or create derivative works from such materials or content.
11.2 Customer Data. As between Customer and Provider, Customer and Customer’s licensors are and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 11.3.
11.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Provider, its Subcontractors and the Provider Personnel as are necessary or useful to perform the Services; and (b) to Provider as are necessary or useful to enforce this Agreement.
12.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 12.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, including, without limitation, Protected Health Information (PHI). Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the financial terms of this Agreement are the Confidential Information of each of the parties.
12.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
12.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 12.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 10.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 12.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 12.
12.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 12.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 12.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
13.1 Term. The Term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect until the date set forth on Schedule A (the “Term”).
13.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement, Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions), Section 9.3 (Access and Security) or Section 12 (Confidentiality).
13.3 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Except for the limited use permitted under Section 18.3 herein, Provider shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Provider directly or indirectly controls;
(c) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information ;and (ii) Provider may retain Customer Data; (iii) Customer may retain Provider Materials, in the case of each of subclause (i), (ii) and (iii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Provider may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this 13.4(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
(e) Provider may disable all Customer and Authorized User access to the Hosted Services and Provider Materials;
(f) Upon termination, Customer will promptly pay any unpaid Fees that became due and payable prior to the effective date of such termination and Provider will: (i) refund to Customer Fees paid in advance for Services that Provider has not performed as of the effective date of termination and (ii) pay to Customer any unpaid Service Credits to which Customer is entitled; and
13.4 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 12, this Section 13.4, Section 14, Section 15, Section 16 and Section 18.
14.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
14.2 Additional Provider Representations, Warranties and Covenants. Provider represents, warrants and covenants to Customer that Provider will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
14.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any copyright, trademark, trade secret or database property right, or any privacy of any third party or violate any applicable Law.
14.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1, SECTION 12.2 AND SECTION 12.3, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCESSIBILITY DATA SECURITY, SYSTEM INTEGRATION AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
15.1 Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer (but in no case Customer’s customers) from and against any and all Losses awarded against Customer in a final judgment arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party to the extent that such Losses arise from any allegation in such Action that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringes a U.S. copyright, trademark, trade secret or database property right, or any privacy of any third party. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
(a) access to or use of the Services or Provider Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications;
(b) modification of the Services or Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider’s written approval in accordance with Provider’s written specification;
(c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Provider; or
(d) act, omission or other matter described in Section 15.2(a), Section 15.2(b), Section 15.2(c) or Section 15.2(d), whether or not the same results in any Action against or Losses by any Provider Indemnitee.
15.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider from and against any and all Losses awarded against Provider in a final judgment in connection with any Action by a third party to the extent that such Losses arise out of or relate to any:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
(c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
15.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 15.1 or Section 15.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitee shall immediately take control of the defense and investigation of such Action and shall employ counsel to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this Section 15 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
15.4 Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof, provided that, subject to Customer’s compliance with its post-termination obligations set forth in Section 13.4, Customer will be entitled to a refund of any Fees for Services not yet performed by Provider as of the date of termination.
THIS SECTION 15 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
16.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 5.2, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
16.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 16.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER IN THE ONE (1) MONTHS PRECEEDING THE ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
16.3 Exceptions. The exclusions and limitations in Section 16.1 and Section 16.2 do not apply to Provider’s obligations under Section 15 (Indemnification) or liability for Provider’s gross negligence or willful misconduct.
17.1 No Breach or Default. In no event will Provider be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
17.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Provider shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
18.1 Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
18.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Provider may, without Customer’s consent, include Customer’s name and any provided testimonials in its lists of Provider’s current or former customers of Provider and in promotional and marketing materials, and may display in Provider’s promotional and marketing materials screenshots and video displays of the Services as provided to Customer, provided that no Customer Data is displayed in a manner (a) that identifies any individual or (b) with respect to which there is a reasonable basis to believe the information can be used to identify any individual.
18.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 18.4):
18.5 Additional Terms and Conditions. The Hosting Services are further governed by Contractor’s Hosting Terms of Service, Terms of Service, and Privacy Policy linked below and incorporated herein by reference.
https://www.anomalystudios.com/terms-of-use-and-conditions
https://www.anomalystudios.com/privacy-policy
Notices sent in accordance with this Section 18.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by or e-mail, (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
18.5 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
18.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
18.7 Entire Agreement. This Agreement and its exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, and the related exhibits, schedules, attachments and appendices (other than an exception expressly set forth as such therein), the following order of precedence governs: (a) first the exhibits, schedules, attachments and appendices to this Agreement and (b) the body of this Agreement.
18.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider’s prior written consent, which consent Provider shall not unreasonably withhold or delay/may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Provider’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 18.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
18.9 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
18.10 Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18.11 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
18.12 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Tennessee. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Tennessee in each case located in the city of Nashville and County of Davidson, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
18.13 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
18.14 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 12 or, in the case of Customer, Section 3.3 or Section 4.3 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
18.15 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the initial Customer signup.
SCHEDULE A
SERVICES AND FEES
Summary of Services:
Services. Customer engages Provider, and Provider agrees to provide the Services set forth on the SOW, which is incorporated in this Agreement, and which may be amended by Provider and Customer from time to time. If any terms in the SOW conflict with the terms of this Agreement, the terms of this Agreement will control unless this provision is expressly overruled in the relevant SOW. Provider may perform Services that are not set forth in the SOW, upon request from Customer and at Provider’s discretion, but only at Provider’s then-current hourly rates or as otherwise agreed by the parties.
Deploy an Anomaly Marketing and Anomaly Learning monthly subscription for one
domain name provided by the customer.
Additional domain names are available upon request and may incur additional costs.
Anomaly AMP (Anomaly Membership Platform) is designed to make it simple for you to launch an amazing website, blog and engaging online learning experience. Anomaly AMP was designed with a simple concept in mind—to make the experience of deploying and managing large-scale websites and apps easy and intuitive. Anomaly AMP is offered as a SaaS service. The services include the deployment of an Anomaly An instance to include infrastructure, support, as well as customizations provided below.
Note that these services do not include e-mail services, which will be kept another e-mail provider of your choice. Customers are required to retain these services.
Fees and Expenses:
Anomaly AMP is provided as a monthly service billed at the current rate per month plus any applicable taxes.
Note that your installation and services may be provided at discounted rates and may not be available to other customers or installations.
(Please note that the first month of subscription is needed up-front to deploy the secure infrastructure.)
Total Estimated Customization and Installation Costs (specified in Schedule F and sent separately)
Total design and customization costs are sent separately.
Additional services and customizations are available upon request at the current hourly rate Customizations and additional services can be initiated through the Change Order process specified in Schedule D. Additionally, Anomaly Studios Design services are also available upon request at the same hourly rate.
Estimates: Customer acknowledges that the Expected End Date set forth on the SOW is merely an estimate. The Provider reserves the right to adjust the Expected End Date based upon Change Orders.
The estimates set forth in the SOW in Schedule F are based upon Provider’s current hourly rate for each of Provider’s employees and contractors. Provider will not increase these hourly rates during the first three years of this Agreement. Provider may increase the hourly rates on no more than an annual basis thereafter at a rate not to exceed CPI for the prior twelve months or 3%, whichever is greater, upon thirty (30) days’ notice to Customer.
Acceptance; Overages. As set forth in the SOW, at the end of each Phase, the Deliverables that have been provided to Customer during such Phase shall be deemed to be accepted. During any Phase, Provider shall modify the Deliverables as necessary to comply with (a) the specifications for that Phase of the SOW and (b) the specifications set forth in any prior Deliverable. Any changes requested which are outside the specifications of the SOW or any prior Deliverable shall be deemed an “Overage” and shall require a change order (“Change Order”) which will set forth the new specifications. Any time Provider spends working on an Overage shall be charged at Provider’s then-current hourly rates or other rate agreed to in the Change Order. Whether any change is an Overage shall be agreed to by the parties; however, any requested specification which is not expressly set forth in the SOW or in any prior Deliverable shall be deemed an Overage.
Customer Responsibilities. Customer shall be solely responsible for the following:
making available to Provider a designated representative who is authorized to make binding decisions for Customer with respect to the Services, and on whose authority Provider may rely; and
approving or rejecting any deliverable provided by Provider according to the approval schedule set forth in the SOW, and otherwise cooperating with and providing reasonable assistance to Provider.
Provider will not be liable to Customer for any losses, damages, expenses or costs incurred by Customer related to missed deadlines or delays in providing the Services to the extent such missed deadlines or delays are caused by Customer’s failures to meet the responsibilities set forth in the SOW. Any work performed by Provider outside of the Services set forth in the SOW as a result of Customer’s failure to meet these responsibilities will be charged at Provider’s then-current hourly rates.
Term:
The initial term (“Initial Term”) of this Agreement shall be [ 1 ] month from the Effective Date (the “Initial Term”) and shall automatically renew for additional one-month terms (a “Renewal Term”) unless earlier terminated as set forth below:
Either party may terminate the Agreement by providing no less than sixty (60) days’ written notice prior to the expiration of the Initial Term or any Renewal Term.
Termination for Convenience: Customer may terminate this Agreement at any time after the first one (1) month of the Initial Term, upon thirty (30) days’ notice. In the event of termination pursuant to this paragraph, Customer shall pay to Provider an amount equal to the discount given to Customer for the Initial Term and set forth above on this Schedule A.
Customer may terminate this Agreement at any time after the first (1) month of the Initial Term, and if such termination is to take effect in less than thirty (30) days from the date of such notice, then Customer shall pay to Provider an amount equal to the discount given to Customer for the Initial Term and set forth above on this Schedule A, plus fifty percent (50%) of the Fees that would have been owed during the Initial Term had the Agreement not been terminated under this paragraph.
SCHEDULE B
AUTHORIZED USERS
The Anomaly AMP platform provides a generous access level for unlimited users at no additional cost. We do not charge additional subscription amounts per admin user or CMS user.
At the time of installation, Provider will create one admin account that will have access to create additional accounts and manage the access level between the areas of the back-end system applications in the online CMS.
SCHEDULE C
SPECIFICATIONS
One of the biggest challenges for technology implementation is infrastructure. One of the greatest benefits of Anomaly AMP is that your service includes the deployment and maintenance of all hardware and networking necessary for the public-facing web tools. Once you start, you don't have to deal with the complexities of the online infrastructure. We manage the infrastructure for all Anomaly AMP public-facing web tools. And it is included in our pricing. With Anomaly Infrastructure you get:
Cost-effective cloud servers
Secure Web Hosting
SSL Certificate for Secure HTTPS connections, included in Infrastructure as a Service
Massive Bandwidth Package - up to 100 gig of bandwidth for free
Incredible Data Storage Package - up to 10 gig of storage for free and unlimited high resolution video storage and streaming
Unlimited Users and connections
Reliability with 99.99% uptime guaranteed
Technical support
Remove Internal IT burdens for fully outsourced and hosted/managed IT infrastructure
Full managed infrastructure and hosting for all Anomaly AMP tools
Unified Marketing Platform
The Anomaly marketing platform is the core glue that holds your patient-centric user experience together. The goal of the marketing platform is to provide mobile-ready content creation and editing capabilities so that non-technical team members can create and publish content within seconds. Our goal from the onset was to make the creation and management of your web experience easy. In addition to primary site content, there is a powerful blog management tool that facilitates community related content from unlimited authors to help express the voice of your team. The following are some of the features that make our platform unique.
HTML5 from the ground up. Power your mobile strategy and empower the remarkable. Instantly deploy advanced and affordable marketing for the post-PC world
Core platforms to fuel the success of your online marketing efforts
Social Media integration
Unlimited admin users
Mobile-first Responsive marketing platform
Robust HTML5 content engine with unlimited pages
Integrated SEO tools including keyword management and instant automation of site pages to the Google Index
Fully integrated and powerful content linking between the integrated Anomaly content engines
Powerful HTML5 image gallery manager with full mobile touch+swipe support
Powerful HTML5 image slider manager with full mobile touch+swipe support
Easy-to-use mobile-first CMS content platform with powerful auto-HTML generation
Fully-integrated mobile knowledge-base and blog integration
Fully integrated HTML5 Video Streaming
Touch-enabled announcements tools
Instant and full integration with other Anomaly Marketing tools
Fully integrated image management tools
Fully integrated file management tools
Full branding integration capabilities with HTML web fonts support
Unlimited landing pages
Unlimited marketing funnels
Optional Stripe e-commerce integrations
Mobile learning is critical in today's culture that is always on the go. With Anomaly Learning you have a complete learning management system that is designed for mobile content that works out of the box. A non-technical team is empowered with powerful tools to manage the development and maintenance of learning objects and courses. The Anomaly Learning LMS provides the following benefits:
Create unlimited online courses with full HTML5 mobile-first user interfaces
Create and deploy engaging online course content for your any device, anytime mobile strategy
Deploy and manage online course content with ease
Manage student rosters and course access
Integrate dynamic units-based content for educational scaffolding and content organization
Robust HTML5 content engine
Fully integrated and powerful content linking between online learning objects
Fully integrated HTML5 Video Streaming engine for video training
Fully integrated image management tools
Fully integrated file management tools
One of the many benefits of working with our team is that you have access to a team of talented and award-winning designers. If you need to augment your team for ad campaigns, visual design, branding, or any other type of user experience design, we have you covered. This allows you to facilitate creative direction with a team that has a proven track record for execution. If you have needs in addition to the core software platform, we can help. The following are some services that are in our wheelhouse. The following are optional customization services available during or after installation if needed.
Visual design
Branding Design Services
User Experience Design (UX Design)
Interactive Design
Programming Services
Customization Services
Workforce augmentation services, scale your team to speed production while not incurring ongoing fixed human resources costs
SCHEDULE D
CHANGE ORDERS
SCHEDULE E
SERVICE SUPPORT
Schedule F – Statement of Work (SOW) for Customizations and Project Timeline
A Statement of Work (SOW) is sent seperately if there are customization and custom work for Customer.
Schedule G – Web Hosting Terms of Service
Web Hosting Terms of Service
Provider agrees to furnish services to Customer subject to the following Web Hosting Terms of Service (“TOS”).
Scope of Services
The web hosting terms of service has a scope of the following
Hardware
Hosting of the software application
Hosting of the data
Technical support is provided to the Customer / not to the end user
Credit Card Payments: In the case of credit card payments, Provider will automatically charge Customer Credit Card on file for all fees associated with the account on the due date. Customer agrees to pay all applicable fees for Services in effect at the time of registration and/or renewal. Renewal will occur one month prior to Customer‘s billing schedule.
Automatic Renewal of Account and/or Domain: As a courtesy and not as an obligation (contractual or otherwise), fourteen (14) days prior to the expiration of Customer's hosting account, Provider will automatically renew Customer's hosting account, if registered through Provider, for the same duration initially selected, at the initial rate, by charging the applicable fee to Customer's originally-selected method of payment. Likewise, as a courtesy and not as an obligation (contractual or otherwise), fourteen (14) days prior to the expiration of Customer’s domain, if registered with Anomaly Studios (or one of its Affiliates), or if transferred to and registered with Provider (or one of its Affiliates), Provider will automatically renew Customer’s domain, for the same duration initially selected, at the then-current, non-promotional rate, by charging the applicable fee to Customer's originally-selected method of payment. Customer acknowledges and confirms that the obligation to renew her/his/its account or domain is solely and exclusively the responsibility of the Customer, and is not the obligation (contractual or otherwise) of Provider. While consenting to Anomaly Customer’s performance of said courtesy, Customer hereby releases Provider from all liability for its failure for any reason to renew said account or said domain. Customer acknowledges that there may be many reasons why Provider is unable to renew said account or domain, including but not limited to inability of Provider, for any reason, to bill said renewal to Customer’s credit card, to contact or otherwise get response from Customer at last known email address, or otherwise. Customer acknowledges that said account and/or domain, if not renewed, for whatever reason, will expire on the account or domain expiration date, as applicable. Provider makes no guarantee of continual domain name registration availability if a gap occurs in domain renewal due to lack of payment.
Cancellation of Automatic Renewal of Account or Domain: To cancel Automatic Account Renewal or Automatic Domain Renewal, Customer must notify Provider of Customer's intent to cancel at least thirty (30) days prior to the account or domain expiration date, by directing Automatic Account Renewal Cancellation Notification and/or Automatic Domain Renewal Cancellation Notification to Provider, as applicable, by sending same via email to [email protected].
Support: Outages or other disruptions in service should be reported to Provider via email at: [email protected] A support ticket will be created for each separately filed incident. Customers will be notified via email about hardware, network or critical software failures resulting in system wide outages.
Disclaimer of Warranties: Except as expressly provided herein, Provider, and its owners, employees, affiliates, agents, vendors, and the like, make no warranty in connection with Provider’s hardware, co-hosted hardware or services, whether written or oral, statutory, express or implied, including without limitation the warranties of title, non-infringement, merchantability, and fitness for a particular purpose.
Domain Name Ownership, Disputes, and Use: Any domain name registered by PROVIDER on behalf of Customer is the property of said Customer after the Customer has paid PROVIDER any registration fees that PROVIDER has incurred on behalf of the Customer. PROVIDER claims no ownership over Customer domain names that the Customer has paid to register. At its option, PROVIDER will either arrange for any billing for names registered by PROVIDER on behalf of Customer to be sent directly by the registrar or agent thereof to the Customer, or PROVIDER will directly bill the Customer for these registration fees plus applicable expenses, and/or service charges, if any. (Note: This domain name registration service for a single domain name is included in the annual fee and is not an additional hidden add-on fee as listed on page 1). Should Customer have existing domain name registration, they are encouraged to manage their Domain Registration through their domain registrar. Should a transfer of domain registrars be necessary, Provider, can re-register through their servers at the time of the server setup.
Customer agrees that PROVIDER may be presented with information that Customer's domain name possibly violates the trademark rights or other intellectual property rights of a trademark or other intellectual property rights owner. In case of such action, Customer agrees to the following:
Customer agrees to hold PROVIDER harmless of any action taken by such owner regardless of the outcome of such dispute and regardless of whether Domain Name Service hosting for Customer's domain is hosted at or continued to be hosted at PROVIDER.
Customer agrees that PROVIDER has the right to discontinue name service in the event of such dispute over a Customer's domain name.
Customer agrees that should PROVIDER discontinue name service for Customer's domain upon notification of such dispute that that PROVIDER will not be liable for any loss of business, interruption of business, loss of Customer's domain name, or any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if PROVIDER has been advised of the possibility of such damages.
Transfer of Website: Unless otherwise expressly agreed to by Provider, if your website uses proprietary Provider web development tools, for portions, or all of your website using our licensed content management system, these portions of the website cannot be transferred to another web server, due to the protection of the intellectual property and copyright of our website development tools. Customer understands that Provider has created specialized tools to facilitate the creation of their Customers’ websites, and these tools shall not be moved to another server. Provider only guarantees that Customer’s website will be transferable to another Provider server or an Provider affiliate’s server. Customer and its parties agree that they will not download or re-deploy our proprietary source code via FTP or other methods. By doing so, or by having a 3rd party do so would be in violation of this Terms of Service and would be in violation of the copyright of our website development tools and source code. Should a transfer be needed at a future date to another hosting service, Provider shall export content as needed at the current Provider hourly development rate.
Backups: Provider shall not be responsible for website data backups or e-mail backups–this is solely the responsibility of the Customer. E-mail programs such as Outlook can maintain offline e-mails that do not rely on server backups. E-mail programs such as Outlook should be backed up to retain an archive of e-mails. For its own operational efficiencies and purposes, Provider from time to time backs up data on its servers, but is under no obligation or duty to Customer to do so under these Terms. IT IS SOLELY CUSTOMER'S DUTY AND RESPONSIBILITY TO BACKUP CUSTOMER'S FILES AND DATA ON PROVIDER SERVERS, AND under no circumstance will Provider be liable to anyone FOR DAMAGES OF ANY KIND under any legal theory for loss of Customer FILES AND/or data on any Provider server or co-hosted servers.
Security: The Customer is responsible for all use of the Customer’s account(s) and confidentiality of password(s), including choosing safe passwords. Provider shall not be responsible for confidential information stored on the web server or online databases or through information passed through secure or non-secure connections to and from the server to Customer’s or Customer’s customers’ computers. During support hours, Provider will suspend access or change access to Customer account(s) promptly upon notification by Customer that Customer’s password has been lost, stolen or otherwise compromised. If the notice is provided at a time other than support hours, Provider will promptly suspend or change access to Customer’s account during support hours. Provider is not liable for any usage and or changes prior to Provider making the necessary account alteration. The Customer understands and agrees that no computer network can ever be considered completely safe from intrusion. We do not guarantee the privacy or security of the server or e-mails. In the event that Provider suspects that server security has been breached, Provider reserves the right to disable the server in order to facilitate investigation and recovery in coordination with the Customer.
Limitation of Liability: CUSTOMER ACKNOWLEDGES THAT THE INFRASTRUCTURE USED FOR THE HOSTING SERVICES IS PROVIDED TO PROVIDER BY THIRD PARTIES AND THAT THE SERVICES ARE DELIVERED VIA THE INTERNET. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, PROVIDER SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO CUSTOMER WHATSOEVER FOR ANY FAILURE BY IT TO PROVIDE THE SERVICES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT IF SUCH IS CAUSED BY A FAILURE OR DELAY IN THE INTERNET.