Software as a Service (SaaS) Agreement
This Software as a Service (SaaS) Agreement (this “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 the customer identified by the authorized agent of customer who originally signed up for services (“Customer”). By signing up for the services, Customer agrees to be bound by the terms of this Agreement.
Background
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:
Definitions. For purposes of this Agreement:
“Acceptance Record” means the electronic record generated by Provider’s CRM system at the time of Customer signup, capturing: (a) the full legal name and email address of the Authorized Business Representative who completed the checkout; (b) the date and timestamp of acceptance in UTC; (c) optionally the IP address from which the checkout was completed; (d) a confirmation that the acceptance checkbox was presented in an unchecked state and was affirmatively selected by the Authorized Business Representative; (e) a version identifier or date stamp of the Agreement text presented at the time of acceptance; and (f) the Authorized Business Representative’s affirmative representation that they had authority to bind Customer. The Acceptance Record shall be retained by Provider for the duration of the Term and for seven (7) years thereafter.
“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.
“Anomaly Apps Infrastructure Services” means the cloud server, compute, storage, bandwidth, networking, SSL, and related infrastructure resources provisioned to support the operation and delivery of Customer’s application on the Anomaly Apps Platform. Anomaly Apps Infrastructure Services are not included in the Anomaly Apps Platform subscription fee and are provided as a separately contracted and separately billed service. Infrastructure may be provisioned and billed directly by Provider, or Customer may be billed directly by the applicable third-party infrastructure provider (such as Amazon Web Services, Google Cloud Platform, or Microsoft Azure) depending on the arrangement set forth in the applicable SOW or Infrastructure Addendum. Customer acknowledges that access to and use of the Anomaly Apps Platform requires the concurrent provision of Anomaly Apps Infrastructure Services, and that Provider has no obligation to provision Anomaly Apps Infrastructure Services absent a separately executed SOW or Infrastructure Addendum and payment of the applicable fees therefor, whether to Provider or directly to the applicable infrastructure provider.
“Anomaly Apps Platform” means the Anomaly Apps mobile and web application development platform, including all source code, compiled code, APIs, development frameworks, build tools, application hosting services, and all customizations, features, integrations, and modifications developed by Provider, whether developed prior to or during the Term of this Agreement, that enables Customer to operate, deliver, and maintain a branded application through Provider’s hosted environment. For the avoidance of doubt, the Anomaly Apps Platform does not include infrastructure services (servers, compute resources, storage, bandwidth, and networking), which are provided separately as Anomaly Apps Infrastructure Services and billed independently under the applicable SOW or Infrastructure Addendum. The Anomaly Apps Platform is a SaaS Platform product and constitutes a part of the Services and Provider Materials. All Intellectual Property Rights in the Anomaly Apps Platform, including all customizations made at Customer’s request, are and shall remain exclusively with Provider.
“Authorized Business Representative” means the individual who completes the checkout process and accepts this Agreement on behalf of Customer, and who represents and warrants that they have full authority to bind Customer and its organization to the terms of this Agreement.
“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.
“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 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.
“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.
“End User Information” means any Personally Identifiable Information, usage data, or other information relating to Customer’s members or end users that is hosted on Provider’s servers in the course of providing the Hosted Services, including but not limited to names, email addresses, login credentials, payment information, content created by members, and behavioral data collected through cookies or tracking technology.
“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.
“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 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.
“Representatives” means, with respect to a party, that party’s employees, independent contractors, officers, directors, and legal advisors.
“SaaS Platform” means, collectively, the software applications, source code, hosted services, and all derivative works, modifications, updates, and improvements thereto, comprising the following SaaS Platform Products: (i) Anomaly Memberships (also referred to as Anomaly AMP); (ii) Anomaly Apps Platform; (iii) Anomaly Marketing; and (iv) Anomaly Learning (each a “SaaS Platform Product”).
“SaaS Platform Work” means any work product, code, integration, API connection, database modification, UI change, or other output that: (a) requires the SaaS Platform to function or deliver value; (b) is deployed on or through Provider’s infrastructure; or (c) modifies, extends, or interoperates with any Provider Materials.
“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.
“Specifications” means the specifications for the Services set forth in Schedule C and the Documentation.
“Territory” means worldwide; provided that Customer is solely responsible for ensuring that its and its Authorized Users’ access to and use of the Services complies with all Law applicable to Customer or its Authorized Users in their respective jurisdictions, and Provider makes no representation that the Services comply with the Law of any jurisdiction other than 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.
Services.
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 (iii) performance of Support Services and Service maintenance, upgrades 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 Provider Point of Contact. Provider shall maintain a designated support channel, reachable through the channels identified in the Support Schedule, to serve as Customer’s point of contact for day-to-day questions regarding the Services. Customer’s point of contact for such purposes is its Authorized Business Representative or such other individual as Customer designates by written notice to Provider.
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. Requests for custom features or scope changes shall follow the Change Order procedure set forth in Schedule D and are not effective until memorialized in a Change Order. This Section 2.4 does not apply to automatic usage-tier migration under Section 8.2 or to increases or decreases in the number of Authorized Users, in each case as provided on Schedule 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.
2.7 Anomaly Apps Infrastructure Services. For Customers subscribing to the Anomaly Apps Platform, the infrastructure resources required to operate and deliver Customer’s application (Anomaly Apps Infrastructure Services, as defined in Section 1) are not included in the Anomaly Apps Platform subscription fee and are provided as a separate service. Depending on the arrangement set forth in the applicable SOW or Infrastructure Addendum, Anomaly Apps Infrastructure Services may be: (a) provisioned and invoiced by Provider to Customer at the rates and on the billing cycle set forth in the applicable SOW or Infrastructure Addendum; or (b) provisioned such that Customer is billed directly by the applicable third-party infrastructure provider (such as Amazon Web Services, Google Cloud Platform, or Microsoft Azure), in which case Customer shall maintain a valid account and payment method with such provider and shall be solely responsible for all charges billed directly by such provider. In either arrangement, Customer’s access to and use of the Anomaly Apps Platform is conditioned on Customer maintaining current payment for both (a) the Anomaly Apps Platform subscription and (b) the applicable Anomaly Apps Infrastructure Services, whether billed by Provider or directly by the infrastructure provider. Provider may suspend Customer’s access to the Anomaly Apps Platform if infrastructure services are not maintained in good standing, regardless of which billing arrangement applies. For the avoidance of doubt, this Section 2.7 does not apply to Customers subscribing to Anomaly AMP (Anomaly Memberships), for which infrastructure is included in the subscription fee as described in Schedule C.
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. The license granted under this Section 3.1 is limited to use of the Services in connection with Customer’s business as described at the time of Customer’s signup or as subsequently agreed in writing by the parties. Customer shall not use the Services for any materially different business, line of business, or venture without Provider’s prior written consent.
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, and Customer shall comply, and shall cause its Authorized Users to comply, with the Acceptable Use Policy set forth in Schedule H, which is incorporated herein by reference:
(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
(i) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1.
4.1 Customer 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.
4.5 End User Data Breach Notification. Customer shall notify Provider promptly, and in no event more than forty-eight (48) hours after Customer becomes aware or reasonably suspects, of any actual or suspected breach, unauthorized access, disclosure, or loss of End User Information hosted on Provider’s servers (a “Data Security Incident”). Customer’s notification shall include: (a) a description of the nature of the Data Security Incident; (b) the categories and approximate number of end users affected; (c) the likely consequences of the Data Security Incident; and (d) the measures Customer has taken or proposes to take to address the Data Security Incident. Customer acknowledges that Provider’s ability to comply with applicable state and federal data breach notification laws depends in part on Customer’s timely notification under this Section 4.5, and Customer shall be solely responsible for any regulatory penalties or third-party claims arising from Customer’s failure to provide timely notification. The forty-eight (48) hour notification requirement in this Section 4.5 is the default that applies absent an executed Data Processing Addendum (“DPA”) between the parties. To the extent that an executed DPA between the parties contains notification terms that conflict with this Section 4.5, the DPA shall govern.
4.6 Cookie and Tracking Consent. Customer is solely responsible for ensuring that Customer’s website, membership platform, and other end-user-facing properties display all legally required notices and obtain all legally required consents for the use of cookies, pixels, and other tracking technologies deployed in connection with the Services, including where applicable under the GDPR, the EU ePrivacy Directive, the CCPA, and other applicable Law. Provider’s collection and Processing of End User Information via such technologies is undertaken solely on Customer’s behalf and in reliance on Customer’s representation that all necessary notices and consents have been obtained and are maintained. Customer shall indemnify, defend, and hold harmless Provider from and against any claim, loss, or liability arising from Customer’s failure to obtain or maintain such notices or consents.
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 one hundred percent (100%) 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 Enhanced Service Level Remedies. In the event of a Service Level Failure that results in cumulative unavailability exceeding twenty-four (24) hours in any calendar month, Customer may, elect to terminate this Agreement without penalty upon written notice to Provider, provided such notice is delivered within fifteen (15) days of the end of the applicable Service Period. Provider’s aggregate liability for Service Level Failures in any calendar month shall not exceed the total Fees paid for that Service Period. In the event Customer elects to terminate under this Section 5.3, such termination shall be Customer’s sole remedy for the applicable Service Level Failure, and no Service Credit shall be issued for the Service Period in which such termination occurs. Customer expressly acknowledges that: (i) the Service Credit and termination remedies set forth in this Section 5 were negotiated as part of the overall commercial terms of this Agreement; (ii) the Fees payable under this Agreement reflect the allocation of risk established by this Section 5; and (iii) Customer had the opportunity to review this Agreement, seek independent legal counsel, and negotiate its terms prior to acceptance. Customer’s acceptance of this Agreement constitutes its agreement that the remedies set forth in this Section 5 are reasonable and adequate.
5.4 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”). Scheduled downtime shall not be construed as downtime for the purpose of service level remedies.
5.5 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.
7.1 Provider Systems and Security Obligations. Provider will employ security measures in accordance with applicable industry practice.
7.2 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) the 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.
7.3 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.
7.4 End User Information. To the extent that Provider hosts End User Information on Provider’s servers under the Hosted Services, Provider shall not transfer, disclose, sell, use, or authorize any Person to undertake any of the foregoing, with respect to any End User Information, other than as strictly necessary for the purposes of: (a) operating, maintaining, and improving the Services; (b) providing the Hosted Services to Customer under this Agreement; or (c) complying with applicable law or a valid legal order. Provider shall not use End User Information for its own marketing purposes or disclose it to third parties for commercial purposes. This Section 7.4 shall survive expiration or termination of this Agreement.
8.1 Fees. Customer shall pay Provider the fees set forth in Schedule A (“Fees”) in accordance with this Section 8.
8.2 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. In addition to annual Fee increases, Customer acknowledges that the Services are provided within usage tiers defined in Schedule A. If Customer’s usage exceeds the thresholds set forth in Schedule A (including member count, data storage, or bandwidth), Customer’s account will automatically migrate to the applicable higher tier and Fees will adjust accordingly effective the first day of the following billing month. Provider shall notify Customer within five (5) business days of detecting that Customer has exceeded an applicable usage threshold.
8.3 Reimbursable Expenses. Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services (“Reimbursable Expenses”).
8.4 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.
8.5 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.
8.6 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.
8.7 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.
9.1 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.
9.2 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 9.3.
9.3 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.
9.4 Data Processing. To the extent that Provider Processes any personal data of Customer’s members or end users in the course of providing the Services, the parties agree to execute a DPA prior to any such Processing. The DPA shall define the roles of Controller and Processor, data retention and deletion obligations, breach notification timelines, subprocessor disclosures, and applicable regulatory compliance obligations including but not limited to the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR) where applicable. In the absence of an executed DPA, Provider shall Process personal data solely as necessary to perform the Services and in accordance with applicable law.
9.5 Platform Integration Rule. Notwithstanding any classification or characterization made in any Statement of Work, Change Order, or other document, any work product, code, integration, API connection, database modification, UI change, or other output that: (a) requires the SaaS Platform to function or deliver value; (b) is deployed on or through Provider’s infrastructure; or (c) modifies, extends, or interoperates with any Provider Materials, shall be conclusively deemed SaaS Platform Work owned exclusively by Provider, regardless of the degree of customization requested by Customer or the resources expended in its creation. Customer acknowledges that no expert testimony, course of dealing, or characterization by either party shall rebut this presumption. The parties expressly agree that the economic value of any such work product is inseparable from the SaaS Platform and that independent ownership of such work product by Customer would constitute an unreasonable restraint on Provider’s ability to operate its platform business.
9.6 Anomaly Apps Platform, Anomaly AMP Platform, or any other SaaS Platform, Service, or Product - IP Ownership and Access Model. The Anomaly Apps Platform (as defined in Section 1) is a SaaS Platform product and part of the Provider Materials governed by Section 9.1. For the avoidance of doubt and without limiting Section 9.1, the following terms expressly apply to Customer’s use of the Anomaly Apps Platform:
(a) Provider Owns All Platform Code and Customizations. All source code, compiled code, frameworks, APIs, build systems, infrastructure configurations, and all features, modules, integrations, and customizations developed by Provider in connection with the Anomaly Apps Platform, whether developed prior to or during the Term and whether or not developed at Customer’s request or specification, are and shall remain the exclusive property of Provider. Customer’s payment of Fees, including any fees for customization work, constitutes payment for access to and use of the Anomaly Apps Platform and does not and shall not constitute a purchase of, assignment of, or transfer of any Intellectual Property Rights in any component of the Anomaly Apps Platform, Anomaly AMP Platform, or any other SaaS Platform, Service, or Product.
(b) License Only; No Ownership Transfer. Customer’s subscription to the Anomaly Apps Platform, Anomaly AMP Platform, or any other SaaS Platform, Service, or Product grants Customer a non-exclusive, non-transferable, revocable right to access and use the Anomaly Apps Platform solely through Provider’s hosted infrastructure during the Term and solely for the purpose of operating Customer’s branded application for Customer’s end users. No other right, title, or interest in the Anomaly Apps Platform is granted or implied. The subscription fee is a license fee, not a purchase price.
(c) No Source Code Access. Customer shall not receive, access, download, copy, or possess the source code or object code of the Anomaly Apps Platform or any component thereof under any circumstances, including upon any expiration or termination of this Agreement. The sole method by which Customer may access the functionality of the Anomaly Apps Platform is through Provider’s hosted Services. Any attempt by Customer to obtain, extract, or reconstruct the source code of the Anomaly Apps Platform, including by reverse engineering, decompilation, disassembly, or use of any automated tools, constitutes a material breach of this Agreement and of Provider’s Intellectual Property Rights.
(d) Hosting Dependency. The Anomaly Apps Platform is designed and licensed solely for operation on Provider’s infrastructure. Customer acknowledges that the Anomaly Apps Platform cannot be transferred to, deployed on, or operated from any third-party server or Customer-controlled infrastructure. Subscription to the Anomaly Apps Platform requires continued hosting by Provider as a condition of access. On termination or expiration of this Agreement, Customer’s access to the Anomaly Apps Platform and all application functionality powered by it shall immediately cease.
(e) Customization Work Product. All features, screens, workflows, integrations, and other modifications developed by Provider at Customer’s direction shall be delivered to Customer exclusively through the hosted Anomaly Apps Platform and shall not be transferred, extracted, or delivered in source code form. Customer acknowledges that the value of all such customization work is inseparable from the Anomaly Apps Platform on which it operates and that delivery of source code is not contemplated or available under any subscription tier.
9.7 AI-Assisted Work; Provider IP Not Affected. Provider may use artificial intelligence tools, including generative AI and machine-learning models, in developing, maintaining, customizing, or improving the Services, Provider Materials, or the Anomaly Apps Platform. Customer acknowledges and agrees that:
(a) the use of AI tools by Provider or Provider Personnel in developing any component of the Services or Provider Materials does not affect, diminish, or qualify Provider’s ownership of the Intellectual Property Rights in the Services, Provider Materials, or the Anomaly Apps Platform under Sections 9.1 and 9.6, or Provider’s ability to restrict Customer’s access and use under Sections 3.1 and 3.3;
(b) Customer acknowledges that certain AI-generated elements of the Services or Provider Materials may not independently qualify for copyright registration under applicable law. Regardless of the copyright status of any individual component, Customer’s rights are defined exclusively by the license grant in Section 3.1 and the restrictions in Sections 3.3 and 9, and no AI-generated component of the Services or Provider Materials shall be deemed to fall outside those restrictions or to create any additional right, license, or ownership interest in Customer by reason of its AI-assisted origin. Provider’s trade secret, confidentiality, and contractual protections under this Agreement apply to all components of the Services and Provider Materials regardless of their copyright registrability;
(c) Customer shall not assert, and hereby waives any right to assert, that Provider’s ownership, license restrictions, or IP protections under this Agreement are defective, void, incomplete, or unenforceable on the basis that any portion of the Services or Provider Materials was created with the assistance of an AI tool;
(d) where Provider uses AI tools in sessions involving Customer Data or Customer’s Confidential Information (including business requirements, specifications, or data provided by Customer for the purpose of customizing the Services), Provider shall use only AI platforms with contractual prohibitions on training on user inputs, and Provider’s confidentiality obligations under Section 10 extend to Customer Data and Customer’s Confidential Information used in any such session; and
(e) this Section 9.7 is intended to be read together with Section 6.12 of the Master Services Agreement between the parties (if any), and the protections in both sections apply concurrently to the fullest extent applicable.
This Section 9.7 shall survive expiration or termination of this Agreement.
10.1 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 10.2, “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.
10.2 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.
10.3 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 10.4, 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 10.3;
(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 10.
10.4 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 10.3; 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 10.4, 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.
11.1 Term. The Term of this Agreement commences as of the Effective Date and continues for the Initial Term set forth on Schedule A, and thereafter automatically renews for successive Renewal Terms as set forth on Schedule A, in each case unless earlier terminated pursuant to this Agreement’s express provisions or the termination rights set forth on Schedule A (collectively, the “Term”).
11.2 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 7.3 (Access and Security) or Section 10 (Confidentiality). In addition, either party may terminate this Agreement for convenience upon sixty (60) days’ prior written notice to the other party, in which case Provider shall refund to Customer any Fees prepaid for the period after the effective date of such termination.
11.3 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 16.3 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 Section 11.3(c) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
(d) Provider may disable all Customer and Authorized User access to the Hosted Services and Provider Materials; and
(e) 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.
11.4 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 10, this Section 11.4, Section 12, Section 13, Section 14 and Section 16.
11.5 Offboarding and Data Export. Upon expiration or termination of this Agreement, Provider shall make Customer Data available for export in a standard machine-readable format for a period of thirty (30) days following the effective date of termination (the “Export Period”). Provider shall provide reasonable assistance to Customer in exporting Customer Data during the Export Period at Provider’s then-current hourly rates. Following the Export Period, Provider shall have no obligation to retain or provide access to Customer Data and may delete or destroy it in accordance with Provider’s data retention practices. For the avoidance of doubt, the SaaS Platform source code, Service Software, Anomaly Apps Platform code, and all Provider Materials shall not be included in any export and remain the exclusive property of Provider.
11.6 Export Access. Notwithstanding Sections 11.3(b) and 11.3(c), during the Export Period Provider shall maintain Customer’s read-only access to the Hosted Services solely for the purpose of retrieving and exporting Customer Data. Such read-only access shall be limited to data export functionality and shall not include access to any operational features of the Services. Provider may charge for export assistance at its then-current hourly rates but shall not charge for the read-only access itself. This Section 11.6 supersedes any conflicting provision in Sections 11.3(b) and 11.3(c) solely with respect to the Export Period.
12.1 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 acceptance of this Agreement by its Authorized Business Representative, as recorded in the Acceptance Record, has been duly authorized by all necessary corporate or organizational action of such party; and
(d) upon Customer’s acceptance in accordance with Section 16.3, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
12.2 Additional Customer Authority Representations. Customer additionally represents and warrants that: (a) the Authorized Business Representative who completed the checkout process and accepted this Agreement on Customer’s behalf had actual authority to bind Customer under Customer’s governing documents, bylaws, or applicable law; (b) to the extent Customer is an organization requiring board, trustee, elder, or member approval for contractual commitments of this nature, such approval was obtained prior to acceptance of this Agreement; (c) Customer has had a full and fair opportunity to review this Agreement and to seek independent legal counsel prior to acceptance; and (d) Customer’s acceptance of this Agreement was knowing, voluntary, and not the result of fraud, duress, or mistake. Customer acknowledges that Provider is entering this Agreement in reliance on these representations.
12.3 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.
12.4 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.
12.5 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1, SECTION 12.2, SECTION 12.3, SECTION 12.4 AND SECTION 12.6, 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.
12.6 No Earnings Representation; Independent Business Judgment.
(a) Provider makes no representation, warranty, or guarantee that Customer will achieve any particular level of revenue, membership, income, profit, or other financial results from Customer’s use of the Services. The Services are software tools that enable Customer to build and operate a membership business or application. Customer’s financial results will depend entirely on factors outside Provider’s control, including Customer’s business model, marketing efforts, pricing decisions, content quality, community development, market conditions, competitive landscape, Customer’s own skill and effort, and other factors unique to Customer’s circumstances.
(b) Any descriptions of the Services in this Agreement, including in Schedule A, Schedule C, or elsewhere, including phrases describing the Services as tools to support marketing, membership growth, or business operations, describe the features and capabilities of the Services only. They do not constitute representations that Customer will achieve any particular marketing, membership, revenue, or business outcome from use of those features.
(c) Customer represents and warrants that Customer is not relying on any representation by Provider or Provider’s representatives, whether oral or written, including any case study, testimonial, or example of another customer’s results, as a prediction, promise, or guarantee of Customer’s own financial results. Customer acknowledges that any examples of successful customer implementations described by Provider are not representative of typical results and reflect the unique circumstances of those customers.
(d) Customer’s decision to purchase the Services is based on Customer’s own independent business judgment and evaluation of the Services’ features, and not on any projection of future income, revenue, or financial performance communicated by Provider or any of Provider’s representatives.
12.7 AI-Generated Content Disclosure. Where the Services include features that use artificial intelligence or machine learning to generate, modify, or personalize content (including but not limited to digital doubles, AI-generated avatars, synthetic voice, or AI-assisted design), Provider shall disclose the use of such AI-generated content to Customer prior to deployment. Customer is solely responsible for making any disclosures required by applicable law to Customer’s own members, end users, or customers regarding the use of AI-generated content within Customer’s membership, application, or marketing materials. Provider shall, upon Customer’s reasonable request, provide sufficient information about the AI tools and methods used to enable Customer to make accurate disclosures.
13.1 Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer (but in no case Customer’s members, end users, or 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 13.3(a), Section 13.3(b), Section 13.3(c) or Section 13.3(d), whether or not the same results in any Action against or Losses by any Provider Indemnitee.
13.2 IP Infringement Remedy Ladder. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe any third-party Intellectual Property Right, Provider shall, at its option and sole cost and expense: (a) procure for Customer the right 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 make them non-infringing, while providing materially equivalent features and functionality; or (c) if neither (a) nor (b) is achievable notwithstanding Provider’s commercially reasonable efforts, direct Customer to cease use of the infringing components and: (i) refund to Customer all Fees paid in respect of the infringing components and any aspects of the Services that Customer cannot reasonably use as intended; and (ii) at Provider’s sole cost and expense, secure the right for Customer to continue using the infringing components for a transition period of up to twelve (12) months to allow Customer to replace the affected features without disruption to Customer’s membership business. THE REMEDIES SET FORTH IN THIS SECTION 13.2 CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT ARISING FROM THE SERVICES OR PROVIDER MATERIALS.
13.3 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.
13.4 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 13.1 or Section 13.3, 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 13.4 will not relieve the Indemnitor of its obligations under this Section 13 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.
13.5 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 11.4, Customer will be entitled to a refund of any Fees for Services not yet performed by Provider as of the date of termination. For the avoidance of doubt, this Section 13.5 describes Provider’s operational discretion and does not create any additional remedy for Customer beyond the remedies set forth in Section 13.2.
14.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY OR EITHER PARTY’S 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.
14.2 Business Risk Allocation. THE RISK OF LOSS IN PROVIDER’S BUSINESS SHALL BE BORNE ENTIRELY BY PROVIDER. THE RISK OF LOSS IN CUSTOMER’S BUSINESS, INCLUDING CUSTOMER’S MEMBERSHIP BUSINESS AND ANY APP BUSINESS OPERATED ON OR THROUGH THE SERVICES, SHALL BE BORNE ENTIRELY BY CUSTOMER. THIS SECTION 14.2 APPLIES REGARDLESS OF THE CAUSE OF SUCH LOSS AND WHETHER OR NOT SUCH LOSS IS RELATED TO THE SERVICES, AND IS NOT SUBJECT TO THE EXCEPTIONS SET FORTH IN SECTION 14.4, EXCEPT THAT THIS SECTION 14.2 DOES NOT LIMIT EITHER PARTY’S LIABILITY FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
14.3 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.4, 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 PRECEDING 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.
14.4 Acknowledgment of Reasonableness; Named Exceptions Only. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (a) THE LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS 14.1 AND 14.3 ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND WERE SPECIFICALLY NEGOTIATED AS PART OF THE OVERALL COMMERCIAL TERMS OF THIS AGREEMENT; (b) THE FEES PAYABLE UNDER THIS AGREEMENT ARE SET AT A LEVEL THAT REFLECTS THE ALLOCATION OF RISK ESTABLISHED BY THESE LIMITATIONS; (c) PROVIDER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT OR PROVIDED THE SERVICES AT THE FEES SPECIFIED HEREIN ABSENT THESE LIMITATIONS; (d) CUSTOMER HAD A FULL AND FAIR OPPORTUNITY TO REVIEW THESE LIMITATIONS AND SEEK INDEPENDENT LEGAL COUNSEL PRIOR TO ACCEPTANCE; AND (e) THESE LIMITATIONS ARE REASONABLE AND NOT UNCONSCIONABLE GIVEN THE COMMERCIAL CONTEXT OF THIS AGREEMENT. THE EXCLUSIONS AND LIMITATIONS IN SECTIONS 14.1 AND 14.3 DO NOT APPLY TO: (i) EITHER PARTY’S OBLIGATIONS UNDER SECTION 13 (INDEMNIFICATION); (ii) A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 10 (CONFIDENTIALITY); (iii) A VIOLATION OF THE SCOPE OF ANY LICENSE GRANTED UNDER THIS AGREEMENT; OR (iv) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NO OTHER CIRCUMSTANCES SHALL PIERCE THE LIABILITY CAP SET FORTH IN SECTION 14.3.
14.5 Third-Party Beneficiary Exclusion. PROVIDER SHALL NOT BE LIABLE TO CUSTOMER FOR ANY CLAIM BY ANY MEMBER, END USER, OR CUSTOMER OF CUSTOMER RELATED TO THE PERFORMANCE OF SERVICES BY PROVIDER. ANY WARRANTIES PROVIDED IN THIS AGREEMENT EXTEND TO CUSTOMER ONLY. CUSTOMER’S MEMBERS, END USERS, AND CUSTOMERS SHALL NOT BE DEEMED TO BE THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT OR ANY PART THEREOF, AND SHALL HAVE NO DIRECT RIGHT OF ACTION AGAINST PROVIDER UNDER OR IN CONNECTION WITH THIS AGREEMENT.
15.1 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.
15.2 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.
16.1 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.
16.2 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.
16.3 Acceptance; Amendments; Public Announcements. Customer’s acceptance of this Agreement at signup is effected by the Authorized Business Representative completing the checkout process and affirmatively checking an unchecked checkbox presented immediately adjacent to a clearly visible hyperlink to the then-current version of this Agreement. The checkbox shall not be pre-checked. By checking the box, the individual represents and warrants that they have full authority to bind Customer and its organization to the terms of this Agreement. Provider shall log, in its CRM system, the Customer account identity and the date and time of acceptance. Provider reserves the right to modify this Agreement at any time. Provider will provide Customer with at least thirty (30) days’ prior written notice of any material changes via email to the address on file for Customer’s account. Customer’s continued use of the Services after the notice period constitutes acceptance of the modified Agreement. If Customer does not agree to the modified Agreement, Customer may terminate this Agreement by providing written notice to Provider before the effective date of the modification. Provider’s CRM system shall generate an Acceptance Record (as defined in Section 1) at the time of each Customer’s acceptance. Provider shall maintain the technical infrastructure and checkout implementation necessary to generate a complete and accurate Acceptance Record for every Customer signup. In the event of any dispute regarding the formation, terms, or enforceability of this Agreement, the Acceptance Record shall constitute presumptive evidence of the matters recorded therein. 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. Except for Provider's rights under this Section 16.3 to identify Customer as a customer and to use Customer's name, testimonials, and the Services as described above, neither party shall issue or release any press release or other public statement specifically naming the other party or characterizing the nature of the parties' relationship without the other party's prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed; provided that no consent is required for disclosures required by applicable Law, by any listing or exchange rule applicable to a party, or in connection with a bona fide financing, acquisition, or diligence process, so long as any information disclosed is subject to confidentiality protections at least as protective as those in Section 10.
16.4 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 16.4):
Notices sent in accordance with this Section 16.4 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.
16.5 Additional Terms and Conditions. The Hosting Services are further governed by Provider’s Hosting Terms of Service (Schedule G), 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
16.6 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.
16.7 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
16.8 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.
16.9 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 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. Without limiting the foregoing, any transfer, pledge, or encumbrance of membership interests, equity interests, or voting control in Customer (or in any entity that directly or indirectly controls Customer) that results in a change of effective control of Customer shall be deemed a transfer for purposes of this Section, regardless of whether such transfer involves all or substantially all of such interests. 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 16.9 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Provider agrees it will not unreasonably withhold consent to a transfer arising from a bona fide sale of Customer’s membership or other business, provided that: (a) Customer has no outstanding unpaid invoices or balances due to Provider at the time of the requested transfer; (b) the proposed assignee executes a new Service Agreement with Provider at Provider’s then-current rates and terms prior to the effective date of such transfer; (c) Customer provides Provider with no less than thirty (30) days’ prior written notice of the proposed transfer and such information about the proposed assignee as Provider reasonably requests; (d) the new agreement between Provider and the assignee shall commence a new initial term; and (e) Provider may withhold consent if the proposed assignee is a direct competitor of Provider. Provider’s consent to one transfer shall not obligate Provider to consent to any future transfer. “Direct competitor” for purposes of this Section 16.9 means an entity whose business involves the provision of software-as-a-service membership platform products or services or app development services or software that are substantially similar to and directly competitive with Provider’s SaaS Platforms. A proposed assignee that operates a membership business as a customer of a platform (including Provider’s platform) shall not be deemed a direct competitor solely by virtue of that customer relationship. Where Provider withholds consent on competitor grounds, Provider shall provide Customer with written notice specifying the basis for its determination within fifteen (15) days of Customer’s transfer request. As an alternative to withholding consent on any ground other than active fraud or material breach, Provider may condition consent on payment of a transfer fee not to exceed two (2) months of the then-current monthly subscription Fees, which shall be Provider’s sole basis for withholding consent in cases where the proposed assignee is creditworthy and not a direct competitor.
16.10 Successor Obligations on Approved Transfer. Where Provider consents to a transfer under Section 16.9, the following conditions apply in addition to the consent conditions stated above: (a) the approved successor or assignee acquires only the rights expressly granted to Customer in this Agreement and no implied rights; (b) no transfer conveys, and the successor shall not acquire, any right, title, or interest in the SaaS Platform, Provider Materials, source code, object code, APIs, build systems, or other Provider intellectual property — the successor’s rights are limited to access and use of the hosted Services during the new term; (c) all IP ownership, source-code restriction, reverse-engineering prohibition, and hosting-dependency provisions of this Agreement (including without limitation Sections 3.3(c), 9.1, 9.5, 9.6, and Schedule G) survive any approved transfer and bind the successor with the same force and effect as they bound Customer; (d) where Customer’s infrastructure is billed separately under Section 2.7, the successor must execute a new infrastructure agreement within thirty (30) days of the transfer or Provider may suspend the applicable Services; and (e) Provider’s consent to the transfer does not constitute a waiver of Provider’s right to enforce any provision of this Agreement against the successor.
16.11 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.
16.12 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. For purposes of Section 16.3, a “material change” means any modification that: (a) increases Fees beyond the amounts permitted under Section 8.2; (b) reduces the scope of Services below the level described in Schedule A at the time of Customer’s signup; (c) materially diminishes Customer’s IP rights or data export rights; or (d) materially increases Customer’s obligations or liabilities. Non-material changes (including clarifications, formatting, contact information updates, and changes required by applicable law) may be implemented immediately upon notice without the thirty (30) day waiting period. For the avoidance of doubt, routine product updates, feature additions, feature modifications, and replacement of individual features with functionally equivalent alternatives do not constitute a reduction in scope under clause (b) above. Provider shall not use the amendment right in Section 16.3 to retroactively alter the rights of Customer with respect to work product or data generated prior to the effective date of any amendment.
16.13 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.
16.14 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; provided that where Customer is not domiciled in the United States, Provider may, in its sole discretion, elect to bring or defend any such suit, action or proceeding in a court of competent jurisdiction in Customer’s domicile in lieu of the Tennessee courts described above. 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.
16.15 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.
16.16 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 10 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.
16.17 Electronic Communications. This Agreement does not require a handwritten signature. The Acceptance Record described in Section 16.3 constitutes conclusive evidence of Customer’s acceptance of this Agreement, and any communications between the parties conducted by e-mail or through Provider’s online systems have the same legal effect as a signed writing.
16.18 Agreement Interpretation. The parties acknowledge that each has had a full and fair opportunity to review and negotiate this Agreement and that the Customer has had a full and fair opportunity to review this Agreement prior to acceptance, and that for purposes of contract interpretation, ambiguities shall not be construed against Provider solely by virtue of Provider having prepared the initial text of this Agreement. Accordingly, no presumption or burden of proof shall arise favoring or disfavoring either party by virtue of the authorship of any provision of this Agreement, and the rule of construction that ambiguities are construed against the drafter shall not apply. The parties further acknowledge that Customer accepted this Agreement voluntarily and with the opportunity to seek independent legal counsel.
16.19 Relationship to Master Services Agreement. Where Customer has also executed a Master Services Agreement (“MSA”) with Provider, the relationship between this Agreement and the MSA shall be governed by Section 15.1 of the MSA. In the event of any conflict between this Agreement and the MSA: (a) this Agreement shall control all matters relating to the SaaS Platforms, including IP ownership, access rights, license scope, data, and hosting; (b) the MSA shall control all matters relating to Custom Deliverable Work (as defined in the MSA); and (c) for all other conflicts, this Agreement shall prevail. No provision of the MSA shall be construed to expand or modify any right granted by this Agreement with respect to the SaaS Platforms.
This Agreement is formed and becomes binding upon Customer’s acceptance in accordance with Section 16.3, as of the Effective Date.
[Schedules Follow]
SCHEDULE A
SERVICES AND FEES
A.1 Services. The Services provided under this Agreement consist of the SaaS Platform Product(s) selected by Customer at signup, as further described in this Schedule A, together with any Authorized Users and usage allowances described below. Customer may add optional customization, design, or development services as described in Section A.6.
A.2 Anomaly AMP (Anomaly Memberships). Anomaly AMP is a hosted membership platform that enables Customer to launch and manage a website, blog, and online learning experience. The Anomaly AMP subscription includes deployment of an Anomaly AMP instance, together with the infrastructure, support, and standard customizations described in Schedule C. Anomaly AMP does not include e-mail service; Customer is responsible for obtaining e-mail service from a separate provider of Customer’s choice. The Anomaly AMP subscription includes a deployment of Anomaly Marketing and Anomaly Learning for one domain name provided by Customer. Additional domain names are available upon request and may incur additional Fees.
A.3 Anomaly Apps Platform. Where selected by Customer at signup, the Services also include access to and use of the Anomaly Apps Platform (as defined in Section 1). The Anomaly Apps Platform enables Customer to operate and deliver a branded mobile or web application to Customer’s end users through Provider’s hosted application environment, offered exclusively as a hosted service. Customer receives a non-exclusive, non-transferable right to access and use the Anomaly Apps Platform during the Term solely through Provider’s infrastructure. No source code, object code, or other form of the Anomaly Apps Platform will be transferred to or made accessible to Customer at any time, including on termination. All customizations, features, screens, integrations, and modifications developed by Provider at Customer’s direction for use on the Anomaly Apps Platform constitute part of the Anomaly Apps Platform and remain the exclusive Intellectual Property of Provider as set forth in Section 9.6. The Anomaly Apps Platform subscription Fee covers access to the platform software only; infrastructure resources (servers, compute, storage, bandwidth, and networking) required to operate Customer’s application are provided as Anomaly Apps Infrastructure Services and are billed separately pursuant to Section 2.7 and the applicable SOW or Infrastructure Addendum. This is a different model from Anomaly AMP, for which infrastructure is included in the subscription price.
A.4 Usage Tiers.
The following usage tiers apply to Anomaly AMP. Customer’s account will be assessed monthly and automatically migrated to the applicable tier per Section 8.2:
Tier 1 (Starter) — up to 500 active members, up to 10 GB storage, up to 100 GB bandwidth per month. Base monthly subscription rate applies.
Tier 2 (Growth) — 501 to 2,500 active members, up to 50 GB storage, up to 500 GB bandwidth per month. Growth rate as quoted at time of signup or upgrade.
Tier 3 (Scale) — 2,501 to 10,000 active members, up to 200 GB storage, up to 2 TB bandwidth per month. Scale rate as quoted at time of signup or upgrade.
Tier 4 (Enterprise) — over 10,000 active members or usage exceeding Tier 3 thresholds. Custom pricing — contact Provider for a quote.
“Active member” means a unique member account that has created an account in the system.
A.5 Fees. Anomaly AMP is billed as a monthly subscription at the current rate for Customer’s Tier, plus any applicable taxes. Customer’s installation and Services may be provided at a discounted or custom rate that may not be available to other customers. The first month’s subscription Fee is due upfront to deploy the infrastructure necessary to provision Customer’s instance. Anomaly Apps Platform Fees are billed as described in Section A.3 and Section 2.7.
A.6 Customization and Design Services. Customer may engage Provider for optional customization, design, and development services beyond the core subscription described in this Schedule A. Where such services are provided: (a) a Statement of Work (SOW) describing the scope, timeline, and estimated costs will be provided separately and attached as Schedule F; (b) any estimated completion date set forth in a SOW is an estimate only, and Provider reserves the right to adjust it based on Change Orders processed in accordance with Schedule D; (c) such services are billed at Provider’s then-current hourly rate for the personnel assigned to the engagement, and Provider will not increase these hourly rates during the first three years of this Agreement, after which Provider may increase them on no more than an annual basis, at a rate not to exceed the greater of three percent (3%) or the increase in the Consumer Price Index for the prior twelve months, upon thirty (30) days’ notice to Customer; and (d) additional services requested outside the scope of an executed SOW are available upon request at Provider’s then-current hourly rate and are initiated through the Change Order process set forth in Schedule D. This Section A.6 governs optional customization and design services only and does not modify the Fees payable for the core subscription Services, which are governed exclusively by Section 8 of this Agreement.
A.7 Term.
(a) Initial Term; Renewal. The Initial Term of this Agreement is one (1) month from the Effective Date, and automatically renews for successive one (1) month Renewal Terms unless earlier terminated as provided in this Section A.7 or Section 11.
(b) Termination for Convenience. After the first month of the Initial Term, Customer may terminate this Agreement for convenience upon written notice to Provider. If Customer provides at least thirty (30) days’ notice, Customer shall pay Provider an amount equal to the discount, if any, given to Customer for the Initial Term. If Customer provides less than thirty (30) days’ notice, Customer shall pay Provider the amount described in the preceding sentence, plus fifty percent (50%) of the Fees that would have been payable during the remainder of the Initial Term had the Agreement not been terminated under this Section A.7(b).
(c) Non-Renewal. Either party may decline to renew this Agreement at the end of the Initial Term or any Renewal Term by providing at least sixty (60) days’ written notice prior to the end of the then-current term.
SCHEDULE B
AUTHORIZED USERS
The Anomaly AMP platform provides a generous access level for unlimited users. Additional users may incur an additional cost as specified in the usage tiers section of this agreement. 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
Infrastructure as a Service
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:
Cloud servers
Secure Web Hosting
SSL Certificate for Secure HTTPS connections, included in Infrastructure as a Service
Up to 100 gig of bandwidth for free
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 99.9% target uptime (subject to the Availability Requirement, Exceptions, and remedies set forth in Section 5)
Technical support
Remove Internal IT burdens for fully outsourced and hosted/managed IT infrastructure
Full managed infrastructure and hosting for all Anomaly AMP tools
Infrastructure Scope — Anomaly AMP (Anomaly Memberships) Only. The bundled Infrastructure as a Service described in this section applies exclusively to Customers subscribing to Anomaly AMP (also referred to as Anomaly Memberships). For Customers subscribing to the Anomaly Apps Platform, infrastructure is not included in the platform subscription fee and is provided and billed separately as Anomaly Apps Infrastructure Services pursuant to Section 2.7 and the applicable SOW or Infrastructure Addendum. No provision of this Infrastructure as a Service section shall be construed to include infrastructure within the Anomaly Apps Platform subscription.
Unified Marketing Platform
The Anomaly marketing platform is the core glue that holds Customer’s member-centric user experience together. The marketing platform provides mobile-ready content creation and editing capabilities so that Customer’s non-technical team members can create and publish content within seconds. The platform is designed to make the creation and management of Customer’s web experience easy. In addition to primary site content, a blog management tool facilitates community-related content from unlimited authors to help express the voice of Customer’s team. The following are some of the features that make the 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 Customer’s 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
Online Learning, Continuing Education
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
Design as a Service
One of the benefits of engaging Provider is access to a team of experienced designers. Where Customer needs to augment its team for ad campaigns, visual design, branding, or other user experience design work, Provider’s team is available to facilitate creative direction with a proven track record for execution. The following are optional customization services available during or after installation if needed.
Visual design
Branding Design Services
Marketing
Advertising
Video Production and Editing
Digital Double Avatar Creation
Virtual Production
Social Media Design and Automation
User Experience Design (UX Design)
Interactive Design
Programming Services
Customization Services
Workforce augmentation services, allowing Customer to scale its team to speed production without incurring ongoing fixed human resources costs
Anomaly Apps Platform
The Anomaly Apps Platform is a mobile and web application development platform that enables Customer to build, customize, and deliver a branded app experience to Customer’s end users through Provider’s hosted application environment with programming customizations conducted by Anomaly Studios team. The platform software is offered exclusively as a SaaS service. The following components are included in the Anomaly Apps Platform subscription:
Application Platform Software: The core Anomaly Apps application framework, runtime environment, APIs, and build pipeline that powers Customer’s branded application. All platform software runs exclusively on Provider’s servers and is not accessible to Customer in source code or object code form.
Native Mobile and Web Delivery: Deployment and delivery of Customer’s branded application for iOS, Android, and/or web platforms through Provider’s hosted build and delivery pipeline.
Customization Services: Feature development, UI design implementation, integration work, API development, and all other modifications to the Anomaly Apps Platform developed at Customer’s direction. All such customization work is delivered through the hosted platform and remains Provider’s exclusive Intellectual Property as provided in Section 9.6.
App Management Tools: Administrative dashboard, analytics, content management, user management, and configuration tools for Customer’s authorized administrators.
Technical Support: App-level support services in accordance with Schedule E.
Infrastructure — Separately Billed: Infrastructure resources required to operate and deliver Customer’s application — including cloud servers, compute resources, storage, bandwidth, and networking — are NOT included in the Anomaly Apps Platform subscription fee. Infrastructure is provided as Anomaly Apps Infrastructure Services pursuant to Section 2.7 and the applicable SOW or Infrastructure Addendum. Depending on the arrangement agreed between the parties, Customer may be invoiced for infrastructure by Provider, or Customer may be billed directly by the applicable third-party infrastructure provider (such as Amazon Web Services, Google Cloud Platform, or Microsoft Azure). The applicable billing arrangement will be specified in the SOW or Infrastructure Addendum. This is expressly different from Anomaly AMP (Anomaly Memberships), for which infrastructure is bundled and included in the subscription price as described above in this Schedule C.
Source Code Access — Express Acknowledgment: Customer expressly acknowledges that access to the source code or object code of the Anomaly Apps Platform or any customizations thereof is not included in, available through, or contemplated by any tier of subscription to the Anomaly Apps Platform. The hosted application experience is the entirety of what Customer receives. Customer’s subscription fee does not and shall not be construed to purchase, license for transfer, or create any right to receive any form of the underlying source code.
SCHEDULE D
CHANGE ORDERS
SCHEDULE E
SERVICE SUPPORT
Support Services under this Agreement are provided to Customer only and do not extend to Customer’s members, end users, or customers of Customer.
Schedule F
Statement of Work (SOW) for Customizations and Project Timeline
A Statement of Work (SOW) is sent separately if there are customization and custom work for Customer.
Schedule G
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.
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:
Transfer of Website: Unless otherwise expressly agreed to by Provider, if Customer’s website uses proprietary Provider web development tools, or if all or a portion of Customer’s website uses Provider’s licensed content management system, those portions of the website cannot be transferred to another web server, due to the protection of the intellectual property and copyright in Provider’s website development tools. Customer understands that Provider has created specialized tools to facilitate the creation of its 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 a Provider affiliate’s server. Customer and its Authorized Users agree that they will not download or re-deploy Provider’s proprietary source code via FTP or other methods. Doing so, or permitting a third party to do so, is a violation of this Terms of Service and a violation of the copyright in Provider’s 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 Provider’s then-current hourly development rate.
Transfer of Application — Anomaly Apps Platform: The Anomaly Apps Platform is a proprietary Provider platform offered exclusively as a hosted service. Customer expressly acknowledges that: (a) the source code, build systems, APIs, frameworks, and all other technical components of the Anomaly Apps Platform and any customizations thereof are and shall remain exclusively on Provider’s servers and infrastructure at all times; (b) Customer shall not receive, download, copy, or possess any form of the source code or object code of the Anomaly Apps Platform or any customized feature or component thereof, whether through FTP, API access, export tools, or any other method; (c) the Anomaly Apps Platform cannot be transferred to, migrated to, or hosted on any server or infrastructure other than Provider’s; (d) Customer’s app content (including app-specific data, media, user data, and configuration) may be exported during the Export Period pursuant to Section 11.5, but the application code powering the delivery of that content is not Customer’s property and is not exportable under any circumstance; and (e) any attempt by Customer or any third party acting on Customer’s behalf to extract, copy, or re-deploy the application code of the Anomaly Apps Platform is a material breach of this Agreement and a violation of Provider’s Intellectual Property Rights, for which Provider shall be entitled to immediate injunctive relief in addition to all other remedies available.
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.
SCHEDULE H
Acceptable Use Policy
This Acceptable Use Policy (“AUP”) governs all use of the Services by Customer and its Authorized Users. Violation of this AUP constitutes a material breach of the Agreement and grounds for immediate suspension or termination under Section 2.6.