This Agreement sets forth the terms and conditions under which ancora Software Inc (ANCORA), a California corporation will provide its software applications, materials, and services described on the applicable order (the “Services”). “You” or “Your” as used in this Agreement refers to you, or your company, firm or entity, your officers, directors, shareholders, and employees. Capitalized terms used herein and not defined have the meaning assigned in the applicable Order (as defined below).
- GRANT OF LICENSE
ANCORA hereby grants You a limited, non-exclusive, non-transferable, right to access and use the Services, solely for Your own internal business purposes and subject to these Terms and the terms set forth on the applicable order (each, an “Order”). All rights not expressly granted to You are reserved by ANCORA and its licensors. The foregoing license shall immediately terminate upon termination of this Agreement for any reason.
Title and copyrights in and to the Services, including any images, “applets,” photographs, animations, video, audio, music, and text incorporated into or made a part of the Services, and all accompanying electronic materials, together with any copies You are permitted to make under these Terms, are owned by ANCORA or its licensors and are protected by the United States copyright laws and international treaty provisions. You are permitted to make copies of the training materials accompanying the Services solely for use as reference guides for authorized users using the Services pursuant to these Terms. All such copies shall contain the copyright and other proprietary notices of ANCORA. You are prohibited from any other copying of the printed materials accompanying the Services without the express written permission of ANCORA. Under no circumstances is title or ownership of ANCORA Services, including software, transferred to You.
The Services may interoperate with various third-party platforms (“Third-Party Platforms”). You acknowledge that such integration features may be unavailable or may not work properly if the Third-Party Platform (or its API) is unavailable or if the service provider modifies its API or services in a way that impacts the ANCORA’s integration feature. Continued interoperation of the Services with any Third-Party Platform is dependent upon the availability of each such platform and ANCORA may cease to provide such functionality if access to any Third-Party Platform is not available to ANCORA on commercially reasonable terms.
- YOUR USE OF THE SERVICES
You agree to use the Services solely in conjunction with the operation of your business, and such operation may include use by related third-party partners, vendors, and clients with whom you collaborate in Your normal course of business and to whom you may grant access to Your Account. You are responsible for all use of the Services by your authorized users. You control access to and the management of the Your Data through Your account. If the Services were obtained through a Reseller, then you are responsible for determining whether the Reseller may serve as an Administrator or user of your account(s). As between you and ANCORA, you are solely responsible for access by Reseller to your account(s).
You are entirely responsible for maintaining the confidentiality of your password and account. ANCORA will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by ANCORA or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
You acknowledge and understand that You are solely responsible for the use of and the results obtained from the Services. You will comply with any and all applicable laws regarding Your use of the Services including applicable international export rules and regulations, laws and treaties governing Your use of the Services, laws related to data privacy, international communications, and the transmission of technical or personal data.
You will not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any unrelated third party or competitor of ANCORA the Services in any way; (b) modify or make derivative works based upon the Services; (c) “frame” or “mirror” the Services on any other server or wireless or Internet-based device; (d) reverse engineer or access the Services in order to (i) build or offer a competitive product or service, (ii) build or offer a product or service using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services; (e) use the Services (i) for any illegal purpose, (ii) for unauthorized access or distribution of any software, data, or material protected by copyright, patent, or trade secret, or (iii) to post or transmit any hateful, vulgar, threatening, libelous, abusive, harassing, defamatory, racially, ethnically, or otherwise unlawful or tortious material, including material harmful to children.
You shall not: (a) intentionally interfere with or disrupt the integrity or performance of the Services; or (b) attempt to gain unauthorized access to the Services, (c) intentionally send or store software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents or programs intended to interfere with the Services or other users of the Services. (d) Protect your endpoint devices with reasonable security measures including performing antivirus scans.
ANCORA represents and warrants that:
- it has the right, power, and authority to enter into these Terms, grant the rights and licenses granted herein, and fully perform its obligations hereunder;
- the Services will perform materially in accordance with the applicable Documentation; for purposes of these Terms, “Documentation” means the operator and user information, training materials, guides, listings, specifications, and other materials, including online information and materials, relating to the use of the Services made available to You as part of the Services;
- the Services and Your use thereof in accordance with these Terms do not infringe any intellectual property rights of any third party anywhere in the world and no third party, other than ANCORA’s licensors, has any proprietary interest in or to the Services;
- the Services do not contain a malicious or disabling code that is intended to damage, destroy or destructively alter software, hardware, systems, or data; and
- the Services have been created using, and will maintain during the applicable term, at least an industry-recognized level of security given the state of technology available for such Services; ANCORA will not materially decrease the overall security of the Services, and ANCORA will use commercially reasonable practices designed to protect Your Content (as defined in Section 7) against unauthorized access and disclosure.
If the warranty set forth in subsection (b) is breached, then: (i) You must promptly notify ANCORA of the breach and provide any associated details reasonably requested by ANCORA in its attempt to remedy the defect. ANCORA will diligently and in good faith attempt to correct the reported defect within a commercially reasonable period of time.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- CLOUD PERFORMANCE
This section applies only to instances of ANCORA software hosted by ANCORA. ANCORA will use commercially reasonable efforts to ensure that the Services will be available 99.5% of the time each month other than during scheduled maintenance. You understand that normal maintenance and backup procedures will cause temporary downtime during which the Services cannot be used. It is possible that there will be interruptions of Services during non-scheduled maintenance. ANCORA will make commercially reasonable efforts to address errors and omissions in the Services and to ensure the Service is performing in a manner materially in compliance with the Documentation.
Your access to the Services is through the Internet, and you understand that your ability to use the Services is dependent on the global telecommunications infrastructure involving the reliability and performance. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. ANCORA is not responsible for any delays, delivery failures, or other damage resulting from such problems.
- SERVICES UPGRADES, ENHANCEMENTS, AND BRANDING
ANCORA makes regular changes and improvements to the Services from time to time but in no event will such changes materially reduce the functionality provided by the Services as of the date of the applicable order. ANCORA will communicate with You about planned changes as may be necessary to ensure Your efficient use of the Services. ANCORA will provide its standard support at no additional charge.
ANCORA may use any feedback or suggestion it receives from You with respect to the Services (“Feedback”) for the purpose of optimizing, improving, enhancing, and/or creating derivative products. ANCORA shall have no obligation to compensate You in connection with the use of such Feedback nor shall ANCORA identify You as the source of any such Feedback. All Feedback shall be owned by ANCORA and You shall and hereby do, assign all of Your right, title, and interest in and to such Feedback to ANCORA.
- YOUR INFORMATION
ANCORA does not own any data, information, or material that is submitted to the Service by You (“Your Content”). You retain all right, title, and interest (including, where appropriate, copyright and other proprietary or intellectual property rights) in Your Content, and ANCORA explicitly disclaims any ownership of, or right, title, and interest in such content. Your Content is considered Your Confidential information. You are responsible for exporting Your Content from the Services prior to termination of the Agreement.
You are responsible for the accuracy and completeness of all data and information provided to, and/or processed by the CLOUD SERVICES, and ANCORA makes no representation or warranty of any kind, either express or implied, regarding the quality, accuracy or validity of the data and information available from the CLOUD SERVICES platform.
ANCORA will only use Your Content solely for purposes of providing the Services, providing support for the Services, and confirming Your compliance with these Terms. In addition, You acknowledge that ANCORA may collect and analyze Your Content and other information about Your usage of the Services to improve and enhance the Services, provide support, and for other development purposes including industry-wide benchmarking; provided, however, Your Content used for benchmarking will be aggregated and anonymized and ANCORA will not disclose any personally identifiable information provided by You.
ANCORA will not be liable to you or to any third party for any liabilities, damages, losses, penalties, costs or expenses suffered by you or any third party arising from any inaccuracy, incompleteness or invalidity of any such data and information or, absent ANCORA gross negligence or intentional act or omission, any modification, corruption, loss or breach of security with respect to any such data and information.
- FEES; PAYMENT TERMS.
The fees payable for the Services (the “Fees”) shall be stated and paid in the currency specified in the applicable Order and are non-refundable. Unless otherwise specified in the applicable Order, You shall pay the Fees as detailed in the Order, without setoff or deductions and otherwise in accordance with the terms of the Order.
If any invoiced amount is not received by ANCORA by the due date then those amounts shall accrue late interest at a rate of one and a half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower, commencing on the date that payment was due.
All Fees are exclusive of federal, state, local and foreign taxes, duties, levies, withholdings and similar assessments (“Taxes”) and You are responsible for the payment of all Taxes, excluding Taxes on ANCORA’s net income.
ANCORA reserves the right to modify the Fees for the Services, effective upon commencement of the next Renewal Term, by notifying You of such change in writing at least sixty (60) days before the end of the then-current Term.
- TERM AND TERMINATION
The term of this Agreement shall be for so long as there are then current orders attached to and made a part hereof unless earlier terminated as provided herein. The term of each Order will be as stated in the applicable Order.
Either party may, at its option, terminate this Agreement and/or any then-current Order(s) if the other party materially breaches the terms of this Agreement or the applicable Order and fails to cure the same within thirty (30) days after notice.
ANCORA may suspend your access to the Services and Your Content during any period that you are in material breach of this Agreement or your access to and use of the Services or Your Content creates a material security vulnerability. Where practicable, ANCORA will give you at least two (2) days’ advance notice of the suspension unless the suspension is made under emergency circumstances. ANCORA will reinstate your access to the Services when the grounds for suspension are cured.
Upon termination of Your access to or use of the Services for any reason, ANCORA may retain Your Content for up to thirty (30) days from the effective date of termination. If you wish to export Your Content following a termination for breach, ANCORA will either, at its option, enable short-term access to the Services at a scheduled time so that you may export Your Content, or export Your Content using its standard export tools. ANCORA has no obligation to retain Your Data after termination and may destroy Your Content any time thereafter.
The following sections survive expiration or termination of this Agreement: Section 7 (Your Information); Section 8 (Fee; Payment Terms); Section 9 (Termination); Section 10 (Confidentiality); Section 11 (Indemnification); Section 12 (Limitation of Liability); Section 16 (Governing Law; Export Compliance); and any other terms that by their nature are intended to survive expiration or termination.
You and ANCORA may disclose information to one another, and You may access information in connection with the Services, which is considered by the disclosing party to be proprietary or confidential information (“Confidential Information”). Confidential Information includes any information or data, in any form, including, but not limited to oral, written, graphic or electromagnetic forms, models, or samples, which the disclosing party identifies as confidential or which is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information or data against unrestricted disclosure or use, including business information, financial data, and marketing data. All Confidential Information shall remain the sole property of the disclosing party and its confidentiality shall be maintained and protected by the receiving party with the highest degree of care during the term of this Agreement and for a period of three years following the expiration or termination of this Agreement. The receiving party shall not use the Confidential Information of the other party except as necessary to fulfill its obligations under this Agreement, nor shall it disclose such Confidential Information to any third party without the prior written consent of the disclosing party; provided, however, the receiving party may disclose the disclosing party’s Confidential Information to its employees, consultants, and agents who are bound by obligations of confidentiality no less protective than those set forth in these Terms, and receiving party shall be responsible for any unauthorized disclosure of any Confidential Information by such persons as if receiving party had made such unauthorized disclosure itself.
The restrictions on the use or disclosure of Confidential Information shall not apply to any Confidential Information: (i) after it has become generally available to the public without breach of this Agreement by the receiving party; (ii) is rightfully in the receiving party’s unrestricted possession prior to disclosure to it by the disclosing party; (iii) is independently developed by the receiving party; (iv) is rightfully received by the receiving party from a third party without a duty of confidentiality; or (v) is disclosed under operation of law. Further, in the event such disclosure is required of either party under judicial order or requirement of law, such party will promptly notify the disclosing party of such order or requirement.
You understand that ANCORA implementation and support personnel may need to access Your Account to assist You in Your implementation, as well as to address support requests that may occur from time to time, but such access shall be on a need-to-know basis. You permit ANCORA’ implementation and support personnel to access Your Account with the understanding that all information in Your Account shall be considered Confidential Information by ANCORA personnel. ANCORA agrees to hold in confidence and not reproduce, distribute, infringe on, transmit, or transfer, directly or indirectly, in any form, by any means, the Confidential Information.
- By ANCORA: ANCORA will indemnify, defend and hold You harmless from and against any and all claims, actions, losses, damages, liabilities, costs, and expenses including, without limitation, reasonable attorneys’ fees and disbursements (collectively, “Losses”) incurred by You arising out of any third-party claim that the Services delivered under this Agreement infringe any patent, copyright or other intellectual property right of a third party.
If the Services or any part thereof becomes the subject of a valid claim of infringement under any patent, copyright or trade secret law, ANCORA will either procure the right, at ANCORA’s sole expense, to permit Your continued use of the Services, or replace or modify the Services so as to avoid infringement without materially altering the functionality and performance thereof. If ANCORA reasonably and in good faith determines that neither of the foregoing are commercially practicable, ANCORA may terminate these Terms and the licenses granted herein effective immediately upon written notice to You and will refund the unearned pro-rata portion of any prepaid amounts.
THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND ANCORA’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
- By You. You shall indemnify, defend and hold harmless ANCORA and ANCORA’ officers, directors, employees and agents (each an “ANCORA Indemnitee”) against any and all Losses incurred by an ANCORA Indemnitee in any action between such ANCORA Indemnitee and any third party arising out of or in connection with Your use of the Services.
- Process. The indemnification obligations set forth herein are contingent upon the following conditions: (i) ANCORA or You, as the case may be (the “Indemnified Party”) must promptly notify the other party (the “Indemnifying Party”) in writing of the third party claim or action (however, failure of the Indemnified Party to so promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent it has been damaged thereby); (ii) the Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of the matter; and (iii) the Indemnifying Party will have sole control of the defense of the action and negotiations for its settlement and compromise; provided, however, that the Indemnified Party may, at its own cost, obtain separate counsel to represent its interests.
- LIMITATION OF LIABILITY
EXCEPT FOR (I) A MATERIAL BREACH OF THE CONFIDENTIALITY PROVISIONS SET FORTH IN SECTION 10, (II) EACH PARTY’S INDEMNIFICATION OBLIGATIONS, AND (III) YOUR OBLIGATION TO REMIT ALL AMOUNTS PROPERLY DUE AND OWING UNDER THIS AGREEMENT, EACH PARTY’S LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT LIMITATION, BREACH OF WARRANTY AND NEGLIGENCE CLAIMS) SHALL BE LIMITED TO THE ACTUAL, AWARDED DIRECT DAMAGES, NOT TO EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CAUSE OF ACTION AROSE. IN NO EVENT WILL EITHER PARTY, THEIR RESPECTIVE LICENSORS, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR (1) ANY CLAIMS OR DEMANDS OF THIRD PARTIES (OTHER THAN THOSE THIRD PARTY CLAIMS COVERED BY SECTION 11); OR (2) ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR ANTICIPATED PROFITS, LOSS OF REVENUE, ECONOMIC LOSS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OF EQUIPMENT, OR INTERRUPTION OF BUSINESS, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- FORCE MAJEURE
Neither party shall be under any liability to the other for any delay in performing any obligation under this Agreement to the extent caused by reason of circumstances beyond the reasonable control of that party and without such party’s fault or negligence, which shall include but not be limited to acts of God, war, strikes, lack or failure of transportation facilities, acts of terrorism, fire, acts of government authority. In the event of a force majeure event, the affected party shall give prompt written notice to the other party, stating the period of time the same is expected to continue. If any such failure or delay in performance continues for more than sixty (60) days, either party may terminate this Agreement upon written notice to the other.
- INDEPENDENT CONTRACTORS
You and ANCORA are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchisee-franchisor relationship is intended or created by this Agreement.
Except as explicitly stated otherwise, any notice to ANCORA shall be given in writing to Legal Counsel at ANCORA Software:
ANCORA Software Inc
Attention: Legal Counsel
402 West Broadway
San Diego, CA 92101
Any notice to You will be given to the address You provide to ANCORA during the registration and provisioning process. Either party may update its address by proper notice to the other party in the same manner as provided herein. Notice shall be deemed given twenty-four (24) hours after the notice is sent, unless the method of communication is email and the sending party is notified that the electronic mail address is invalid. Alternatively, either party may give notice by certified mail, postage prepaid and return receipt requested, to the address provided to the other party during the registration and provisioning process. In such case, notice shall be deemed given three (3) days after the date of mailing.
- GOVERNING LAW; EXPORT COMPLIANCE
This Agreement is subject to the laws of the State of California, U.S.A. (without regard to its conflicts of laws provisions). The Services may be subject to export laws and regulations of the United States and other jurisdictions. You may not permit users to access or use the Services in a U.S.- embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes ANCORA to be in violation of U.S. export laws, even if the use is permitted the laws applicable to You or Your end user or customer. Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.
- ENTIRE AGREEMENT; SEVERABILITY
This Agreement, together with the applicable Order(s) comprises the entire Agreement between You and ANCORA with respect to the subject matter hereof and supersedes all prior agreements between the parties regarding the subject matter of this Agreement. In the event of a conflict between the terms of the Agreement and any Order, the terms set forth in the applicable Order govern. You acknowledge that any pre-printed terms and conditions on or attached to Your purchase orders will be of no force or effect. If one or more of the paragraphs in this Agreement are found to be unenforceable or invalid, the remaining paragraphs shall remain in effect.
You may not assign or transfer these Services and terms without ANCORA’s prior written consent. As an exception to the foregoing, you may assign these Services with terms in their entirety to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement. Any actual or proposed change in control of Your business that results or would result in a direct competitor of ANCORA directly or indirectly owning or controlling 50% or more of Your Business shall entitle ANCORA to terminate this Agreement for cause immediately upon written notice. Any attempt by you to transfer or assign this license and terms except as expressly authorized above will be null and void.
ANCORA may assign our rights and obligations under this Agreement (in whole or in part) without your consent. ANCORA may also permit our Affiliates, agents, and contractors to exercise our rights to perform our obligations under this Agreement, in which case ANCORA will remain responsible for their compliance with this license and terms.
Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
If this Agreement is being accepted by any individual for You, then You represent, warrant and attest that such individual has the authority to execute this Agreement on Your behalf.
ANCORA may amend these Terms from time to time, and the revised Terms shall be effective upon the commencement of the next Renewal Term (as defined in the applicable Order). Any such revisions will apply to ANCORA’s customers generally, will not impose additional fees during the applicable Term, or alter the allocation of risk between you and ANCORA.
You agree that ANCORA may include identification of you as a customer on ANCORA’s website, provided that such identification is no more prominent than the identification of ANCORA’s other customers and is otherwise consistent with ANCORA’s practice of identifying its customers on its website at the time. Except as otherwise provided herein, each party agrees to submit to the other party all press releases and other publicity matters or materials relating to this Agreement, or mentioning or implying the trade names, logos, trademarks or service marks of the other party, and each party further agrees not to publish or use such press releases or publicity matters or materials, without the other party’s prior written consent except to the extent that a Party determines that a disclosure is required by applicable law.
- PERSONAL DATA PROTECTION CLAUSES
If ANCORA processes Your Content on behalf of you for the provision of the Services, the parties acknowledge and agree that ANCORA is a “Service Provider” as defined in the CCPA, and Your Content may include personal information, as that term is defined by the CCPA (“CCPA Personal Information”). ANCORA does not sell CCPA Personal Information. When ANCORA processes CCPA Personal Information for or on your behalf, ANCORA collects, retains, uses, and discloses such CCPA Personal Information solely for the permitted purposes described in this Agreement, and for no other commercial purpose. ANCORA certifies that it understands and will comply with the restrictions set forth in this Section 4(d) (CCPA Service Provider).
To the extent that ANCORA processes any Personal Data (as defined in the ANCORA Data Processing Addendum, (the “DPA”)) and (i) the Personal Data relates to individuals in the EEA or the United Kingdom, or (ii) you are established in the EEA or the United Kingdom, you agree that ANCORA does so as a “processor” only and the parties agree to comply with the DPA.