SOFTWARE SERVICE.
This agreement provides Customer and its Affiliates (defined below) access to and usage of an Internet-based software service, including, without limitation, its features, functions, and user interface, and underlying software, as specified on an order (Service). Professional services may be provided by Datanchor, Inc. (“DA”) if specified under an order.
USE OF SERVICE.
Customer Owned Data. All data uploaded by Customer to the Service remains the property of Customer, as between DA and Customer (Customer Data). Customer grants DA the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service.
Affiliates and Contractors. Customer, including its Affiliates, may enter into orders with DA and its Affiliates. An Affiliate entering into an order agrees to be bound by this agreement as if it were an original party hereto. Customer may allow its Affiliates and contractors to use the Service, provided Customer is responsible for their compliance with the terms of this agreement, and use by its Affiliates and contractors is solely for Customer’s or Affiliate’s benefit. Affiliate means any company controlled by or under common control with the subject entity, directly or indirectly, with an ownership interest of at least 50%.
Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential and use industry-standard password management practices; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify DA promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s user guide and applicable law.
DA Support. DA will provide Customer support for the Service under the terms of DA’s Customer Support Policy (Support), which is located at https://help.fenixpyre.com. DA’s standard support hours are from 8am-8pm eastern standard time Monday-Friday, excluding holidays. Tickets for support can be submitted at https://help.fenixpyre.com or help@anchormydata.com.
14-Day Trial. If Customer has registered for a trial use of the Service, Customer may access the Service for a 14-day time period (unless extended by DA in writing). The Service is provided ‘AS IS’, with no warranty during this time period. All Customer Data will be deleted after the trial period, unless Customer converts its account to a paid Service.
Third-Party Services. DA’s Service interoperates with third-party services and depends on continuing availability of and access to the third-party services, including application programming interfaces. If for any reason a third-party service ceases to be available for DA’s Service, DA may be unable to continue to provide all of the functions of its Service.
SERVICE LEVEL AGREEMENT AND WARRANTY.
Availability Warranty. DA warrants to Customer that DA will maintain a monthly uptime availability of the Service as provided in the chart below (excluding maintenance outages, outages beyond DA’s reasonable control, and outages that result from any Customer technology issues).
Credit for Availability Warranty.
Less than 99.5% = 3% of monthly fee for each full hour of an outage (beyond the warranty) with a maximum amount of credit to not exceed 100% of the fee for a given month.
CUSTOMER’S EXCLUSIVE REMEDY AND DA’S SOLE OBLIGATION FOR ITS FAILURE TO MEET THIS WARRANTY WILL BE FOR DA TO PROVIDE A CREDIT FOR THE APPLICABLE MONTH, AS PROVIDED IN THE CHART ABOVE (IF THIS AGREEMENT IS NOT RENEWED, THEN A REFUND FOR THE MONTH), PROVIDED THAT CUSTOMER NOTIFIES DA OF SUCH BREACH WITHIN 30 DAYS OF THE END OF THAT MONTH.
Warranty. DA warrants to Customer that: (i) DA will not materially decrease the overall security of the Service; (ii) the Service will perform materially in accordance with its technical documentation; and (iii) DA will not materially decrease the overall functionality of the Service or the scope of Support. For any breach of this warranty, Customer’s exclusive remedies are those described in the “Mutual Termination for Material Breach” and “Effect of Termination” sections set forth in this agreement.
DISCLAIMER. DA DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE DA TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, DA DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED. DA HAS NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY THIRD-PARTY SERVICE.
PAYMENT.
Fees and Payment. Customer must pay all fees as specified on the order, but if not specified, then within 14 days of receipt of an invoice. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and Customer is responsible for payment of such taxes at the rate and in the manner for the time being prescribed by law. If DA has the legal obligation to pay or collect taxes for which Customer is responsible under this section, DA will invoice Customer and Customer will pay that amount unless Customer provides DA with a valid tax exemption certificate authorized by the appropriate taxing authority. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
Nonpayment. Any invoiced amount not received by DA by the due date may accrue interest at the lower rate of 2% per month or the maximum rate permitted by law. In addition, if an invoiced amount is 30 days or more past due, DA may suspend Service and Support until the amount is paid in full, provided DA has given Customer at least 30 days’ prior written notice that its account is past due.
MUTUAL CONFIDENTIALITY.
Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). DA’s Confidential Information includes, without limitation, the Service, pricing information, and the Software and Documentation (defined below). Customer’s Confidential Information includes, without limitation, the Customer Data.
Protection of Confidential Information. Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (i) not use any Confidential Information of Discloser for any purpose outside the scope of this agreement; and (ii) limit access to Confidential Information of Discloser to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient containing protections not materially less protective of the Confidential Information than those in this agreement.
Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
Data Security Measures.
Security Measures. DA: (i) implements and maintains reasonable security measures appropriate to the nature of the Confidential Information including, without limitation, technical, physical, administrative, and organizational controls, designed to maintain the confidentiality, security, and integrity of Customer’s Confidential Information; (ii) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly tests, or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designates an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (iv) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer’s Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assesses the sufficiency of safeguards in place to control these risks (collectively, Security Measures).
Notice of Data Breach. If DA becomes aware that Customer Data was accessed or disclosed in breach of this agreement, DA will so notify Customer without undue delay, immediately act to eliminate the breach and preserve forensic evidence and provide available information to Customer regarding the nature and scope of the breach.
PROPERTY.
Reservation of Rights. DA and its licensors are the sole owners of the Service and the Software and Documentation, including all associated intellectual property rights, and they remain only with DA. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. DA reserves all rights that are not expressly granted in this agreement.
Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service or the Software and Documentation except as allowed by applicable law despite this limitation; or (vi) access the Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes. DA may suspend Service to Customer if DA believes in good faith that Customer’s use of the Service poses an imminent threat to the security, availability or legality of the Service; in such event, DA will work with Customer to address the issue and restore Service as quickly as possible.
Software and Documentation. All software provided by DA as part of the Service, and the Service documentation, sample data, marketing materials, training materials, and other materials provided through the Service or by DA (Software and Documentation) are licensed to Customer as follows: DA grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use and copy such Software in accordance with the Documentation, solely in connection with the Service.
API. DA provides access to its application-programming interface (API) as part of the Service for no additional fee. Subject to the other terms of this agreement, DA grants Customer a non-exclusive, nontransferable, terminable license to interact only with the Service as allowed by the API, and as follows:
Customer may not use the API in a manner–as reasonably determined by DA–that exceeds reasonable request volume, constitutes excessive or abusive usage, or fails to comply with any part of the API. If any of these occur, DA may suspend or terminate Customer’s access to the API on a temporary or permanent basis.
DA may change or remove existing endpoints or fields in API results upon at least 30 days’ notice to Customer, but DA will use commercially reasonable efforts to support the previous version of the API for at least 6 months. DA may add new endpoints or fields in API results without prior notice to Customer.
The API is provided on an AS IS basis. DA has no liability to Customer as a result of any change, temporary unavailability, suspension, or termination of access to the API.
Statistical Information. DA may compile statistical information related to the performance of the Service and may make such information publicly available, provided that such information does not identify Customer Data, and there is no means to re-identify Customer Data. DA retains all intellectual property rights in such information.
TERM AND TERMINATION.
Term. This agreement continues until the 30th day after all orders have expired, unless earlier terminated as provided below.
Term of Orders. The term of each order must be specified in the order. Unless otherwise stated in the order, the order will automatically renew for its stated term unless either party provides written notice of non-renewal to the other party at least 30 days prior to the order’s expiration. Any automatically renewing order will remain unchanged from the prior order, except for any pricing increase due to expiring promotional and/or one-time fee offers that have been extended to the Customer previously.
Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
Return of Customer Data.
Within 30 days after termination, upon request, DA will make the Service available for Customer to export Customer Data as provided in Section 2(a).
After such 30-day period, DA has no obligation to maintain the Customer Data and may destroy it.
Effect of Termination. If this agreement is terminated for DA’s breach, DA will refund Customer fees prepaid for the remainder of the term of all orders after the termination effective date. If this agreement is terminated for Customer’s breach, Customer will pay any unpaid fees for the term of all orders. Upon request, following any termination of this agreement, each party will destroy or return all of the other party’s property that it holds, subject to the “Return of Customer Data” section above.
LIABILITY LIMIT.
EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, DA IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS.
TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT FOR DA’S INDEMNITY OBLIGATIONS, DA’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
INDEMNIFICATION FOR THIRD-PARTY CLAIMS.
DA will defend or settle any third-party claim against Customer to the extent that such claim alleges that DA technology used to provide the Service infringes a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies DA of the claim in writing, cooperates with DA in the defense, and allows DA to solely control the defense or settlement of the claim. Costs. DA will indemnify and hold harmless Customer from any infringement claim defense costs it incurs in defending Customer under this indemnity, DA-negotiated settlement amounts agreed to by DA, and court-awarded damages. Process. If such a claim appears likely, then DA may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If DA determines that none of these are reasonably available, then DA may terminate the Service and refund any prepaid and unused fees. Exclusions. DA has no obligation for any claim arising from: DA’s compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; Customer Data; or technology or aspects not provided by DA. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND DA’s SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
If a third party claims against DA that any part of the Customer Data is unlawful or infringes or violates that party’s patent, copyright, or other right, Customer will defend DA against that claim at Customer’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer, provided that DA promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.
GOVERNING LAW AND FORUM.
This agreement is governed by the laws of the State of Ohio (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Franklin County, Ohio, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
OTHER TERMS.
Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it.
No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all a party’s businesses, assets, not involving a competitor of the other party, or at any time to an Affiliate.
Publicity. Customer agrees to allow DA to use its name and logo in its marketing communications and materials, in accordance with Customer’s trademark guidelines and policies.
Export Compliance. The Service, the Software and Documentation, and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access any Service in a U.S.-embargoed country or in violation of any applicable export law or regulation.
Independent Contractors. The parties are independent contractors with respect to each other.
Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
No Additional Terms. DA rejects additional or conflicting terms of a Customer’s form-purchasing document.
Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
Mobile Software. DA may make available mobile software to access the Service via a mobile device (Mobile Software). To use the Mobile Software, Customer must have a mobile device that is compatible with the Mobile Software. DA does not warrant that the Mobile Software will be compatible with Customer’s mobile device. Customer may use mobile data in connection with the Mobile Software and may incur additional charges from Customer’s wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that DA may, from time to time, issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this agreement will apply to all such upgrades. If the mobile device software is acquired from an Apple platform (App Store Software), the additional terms set forth on Exhibit A apply.
Feedback. If Customer provides feedback or suggestions about the Service, then DA (and those it allows to use its technology) may use such information without obligation to Customer.
EXHIBIT A – MOBILE SOFTWARE FROM APPLE APP STORE
The following applies to any DA Mobile Software Customer acquires from the Apple App Store (App Store Software)
Acknowledgment. This agreement is between DA and Customer only, and not with Apple, and DA, not Apple, is solely responsible for the App Store Software and the content thereof. The agreement does not provide for usage rules for App Store Software that are in conflict with the App Store Terms of Service as of the effective date of the agreement (which Customer acknowledges it has had the opportunity to review).
Scope of License. The license granted to Customer for the App Store Software is limited to a non-transferable license on any Apple-branded Products that the Customer owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such App Store Software may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
Maintenance and Support. DA is solely responsible for providing any maintenance and support services with respect to the App Store Software, as specified in the agreement, or as required under applicable law. DA and Customer acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Software.
Warranty. DA is solely responsible for any App Store Software warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App Store Software to conform to any applicable warranty, Customer may notify Apple, and Apple may refund the purchase price for the App Store Software (if that purchase price was paid to Apple on behalf of DA to Customer; and that, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App Store Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty is DA’s sole responsibility.
Product Claims. DA and Customer acknowledge that DA, not Apple, is responsible for addressing any claims of Customer or any third party relating to the App Store Software or Customer’s possession and/or use of that App Store Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the App Store Software’s use of the HealthKit and HomeKit frameworks. This agreement does not limit DA’s liability to Customer beyond what is permitted by applicable law.
Intellectual Property Rights. DA and Customer acknowledge that, in the event of any third-party claim that the App Store Software or Customer’s possession and use of that App Store Software infringes that third party’s intellectual property rights, Customer, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
Legal Compliance. Customer represents and warrants that: (i) he/she/it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she/it is not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address. Company’s name is DAtAnchor, Inc., address is 8000 Walton Parkway, Suite 224, New Albany Ohio 43054, and the contact information is https://help.fenixpyre.com or help@anchormydata.com, to which any Customer questions, complaints, or claims with respect to the App Store Software should be directed.
Third-Party Terms of Agreement. Customer must comply with applicable third-party terms of use when using the App Store Software (e.g., the App Store Software is a VoIP application, then Customer must not be in violation of its wireless data service agreement when using the App Store Software).
Third-Party Beneficiary. DA and Customer acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this agreement, and that, upon Customer’s acceptance of the agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the agreement against Customer as a third-party beneficiary thereof.