GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (“Terms”), together with any ordering document that references these Terms, including but not limited to Statements of Work and Order Forms (collectively referred to as an “Order Form”) and any schedules or exhibits attached to the Terms or Order Form shall constitute a legally binding agreement (“Agreement”) by and between Ansira Partners II, LLC, a Delaware limited liability corporation and its Affiliates (“Ansira”) and the Client identified in the applicable Order Form (“Client”). Client and Ansira may collectively be referred to as the “Parties” and individually as a “Party” under the Terms and Agreement. Capitalized terms used but not defined in these Terms shall have the meanings given in the Agreement.
These Terms are effective as of the effective date in the Order Form and shall be deemed incorporated by reference into each Order Form as amended or revised.
In the event any Terms conflict with any provision in an Order Form, except as otherwise expressly stated in an Order Form, the Terms shall control such conflict.
A. DEFINITIONS
1. “Account” means password-protected access to the Platform, each of which is identified by a unique identification number, including the Primary Account and any Linked Accounts.
2. “Affiliate” means a person or entity directly or indirectly Controlling, Controlled, or under common Control with another person or entity.
3. “Ansira Content” means all right, title, and interest to the Software (including, without limitation, any Software components), Platform, Documentation, Ansira’s trademarks, copyrights, trade secrets, source code, any intellectual property arising from the foregoing, and any modifications, derivatives, or enhancements arising from or related to the foregoing.
4. “Authorized User” or “User” means an employee or channel partner (agent, dealer, broker, distributor, franchisee, retailer, or similar partner) of Client or of its Affiliates who (a) has a bona fide need to access and use the Platform pursuant to an executed Order Form; (b) has agreed to the terms of the User Terms shown in Schedule A; and, (c) has been identified and given password-protected access to the Platform by Ansira or Client.
5. “Client Content” means all unique materials, Marketing Materials, data, files, images, and similar information provided by Client in any format, including but not limited to all text and rules for applying legal disclaimers to materials based on Client’s regulatory requirements, if applicable, for processing by the Software.
6. “Client Vendor” means any Vendor that Client requires Ansira to engage in order for Ansira to provide its Services or access to the Platform.
7. “Control,” “Controlled,” or “Controlling” means, with respect to an entity: (a) beneficial ownership, whether direct or indirect, of at least fifty percent (50%) of the voting securities of a corporation or other business organization with voting securities; (b) direct or indirect ownership of a fifty percent (50%) or greater interest in the net assets or profits of a partnership or other business organization without voting securities; or, (c) the possession, direct or indirect, of the power to direct or cause the direction of the management or policies of another legal entity through other ownership interest, by contract, or otherwise.
8. “Documentation” means any policies, guides, and manuals as may be amended from time-to-time created by Ansira to assist with use of the Services.
9. “End User Terms” means the terms and conditions that all Users are required to accept that are detailed on www.ansira.com/terms (the “User Terms”) before being granted access to the Platform and Linked Account Services. Ansira may, at its discretion, modify or change the User Terms. Users will be provided with notice of any modifications or changes to the User Terms through the Platform and will be required to agree to any such changes or modifications. Notwithstanding the forgoing, Client will have 30 days’ notice prior to any changes taking effect. In the event of a conflict between the terms of this Agreement and the User Terms, where the User is Client or Client’s employees or contractors acting on behalf of Client, the terms of this Agreement shall take precedence and control
10. “Fees” means the fees, charges, and/or other amounts specified on an Order Form. For the avoidance of doubt, all Fees are in and shall be paid in United States Dollars unless expressly noted otherwise in an applicable Order Form.
11. “Linked Account” means an Account of an Authorized User networked to the Primary Account in the Platform such that the Authorized User may access all or part of the Platform.
12. “Linked Account Fees” means the fees and expenses of any Marketing Materials or Linked Account Services not paid for by the Client on behalf of a User.
13. “Linked Account Services” means any and all products and/or services requested, ordered, and/or purchased by an Authorized User via a Linked Account, including but not limited to Marketing Materials and marketing services. All Linked Account Services purchased through the Platform shall be subject the terms and conditions detailed on www.ansira.com/terms.
14. “Marketing Materials” means Client’s marketing modules, marketing assets, and marketing programs, including, without limitation, any creative materials uploaded to the Platform or otherwise provided to Ansira by Client or by Ansira at Client’s request.
15. “Module” or “Functional Module” means a discrete component of the Platform providing specific features or capabilities, which may be licensed or activated separately. Each Module may operate independently or in conjunction with other Modules, and access to a Module may be subject to separate fees, terms, or usage limitations as set forth in the applicable Order Form.
16. “Platform” means Ansira’s Software as defined in ¶ 24, below, licensed by Client that provides the ability for a Client or its Authorized Users to, among other things: (a) upload, compile, organize and/or distribute and manage Client’s Marketing Materials and any marketing collateral available to Linked Accounts and (b) administer and manage access to the Platform and Marketing Materials thereon by Linked Accounts.
17. “Primary Account” means the account provided by Ansira to Client that enables it or its Authorized Users to access and use the Platform.
18. “Professional Services” means the professional services provided by Ansira, including, but not limited to, concierge, training, and help desk services, as identified in an Order Form
19. “Professional Services Rates” means the hourly rates for Professional Services obtained pursuant to an Order Form.
20. “Reporting Data” means any and all performance data related to the Services provided via the Primary Account or any Linked Account, including, without limitation, purchase history, call tracking, response rates and any other information relating to the Marketing Materials, marketing collateral and corresponding services.
21. “Security Incident” shall mean any material unauthorized disclosure of a Party’s Confidential Information.
22. “Sensitive Personal Information” includes but is not limited to any of the following relating to an individual: (a) government-issued identification number (including social security number, driver’s license number, or state-issued identification number); (b) financial account number, credit card number, debit card number, or credit report information; (c) any security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (d) biometric data or records or genetic code; (e) Personal Data (as defined under the European Union’s General Data Protection Regulations, as amended); (f) Protected Health Information (as defined under Health Information Portability and Accountability Act of 1996, as amended); (g) any information, except age or gender, that relates to: (i) the past, present or future physical, mental or behavioral health or condition of any individual; (ii) the provision of health care to any individual; or (iii) payment for the provision of health care to any individual; or (iv) race, religion, ethnicity, sex life or practices, political or philosophical beliefs, political party or trade union membership, background check information, judicial data such as criminal records or information on other judicial or administrative proceedings.
23. “Services” means any and all products and/or services requested, ordered, and/or purchased by Client through an Order Form, including but not limited to the Platform, Software, Documentation, and Professional Services as defined in this Section A.
24. “Software” means Ansira’s proprietary distributed marketing solutions, including, if set forth in an Order Form, access to Ansira’s Platform and Modules.
25. “Third-Party” means any person or entity other than Ansira and Client and Users as defined in paragraphs 6 and 27.
26. “User” has the same meaning as Authorized User in paragraph 4, above.
27. “Vendor” means any third-party person and/or entity selected by Ansira that provides products and/or services to Users via a Linked Account. For clarity, all Client Vendors are excluded from this definition.
B. NATURE OF THE SERVICES AND LICENSE GRANT
28. General. Ansira offers certain proprietary distributed marketing solutions, including but not limited to the Platform, Software, Documentation, and Services as defined in Section A, above, as set forth in an Order Form. These Terms are applicable to the Platform and govern the provision of and Client’s access to and use of the Services during the Term. For clarity, Ansira Services do not include access to any source-code to the Platform or Software.
29. Provision of Software. Subject to the terms of this Agreement and Documentation and Customer’s payment of all applicable Fees, Ansira grants Client and its Users a limited, non-exclusive, non-transferable, non-sublicensable (except as provided in these Terms) right during the Term to access and use the Platform, Modules, Services, and applicable Documentation solely for Client’s internal business purposes. Access is granted only for the number of Users specified in the applicable Order Form. Customer may not use the Service for the benefit of any third party, nor may it copy, modify, distribute, sell, lease, or reverse engineer any part of the Service except as expressly permitted by applicable law or this Agreement. Client shall only use the Software in the form provided by Ansira. The Platform are made available to Client via a portal. Client shall be responsible, at its expense, for obtaining its own Internet access, and any required hardware, software, or other technology to connect to the portal. All rights not expressly granted to Client in this Agreement are reserved by Ansira and its licensors. There are no implied rights granted by Ansira. No Client Affiliate shall have the right to take any legal action against Ansira under these Terms or an Order Form who has not directly entered into an Order Form with Ansira.
30. Restrictions. Client shall not directly or indirectly (and shall not permit any Client Affiliate or Authorized User to): (a) use the Software to publish, ship, distribute, or disseminate any material or information that encourages conduct that could or does constitute a criminal offense or give rise to civil liability; (b) attempt to reconstruct or discover any source code, object code or underlying ideas, structure, know-how, algorithms, file formats or programming or interoperability interfaces relevant to the Software or Documentation or data related to the Software; (c) transmit or upload any material through the Software containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting, or otherwise impairing Ansira’s, or any other person’s or entity’s, network, computer system, or other equipment; (d) interfere with or disrupt the Software, networks, or servers connected to Ansira’s systems or violate the regulations, policies, or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Software; (e) export the Software in violation of any U.S. Department of Commerce export administration regulations or other laws or regulations; (f) interfere with another party’s use of the Software; (g) share login credentials for the Platform; (h) provide marketing services to individuals or entities located outside of the United States; and, (i) use the Software or Documentation for any purpose not expressly provided in the Agreement, Order Form, and Documentation.
C. AUTHORIZED USER AND THIRD-PARTY ACCESS
31. All Authorized Users authorized under the Agreement or Order Form, and Ansira-approved Third-Party Users, will be included in any calculations of Authorized Users and bandwidth as applicable.
32. Upon Ansira’s reasonable request, and immediately upon request following any data or other confidentiality breach, Client will provide the identify all Authorized Users and Third-Party users by name, title, employer, or affiliation, access level, and such other identifiers as Ansira may reasonably request. All persons using the Services, with or without Client’s authorization, will be bound by the Terms, Order Form, Documentation, and the User Terms. Client shall be responsible for all actions of all Authorized Users and Third-Parties it authorizes with respect to the Software.
33. Any Third-Party providing Services to the Client that require access to the Software site(s) configured for the Client must be approved in advance by Ansira, must sign a mutual non-disclosure agreement with Ansira; must use the standard login page created for the Client’s site; cannot log in via the Client’s single sign-on to the site; and, must use their own corporate email address for the login. Shared logins are not permitted. Providing access by an Authorized User to a Third-Party without the written prior authorization of Ansira will constitute a material breach of the Agreement.
34. Client represents to Ansira that (a) it will ensure that each Authorized User under each Order Form agrees to and complies with the terms of the User Terms, as revised from time-to-time; (b) each Authorized User will have a bona fide need to access and use the Software for purposes of that particular Order Form; and, (c) Client will not permit its Authorized Users to share Ansira-supplied usernames and passwords. The sharing of usernames and passwords with non-approved parties qualifies as a material breach of these Terms and any Order Form.
D. FEES AND PAYMENT TERMS.
35. Fees. Client will pay Ansira the Fees and expenses set forth in an Order Form. Fees includes all such reimbursable expenses as set forth in ¶ 39, below.
36. Payment Terms. All Fees will be invoiced to Client as set forth in the applicable Order Form, and Client shall pay all invoiced amounts in accordance with the terms specified in that Order Form. Fees and expenses owed by Client may not be withheld, offset, or reduced for any reason. Failure to make any payment when due under this Agreement or any Order Form constitutes an immediate material breach. Upon such breach, Ansira will provide written notice to Client. If Client fails to cure the breach by paying all outstanding amounts within ten (10) business days of receiving such notice, Ansira may, in its sole discretion, suspend the Services until full payment is received or alternative payment arrangements are agreed upon in writing. Interest will accrue on any undisputed amounts not paid within ninety (90) days of the invoice date at the lesser of 1.5% per month or the maximum rate permitted by applicable law. In the event of nonpayment, Client shall also be responsible for Ansira’s reasonable costs of collection, including attorneys’ fees and expenses.
37. Client Purchase Orders. Client shall ensure all documentation required by its internal policies for payment to Ansira, such as purchase orders, are available and ready so that invoices may be sent by Ansira, and paid by Client, in accordance with the applicable Order Form. Client’s failure to issue purchase orders or other necessary documentation does not affect its payment obligations or their timing. Client acknowledges that Ansira has no obligation to provide or perform any Services if the terms of a purchase order are inconsistent with any applicable Order form.
38. Taxes. Fees are exclusive of and Client agrees to pay, or reimburse Ansira for, any applicable sales, use, value-added, or similar taxes payable or required at any time to be collected by Ansira. Client shall self-assess and directly pay any and all taxes due for invoices generated for services provided by Ansira for Client businesses located outside of the United States.
39. Expenses. Client will reimburse Ansira for all pre-approved reasonable and documented expenses incurred while completing any Order Form, including but not limited to Client invoicing/purchase order site Fees, transportation, lodging, meals, and other expenses. Reimbursable expenses also include the actual cost to Ansira of computer or communications hardware, software, or Third-Party services, necessary for Ansira to purchase on behalf of Client at Client’s request or as specified in an Order Form. Any Client travel or expense guidelines must be attached to the applicable Order Form if such guidelines are to be considered in determining reimbursement for Ansira’s expenses.
40. Linked Account Fees.
40.1. Ansira will charge each Authorized User’s credit card for any portion of all orders and/or purchases of Marketing Materials or Linked Services by such Authorized User that Client has not previously agreed to pay.
40.2. Client may determine and set, via the Master Account, in Client’s sole and absolute discretion, Client’s maximum proportional share of the cost of any Marketing Materials or Linked Account Services that may be paid for using co-op funds, if any. If Client has not elected to pay any such proportional share of such Fees and expenses, the Authorized User is solely liable for its purchases of Marketing Materials and Linked Services.
40.3. Should Client choose to pay a proportional share of the cost of Marketing Materials or Linked Services, Client may be invoiced each week during the Term for fees and expenses relating to such purchases (“Linked Account Fees”). Client shall pay to Ansira the Linked Account Fees upon receipt of the applicable invoice.
40.4. Regardless of whether it is an Authorized User’s, Client’s, or both of their responsibilities to pay for the Marketing Material or Linked Account Services, Client acknowledges that any failure to timely make payments in full for the Marketing Materials or Linked Account Services may result in delays or failure to provide the Linked Account Services. Further, in such cases, Ansira has no responsibility or liability to Client or any Authorized User.
40.5. Client assumes all responsibility for any errors or omissions in the connection with Linked Account Services provided by any Client Vendor. Client agrees that as a result of using Client Vendors, Ansira shall not be responsible for any related services provided by Client Vendors. Client shall be responsible for soliciting, negotiating, and contracting directly with Client Vendors and remitting payment to Client Vendors for the services it provides to Client. Client acknowledges that Ansira did not participate in the selection of Client Vendors as a Vendor to provide production-related services to Client and said decision was made solely by Client.
E. PROPRIETARY CONTENT.
41. Ansira Content. Client acknowledges that, as between Client and Ansira, Ansira owns all right, title, and interest to the Ansira Content. The Agreement in no way conveys any rights, title, or interest in and to the Ansira Intellectual Property except for the limited right provided to Client under ¶ 29, above.
42. Client Content.
42.1. Client shall retain all right, title, and interest in and to the Client Content. Client grants to Ansira a non-exclusive, non-transferable, royalty-free right and license to store, create derivative works from, translate, format, and otherwise process or use Client Content as required in the performance of Ansira’s obligations or the exercise of Ansira’s rights under the Agreement or an Order Form. As used in this Agreement or Order Form.
42.2. Client acknowledges and agrees that certain products or services may involve distribution of Client Content, including but not limited to business listing information (e.g., store location, hours of operation, and contact information) and/or other interactions with third-parties (e.g., “Publishers”) that own or operate online business directories, search web sites, social media web sites, mobile apps, or other online properties (each, a “Publisher Site”). Client grants Ansira and its third-party providers, their affiliates, and their respective Publishers (together “Publisher Provider”) a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, unlimited, sublicensable (through multiple tiers of sublicensees) license to use, reproduce, prepare derivative works of, display, and distribute the Client Content in connection with the provision of products and services to Client. The licenses granted herein shall be limited to the rights contractually required by such party and the licenses shall be granted to each Publisher Provider only when Ansira and/or Client uses products or services to, directly or through such Publisher Provider, distribute Client Content to such Publisher Provider or otherwise interact with such Publisher Provider. Where such a Publisher Provider identifies any Client Content that is inaccurate or contains errors (e.g. the incorrect spelling of a city name or a wrong zip code), or non-compliance with applicable formatting guidelines (e.g. use of unsupported special characters), such Publisher Provider may (but is not required to), in addition to its other available rights and remedies, modify the Client Content to correct the error or bring it into compliance with the applicable formatting guidelines. Certain Client Content may be subject to the Publishers’ character limits, quality standards, and other applicable content policies, and that any such content may be rejected, in whole or in part, by a Publisher at any time in its sole discretion or modified at any time to comply with such policies. Ansira does not guarantee that any Client Content will be displayed on any Publisher Site and the appearance and/or location of any Client Content placement may change at any time.
43. Authorized User’s Property. The Parties acknowledge that ownership of any information or documents uploaded by an Authorized User to the Platform is, and shall remain, vested solely in the Authorized User of such Linked Account. Ansira will not release any of Authorized User’s information or documents to Client unless (a) the Authorized User authorizes, in writing in advance, the release of the information and documents to Client; (b) Client is the Authorized User; (c) a contract exists between Client and Authorized User that plainly states that ownership of any information or documents uploaded to the Platform by Authorized User is, and shall remain, vested in Client; or, (d) Client provides documentation to Ansira which evidences Client’s ownership of any information or documents uploaded by Authorized User to the Platform.
44. Publicity. Ansira shall have the limited, non-exclusive right and license to use the corporate name, product names, and trademarks of Client to accurately identify and refer to Client and its products and/or services. In addition, Ansira may use the corporate logo of Client in limited circumstances on promotional or marketing materials to refer to the service relationship with Client, including display of Client’s name and/or logo on its website in accordance with trademark specifications provided by Client.
45. Data Aggregation. Client acknowledges and agrees that Ansira may aggregate and anonymize any and all data provided by Client or Authorized Users to Ansira, and use such data for any purpose, whether now known or conceived in the future, whether related to the original purpose of the Agreement or not, and whether commercial or non-commercial in nature, including but not limited to benchmarking, statistical analysis, the use of the data in the development of new products or services, and the sale or other distribution of such data to third- parties, in each case without any further authorization by or compensation to Client, provided that such data has been anonymized, aggregated, and used in compliance with applicable law and in such a manner that does not identify Client.
F. CONFIDENTIAL INFORMATION AND DATA SECURITY.
46. Confidentiality. Each Party receiving the other Party’s confidential information (the “Receiving Party”) will treat confidentially any document or other information that has been provided to it and designated in writing as confidential or proprietary by the other Party (the “Disclosing Party”), or information that the Receiving Party should reasonably expect to be confidential (“Confidential Information”). The Receiving Party agrees it shall hold Disclosing Party’s Confidential Information in strict confidence and it shall treat all Confidential Information with the same degree of care, but no less than a reasonable degree of care, that the Receiving Party uses to protect its own confidential information of a similar nature. The Receiving Party shall not use or disclose Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with the Agreement and limit the disclosure of the Confidential Information to those employees, contractors, and agents who have a need to know such Confidential Information and who have been informed of its confidential nature.
47. Confidentiality Exclusions. The confidentiality obligations under the Agreement will not apply to any information that (a) was already known to the Receiving Party prior to its receipt from the Disclosing Party, (b) becomes publicly available by means other than by a violation of the Agreement or the User Terms; (c) becomes available to the Receiving Party on a non-confidential basis from a source other than Disclosing Party, provided that such source is not, to the knowledge of the Receiving Party, after reasonable inquiry, bound by a confidentiality agreement with Disclosing Party, or is otherwise prohibited from transferring the information to the Receiving Party by a contractual, legal, or fiduciary obligation; or, (d) is developed independently by the Receiving Party without reference to the Disclosing Party’s Confidential Information. The terms and conditions of the Agreement and any Order Form constitute Confidential Information of both Parties, and the Ansira Intellectual Property constitutes Confidential Information of Ansira.
48. Compelled Disclosures. If the Receiving Party is required by law to disclose any Confidential Information, except to the extent prohibited by law or applicable order, it shall provide the Disclosing Party with prompt notice of such request so that the Disclosing Party may seek confidential treatment for such information. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party grants a waiver, the Receiving Party may furnish only that portion of the Confidential Information that the Receiving Party is legally required to disclose and the Receiving Party shall seek confidential treatment for such disclosed information unless otherwise agreed by the Disclosing Party.
49. Regulated Data. Ansira has no control over the information or data that is uploaded to, stored on, or otherwise processed by the Software or the underlying hardware or software used to provide the Services, and where the type, character, properties, content, and/or origins of any such information or data requires that the Parties enter into a data processing addendum, business associate agreement, or take other additional or different steps or actions to remain compliant with applicable laws and regulations (collectively, “Regulated Data”), Client shall be responsible for its Regulated Data so that it may comply with all applicable laws.
49.1. Other than the names, mailing addresses, phone numbers, and email addresses of individuals for which Ansira may need to perform the Services, Client shall not provide Regulated Data without expressly disclosing such data on an Order Form.
49.2. Client agrees that at all times during the Agreement that neither Client nor its Users, Client Vendors, or other third-party users shall not disclose or otherwise make available any Sensitive Personal Information to Ansira. Ansira shall have the right, but not obligation, to extract, delete, remove, and otherwise remediate such Sensitive Personal Information from its systems. Ansira has the right, but undertakes no obligation, to monitor the Services for Sensitive Personal Information, and Ansira shall have no obligation whatsoever with respect to any information transmitted in violation of the foregoing.
50. Security Program. During the Term, Ansira shall maintain a reasonable security program, including SOC 2 Type II certification in accordance with industry standards that is designed to protect the security of Client’s Confidential Information and prevent unauthorized access to such information, which shall be provided to Client upon written request at [email protected]. Such security program shall include implementation of appropriate administrative, technical, and physical safeguards.
51. Security Incident. If either Party believes that there has been a Security Incident such Party must promptly notify the other Party to the extent permitted by law. Each Party will reasonably assist the other Party to mitigate any potential damages. For purposes of the Agreement, If the Security Incident is caused by Ansira’s breach of its security obligations under the Agreement, Ansira shall pay the following expenses incurred by Client to the extent such expenses are reasonable and documented: (i) the costs of providing notifications to the extent such notifications are required by applicable law and (ii) credit monitoring costs to the extent providing such credit monitoring services are required by law. ANSIRA SHALL NOT BE RESPONSIBLE FOR ANY COSTS OR EXPENSES RELATED TO A SECURITY INCIDENT THAT IS CAUSED BY THE ACTS OR OMISSIONS, MISCONDUCT, NEGLIGENCE, OR FRAUD BY OR OF CLIENT OR ANY OF ITS HOLDERS, AUTHORIZED USERS, EMPLOYEES, AGENTS, VENDORS, OR CONTRACTORS.
52. Business Continuity. Ansira will ensure it has fully documented, prepared for, and can implement, at any time and upon request, its business continuity plan to achieve business continuity, minimizing or avoiding disruption to Services. Ansira will ensure it has appropriately backed-up Client Content to ensure prompt recovery following a Security Incident.
G. TERM AND TERMINATION.
53. Term. The Agreement shall commence on the Effective Date set forth in an Order Form and, unless sooner terminated pursuant to these Terms, will remain in effect until the expiration or termination of the final remaining Order Form. Note that the Effective Date may be different from an Order Form start date, which will be documented in the applicable Statement of Work or similar document.
54. Termination for Cause. Either Party may terminate the Agreement or any Order Form, upon prior, written notice, in the event that any of the following occurs: (a) the other Party breaches any material obligation under the Agreement, and fails to cure such breach within thirty (30) days after receiving written notice of such breach; or, (b) the other Party becomes the subject of any of the following: a voluntary or involuntary petition to institute bankruptcy proceedings, the appointment of a receiver, trustee or custodian, an assignment for the benefit of creditors, or an insolvency settlement. Without limiting the foregoing, Ansira reserves the right to suspend the Services, including without limitation, Client’s, and its Authorized Users’ access to the Software, in the event of Client’s breach of any material obligation of the Agreement. Access to the Services will be resumed upon Client’s cure of such breach. For clarity, failure to pay all amounts due pursuant to ¶ 36 is a material breach.
55. Termination for Convenience. Client may terminate the Agreement and/or any Order Form for convenience upon ninety (90) days prior written notice to Ansira, however, Client shall remain obligated to pay all Fees and accrued expenses for the remaining portion of the terminated Order Form as if no such termination had occurred.
56. Effect of Termination.
56.1. Upon expiration or termination of the Agreement or any Order Form, (a) Client and its Authorized Users shall immediately cease use of the Software and the Documentation, and any Fees outstanding under such Order Form, including the prorated amount of any unmet commitments negotiated for discounted pricing (including print and spend minimums), will immediately become due and payable; and, (b) Client shall not have access to nor will Ansira make available to Client any Reporting Data generated by the Software, including but not limited to the Platform, after termination or expiration of the Agreement.
56.2. Within thirty (30) days following such expiration or termination, upon request from Ansira, all copies of Software, Documentation, and any other Confidential Information of Ansira in possession of Client or any Authorized User shall be returned to Ansira; and, upon request from Client, all Client Content, and any other Confidential Information of Client in possession of Ansira shall be returned to Client. Following ninety (90) days after such termination or expiration, Ansira may permanently delete all Client Content and/or Client’s Confidential Information in Ansira’s possession.
56.3. The provisions of the Agreement that, by their nature, require performance by either Party after the termination or expiration of the Agreement, including, but not limited to, ownership, confidentiality, payment, indemnification, non-solicitation, and governing law, will survive the termination or expiration of the Agreement.
H. WARRANTIES, DISCLAIMERS, AND LIMITATION OF LIABILITY.
57. Client Warranties. Client warrants and represents to Ansira that: (a) it will comply with all applicable laws, rules and regulations related to its access to and use of the Software and Services, including but not limited to the Americans with Disabilities Act, Health Insurance Portability and Accountability Act of 1996, Health Information Technology for Economic and Clinical Health Act, Gramm–Leach–Bliley Act, General Data Protection Regulation, Children’s Online Privacy Protection Act, Federal Trade Commission Act, Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, and Canadian Anti-Spam Law of 2014; (b) it owns or has rights in the Client Content and data uploaded to the Software or provided to Ansira that are sufficient for Ansira to perform hereunder; and, (c) any intellectual property, trademarks, copyright material, artwork, logos, graphics, video, text, data, marketing materials and any other information or documents provided to Ansira by Client and uploaded on the Platform by Client or by Ansira at Client’s request, and the reproduction, distribution, exhibition, display and performance of same (and the creation of derivative works based thereon) in the intended manner will not in any way infringe or violate any copyright, patent, trademark, trade secret or other proprietary or personal rights of any third- party.
58. Ansira Warranties. Ansira warrants that it shall employ commercially reasonable efforts to perform the Services as set forth in the applicable Order Form in a workmanlike, professional manner and that the Software will conform in all material respects to the Documentation and the product descriptions provided by Ansira, provided that the Software is used by Client in the manner authorized by the Agreement, the Documentation, and any applicable Order Form. Ansira makes no warranties regarding the Software’s performance or conformance to such specifications if used by Client in a manner other than as authorized under the Agreement, applicable Order Form, or applicable laws. In the event that Client provides written notice to Ansira within fifteen (15) days after discovery of an alleged breach the warranties in this ¶ 59, Ansira’s sole obligation, upon confirming such breach, will be (a) as applicable, to re-perform the Services in question or to cause the Software to operate as warranted, or (b) in its sole discretion, to provide a prorate refund of any unused Fees paid by Client associated with such breach. Ansira will have no liability of any kind for an alleged breach of any of the warranties in this ¶ 59 if Client fails to give Ansira written notice describing with particularity such breach within the stated period. NOTWITHSTANDING THE ABOVE, ANSIRA MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE SERVICES BEING PROVIDED BY CLIENT VENDORS. CLIENT SHALL NOT BE ENTITLED TO ANY WARRANTY REMEDIES FROM ANSIRA FOR ANY DEFICIENT SERVICES PROVIDED BY CLIENT VENDORS.
59. Beta Features. In the course of using the Services, Client may be offered an opportunity to trial beta features and functionality. For clarity, beta features are offered on an as-is and as-available basis. Ansira makes no warranties, express or implied, and hereby disclaims all implied warranties with respect to any beta features. Beta features will be document by an Order Form with Client.
60. DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY LAW, ANSIRA AND ITS PROVIDERS PROVIDE THE SERVICES AND ANSIRA INTELLECTUAL PROPERTY “AS-IS”, “AS-AVAILABLE”, FURTHER AND MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, OTHER THAN THOSE CONTAINED IN THE AGREEMENT, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE OR OTHER IMPLIED OR STATUTORY WARRANTIES REGARDING THE SERVICES OR ANSIRA INTELLECTUAL PROPERTY TO BE PROVIDED TO CLIENT, INCLUDING IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, COMPLIANCE WITH ANY APPLICABLE LAW, RULE, REGULATION, JUDGMENT, ORDER OR DECREE OF ANY GOVERNMENT, GOVERNMENTAL INSTRUMENTALITY, NONINFRINGEMENT, TITLE, AND QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. ANSIRA DOES NOT WARRANT THAT THE SERVICES OR ANSIRA INTELLECTUAL PROPERTY COMPLIES WITH ANY LAWS APPLICABLE TO CLIENT’S BUSINESS, INCLUDING BUT NOT LIMITED TO THE AMERICAN DISABILITIES ACT, OR ITS USE OF THE SERVICES OR ANSIRA INTELLECTUAL PROPERTY WILL BE UNINTERRUPTED OR ERROR FREE, INCLUDING BUT NOT LIMITED ERRORS IN CONTENT OR TEMPLATE DESIGNS, WHICH ARE CLIENT’S SOLE OBLIGATION TO REVIEW. ANSIRA SHALL HAVE NO LIABILITY FOR ANY PUBLISHER SITES, INCLUDING THEIR AVAILABILITY OR ANY CHANGE IN THE PUBLISHER SITES, FOR ANY DECISION BY A PUBLISHER TO REJECT OR MODIFY ANY CONTENT SUBMITTED BY CLIENT.
61. LIMITATION OF LIABILITY.
61.1. DAMAGES EXCLUSION. SUBJECT TO ¶ 61.3, BELOW, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES ARISING OUT OF THE AGREEMENT OR ITS TERMINATION, WHETHER FOR BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY, AND IRRESPECTIVE OF WHETHER THE PARTY HAS ADVISED OR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. EACH PARTY HEREBY WAIVES ANY CLAIMS THAT THIS DISCLAIMER DEPRIVES SUCH PARTY OF AN ADEQUATE REMEDY.
61.2. DAMAGES CAP. SUBJECT TO ¶ 61.3, BELOW, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY’S LIABILITY TO THE OTHER FOR ANY CAUSE WHATSOEVER, WHETHER ARISING UNDER THE AGREEMENT OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO ANSIRA (WHICH, FOR CLARITY, SHALL NOT INCLUDE ANY REFUNDS, CREDITS, PAYMENTS FOR LINKED ACCOUNT SERVICES OR ANY CLAIMS PAYMENTS PAID BY CLIENT OR DUE TO BE PAID BY CLIENT UNDER THE AGREEMENT) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT, OR LAST IN A SERIES OF EVENTS, WHICH GAVE RISE TO THE CLAIM.
61.3. EXCLUSIONS. THE FOREGOING LIMITATIONS SHALL NOT APPLY IN ANY MANNER TO THE LIABILITY OR DAMAGES RELATED TO OR ARISING FROM (A) CLIENT’S PAYMENT OBLIGATIONS UNDER THE AGREEMENT OR ANY ORDERING DOCUMENT; (B) A PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS; (C) CLIENT’S UNAUTHORIZED USE OF ANSIRA INTELLECTUAL PROPERTY OR BREACH OF CLIENT’S CONFIDENTIALITY OBLIGATIONS; OR, (D) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.
I. INDEMNIFICATION.
62. Ansira Indemnification. Ansira agrees to indemnify, defend, and hold harmless Client, its parent, subsidiaries and affiliated corporations, successors and assigns, officers, directors, and agents from and against all liability, damages, loss, cost, or expense, including reasonable attorneys’ fees and costs (collectively, a “Claim”), payable to a third-party bringing a claim against Client to the extent such claim arises out of (a) any allegation that Client is infringing on a third-party’s intellectual property rights caused by Client’s use of the Platform in accordance with the Agreement and these Terms. This provision shall not apply to any third-party claims arising out of or in connection with any artwork, logos, graphics, video, text, data, marketing materials, and any other information or documents provided to Ansira and/or uploaded on the Platform by Client, a User, or Client Vendor; (b) a material breach by Ansira.
63. Ansira Indemnification Exceptions. Indemnification in ¶ 62 shall not apply if alleged infringement is due to:
63.1 Client, User, or Client Vendor’s use of the Services in combination with any other computer programs not licensed by Ansira to Client; (b) other than as permitted under the Agreement; or (c) other than in accordance with its applicable Documentation.
63.2. Any act or omission of any party other than Ansira.
63.3. Any third-party software or equipment that is used in connection with the Platform.
63.4. Services provided by a Client Vendor that resulted in a defective product.
63.5. Violations in law by Ansira that is not based upon Client’s use of the Platform or violates any other unauthorized uses in the Agreement.
64. Client Indemnification. Client agrees to indemnify, defend, and hold harmless Ansira, its parent, subsidiaries and affiliated corporations, successors and assigns, officers, directors, and agents from and against all liability, damages, loss, cost, or expense, including but not limited to reasonable attorneys’ fees and costs, payable to a third-party bringing a claim against Ansira to the extent such claim arises out of:
64.1. Material breach of Client’s obligations under the Agreement and these Terms.
64.2. Client’s violation of any applicable law, rule, or regulation.
64.3. Any artwork, logos, graphics, video, text, data, marketing materials and any other information or documents provided to Ansira by Client and/or uploaded on the Platform either by Client or by Ansira at Client’s request. This provision includes but is not limited to any claims of infringement and piracy of trademarks, service marks and copyright material.
64.4. The operation of Client’s business and Client’s use of the Platform.
64.5. Any claims against Ansira by Linked Account relating to Client’s decision to sever and terminate its relationship with Linked Account.
64.6. Any claim, demand, suit or proceeding claiming that Ansira caused injury or damage to a third-party that resulted from the actions and/or inactions of Client Vendor in the rendering of services to Client and/or a Linked Account, including but not limited to, the disclosure of Confidential Information, the delivery of defective product, and the inability to timely deliver its products and/or services.
65. Indemnification Procedure. The Party seeking indemnification (“Indemnitee”) shall immediately notify the indemnifying Party (“Indemnitor”), in writing, of any claims or the commencement of any suit or proceeding in which it seeks to enforce the indemnification provisions in these Terms, and Indemnitor shall be given the opportunity to assume the defense of the matter at its own expense and with counsel of its own selection. If Indemnitor fails to assume the defense, the Indemnitee may defend the action in the manner it deems appropriate, and Indemnitor shall pay to Indemnitee all reasonable costs, including attorneys’ fees, incurred by Indemnitee in effecting such defense, in addition to any sum which Indemnitee may pay by reason of any settlement or judgment against Indemnitee. A Party’s right to indemnity under the Agreement shall arise notwithstanding that joint or concurrent liability may be imposed on Indemnitee by statute, ordinance, regulation, or other law. The Indemnitee shall cooperate with the Indemnitor in good faith and shall at all times have the right to fully participate in such defense at its own expense. The Indemnitor shall not enter into any agreement or final settlement without the Indemnitee’s written consent.
66. Ansira Mitigation Right. If the Platform, or any part thereof, becomes, or in the opinion of Ansira may become, the subject of a claim of infringement or misappropriation, Ansira may, at its option: (a) obtain a license for Client’s continued use of the Platform in accordance with the Agreement; (b) replace or modify the Platform so that they are no longer claimed to infringe or misappropriate; or if neither of (a) or (b) are available on commercially reasonable terms in Ansira’s discretion, (c) terminate the Agreement and refund to Client a pro-rated refund for the unused remaining portion of the term set out in the applicable Order Form.
J. GENERAL PROVISIONS.
67. Notice. Any notice required or permitted to be given under the Agreement or any Order Form shall be in writing and shall be deemed given when (a) mailed by Certified or Registered United States Mail, return receipt requested, postage prepaid; (b) by recognized overnight courier with tracking capabilities (e.g., FedEx, UPS); or, (c) hand-delivered to the respective Parties at the addresses specified on the applicable Order Form.
68. No Solicitation. The Parties agree that they each invest a great deal in the training of their employees. During the term of the Agreement and for a period of 12 months following its termination for any reason, Client and Ansira shall not directly solicit for employment, for any position, any personnel of the other Party, including partners and employees, involved in the provision of any solutions or services for the Client, except as otherwise agreed in writing by the Parties. For this purpose, solicit does not include contact resulting from indirect means, such as public advertisement or similar means not directed specifically at the Parties’ personnel to which a potential candidate responds on his or her own initiative.
69. Assignment. Neither Party shall assign the Agreement to a third-party without the prior written consent of the other, such consent not being unreasonably withheld; provided, however, that such consent shall not be required in the context of an acquisition of a Party by (a) asset sale, merger, change of control or operation of law; or, (b) an Affiliate. Subject to the foregoing, the Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective representatives, successors, and permitted assignees.
70. Sub-Contractors and Affiliates. Ansira may employ individual third-party subcontractors or consultants in the performance of the Services without prior consent of Client. Affiliates of Ansira may enter into Order Forms that incorporate the Agreement. In such event (a) references to Ansira shall be deemed references to the specific Ansira Affiliate executing such Order Form; (b) references to the Software shall be deemed references to the Software that is defined in such Order Form; (c) such Order Form shall be considered a separate and distinct agreement between Client and such Ansira Affiliate; and, (d) notices required or permitted to be given under such Order Form shall be delivered in compliance with the Agreement to such Ansira Affiliate at the address, if any, specified in such Order Form. Notwithstanding the foregoing, Ansira shall remain fully liable for its Affiliates or any third-party subcontractors it utilizes.
71. Entire Agreement. The Agreement, any schedules, exhibits, or attachments, and any applicable Order Forms shall constitute the entire agreement between Ansira and Client with respect to the Services and the Software, and the Agreement and applicable Order Form supersede all prior oral or written communications or agreements of the Parties with respect to the subject matter described in an Agreement or Order Form (including any letters of intent, “quick start” agreements or similar documents between the Parties), with any additional terms included on Client purchasing or other documents (printed and online) expressly objected to and rejected.
72. Independent Contractor. The status of Ansira under the Agreement and all appliable Order Forms shall be that of an independent contractor to Client, and nothing shall be deemed to create a partnership or joint venture. Ansira is not the agent, employee, or servant of Client and may not act for or bind Client or incur any debts or liabilities in the name of Client. Ansira’s employees and agents shall not be considered employees or agents of Client and Ansira shall be solely responsible for all matters relating to compliance with social security, withholding, worker’s compensation, employment taxes, self-employment taxes, and other governmentally imposed responsibilities, as applicable to Ansira employees and agents.
73. Applicable Law; Venue. This Agreement and any Order Form incorporating the Agreement will be subject to and construed in accordance with the laws of the State of Missouri, without regard to its conflict of laws provisions. EACH PARTY VOLUNTARILY WAIVES ITS RIGHT TO A JURY TRIAL FOR ANY CLAIMS THAT MAY ARISE OUT OF THE AGREEMENT OR ANY ORDER FORM ASSOCIATED WITH THIS AGREEMENT.
74. Severability. If any provision of the Agreement shall be deemed unlawful, invalid, or unenforceable by a court of law, then the impugned provision shall be deemed severed and shall not affect the validity and enforceability of any remaining provisions.
75. No Waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of the Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of the Agreement.
76. Force Majeure. Neither Party shall be liable for damages related to such Party’s inability to perform its obligations under the Agreement or applicable Order Form arising out of causes beyond its control including, but not limited to acts of God, acts of the United States or any pertinent governmental authority, fires, floods, explosions or other catastrophes, epidemics, pandemics, quarantine restrictions, labor strikes, and freight embargoes (“Event“). Should an Event arise, the Party unable to complete their obligations shall (a) promptly notify the other Party in writing that an Event has rendered it unable to continue performance; (b) take commercially reasonable steps to resume performance as soon as possible; and, (c) not be considered in breach during the Event. Nothing in this ¶ 76 shall excuse payment by Client to Ansira for services or deliverables performed as of the date of the Event. The Parties agree to use commercially reasonable efforts to resume performance as soon as practicable after such Event ends.
77. Modifications or Amendments. No modifications or amendments shall be made to these Terms, the Agreement, or any Order Form unless in writing and signed by the Parties. Ansira reserves the right to modify these Terms at its sole discretion from time-to-time.