1. This Agreement
(a) Thank you for choosing AcclaimIP’s proprietary software (hereinafter referenced as “Software”). Access to and use of the Software licensed by an individual or corporate customer (hereinafter referenced as “Customer”) is governed by the Acclaim IP Terms & Conditions (hereinafter referenced as “Agreement”). In this Agreement, Anaqua means Anaqua, Inc. (hereinafter as “Anaqua”).
(b) Customer acknowledges and agrees that Customer has acquired a license to access and use the Software subject to the terms of this Agreement.
2. License Grant
(a) Subject to Customer paying all fees and following the terms and conditions enumerated in this Agreement and the applicable AcclaimIP License Quote/Order (hereinafter referenced as “Quote/Order”), Anaqua hereby grants to Customer and/or user, and Customer and/or user subscribes to and accepts, a limited and non-exclusive license to access and use the Software and content via the Internet and during the Contract Term set forth in any Quote/Order. This license and Agreement are non-transferable except with the prior, express written consent of Anaqua. Access and use of the Software and content shall be initially granted for Customer and/or user promptly after the effective date of any executed Quote/Order. For purposes of clarity and acknowledgement by Customer, acceptance of any Quote/Order provided by Anaqua and the terms set forth therein, contractually binds Customer to the terms of this Agreement and the Quote/Order.
(a) The AcclaimIP website and all of its content as well as all Software, content, methodologies, deliverables, and documentation and services are licensed, not sold to Customer and/or user. As between Customer and/or user and Anaqua, Anaqua shall be the sole and exclusive owner of all right, title and interest therein, including without limitation all copies thereof, all updates and other modifications thereto, and all intellectual property rights therein, whether suggested, created, made, or provided by Anaqua, Customer, or any other person. Customer, Customer’s affiliates, and users shall not acquire any right, title, or interest, express or implied, in any Software, content, methodologies, deliverables, or documentation, other than the limited license granted under the terms of this Agreement. To the extent that any of them has or does acquire any such right, title or interest, Customer, on behalf of itself and its affiliates and the users, shall assign and hereby assigns all such rights to Anaqua.
4. Payment Terms
(a) Customer shall pay all invoices net thirty (30) days from the date of receipt of the invoice, which will be emailed to Customer, unless otherwise stated in an applicable Quote/Order. Customer agrees to pay or reimburse Anaqua for any and all applicable sales, use, value added or similar taxes, in respect of the Software and content furnished by Anaqua hereunder, other than taxes levied or imposed based upon Anaqua’s income or gross revenues.
(b) Anaqua may charge interest on overdue amounts at the rate of one and one-half percent (1.5%) per month or the highest lawful rate, whichever is less. In addition, Anaqua may, after giving written notice to Customer of late payment of Fees, suspend the Software and/or may, pursuant to Section 6, terminate this Agreement. No such suspension shall extend the Term. In the event that Anaqua must institute legal proceedings to collect Fees due under this Agreement, Customer shall be liable for all reasonable attorneys’ fees and other costs associated therewith.
5. Term and Renewal Term
(a) All licenses and seats are annual, pre-paid, and automatically renew at the specified renewal date listed in the applicable Quote/Order. Unless Customer gives written notice to Anaqua of non-renewal at least thirty (30) days prior to the expiration of the then current Contract Term set forth in the Quote/Order, the Customer’s license shall automatically renew annually on the date of the first seat purchased by Customer.
(b) Annual renewal dates are based on the date of the first seat purchased by the user.
(c) To make payments easier to manage, all annual seats renew on the same day of the year. Therefore, new seats added to a Customer account are prorated until the next renewal date at no additional financial penalty to the user.
(a) A party may terminate this Agreement or Order (i) for any material breach of the terms of this Agreement that is not cured within thirty (30) days following written notice of such breach, or (ii) immediately upon written notice if the other party files for bankruptcy, becomes the subject of any bankruptcy proceeding or becomes insolvent. Upon any expiration or termination of this Agreement, all accrued but unpaid amounts that may be properly owing from one party to the other shall become immediately due and payable.
7. Customer Administrator
(a) One login is associated with the Customer administrator. The Customer administrator is the only user, other than Anaqua administrators at the request of the Customer, who can add new users, purchase seats, cancel seats, purchase upgrades and assign users to seats.
8. Named Users and Seats
(a) Customer shall license one (1) seat per User. Only the User who is registered on a given User seat may use that seat to access and use the Software. Customer shall require Users to take appropriate steps to secure their passwords and log-in credentials. Customer may reassign a validly licensed seat to another User but may not share or otherwise allow two or more Users per seat licensed.
9. Seat Upgrading
(a) Upgraded seats require immediate payment. Once payment is processed, the user of the seat will have access to the upgraded features. Upgrades are prorated until the next renewal date, and pro-rated credit is given for the remaining time on the existing (lower cost) plan. The updated payment amount for each upgraded seat will be shown in the applicable Quote/Order when a seat is upgraded.
10. Support Services
(a) Anaqua will provide Customer with the support services for the Software during business hours. Such support services are included in the License Fee. Customer may submit request support requests by email to email@example.com or through the feedback form in the Software where Customer may submit questions.
12. Confidential Information
(a) “Confidential Information” means (a) information of either party or its suppliers that is heretofore or hereafter received or accessed by the other party in connection with this Agreement, that contains trade secrets or is otherwise confidential, and that is either identified as confidential when it is disclosed or within 30 days thereafter or should reasonably be understood by the Recipient to be confidential and (b) all Software, content, methodologies, pricing, deliverables, documentation, Customer and/or user data, network data, and access thereto. “Recipient” means the party receiving information from the other party.
(b) The Recipient shall protect and keep confidential all Confidential Information received or accessed from the other party, including all copies thereof in Recipient’s possession or control, and all passwords therefor, and shall do so with at least the same degree of care as Recipient protects its own Confidential Information of similar value, but with not less than reasonable care. The Recipient shall use such information only for the purposes of this Agreement and subject to its limitations and restrictions (which, as to the Software, content, methodologies, deliverables, and documentation, include the licensing limitations and restrictions). Confidential Information may be disclosed by the Recipient only to its employees, subcontractors, and users, only on a need-to-know basis, and subject to a confidentiality agreement or obligation. The Recipient shall ensure that any person to which Recipient discloses any Confidential Information complies with the confidentiality, licensing limitations and restrictions, and other applicable requirements of this Agreement. In no event may Customer and/or user disclose the Software, content, methodologies, deliverables, or documentation, or any design or other technical information related thereto, to any competitor of Anaqua.
(c) A Recipient’s obligations under this Section 12 shall not apply to any part of the Confidential Information that Recipient can document: (1) at the time of disclosure to it was generally known to the public or, after such disclosure, became generally known to the public other than by a breach of this Agreement by Recipient; (2) was already in the possession of the Recipient at the time of such disclosure, without an obligation of confidentiality; (3) was later received on a non-confidential basis by Recipient from a third party having the right to impart such information; or (4) is developed by an employee or agent of Recipient who did not have access to the Confidential Information. In addition, those same obligations shall not apply to any part of the Confidential Information that is required to be disclosed by Recipient as a matter of law or by order of a court, governmental agency, or arbitral tribunal of competent jurisdiction, or that is needed to be disclosed in connection with the prosecution or defense of a claim under this Agreement, provided (i) that Recipient provides the other party with reasonable advance notice of the disclosure and (ii) that Recipient takes reasonable and lawful actions requested by the other party and cooperates with the other party to avoid and/or minimize the extent of such disclosure.
13. Disclaimer and Limitation of Liability:
(a) ALL INFORMATION AND/OR DATA RECEIVED AND/OR DERIVED FROM USE OF THE SOFTWARE AND/OR SERVICES RELATED THERETO IS PROVIDED AND OR CREATED “AS IS”. NOTHING IN THIS AGREEMENT, THE SOFTWARE AND/OR SERVICES PROVIDED THEREIN, NOT IN FACT, CONSTITUTE LEGAL ADVICE IN ANY WAY OR IN ANY FORM AND CUSTOMER HEREBY DISCLAIMS AND WAIVES ANY RELIANCE WHATSOEVER UPON THE SAME.
(b) ANAQUA DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS RELATING TO, THE ACCLAIMIP SOFTWARE, CONTENT, METHODOLOGIES, DELIVERABLES, DOCUMENTATION, AND/OR SERVICES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY, OR OTHER. ANAQUA DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COMPATABILITY, SECURITY, ACCURACY OF IP VALUATION, ACCURACY OF DATA, RELIANCE ON DATA, RELIANCE ON THIRD PARTY SUPPLIED DATA AND/OR FREEDOM FROM VIRUSES. ANAQUA DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS ARISING FROM CUSTOM OR TRADE USAGE, FROM COURSE OF DEALING OR PERFORMANCE, OR FROM PROMOTIONAL MATERIALS, PROPOSALS, OR OTHER DESCRIPTIVE LITERATURE. THE SOFTWARE IS NOT CUSTOM SOFTWARE AND ANAQUA DOES NOT PROMISE THAT THE SOFTWARE WILL MEET CUSTOMER’S AND/OR USER’S REQUIREMENTS. DUE TO THE INHERENT NATURE OF SOFTWARE, ANAQUA DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL SOFTWARE DEFECTS WILL BE CORRECTED.
(c) ANAQUA WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO ANY CUSTOMER AND/OR ITS USERS FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF, RELATED TO, OR CONNECTED WITH THE SOFTWARE AND/OR THIS AGREEMENT OR RELATED AGREEMENTS IN ANY WAY (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FROM LOSS OF USE, LOSS OF DATA, COST OF COVER, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF IP RIGHTS, AND, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FROM DEFECTS IN OR USE OF ANY SOFTWARE, USER REFERENCE GUIDES OR SERVICES OR FROM ANY INACCURATE, INCOMPLETE, OR OUT-OF-DATE ANALYTICS), UNDER ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORT, OR BREACH OF STATUTORY DUTY), EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
(d) AT NO TIME SHALL THE CUMULATIVE LIABILITY OF ANAQUA FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY CUSTOMER AND/OR USER’S USE OF THE SOFTWARE IN ANY WAY, UNDER ANY THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO ANAQUA BY THE USER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE MOST RECENT CLAIM.
14. Misuse and Abuse of Data
(a) Access of the Software in an automated manner is not permitted. The Data from the Software may not be directly or indirectly copied, disassembled, resold or redistributed in any manner. Anaqua reserves the right to take any and all action for violation of this agreement, including but not limited to, banning from the Software, as well as any and all legal action afforded Anaqua in law or in equity.
(b) Anaqua reserves the right to ban users and/or Customers from the Software, whether using automated means or not, if, in Anaqua’s sole opinion, they are abusing the Software.
(c) All users of the Software must comply fully with all applicable laws, statues, ordinances, rules and regulations, and agree not to use the Software to facilitate collusion or for any other conduct violating any applicable laws, statutes, rules and regulations.
(a) Any notice, election, request, consent, approval, or waiver required or permitted by the terms of this Agreement shall be sufficient if in writing and delivered personally, or sent by telephonic facsimile machine, delivery confirmation required, or sent by commercial delivery service with fees paid by sender, delivery confirmation required, or by certified or registered mail with postage fully prepaid, return receipt requested or delivery confirmation required, and in each case if delivered or addressed as follows:
If to Anaqua, then to:
General Counsel, Anaqua, Inc.
31 St. James Avenue,
11th Floor Boston, MA 02116
Either party may change the address to which notices, elections, requests, consents, approvals, and waivers may be sent to it by giving written notice to the other party in the manner provided in this Section.
16. Governing Law and Venue
(a) This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed in all respects by the laws of the Commonwealth of Massachusetts, regardless of its conflict of law principles, and the Parties consent to the exclusive jurisdiction of such courts. The parties expressly waive their right to trial by jury for any action or proceeding brought in relation to this Agreement. Any action or proceeding will be heard by a judge.
(a) If either party breaches, or attempts or threatens to breach, the confidentiality, license restrictions or limitations, or ownership provisions of this Agreement, the other party to this Agreement shall be entitled to an injunction against the breaching party. Nothing herein contained precludes the other party from pursuing any other remedies available hereunder or at law or equity for such breach, including the recovery of damages.
18. Export Compliance
(a) Customer and/or user shall comply fully with all applicable export laws and regulations of the United States and any other relevant jurisdiction (“Export Laws”) to assure that the Software, Content, Methodologies, Documentation, any Deliverables, and any direct product of them are not (a) exported or accessed, directly or indirectly, in violation of the Export Laws or (b) used for any purpose prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Customer and/or user shall comply with any regulations or registration procedures required by applicable law to make this Agreement enforceable. The licenses granted to Customer and/or user are subject to Customer and/or user’s compliance with this Section.
19. Official Language
(a) The official language of the Software and Agreement is English. All reports and written communications between the parties shall be in English.
20. Entire Agreement; Amendments
(a) This Agreement constitutes the entire, final, and complete agreement between the parties hereto relevant to the subject matter hereof. It supersedes and replaces all prior and contemporaneous agreements, promises, proposals, offers, understandings, representations, warranties, descriptions, promotional materials, and other communications whatsoever, whether written or oral, express or implied, relevant to the subject matter hereof, whether between the parties or their representatives or otherwise. Without limitation, the terms of this Agreement and the applicable Quote/Order shall supersede the terms of any Customer and/or user purchase order or other ordering document.
(a) Any provision of this Agreement may be waived only by a written instrument that expressly grants the waiver and is signed by a duly authorized representative of the granting party. Unless otherwise expressly provided in the waiver, it shall operate only as to the single instance giving rise to the waiver.
(a) If any provision in this Agreement shall be held by a court or arbitral tribunal of competent jurisdiction to be invalid, illegal, void, or unenforceable, the remainder of the Agreement shall remain in full force and effect and the offending provision shall remain in effect as far as possible in accordance with the intention of the parties. However, if the Agreement, as so reformed, substantially alters the basis of the bargain between the parties, it shall be deemed terminated.
(a) Subscriber may not assign this Agreement, in whole or in part to any third party without the prior written consent of Anaqua; provided, however, Subscriber may assign this Agreement to an entity that acquires all or substantially all of Subscriber’s assets (by merger, asset acquisition, or otherwise) upon written notice to Anaqua. Notwithstanding the foregoing, Anaqua retains the right to prohibit any assignment to a direct competitor of Anaqua.