1. Free Trial Period
(a) Anaqua offers free trials to individuals and/or companies (hereinafter referenced as “Customer” or “Customers”), who want to try the AcclaimIP software before they buy it. Upon review and approval by Anaqua personnel, access to software shall be granted to any Customer who has validly licensed access according to the terms herein. We do require that in good faith you provide accurate contact information. We do not allow anonymous free trials, including those from temporary email addresses. We suspend all trial accounts not following these requirements and obligations 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 sales quote (hereinafter referenced as “Quotation”), 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 term enumerated in any Quotation. 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 Quotation unless there is a statement of work pertaining to initial implementation, in which case initial activation shall occur pursuant to that statement of work. For purposes of clarity and acknowledgement by Customer, acceptance of any Quotation provided by Anaqua and the terms enumerated therein, contractually binds Customer to the terms of this Agreement and the Quotation.
(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. Customer Satisfaction
(a) Anaqua offers a 30-day satisfaction guarantee. Customer and/or users may receive a full refund if not satisfied with the AcclaimIP products or services by providing Anaqua with express, written notice of termination within 30 days of license grant. If Customer and/or user fails to provide timely notice of termination within the period enumerated in this Section 4(a), all license purchases for products and/or services are final and non-refundable.
5. Payment Terms
(a) Anaqua may offer custom payment terms to a Customer spending more than $10,000 per year with us. For accounts spending less, all fees are payable net thirty (30) days from the first day of the subscription license or in advance if payment is made by credit card. Late payments may result in the temporally suspension of all seats associated with an account. Anaqua accepts Visa, MasterCard, American Express and Discover credit cards.
6. Term and Renewal Term
(a) All memberships or seats are annual, pre-paid and automatically renew at the specified renewal date listed in the applicable Quotation.
(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) Customer may terminate seats or their entire account prior to the end of any annual billing cycle for any reason during the Term by providing no less than 60 days prior written notice to Anaqua, and by paying a termination for convenience fee in the amount of 40% of the remaining un-paid annual fees due and owing to Anaqua for the remainder of the current subscription term as enumerated in the applicable Quotation.
8. Competitive Contract Bridging
(a) If any Customer is using a competitive or alternative system which provides similar services to those subscribed to by Customer according to this Agreement and the applicable Quotation (hereinafter “Competitive Contract”), Anaqua shall provide a temporary subscription and license for a fixed period to the subscribed number of user seats that Customer has subscribed to in the applicable Quotation (hereinafter referenced as “Bridge Period”), for an applicable fee as provided in the applicable Quotation. The initial term of the AcclaimIP subscription period begins at the end of the Bridge Period and continues for the term length enumerated in the applicable Quotation.
9. 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.
10. 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.
11. 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 Quotation when a seat is upgraded.
(a) Anaqua shall maintain a running backup of Customer data such as research folders and their contents, saved searches and search history for a thirty (30) day period. If at any time within that 30 day period, Customer inadvertently deletes any Customer data being hosted by Anaqua, Customer may recover any such data by paying Anaqua for recovery services at a rate of $275.00 per hour with a minimum project length of three hours. After the 30 day period has expired, the data shall be destroyed according to our standard back-up policy, and Anaqua will no-longer be able to recover that deleted data under any circumstances.
14. 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, deliverables, documentation, Customer and/or user data, network data, and access thereto. “Recipient” means the party receiving information from the other party.
(b) Protection. 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) Exceptions. A Recipient’s obligations under this Section 15 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.
15. Software Instrumentation
16. Disclaimer and Limitation of Liability:
(a) ALL INFORMATION AND/OR DATA RECEIVED AND/OR DERIVED FROM USE OF THIS WEBSITE, 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 ANYWAY OR IN ANY FORM AND CUSTOMER HEREYB DISCLAIMS AND WAIVES ANY RELIANCE WHATSOVER UPON THE SAME.
(b) ANAQUA DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS RELATING TO THIS WEBSITE, 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 THIS WEBSITE, 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 THIS WEBSITE AND/OR THE ACCLAIMIP 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.
17. Misuse and Abuse of Data
(a) Access of the AcclaimIP.com database in an automated manner is not permitted. The Data from this site 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 site, as well as any and all legal action afforded Anaqua in law or in equity.
(b) Anaqua reserves the right to ban users from this site, whether using automated means or not, if, in Anaqua’s sole opinion, they are abusing the AcclaimIP data or database.
(c) All users of the AcclaimIP.com site and software must comply fully with all applicable laws, statues, ordinances, rules and regulations, and agree not to use our web site or software to facilitate collusion or for any other conduct violating any applicable laws, statutes, rules and regulations. 18. Non-Solicitation (a) Each party agrees for itself and its affiliates that, without the prior written consent of the other party, it shall at no time during the Term or for a period of one year thereafter solicit, make any offer to hire, hire, or enter into any employment, consulting, or other arrangement with, any individual engaged by the other party or its affiliates as an employee or consultant at any time during the term in which Customer and/or user uses Anaqua products or services.
(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:
Chief Executive Officer Anaqua, Inc.
31 St. James Avenue, 11th Floor
Boston, MA 02116
Tel: 617-375-5808 Fax: 617-421-1511
If to Customer or user, then to the billing address accompanying any purchase.
With a copy to:
General Counsel Anaqua, Inc.
31 St. James Avenue,
11th Floor Boston, MA 02116
Tel: 617-375-5808 Fax: 617-421-1511
Either party may change the address or facsimile phone number 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.
20. Governing Law
(a) All matters arising out of or related to use of the AcclaimIP Website, Services or this Agreement, including its validity, interpretation, and effect, and all contract and other claims, shall be governed by the substantive law of the Commonwealth of Massachusetts, USA, substantive US Federal law (including applicable treaties but excluding the United Nations Convention on Contracts for the International Sale of Goods), and applicable intellectual property law, in each case without regard to conflicts of law principles (except as between those specific bodies of law).
(a) All suits arising out of or in connection this Agreement shall be brought solely in (a) the Commonwealth of Massachusetts if Customer and/or user has an office in the Americas or (b) in England if Customer and/or user does not have an office in the Americas. In case (a), the parties hereby submit to the jurisdiction of any United States federal court sitting in Boston or, if such court does not accept jurisdiction, a Massachusetts state court sitting in Boston. In case (b), the parties hereby submit to the jurisdiction of any court of competent jurisdiction sitting in London, England. Excepted from both cases (a) and (b) are actions to enforce a judgment or an arbitral award or for injunctive relief, which may be filed in any court of competent jurisdiction.
(a) If either party breaches, or attempts or threatens to breach, the confidentiality, license restrictions or limitations, ownership, or non-solicitation 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.
23. 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.
24. Official Language
(a) The official language of this Website and Agreement is English. All reports and written communications between the parties shall be in English.
25. 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 Quotation 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) The rights and liabilities of the parties will bind and inure to the benefit of their respective permitted assigns, successors, and legal representatives. This Agreement is personal to Customer and/or user. Accordingly, Customer and/or user shall not assign or transfer its license or rights or delegate its obligations under this Agreement, in whole or in part, directly or indirectly, including by contract, merger, consolidation, operation of law, Change of Control, or any other means. However, Customer and/or user may assign or transfer this Agreement in whole to any entity that acquires all or substantially all of its stock or other equity interests or all or substantially all of its business and assets, provided that (a) it has obtained Anaqua’s prior written consent, which shall not be unreasonably withheld, delayed, or conditioned, (b) the acquiring entity is not a Competitor of Anaqua, and (c) the acquiring entity agrees in writing to be bound by this Agreement. Anaqua may assign or transfer this Agreement (and shall give notice thereof to Customer and/or user), may assign its right to payment of any amount that comes due hereunder, and may engage providers to assist it in the performance of this Agreement. No assignment or transfer by either party will release the assignor or transferor from any liability hereunder without the other party’s written agreement. Any attempted assignment or transfer in violation hereof will be void. “Change of Control” of an entity means a change of more than 50% in the beneficial ownership (as defined in Rule 13d-3 under the U.S. Securities Exchange Act of 1934) of the entity’s voting stock (or other voting equity interests) or, within any 12-month period, in the composition of its board of directors (or other governing body).