Last Revised: September 28, 2017
ANTHE SOLUTIONS LLC
THIS IS A LEGAL AGREEMENT BETWEEN CUSTOMER AND ANTHE SOLUTIONS LLC. BY ACCESSING AND/OR USING THE THIS IS A LEGAL AGREEMENT BETWEEN CUSTOMER AND ANTHE SOLUTIONS LLC. BY ACCESSING AND/OR USING THE SERVICES, CUSTOMER IS AGREEING, ON BEHALF OF AN INDIVIDUAL AND/OR A LEGAL ENTITY, TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. DEFINITIONS – As used in the Agreement, the following defined terms shall apply:
1.1. Affiliate means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, through majority ownership of voting securities or equity interests.
1.2. Agreement means these Terms of Service, the Service Descriptions, and any other documents incorporated herein by reference.
1.3. ANTHE Solutions LLC means the providing ANTHE Solutions LLC entity specified at https://www.anthesolutions.com/buy/licensing/ANTHE
1.4. ANTHE Solutions LLC Marks means any name, logo, or mark belonging to ANTHE Solutions LLC or its Affiliates.
1.5. Customer means the legal entity or individual that has ordered any Services from ANTHE Solutions LLC.
1.6. Customer Content means any files, documents, recordings and other information belonging to Customer, users or others as uploaded to Customer’s account for storage and/or used, presented or shared in connection with the Services, and is not related to ANTHE Solutions LLC servicing or accessing Customer’s account.
1.7. Fees means all ANTHE Solutions LLC fees applicable to the Services.
1.8. Open Source Software means third party software distributed by ANTHE Solutions LLC under an open source licensing model (e.g., the GNU General Public License, BSD or a license similar to those approved by the Open Source Initiative).
1.9. Order or Services Order means any initial or subsequent ordering document and/or online request for access to the Services submitted to ANTHE Solutions LLC,a ANTHE Solutions LLC authorized reseller and/or through ANTHE Solutions LLC product websites.
1.11. Services means the generally available ANTHE Solutions LLC software-as-a-service offerings (“SaaS Services”), including any components provided with them, and Updates, all as further described in the Service Descriptions. Services availability is subject to the ANTHE Solutions LLC product lifecycle policy on www.anthesolutions.com. ANTHE Solutions LLCmay update the Services with Updates at any time in its sole discretion, and all Services set forth in the Services Descriptions may not be available to all Customers.
1.12. Service Descriptions means the overview and other terms applicable to the Services, as amended from time to time, as found at https://www.anthesolutions.com/buy/licensing/saas-service-descriptions.html.
1.13. Taxes means all applicable transactional taxes on Services (including but not limited to withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), and tariffs and/or duties) imposed by any government entity or collecting agency based on the Services. Taxes shall not include those taxes based on ANTHE Solutions LLC’ net income, and/or those taxes for which Customer has provided a valid certificate confirming Customer is exempt.
1.14. Updates means any corrections, bug fixes, new features or functions added to or removed from the Services, but shall not include any new Service(s) version(s) that ANTHE Solutions LLC markets and sells separately.
1.15. Use Level means the model by which ANTHE Solutions LLC measures, prices and offers the Services to Customer as set forth on the applicable price list, websites, Order, and/or Service Description.
2.1. Right to Use Service for Business. Subject to these terms, ANTHE Solutions LLC will provide the Services set forth in any Order that ANTHE Solutions LLC has accepted for Customer’s use in accordance with the Agreement and applicable Use Levels. Customer acknowledges that Services are not intended for use by consumers. Customer may use Services only for business and professional purposes. ANTHE Solutions LLC hereby grants to Customer a limited, personal, non-exclusive, non-transferable, non-sub licensable right to use any components provided as may be required to access and use the Services during the Term in accordance with the Agreement. Technical support for the Services is provided as set forth in the applicable Service Description. Updates to the Services are included in the Fees. Customer shall use the then-current version of the Services, including any Updates, as made available by ANTHE Solutions LLC. To the extent that Affiliates use the Services, Customer warrants that it has the authority to bind under this Agreement those Affiliates. Customer will be liable to ANTHE Solutions LLC in the event any Affiliate fails to comply with any term or condition of this Agreement.
2.2. Limitations on Use. Except to the extent permitted by applicable law, Customer agrees, on behalf of itself and its users, not to (i) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Services and/or ANTHE Solutions LLC technology; (ii) knowingly or negligently access or use the Services in a manner that abuses or disrupts the ANTHE Solutions LLC networks, security systems, user accounts, or Services of ANTHE Solutions LLC or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means, (iii) transmit through or post on the Services any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise objectionable or unlawful; (iv) market, offer to sell, and/or resell the Services alone, except pursuant to a ANTHE Solutions LLC resale program (v) use the Services to send unsolicited or unauthorized advertising, junk mail, or spam; (vi) harvest, collect, or gather information or data regarding other users without their consent unless permitted by applicable law; (vii) transmit through or post on the Services any material that may infringe the intellectual property rights or other rights of third parties, including, without limitation, trademark, copyright, data privacy or right of publicity; (viii) transmit or post on the Services any material that contains software viruses or other harmful or deleterious computer code, files or programs; (ix) if the Customer is a ANTHE Solutions LLC competitor for the relevant Services, use the Services directly or indirectly for competitive benchmarking or other competitive analysis, unless permitted under applicable law; (x) submit to, or store in the Services, any Protected Health Information (“PHI”) unless Customer has complied with Section 5.1 below; or (xi) make any representations with respect to ANTHE Solutions LLC or this Agreement (including, without limitation, that ANTHE Solutions LLC is a warrantor or co-seller of any of Customer’s products and/or services). Furthermore Customer shall not offer to sell or resell the Services, but the Services may be used by Customer in support of Customer’s service offering(s). Except for Infringement Claims, Customer agrees to indemnify and hold ANTHE Solutions LLC harmless against any third party claim and/or liability resulting from Customer’s use of the Services. THE SERVICE DESCRIPTION FOR THE INDIVIDUAL SAAS SERVICES MAY CONTAIN ADDITIONAL RESTRICTIONS.
2.3. Proprietary Rights. Except for the limited subscription rights granted herein, Customer has no right, title or interest in or to the ANTHE Solutions LLC Marks or Services or any components provided by ANTHE Solutions LLC in connection with the Services or any intellectual property rights related thereto. Customer acknowledges that ANTHE Solutions LLC or its licensors retain all proprietary right, title and interest in and to, or practiced in connection with, the ANTHE Solutions LLC Marks and the Services and any components, including, without limitation, all modifications, enhancements, derivative works, configuration, translations, upgrades and interfaces thereto.
2.4. ANTHE Solutions LLC Marks. Unless expressly authorized under the terms of this Agreement, Customer agrees that it shall not use, register or apply for registration of any trademark, service mark, business name, company/trade name, domain name or social media account name or handle which is comprised of or incorporates in whole or in part any ANTHE Solutions LLC Mark, or is otherwise confusingly similar to a ANTHE Solutions LLC Mark. In the event of any breach of this provision, Customer agrees that it will do all things necessary to effect the transfer of any such same or similar trademark, service mark, business name, company/trade name, domain name or social media account name or handle to ANTHE Solutions LLC, including but not limited to executing assignment documentation. Except as expressly granted herein, no license regarding the use of ANTHE Solutions LLC copyrights, patents, trademarks, service marks or company/trade names is granted or will be implied. For any authorized use of the ANTHE Solutions LLC Marks, Customer represents that it has reviewed and will adhere to ANTHE Solutions LLC’ Trademark & Copyright Guidelines, available at https://www.anthesolutions.com/about/legal/brand-guidelines.html, and incorporated herein by reference and as may be periodically updated by ANTHE Solutions LLC.
3. ORDERS, FEES AND PAYMENT.
3.1. Orders. Customer may order Services using the ANTHE Solutions LLC then-current ordering processes. All Orders are subject to acceptance by ANTHE Solutions LLC in its discretion. All Customer information provided by or on behalf of Customer must be current, complete and accurate, and Customer is responsible for keeping such information updated. Order information is subject to automatic processing by ANTHE Solutions LLC for the purposes of managing Customer’s account.
3.2. Fees, Taxes and Payment. Customer is responsible for all Fees and Taxes. If Customer fails to pay Taxes, Customer agrees to reimburse ANTHE Solutions LLC for any such Taxes assessed against ANTHE Solutions LLC and indemnify and hold ANTHE Solutions LLC harmless against any other claim, liability and/or penalties resulting therefrom. All purchases are final with no right to a refund, except as expressly provided under the warranty or the infringement indemnification terms of this Agreement.
3.3. Additional Services. Customer may order additional Services at any time. Additional Services may not be available on a coterminous basis with previously ordered Services.
3.4. Late Payments. ANTHE Solutions LLC reserves the right, in its discretion, to (i) suspend or terminate the Services or any portion thereof for non-payment of Fees, and (ii) impose a charge to restore archived data from delinquent accounts.
4. TERM AND TERMINATION.
4.1. Term. The terms of this Agreement shall apply for the period of Services set forth under accepted Orders, or if none, for the period of paid or trial subscription.
4.2. Termination for Cause. Either party may terminate the Agreement or a specific Services if the other party breaches any of its material obligations under the Agreement, or as to the specific Services, and fails to cure within thirty (30) days of receipt of written notice from the non-breaching party, and either party may immediately terminate the Agreement if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. ANTHE Solutions LLC may immediately terminate the Agreement if the Customer breaches Sections 2, 5 or 6.
4.3. Effect of Termination. Upon termination of the Agreement or affected specific Services, Customer will immediately discontinue all access and use of all Services under the Agreement or the specific Services. ANTHE Solutions LLC has no obligation to maintain Customer Content following termination, subject to compliance with applicable law. Subject to availability and the applicable Service Description, Customer shall have thirty (30) days to download Customer Content after termination and must contact ANTHE Solutions LLC technical support for download access and instructions. Neither party shall be liable for any damages resulting from termination of the Agreement, including without limitation unavailability of Customer Content arising therefrom; provided, however, termination shall not affect any claim arising prior to the effective termination date. ANTHE Solutions LLC shall have the right to invoice Customer and Customer agrees to pay for any use of the Services past the date of expiration or termination.
4.4. Survival. The provisions of Sections 3 (Fees), 4.3 (Effect of Termination), 5 (Customer Content and Customer Accounts), 8 (Indemnification), 9 (Limitation of Liability), and 10.15 (Notices) shall survive any termination of the Agreement.
5. CUSTOMER CONTENT AND CUSTOMER ACCOUNTS.
5.1. Customer Content. Customer retains all rights to any and all of its Customer Content, subject to a non- exclusive, worldwide, royalty-free, license to ANTHE Solutions LLC as necessary to provide the Services hereunder. ANTHE Solutions LLC shall not own any data, content, information or material in such Customer Content. Each party shall apply reasonable technical, organizational and administrative security measures to keep Customer Content protected in accordance with industry standards, and Customer shall retain a current copy of Customer Content outside the Services. ANTHE Solutions LLC will not monitor Customer’s or its users’ use of the Services, and ANTHE Solutions LLC will not view, access or process any Customer Content, except: (i) as necessary for providing or improving the Services, (ii) as directed or instructed by Customer and its users, and/or (iii) for compliance with ANTHE Solutions LLC policies, applicable law, regulation, or governmental request. Customer shall comply with all intellectual property laws related to the Customer Content and legal duties applicable to Customer as a data controller by virtue of the submission or storage of Customer Content within the Services, including providing all information or notices Customer is required by law to provide to users and obtain consent of the users, where required. Customer and its users shall not submit to or store in any Services any Customer Content that is governed by US International Traffic in Arms Regulations (ITAR) or similar regulations of any country that restricts import or export of defense articles or defense services. Customer and its users shall not submit to or store any personal health information (“PHI”) in any Services, unless Customer has specifically purchased a Service identified in the applicable Service Description as intended for retention of PHI, notified ANTHE Solutions LLC at firstname.lastname@example.org, and entered into the applicable Business Associate Agreement (BAA) with ANTHE Solutions LLC at least thirty (30) days in advance of any PHI upload. ANTHE Solutions LLC has no obligation to maintain Customer Content following expiration of a subscription to the affected Services. Subject to availability and the applicable Service Description, Customer shall have thirty (30) days to download Customer Content after expiration, and must contact ANTHE Solutions LLC technical support for download access and instructions. Notwithstanding anything in this Agreement to the contrary, this Section expresses the entirety of ANTHE Solutions LLC’ obligations with respect to Customer Content.
5.2. Customer Accounts. Customer is solely responsible for (i) the configuration of Customer’s Services account, (ii) the operation, performance and security of Customer’s equipment, networks and other computingresources used to connect to the Services, (iii) ensuring all users exit or log off from the Services at the end of each session, (iv) maintaining the confidentiality of Customer’s accounts, user id’s, conference codes, passwords and/or personal identification numbers used in conjunction with the Services, and (v) all uses of the Services by Customer and its users. ANTHE Solutions LLC reserves the right to suspend the Services or terminate the Agreement if Customer misuses or otherwise shares login information among users. Customer will notify ANTHE Solutions LLC immediately of any unauthorized use of its account or any other breach of security. ANTHE Solutions LLC will not be liable for any loss that Customer may incur as a result of a third party using Customer’s password or account. ANTHE Solutions LLC reserves the right to review Customer’s account to the extent necessary to confirm compliance with applicable Use Levels and this Section 5.2, and to terminate or suspend Customer’s access for overuse and/or misuse. Customer agrees to pay for any overage in excess of permitted Use Levels.
6. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all laws, rules and regulations including, but not limited to, export and import, data protection, and privacy laws and regulations applicable to that party. Specifically, without limiting the generality of the foregoing, Customer shall provide the relevant persons and/or participants with all information or notices Customer is required by applicable privacy and data protection laws to provide and, if necessary, obtain the consent of or provide choices to such persons and/or participants as required. ANTHE Solutions LLC may cooperate with applicable government authorities with respect to the Services and ANTHE Solutions LLC provision of such Services to Customers.
7. WARRANTIES AND WARRANTY DISCLAIMER. ANTHE SOLUTIONS LLC WARRANTS THAT THE SERVICES, INCLUDING WITHOUT LIMITATION ANY COMPONENTS DELIVERED WITH SERVICES, WILL MATERIALLY CONFORM TO THE SERVICE DESCRIPTIONS. ANTHE SOLUTIONS LLC DOES NOT REPRESENT OR WARRANT THAT (I) THE USE OF SUCH SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) SUCH SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR (III) ALL ERRORS OR DEFECTS WILL BE CORRECTED. ANTHE SOLUTIONS LLC’ ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT ANTHE SOLUTIONS LLC’ SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICES, INCLUDING REPLACEMENT COMPONENTS AS REQUIRED, OR TO TERMINATE THE NON-CONFORMING SERVICES, AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE PERIOD OF NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANTHE SOLUTIONS LLC DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN SUCH JURISDICTIONS. THE SERVICE DESCRIPTIONS MAY CONTAIN ADDITIONAL LIMITED WARRANTIES AND/OR WARRANTY DISCLAIMERS APPLICABLE TO INDIVIDUAL SAAS SERVICES.
8.1. Indemnification by ANTHE Solutions LLC. Subject to Sections 8.2. and 8.3. below, ANTHE Solutions LLC shall indemnify and defend Customer against any third party Infringement Claim, and pay reasonable attorneys’ fees, court costs, damages finally awarded, or reasonable settlement costs with respect to such Infringement Claim; provided that: (i) Customer promptly notifies ANTHE Solutions LLC in writing of an Infringement Claim such that ANTHE Solutions LLC is not prejudiced by any delay of such notification; (ii) ANTHE Solutions LLC will have sole control over the defense and any settlement of any Infringement Claim; and (iii) Customer will provide reasonable assistance in the defense of same subject to reimbursement by ANTHE Solutions LLC for reasonable expenses incurred in providing such assistance. For the purposes of these terms, “Infringement Claim” means any claim, suit or proceeding brought against a Customer based on an allegation that the Services, excluding any Open Source Software included in any software components distributed to Customer or used in conjunction with the Services, as delivered by ANTHE Solutions LLC, infringes upon any patent or copyright or violates any trade secret rights of any third party.
8.2. Infringement Cures. If Customer’s use of any of the Services is, or in ANTHE Solutions LLC’ opinion is likely to be, enjoined as a result of an Infringement Claim, ANTHE Solutions LLC shall, at its sole option and expense, either (i) procure for Customer the right to continue to use the Services as contemplated herein, or (ii) replace or modify the Services to make their use non-infringing without degradation in performance or a material reduction in functionality. If options (i) and (ii) above are not reasonably available, ANTHE Solutions LLC may, in its sole discretion and upon written notice to Customer, terminate this Agreement, cancel access to the Services and refund to Customer any prepaid, but unused Fees.
8.3. Limitation. ANTHE Solutions LLC assumes no liability, and shall have no liability, for any Infringement Claim based on (i) Customer’s access to and/or use of the Services following notice of an Infringement Claim; (ii) anymodification of the Services by Customer or at its direction; (iii) Customer’s combination of the Services with third party programs, services, data, hardware, or other materials; or (iv) any trademark or copyright infringement involving any marking or branding not applied by ANTHE Solutions LLC or involving any marking or branding applied at Customer’s request.
8.4. Exclusive Remedy. THE FOREGOING STATES ANTHE SOLUTIONS LLC SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM HEREUNDER.
9. LIMITATION ON LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. EXCEPT FOR (a) A PARTY’S INDEMNIFICATION OBLIGATIONS (b) A BREACH BY CUSTOMER OF SECTIONS 2 OR 5, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER. THE SERVICE DESCRIPTIONS MAY CONTAIN ADDITIONAL LIMITATIONS OF LIABILITY APPLICABLE TO ANTHE SOLUTIONS LLC THAT RELATED TO INDIVIDUAL SAAS SERVICES.
10. ADDITIONAL TERMS.
10.1. European Union Customers. The provisions of this Section 10.1 shall apply only to Customers residing in the European Union. If Customer desires to enter into standard contractual clauses with ANTHE Solutions LLC as it relates to the processing of Customer information by ANTHE Solutions LLC, Customer may request a Data Processing Addendum (“DPA”) by submitting a DPA Request Form, and ANTHE Solutions LLC will provide Customer with a DPA for execution.
10.2. U.S. Government End-Users. If Customer is a U.S. Government agency, Customer hereby acknowledges and agrees that the software being accessed through Services, as well as any software that is downloaded by any Customer end user in connection with the Service, constitutes “Commercial Computer Software” as defined in Section 2.101 of the Federal Acquisition Regulation (“FAR”), 48 CFR 2.101. Therefore, in accordance with Section 12.212 of the FAR (48 CFR 12.212), and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (“DFARS”) (48 CFR 227.7202-1 and 227.7202-3), the use, duplication, and disclosure of the software and related Documentation by the U.S. Government or any of its agencies is governed by, and is subject to, all of the terms, conditions, restrictions, and limitations set forth in this Agreement. If, for any reason, FAR 12.212 or DFARS 227.7202-1 or 227.7202-3 or these license terms are deemed not applicable, Customer hereby acknowledges that the Government’s right to use, duplicate, or disclose the software and related Documentation are “Restricted Rights” as defined in 48 CFR Section 52.227- 14(a) (May 2014) or DFARS 252.227-7014(a)(15) (Feb 2014), as applicable. Manufacturer is ANTHE Solutions LLC Systems, Inc., 851 West Cypress Creek Road, Fort Lauderdale, Florida 33309.
10.3. Services Trial. ANTHE Solutions LLC may make the Services available to Customer for a limited period of time on a demonstration or trial basis (“Trial Period”), as specified in the applicable Order. The Trial Period shall terminate (i) at the end of the stated Trial Period, or (ii) if no such date is specified, thirty (30) days from the date of Customer’s initial access to the Services. Following expiration of the Trial Period, the Services will cease or automatically continue as specified in the Order unless cancelled by Customer, and Customer is responsible for payment of the applicable Fees set forth in the Order. During the Trial Period, ANTHE SOLUTIONS LLC PROVIDES THE SERVICES “AS IS” AND WITHOUT WARRANTY OR INDEMNITY, TO THE EXTENT PERMITTED BY LAW, AND ALL OTHER TERMS OF THIS AGREEMENT OTHERWISE APPLY. ANTHE Solutions LLC reserves the right to modify or discontinue any trials or promotions at any time without notice.
10.4. Beta, Tech Preview or Labs Services. CUSTOMER ACKNOWLEDGES THAT BETA, TECH PREVIEW OR LABS SERVICES ARE OFFERED “AS-IS”, WITHOUT WARRANTY, LIABILITY OR INDEMNITY OF ANY KIND BY ANTHE SOLUTIONS LLC. SUCH SERVICES MAY CONTAIN BUGS, ERRORS AND OTHER DEFECTS. ANTHE Solutions LLC does not make any representations, promises or guarantees that such Services will be publicly announced or made generally available. ANTHE Solutions LLC has no obligation to provide technical support or continued availability, and such Services can be suspended or terminated at any time by ANTHE Solutions LLC in its sole discretion with or without notice tCustomer. Customer may be asked to provide feedback regarding Customer’s experience and use (“Feedback”). Customer acknowledges and expressly agrees that any contribution in the form of services, suggestions, ideas, reports, listing of defects or deficiencies, expenditures, logs or otherwise by Customer to any such improvements, updates, modifications or enhancements shall not give or grant Customer any right, title or interest in any such Feedback. Customer agrees to allow ANTHE Solutions LLC to incorporate into any commercial product or offering derived any suggested Feedback of any kind, without compensation or accounting and without retention by Customer of any proprietary claim. With respect to the Beta or Labs Services, these terms supersede any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.
10.5. Third Party Features. The Services may be linked to third party sites or applications (“Third Party Services”). ANTHE Solutions LLC does not endorse, warrant or control such Third Party Services and is not responsible for the legality, quality, accuracy, reliability, or availability of any Third Party Services. Customer has sole discretion whether to purchase or connect to any Third Party Services. Customer’s use of Third Party Services is governed solely by the terms relating to such Third Party Services. ANTHE Solutions LLC is not liable for and makes no representations related thereto, including without limitation, content or the manner in which Third Party Services handle content and/or customer data.
10.6. Copyright. In the event Customer believes that the Services have been used in a manner that constitutes copyright infringement, Customer shall notify ANTHE Solutions LLC in writing at: Legal Department, ANTHE Solutions LLC Systems, Inc., 851 W Cypress Creek Road, Ft. Lauderdale, FL 33309 USA, and provide all of the following information, as required by the Digital Millennium Copyright Act (“DMCA”): (i) a statement that Customer has identified content in the Services that infringes a copyright of a third party for whom Customer is authorized to act; (ii) a description of the copyrighted work Customer claims has been infringed; (iii) a specific description of where the allegedly infringing material is located in the Services, including a URL or exact description of the content’s location; (iv) Customer’s name, address, telephone number, and e-mail address; (v) a statement that Customer has a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use); (vi) a statement that, under penalty of perjury, the information in Customer’s notice is accurate and that Customer is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; and (vii) Customer’s electronic or scanned physical signature. ANTHE Solutions LLC reserves the right to delete or disable allegedly infringing content, to terminate the accounts of users who are repeat infringers, and to forward the information in the copyright-infringement notice to the user who allegedly provided the infringing content.
10.9. High-Risk Use. Customer acknowledges that the Services are not designed or intended for access and/or use in or during high-risk activities, including but not limited to: medical procedures; on-line control of aircraft, air traffic, aircraft navigation or aircraft communications; or the design, construction, operation or maintenance of any nuclear facility.
10.10. Recordings. Certain Services provide functionality that allows a Customer to record and/or store, use, transfer and/or present audio and/or data recordings and/or videos. Customer is solely responsible for complying with all federal, state, and local laws in the relevant jurisdiction when using this functionality. ANTHE Solutions LLC expressly disclaims all liability with respect to Customer’s recording, storage, use, transfer and/or presentation of audio or shared data while using the Services, and Customer releases and agrees to hold ANTHE Solutions LLC harmless from and against any damages or liabilities related to this functionality.
10.11. Voice and Data Charges; Customer Connectivity. Customer is responsible for all fees and charges imposed by Customer’s telephone carriers, wireless providers, and other voice and/or data transmission providers arising out of access to and use of the Services. If Customer’s broadband connection and/or telephone service fails, or Customer experiences a power or other failure or interruption, the Services may also cease to function for reasons outside of ANTHE Solutions LLC’ control. STANDARD DATA FEES AND TEXT MESSAGING RATES MAY APPLY BASED ON CUSTOMER’S PLAN WITH ITS MOBILE PHONE OR OTHER APPLICABLE CARRIER. As mobile access and text message delivery is subject to Customer’s mobile carrier network availability, such access and delivery is not guaranteed.
10.12. Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without ANTHE Solutions LLC prior written consent, except that Customer may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets, provided that the assignee abides by these terms. Any attempted assignment in violation of the foregoing shall be void. This Agreement will bind and inure to the benefit of each party’s successors or permitted assigns.
10.13. Export Restriction. Customer acknowledges that the Services are subject to U.S., foreign, and international export controls and economic sanctions laws and regulations and agrees to comply with all such applicable laws and regulations, including, but not limited to, the U.S. Export Administration Regulations (“EAR”) and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). Customer also specifically agrees not to, directly or indirectly, allow access to or use of the Services in embargoed or sanctioned countries/regions, by sanctioned or denied persons, or for prohibited end-uses under U.S. law without authorization from the U.S. government.
10.14. Audit. Not more frequently than annually and at ANTHE Solutions LLC’ expense, ANTHE Solutions LLC may audit Customer’s use of any Service, including without limitation on-premises components provided with the Services. If an audit reveals that Customer has underpaid fees for any Services, in addition to other remedies provided for herein, Customer shall be invoiced for such underpaid fees. If the underpaid fees exceed ten percent (10%) of the Fees paid, then Customer shall also pay ANTHE Solutions LLC’ reasonable costs of conducting the audit.
10.15. Notices. All legal notices required under this Agreement shall be in writing and delivered in person or by certified or registered express mail to the address last designated on the account for Customer, and the ANTHE Solutions LLC contracting entity as specified below, or such other address as either party may specify by notice to the other party as provided herein. Notice shall be deemed given (i) upon personal delivery; (ii) if delivered by air courier or email, upon confirmation of receipt; or (iii) five (5) days after deposit in the US mail. Non-legal notices may be provided to the email address specified on the applicable Order and shall be deemed effective on the next business day following the date and time stamp on the sender’s email. ANTHE Solutions LLC may also provide Customer with notice postings on the ANTHE Solutions LLC website. A copy of all Customer legal notices must also be sent to Legal Department, ANTHE Solutions LLC Systems, Inc., 851 W Cypress Creek Road, Ft. Lauderdale, FL 33309 USA.
10.16. Entire Agreement; Order of Precedence. The Agreement sets forth the entire agreement and understanding of the parties relating to the Services and supersedes all prior and contemporaneous oral and written agreements. For any conflict between these terms and supplementary BAA terms related to PHI, this Agreement shall control. For any conflict between these terms and the Service Descriptions related to a specific Service, the Service Descriptions shall control with respect to the affected Services. Nothing contained in any Order or other document submitted by Customer shall in any way add to or otherwise modify the Agreement or any ANTHE Solutions LLC license program terms under which an Order is submitted. The terms of this Agreement and/or Service Descriptions or other referenced documents may be updated by ANTHE Solutions LLC from time to time without notice (but will be identified by the last updated date) and may be reviewed anytime at https://www.anthesolutions.com/content/dam/ANTHE Solutions LLC/en_us/documents/buy/enterprise-saas-eusa.pdf. Customer’s continued access to and use of the Services constitutes acceptance of the then-current terms.
10.17. General Terms. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect. The parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between or among the parties. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof. ANTHE Solutions LLC authorized resellers and distributors do not have the right to make modifications to this Agreement or to make any additional representations, commitments, or warranties binding on ANTHE Solutions LLC. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on any party unless agreed to in writing by such party. ANTHE Solutions LLC failure to enforce any term of this Agreement will not be construed as a waiver of the right to enforce any such terms in the future. Unless otherwise specified, remedies are cumulative. This Agreement may be agreed to online, by use of the Services and/or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay, interruption or other failure to perform under this Agreement due to force majeure events and acts beyond a party’s reasonable control, but only for so long as such conditions persist. Force majeure events may include: natural disasters; wars; terrorist activities, activities of local exchange carriers, telephone carriers, wireless carriers, and Internet service providers, labor disputes; and acts of government.
10.18. Contracting Party, Choice of Law and Location for Resolving Disputes. The ANTHE Solutions LLC contracting entity under this Agreement, and governing law and jurisdiction to resolve any dispute, are identified at https://www.anthesolutions.com/buy/licensing/ANTHE Solutions LLC-providing-entities.html.