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MODIFICATIONS. PLEASE NOTE THAT THESE TERMS AND CONDITIONS WERE UPDATED ON JANUARY 1, 2022, AND THAT THESE UPDATED TERMS APPLY TO YOUR PURCHASE OF NON-MANAGED PRODUCTS AND SERVICES FROM ANS EFFECTIVE AS OF THIS DATE.
These ANS Terms and Conditions located at https://www.getadvanced.net/terms/conditions-of-sale (these "Terms"), together with any additional terms ("Supplemental Terms”) and Order Documents (collectively, the "Terms") constitute a binding Agreement between ANS and Client (each, a "Party" and collectively as the "Parties") under which ANS provides Client with a Product ("the Product”) or Services ("the Services”). Client accepts and agrees to be bound by these Terms when Client either: (a) executes or otherwise accepts an Order Document which references these Terms or (b) accepts the Product or the Services.
Unless otherwise defined herein, capitalized terms have the following meaning:
(a) "Affiliate" means an entity that controls, is controlled by, or is under common control by a Party. For this definition, "control" means direct or indirect ownership of more than 50% of the interests of the subject entity.
(b) "Agent” means any individual or entity acting with authority, on behalf of a Party.
(c) "Aggregate Data" means de-identified and anonymized sets of data that may been gathered by ANS in the course of fulfilling its obligations to Client. Aggregate Data does not include any information that could be used
(d) "ANS" means Advance Network Systems, Inc., a Virginia corporation.
(e) "ANS Services" means any technical support services performed for Client by ANS's employees or contractors, as specified in the applicable Order Document.
(f) "ANS Technology" means any Third-Party technology, Intellectual Property and services offered by ANS, including equipment, devices, software applications, devices, networks, and online services.
(g) "ANS' Technical Assistance Center" or ("ANS TAC”) means the centralized resource provided by ANS which is organized to receive, analyze, track, update and resolve technical issues reported by an Authorized Client Representative.
(h) "Applicable Laws" means all applicable local, state, federal, and international laws and regulations.
(i) "Budgetary Pricing” means an estimated cost designed to be used for high-level planning or budgeting purposes, to understand the size of the project or work and/or to make a business decision..
(j) "Client" means the legal entity that executes or otherwise accepts an Order Document, or that uses the Products and Services, and thereby accepts these Terms.
(k) "Client's Authorized Representative" means any employee or Affiliate of Client, or the personnel from any third-party entity, acting on Client's behalf or at Client's request, who has been authorized or otherwise provided access to the Services or Products by the Client.
(l) "Client Data" means any Client information which is uploaded or otherwise entered into ANS's systems, either by Client or by ANS, the unique Client output generated by Products or Services, and any information furnished by Client to ANS in connection with an Order Document or Client's use of the Products or Services.
(K) "Client Purchase Authorization” means an approval issued by Client for the purpose of executing or otherwise accepting an ANS Order Document, thereby authorizing a purchase from ANS.
(L) "Confidential Information" means all information designated by a Party as confidential, or given the circumstances, would reasonably be understood by the receiving Party to be confidential, and that is disclosed by either Party to the other Party, regardless of the form of disclosure.
(m) "Documentation" means information provided to Client by ANS, which from time-to-time is updated or revised by ANS at its discretion, including materials related to ANS, the Product or Services, these Terms, or other information, which may be in print or electronic format, which includes but is not limited to information found at the following location: https://www.getadvanced.net.
(n) "Expenses" means any reasonable, pre-approved costs described in an Order Document as being reimbursable to ANS by Client, that ANS incurs while providing Client the Services or Products.
(o) "Intellectual Property" means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, copyrights, moral rights, rights in Inventions, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent rights that may exist anywhere in the world.
(p) "Intended Purpose” means the use for which the Product or the Services is intended as specified by its Manufacturer or Licensor.
(q) "Invention" means any work of authorship, invention, know-how, device, design, algorithm, method, process, improvement, concept, idea, expression, discovery, or invention, whether or not copyrightable or patentable and whether or not reduced to practice.
(r) "Licensor” means the owner of intellectual property or copyright, or an entity authorized by such an owner, that is granting the License to use and distribute a Product or Services.
(s) "Loss" means any liability, loss, claim, settlement payment, cost and expense, interest, award, judgment, damages (including punitive damages), fines, fees, penalties, or other charges, filing fees and court costs, witness fees, costs of investigating and defending third party claims, and reasonable attorneys' and other professionals' fees, and any other fees.
(t) "Manufacturer” means the entity with legal authority to design, manufacture, package and label a Product.
(u) "Non-Managed Product or Services” means any Product or Services which are not actively covered under an ANS Managed Services Agreement.
(v) "Order Document" means a Sales Quotation, Sales Order, Change Order, Statement of Work or other document, including electronic documents, generated and used by ANS to support the sale of the Products and Services.
(w) "Personal Information" means any information of an individual person that can be used to identify that person and that is protected by law. Personally Identifiable Information (PII) is protected by the confidentiality provisions set forth in Section 7 (Confidential Information).
(x) "Products" means any Third-Party Products (physical or electronic) which Client purchases from ANS, as specified in the applicable Order Document.
(y) "Return Materials Authorization” or ("RMA") means a numbered authorization provided to Client by ANS which permits the return of a Product for repair or replacement by the product manufacturer.
(z) "Sales Order" means an ANS sales document that describes the Products or Services to be provided by ANS, along with pricing (estimated or firm), Expenses and any special terms associated with these things for which a corresponding Client Purchase Authorization has been issued to ANS by Client.
(aa) "Sales Quotation” means an ANS sales document that describes the Products or Services which can be provided by ANS along with pricing (either budgetary, estimated or firm), expenses and any special terms associated with these things for which the Client has not issued a corresponding Client Purchase Authorization.
(bb) "Services" means either ANS Services or Third-Party Services, as specified in the applicable Order Document.
(cc) "Subcontractor” means any supplier, distributor, vendor, or firm that furnishes goods or services to or for ANS.
(dd) "Subscription Service” means a business offering to sell an item on a set timeline, such as monthly, quarterly or annually.
(ee) "Subscription Service Term” means the period of time during which Client is entitled to use the Subscription Service.
(ff) "Third-Party” means a person or entity other than a Party or an Affiliate of a Party.
(gg) "Third-Party Product" means a Product offered to Client through ANS that is manufactured, licensed or otherwise made available by a Third-Party.
(hh) "Third-Party Service" means a Service offered to Client through ANS that is manufactured, licensed or otherwise made available by a Third-Party.
(a) Deliverables. ANS will provide a Sales Quotation to Client that contains a pricing estimate for the Products and Services to be delivered. Sales Quotations will be valid for a maximum of thirty (30) days from the date of issuance. Unless specifically included, Sales Quotations exclude taxes, handling, shipping, transportation, duties or other charges or fees which will be calculated at the time of invoice. Client will have a non-exclusive, non-transferable right to use the Product or Services solely for Client's own internal business operations. ANS and any Third-Party Product or Third-Party Services providers reserve all other rights. ANS's acceptance of Client's order for Products occurs at the time of product shipment. ANS's acceptance of Client's order for Services occurs at the time of commencement of the Services. Receipt of a Client Purchase Authorization by ANS does not constitute a formal acceptance of Client's order, nor the acceptance of any replacement or alternative terms and conditions put forth by Client. ANS may decline to accept a Client Purchase Authorization document or other form of purchase authorization furnished by Client for any reason.
(b) ANS Hours of Operation and Service Rates. Customer service and technical services delivered through the ANS TAC are available Monday through Friday, 8am to 5pm Eastern time ("ANS Regular Business Hours”). When applicable, billable charges for ANS TAC services will be invoiced to Client at ANS' corresponding hourly rate. TAC services performed during Regular Business Hours will be billed at ANS Regular Service Rates. TAC services are also available outside ANS Regular Business Hours and are defined as Emergency Service Hours. TAC services performed during Emergency Service Hours will be billed at ANS Emergency Service Rates. Client may receive a copy of current published ANS Service rates from the TAC
(c) ANS Service Performance. Unless otherwise specified within an Order Document, ANS Services are performed during ANS Regular Business Hours. Client acknowledges and agrees that the number of hours allocated for the performance of ANS Services, furnished on a Sales Quotation, is a pre-implementation estimate of the actual hours required to complete a project. If additional hours of ANS Services are required during project implementation, Client will automatically be invoiced for the actual number of hours of ANS Services performed; up to an additional 20% of the total amount estimated for ANS Services. If, during the course of project implementation, it is determined that the ANS Services required will exceed an additional 20% of the total amount estimated for ANS Services, Client will be consulted as soon as reasonably possible, to obtain approval for the performance of additional service hours. Total service hours for a project may include the support time associated with opening and updating service tickets, management of issues contained within a service ticket, Third-Party consultation support, documentation of work, communication of results and closure of service tickets.
(d) Subscription Service (Non-Managed Products and Services). Client may a purchase a Product or Service which utilizes a subscription-based model for a fixed period of time. A Subscription Service Term begins on an "Effective Date" and ends on an "Expiration Date." To avoid disruption of the Subscription Service as a result of expiration, Client must submit a notice of renewal for the Subscription Service to ANS no fewer than thirty (30) days prior to its Expiration Date. ANS is not responsible for service disruptions, or the resulting consequences of such a disruption experienced by Client, due to Client's failure to renew the Subscription Service in accordance with these Terms.
(e) ANS Responsibilities. ANS will: (i) determine the best method, details, and means of fulfilling an Order Document or providing the Services for Client, with the exception of planned downtime or unavailability caused by circumstances beyond ANS's reasonable control; (ii) use commercially reasonable efforts to make the Services available, as defined in the Order Document; and (iii) conduct its business in compliance with all Applicable Laws.
(f) Client's Responsibilities. Client will: (i) be responsible for the accuracy and completeness of the information provided to ANS which is required for delivering the Product or Services; (ii) ensure that the Products or Services purchased are compatible with Client's business systems and requirements; (iii) ensure the accuracy, quality, legality, completeness, and integrity of Client Data and the means by which Client Data is acquired; (iv) maintain the proper operation of its devices, software, internet connectivity, hardware systems and network environment; and (v) comply with all Documentation and Applicable Laws.
(g) Client will provide ANS with: (i) all information and assistance reasonably required by ANS, including Client's own appropriately qualified staff, to support performance of the Products and Services; (ii) full and unfettered access, including remote access, to Client's information technology facilities, office or other facilities either on or off Client's premise that are required for ANS's performance and (iv) upon request, Client's self-maintained backups, as required, for the restoration of all Client data, software applications, system configurations and other information, should the need arise.
(h) Client's Authorized Representatives. Client is solely responsible for ensuring that Client's Authorized Representatives comply with all Client responsibilities under these Terms. Client further acknowledges that any act, omission or breach made by Client's Authorized Representatives will be deemed a breach of these Terms by Client. Unless otherwise agreed in writing by ANS, Client's Authorized Representatives who are provided access to and use of the Products and Services, whether provided by Client or by ANS at Client's request, will do so via a separate Client account and at Client's sole risk. Furthermore, all references to "Client" relating to the access or use of the Product or Services, or any related restrictions or limitations, are deemed to reference Client's Authorized Representatives. Any remediation services undertaken by ANS, associated with the acts or omissions of a Client Authorized Representative, will by invoiced to Client, not Client's Authorized Representatives, at ANS's current hourly rate and Client will pay all such invoices to ANS.
(i) Restrictions of Use. With respect to any Product, Service or Documentation provided by ANS, Client will not: (i) use them for the benefit of any third party; (ii) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from them; (iii) reproduce, modify, create, or prepare derivatives of them; (iv) distribute or display them to anyone other than Client's Authorized Representatives; (v) share, sell, rent, lease, or otherwise distribute access to them; (vi) use the Services to operate any timesharing, service bureau, or similar business or (vii) alter, destroy or otherwise remove any proprietary notices within or on them without ANS's prior written consent.
(j) Alterations or Modifications to Products or Services. Any alterations, modifications or additions made to the Product or the Services, which are undertaken or performed by Client or a Client's Authorized Representative, without prior written authorization by ANS, will be solely at the Client's own risk and expense. If the operation of the Product or Services is affected in any way by an alteration, modification or addition by anyone other than ANS (by either installation or other services performed), any warranty of the Product or Services will be deemed waived by the Client, and ANS will have no further obligation to Client.
(k) Insurance. Both Client and ANS agree to purchase and maintain their own comprehensive commercial liability insurance policies, with adequate limits to meet all operational requirements and Applicable Laws including coverage for workers' compensation, property loss or damage, automobile liability, cyber liability and data breach liability. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ALL RIGHTS AGAINST THE OTHER FOR RECOVERY OF DAMAGES TO THE EXTENT THESE DAMAGES ARE COVERED BY THE WORKERS' COMPENSATION (TO THE EXTENT PERMITTED BY LAW) AND EMPLOYERS LIABILITY, PROFESSIONAL LIABILITY, GENERAL LIABILITY, PROPERTY INSURANCE, COMMERCIAL UMBRELLA/EXCESS, CYBER AND PRIVACY OR OTHER COMMERCIAL LIABILITY INSURANCE OBTAINED BY EITHER PARTY. CLIENT WILL NOT HOLD ANS, ANS SUBCONTRACTORS, OR ANS THIRD-PARTY SERVICE PROVIDERS RESPONSIBLE FOR SUCH LOSSES AND WILL CONFIRM THAT CLIENT INSURANCE POLICIES REFERENCED ABOVE EACH PROVIDE FOR THE WAIVER OF SUBROGATION INCLUDED IN THEIR TERMS OF SERVICE.
(a) Shipping and Delivery. Client agrees that the receipt of the Product shipment, or the receipt of the Products in electronic form, constitutes Client acceptance of the Product. Delivery of the Products will be made in accordance with ANS's shipping policy in effect on the date of shipment. Product title and risk of loss will transfer to Client upon ANS's tendering the Product to the carrier for delivery (F.O.B. Origin). Unless otherwise specified by Client in writing, the Product will ship via ANS's preferred carrier. If agreed to by ANS, Client will pay all additional charges associated with Client's request for expedited delivery, special routing, packing, handling, third-party billing or insurance and Client will be responsible for filing any claims with the carrier and which may arise. ANS will not be liable for any delays in shipment or delivery beyond the reasonable control of ANS or its suppliers including, but not limited to, those caused by unavailability of the Product, supply chain disruptions or shortages, or transportation failures. Client agrees that Client will not export, re-export, or otherwise distribute or direct the Products to any third party in violation of a manufacturer's license or other terms and conditions of use, or any export control laws or regulations of the United States of America.
(b) Freight Damage. Upon receipt and opening, Client will promptly (and in no event later than five business days after receipt of delivery) notify ANS' Technical Assistance Center ("ANS TAC”) of any visible exterior package damage or any damaged or malfunctioning contents due to shipping or delivery. Client will provide ANS such notice in writing and will be reasonably detailed (including supporting photographs) in explaining any damage or malfunction. Client's failure to provide ANS such notice within the required time frame will be deemed an acceptance in full of the shipment.
(c) Out of Box Failures. Products found to be defective out of the box may be returned for replacement. For an out-of-box failure, Client must obtain a Return Materials Authorization ("RMA") from the ANS TAC within seven (7) days of receipt of the failed Product as well as follow the procedures outlined in Section 3(d) (Product Returns) for Product returns.
(d) Product Returns. Products purchased from ANS may be eligible for return to the manufacturer under certain conditions. Where the Product failure is covered under the manufacturer's warranty, and the failure occurs during the manufacturer's warranty period: ANS will provide Client a system to handle the return of the Product for repair or replacement. Special restrictions apply to electronic Products whose license and content have been downloaded and installed, or where the Product seals have been broken. A no return policy is effective for all non-defective software items. All returns will require an RMA validly issued by ANS' TAC. No RMAs will be provided by ANS without authorization from the ANS TAC. An RMA will be null and void if the associated Product is not received within fifteen (15) calendar days of the issuance of an RMA. A Product with a valid RMA must be returned by Client to ANS in its original packaging, with adequate packing materials, include all component parts and ancillary elements (e.g., cables, software, manuals, etc.), and freight pre-paid. Any missing parts required to test the operation of the Product, that are not included in the return, will be billed at the cost to replace them. An original invoice with the Product for return and its serial number must also be included along with the returned Product. The RMA information issued to Client by ANS should be clearly marked on the outside of each shipping container returned. Returns with missing or unclear RMA information on the outside of the shipping container are subject to refusal. Returns which do not comply with the above-mentioned requirements will delay RMA processing and may be subject to an additional service charge. ANS reserves the right to return any Product un-repaired, without advance Client notification, should Client return the Product without original parts installed by the manufacturer.
(e) Manufacturer's Repair or Replacement Lead Times. After the Product is properly returned to, received, and processed by ANS, replacement or repair services provided by the manufacturer will be undertaken as soon as reasonably practical. Unless otherwise specified in writing outside of these Terms (e.g., within a separate maintenance contract held in addition by Client), all Product replacements are subject to Product stock availability. All manufacturer replacement or repair shipments returned to the Client will be via UPS Ground Delivery Service, unless otherwise instructed by Client prior to shipment. Client is responsible for any difference in freight charges between ANS's standard delivery method and an alternative shipping method requested by Client.
(a) Credit Terms. Unless otherwise stated in writing, Credit Terms issued by ANS are net thirty (Net 30) days. Credit terms may be extended to Client by ANS, at ANS's sole discretion, contingent upon ANS approval of Client's completion of an ANS credit application. Client acknowledges that the information provided to ANS in its Credit Application may require periodic updates in order to ensure its accuracy and continue the extension of Client's credit limit. Therefore, in order to maintain Credit Terms, Client agrees that it will promptly provide updated financial information as requested by ANS, as well as promptly and proactively notify ANS of any significant change in Client's financial condition. ANS retains the right to decline or extend credit terms to Client, to change Client's credit limits, or to require prepayment (in whole or in part) for the Products and Services prior to shipment or delivery. All purchases placed without approved credit and those with shipment destined outside the continental United States require prepayment.
(b) Invoicing. ANS will invoice Client for the Products or Services: (i) upon shipment or electronic delivery of the Product (ii) upon delivery of the Services or (iii) in advance of each billable Subscription Service period. All invoices will be due and payable according to Client's payment terms and by the due date provided on the invoice. Amounts which are not received by the invoice due date will be subject to a late penalty of 1.5% of the total invoice amount per month, or the maximum rate allowed by law, until paid in full. Invoices equal to or greater than five-thousand dollars ($5,000) paid by credit card, will be subject to a credit card convenience fee equal to 2.5% of the total invoice amount. Client will not deduct any amounts invoiced by ANS without ANS's express written approval and the application of an ANS-issued credit memo. Credit memo issuance is contingent upon ANS receipt of all required supporting documentation. A $75.00 fee will be charged to Client by ANS for each returned check submitted.
(c) Amounts Due. Client will pay all fees and amounts dues as specified on each invoice. Client may be invoiced based on an Order Document or for usage-based fees. Except as otherwise specified in these Terms or an Order Document: (i) invoices are payable in the currency utilized on the ANS Order Document; (ii) payment obligations are non-cancelable and fees paid are nonrefundable; and (iii) ANS will separately invoice Client for any renewals, upgrades, overage fees, and additional Services purchased.
(d) Taxes. Client is responsible for the payment of all applicable taxes. Applicable taxes may include, without limitation, any sales, use, levies, duties, value added or similar taxes due to any local, state, provincial, federal, or foreign jurisdiction. Unless otherwise specified, applicable taxes are not included in Sales Quotation documents and are due and payable as provided on the corresponding Invoice. In order to be honored, a valid tax exemption certificate must be presented to ANS prior to the Product shipment or delivery.
(e) Shipping Fees. Client is responsible for the payment of all applicable costs associated with order shipment or delivery. Unless otherwise specified, applicable shipping/delivery charges are not included in Sales Quotation documents and are due and payable as provided on the corresponding Invoice.
(f) Partial Shipments. Client agrees to accept partial shipments and deliveries of Sales Orders and to make payment, in accordance with their payment terms, on Invoices associated with partial shipments. Client hereby acknowledges and agrees with regard to partial shipments that Client's refusal: (i) to accept the partial shipment or delivery of Sales Orders or (ii) to make payments on Invoices within their payment terms, on partial Sales Order shipments or deliveries, may subject the fulfillment of a Sales Order to delivery delays. Furthermore, Client's refusal to accept partial shipments, or make prompt payments on partial shipments, must be clearly stated in writing on a Client Purchase Document provided to ANS.
(g) Subscription Plans. The fees applicable to Subscription Services are specified in the applicable Sales Order. Client may not cancel or reduce Client's commitment under a Subscription Service plan as specified in an Order Document during the Subscription Service Term. Client is not entitled to any refund of fees paid, nor relief from fees due, if the amount of Subscription Services actually used by Client is less than the amount Client ordered, and Client may not carry over any unused amount to a subsequent Subscription Service Term. Client may make a reduction or other modification to a Subscription Service upon the expiration of its Service Term and prior to the Services renewal; at which point modifications will become effective at the start of the Services renewal.
(h) Product Sales Order Cancellation Fee. Sales Order cancellations by Client for a Product are valid only if accepted in writing by ANS. An accepted cancellation of a Sales Order for a Product may be subject to a re-stocking or cancellation fee of twenty-five percent (25%) of the total order amount.
(a) Payment Disputes. Client must promptly notify ANS, and in no event later than five (5) business days after delivery of any claimed discrepancies or deficiencies associated with the Products or Services, any refusal to accept delivery, or any other payment dispute in writing (via a trackable method) to ANS's accounting department. Such notice will be reasonably detailed in explaining any discrepancies or grounds for any such rejection or dispute. Failure to provide any such notice within the designated time frame will be deemed an acceptance in full of the Product or Services and its associated fee.
(b) Unless otherwise agreed to by ANS in writing, Client's payment is considered past due if not received on or before the due date provided on an invoice, and will be considered delinquent if not received within15 calendar days following the invoice due date. If ANS is required to contract with an outside agency to collect overdue invoices from Client, Client will be responsible for, and agrees to pay ANS, all associated interest charges and collection costs in addition to any amounts past due.
(c) Right to Suspend. In the event that Client is delinquent in its payment to ANS for any undisputed invoice amounts, in addition to other remedies, ANS reserves the right to suspend future shipments of Products and suspend performance of any Services until Client's account is brought current. ANS acknowledges that suspending shipment of Products or Client's access to, or use of, all or part of the Services is a significant action; therefore, ANS will not exercise this remedy except in good faith and as necessary to resolve the issue giving rise to ANS's right to suspend Product shipment or Services. ANS will also pursue other, less drastic measures it deems appropriate, including collaborating with Client to isolate the issue and escalating unresolved issues to senior management of Client and ANS. In addition, prior to the suspension, ANS will make a good faith effort to contact and provide notice to Client of such action.
(d) Right to Suspend. In the event that Client is delinquent in its payment to ANS for any undisputed invoice amounts, in addition to other remedies, ANS reserves the right to suspend future shipments of Products and suspend performance of any Services until Client's account is brought current. ANS acknowledges that suspending shipment of Products or Client's access to, or use of, all or part of the Services is a significant action; therefore, ANS will not exercise this remedy except in good faith and as necessary to resolve the issue giving rise to ANS's right to suspend Product shipment or Services. ANS will also pursue other, less drastic measures it deems appropriate, including collaborating with Client to isolate the issue and escalating unresolved issues to senior management of Client and ANS. In addition, prior to the suspension, ANS will make a good faith effort to contact and provide notice to Client of such action.
(Services Termination for Cause. Either Party may terminate their obligations hereunder, and the Services which are affected, by notice to the other: (i) if a Party materially breaches its obligations and, if the breach is capable of cure, fails to cure the breach within thirty (30) days of the date of notice of breach; or (ii) upon the other Party ceasing to operate in the ordinary course, making an assignment for benefit of creditors, or becoming the subject of any bankruptcy, liquidation, dissolution, or similar proceeding. If termination by Client is a result of a material breach by ANS, ANS will refund Client a prorated amount of any prepaid Subscription Service fees which applies to the unused portion of a Subscription Service (excluding any activation or other one-time fees). If termination by ANS is a result of a material breach by Client, ANS will not refund any amounts to Client. Upon termination by ANS for cause, Client remains liable for all fees, charges, Expenses, and any other obligations Client has incurred.
(a) Confidential Information. Confidential Information includes, with respect to ANS, the ANS Technology, Documentation and Order Documents and with respect to Client, all Client Data and Personal Information, and with respect to both Parties, all information relating to business plans, information related to Clients and prospective Clients, data, designs, financial information, forecasts, inventions, know-how, methods, market analysis, pricing, products, pre-release offerings, research and development, security policies and processes, source and object code, and strategies of the disclosing Party.
(b) Exclusions. Confidential Information does not include (except with respect to Personal Information) information that the receiving Party can establish: (i) becomes generally known to the public without the receiving Party's breach of any obligation owed to the disclosing Party; (ii) has been rightfully received by the receiving Party from a Third Party without confidentiality restrictions; (iii) is known to the receiving Party without any restriction as to use or disclosure prior to first receipt by the receiving Party from the disclosing Party; or (iv) has been independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information.
(c) Disclosures Required by Law. If any Applicable Laws or judicial or administrative order requires the receiving Party to disclose any of the disclosing Party's Confidential Information (a "Disclosure Order") then, unless otherwise prohibited by the Disclosure Order, the receiving Party will promptly notify the disclosing Party in writing prior to making any such disclosure, in order to facilitate the disclosing Party's efforts to protect its Confidential Information. Following such notification, the receiving Party will cooperate with the disclosing Party, at the disclosing Party's reasonable expense, in seeking and obtaining protection for the disclosing Party's Confidential Information. If, in the absence of a protective order or other remedy or the receipt of a waiver by disclosing Party, receiving Party is legally compelled to disclose Confidential Information by any tribunal, regulatory authority, agency or similar entity, receiving Party may disclose, without liability hereunder, that portion of the Confidential Information that is legally required to be disclosed and receiving Party will exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
(d) Mutual Restrictions on Use and Disclosure. Subject to the permitted disclosures set forth in Section 7(c) (Disclosures Required by Law), the receiving Party will hold Confidential Information in strict confidence and will not directly or indirectly disclose Confidential Information to Third Parties except as otherwise permitted by the Terms. The receiving Party may disclose Confidential Information to an Authorized Representative on the condition that the receiving Party: (i) ensures that such Authorized Representatives are bound by a written agreement that is as substantially protective as these Terms; and (ii) accepts full responsibility for its Authorized Representatives' use of the Confidential Information. The receiving Party will protect Confidential Information from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information and refrain from reverse engineering, decompiling or disassembling any Confidential Information.
(e) Protection of Client Data, Confidential and Personal Information. ANS will implement commercially reasonable and appropriate safeguards designed to prevent any unauthorized release, access to or publication of Client Data, Confidential Information, or Personal Information. ANS will implement processes and maintain procedures aimed at complying with Applicable Laws. Once authorized by Client, a Sales Order document is deemed to be Client's instructions for processing Client Data, and ANS will not process Client Data for any other purpose. ANS may use Subcontractors to facilitate its obligations under these Terms. When applicable, ANS will use appropriate measures to ensure that such Subcontractors implement reasonable security measures in handling any Client's Data, Confidential Information or Personal Information.
(f) Upon termination by ANS for cause, ANS will hold only Confidential Information belonging to Client that must be retained for accounting, legal, or audit purposes or in accordance with ANS's general document retention policies. Any Client Data retained as a result of ANS's backup and data retention policies, will be held for a reasonable period of time, and will be subject to the confidentiality provisions of these Terms. All provisions that by their nature should survive termination will do so (including, by way of example and not limitation, payment obligations, indemnification and defense obligations, and duties of confidentiality).
(g) Notice. ANS will notify Client, as soon as reasonably practicable, of any known unauthorized access, use, or disclosure of any Client Data, Confidential Information, or Personal Information under ANS's control. Each Party will reasonably cooperate with the other with respect to investigation and mitigation of any such unauthorized access, use, or disclosure. Upon confirmation of any vulnerability or breach of ANS's security, ANS will modify its processes and security program as necessary to remediate the vulnerability or breach at ANS's sole cost and expense.
(a) Client Data. Client retains all ownership rights in Client's Data, Client's Confidential Information and Client's Personal Information, including any Intellectual Property rights therein. ANS may retain, use, and disclose Client Data solely: (i) to fulfill its obligations to Client under these Terms; (ii) for internal business purposes in order to maintain, evaluate and improve the Products and Services or (iii) to comply with Applicable Laws. Nothing in these Terms transfers or conveys to ANS any ownership interest in or to the Client Data, Client's Personal Information, or Client's Confidential Information.
(b) Aggregate Data. ANS may use Aggregate Data generated by the Product or the Services to fulfill any obligations to Client under these Terms and will comply with Applicable Laws and the confidentiality provisions of these Terms with respect to Aggregate Data.
(c) ANS's Intellectual Property. As between Client and ANS, ANS and ANS's Licensors retain and own all right, title, and interest in all Intellectual Property rights in ANS Technology, the Documentation, ANS's Confidential Information, the Products, the Services and all enhancements or improvements to, or derivative works of, the foregoing. Nothing in these Terms transfers or conveys to Client any ownership interest in ANS Intellectual Property. If Client provides ANS with any suggested improvements to the Products or the Services, then that suggestion is provided as-is, and Client grants ANS a nonexclusive, perpetual, irrevocable, royalty free, worldwide license, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of such suggested improvements. Notwithstanding the foregoing, nothing in this section grants ANS a license to use any Inventions covered by a registered copyright or patent owned by Client.
(a) Mutual Warranties. Each Party represents and warrants to the other Party that: (i) it has the authority to enter into this Agreement under which ANS provides Client the Products or the Services, and to perform its obligations under these Terms; (ii) these Terms do not conflict with any other agreement it has entered into and (iii) it does not conduct business for any unlawful purpose.
(b) ANS's Warranties. ANS warrants to Client that: (i) it will use all practical and commercially viable means at its disposal to provide the Products and Services ordered by Client (ii) it will perform its duties in a timely, good and workmanlike manner by qualified persons, in accordance with the degree of care observed in the industry generally (iii) it will handle the provision of the Products and the Services in accordance with all applicable federal, state and local laws (iv) ANS Technology will perform in all material respects in accordance with a Third-Party Product or Third-Party Service Provider's then-current Documentation (v) that it will not materially reduce the Services or the features or functionality of the Services during a Subscription Service Term (with the exception of exercising the rights and remedies provided to ANS within these Terms). If ANS fails to conform to any of the warranties provided in this Section (Section 9(b) and is unable or unwilling to render the ANS Technology conforming within thirty (30) days of Client's notification of such a non-conformance, then as Client's sole and exclusive remedy for any non-conformance, Client may immediately provide written notice to ANS of Client' termination of purchase, and ANS will refund Client the sale amount of the Product purchased, or a prorated amount of prepaid Subscription Service fees applicable to the unused portion of the Subscription Service Term purchased (excluding any activation or other one-time fees). The amount of prorated refund will be calculated from the date of Client's notification to ANS of the nonconformance. The remedies set forth in this section will be the Client's sole and exclusive remedy and ANS's entire liability for any breach of the limited warranty set forth in this section. The warranties detailed here are for Client's sole benefit, and do not extend to any other person or entity; nor do they apply to the extent that the Products or the Services provided to Client by ANS have been, in any way modified or configured by any individual or entity other than an ANS employee or an ANS Authorized Representative. ANS DOES NOT WARRANT THAT THE ANS TECHNOLOGY IS FREE FROM ALL BUGS, ERRORS, OR OMISSIONS, DOES NOT GUARANTEE THAT ALL SERVICE ISSUES OR FAILURES CAN BE REMEDIED, THAT ANS WILL BE ABLE TO REPLACE ANY CLIENT DATA THAT MAY BE LOST, DAMAGED OR STOLEN, OR THAT ANS WILL PROVIDE CONTINUOUS, UNINTERRUPTED, MALWARE-FREE OR SECURE SERVICES.
(c) THIRD-PARTY PRODUCT WARRANTIES DISCLAIMER. ALL PRODUCT WARRANTIES ARE SOLELY AND EXCLUSIVELY PROVIDED TO CLIENT BY THE MANUFACTURER OR LICENSOR OF THE PRODUCT. ANS MAKES NO WARRANTIES WHATSOEVER, INCLUDING ANY WARRANTIES OR REPRESENTATIONS EITHER EXPRESS OR IMPLIED OR STATUTORY, WITH RESPECT TO ANY PRODUCT. THIS INCLUES WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY OR RELIABILITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. To the extent authorized, ANS will pass through to Client any warranties and indemnities for Intellectual Property infringement provided by the Manufacturer or Licensor of a Product. ANS's sole obligation, and Client's sole remedy in the event of breach of any warranty by a manufacturer, will be limited to ANS providing reasonable assistance to Client in Client's efforts to obtain replacement, repair, or refund of the purchase price for the Product from the Manufacturer or Licensor.
(d) THIRD-PARTY SERVICE WARRANTIES DISCLAIMER. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, ANS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY THIRD-PARTY SERVICES PROVIDED, INCLUDING ANY: WARRANTY OF MERCHANTABILITY; OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR WARRANTY OF TITLE; OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ANS DOES NOT WARRANT OR REPRESENT THAT THE PRODUCTS OR SERVICES PROVIDED WILL CAUSE CLIENT'S NETWORK AND COMPUTER SYSTEMS (INCLUDING COMPUTER HARDWARE, COMPUTER SOFTWARE, CONNECTED AND INTEGRATED DEVICES) TO FUNCTION WITHOUT ERROR, INTERRUPTION OR A SECURITY BREACH. CLIENT ACKNOWLEDGES THAT THERE ARE INHERENT RISKS IN OPERATING A NETWORK CONNECTED TO THE INTERNET WHICH CANNOT BE COMPLETELY ELIMINATED AND THAT COULD RESULT IN LOSS OF CLIENTPRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY. CLIENT FURTHER ACKNOWLEGES THE RISK THAT ANY MONITORING SOFTWARE OR DEVICE INSTALLED BY ANS MAY NOT DETECT A SYSTEM FAILURE OR SECURITY BREACH OF COVERED DEVICES AND SYSTEMS UNTIL AFTER THEY OCCUR. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANS DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THESE TERMS INCLUDING IMPLIED WARRANTIES OF NETWORK AND COMPUTER SYSTEMS SECURITY.
(e) Client Warranties. Client represents and warrants that: (i) the information Client provides in connection with the purchase of the Products and the Services, including billing information and information contained in a Client Purchase Document or other form of purchase authorization, is current, accurate, and complete; (ii) that Client's intention and actual use of the Product or the Services will be for the Intended Purpose and that it will abide by all associated terms and conditions surrounding it's use; and (iii) neither Client nor any of Client's Authorized Representatives is on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and is not otherwise a person or entity to whom ANS is legally prohibited to provide the Products or Services.
(f) Client Required Backup and Antivirus/Antimalware Protection. Client acknowledges and agrees that, unless specifically provided through inclusion in an ANS Order Document, it is Client's sole responsibility to: (i) employ and continuously maintain its own data backup system(s) for the purpose of providing an up-to-date, verified and working backup copy of its data, software applications, configurations and other information (ii) ensure that a current and viable version of all data backups are stored in a secure and environmentally protected, off-site location and (iii) that current and viable versions of data backup information are made available to ANS, in a timely manner, for restoration purposes, if required. ANS assumes no liability for any Client system or process failure, nor any data losses arising from such a failure. Likewise, unless specifically provided through inclusion in an ANS Order Document, Client acknowledges and agrees that it is Client's sole responsibility to deploy and properly maintain its own antivirus/antimalware solution and that the most currently available version of this antivirus/anti-malware solution is actively and perpetually employed.
(a) Indemnification by ANS. ANS will indemnify and defend Client and Client's directors, officers, employees, and Affiliates against any Losses arising from a Third-Party claim that: (i) the use of the Product or the Services in accordance with its associated Documentation or these Terms, infringes a copyright, registered trademark, issued patent, or other Intellectual Property right of such Third Party (an "Infringement"); or (ii) results from ANS's violation of Applicable Laws. ANS will have no obligation with respect to any actual or claimed Infringement to the extent that the Infringement is caused by Client Data, use or modification of the Product or the Services other than as specified in the Documentation or these Terms, or the combination of the Product or the Services with any products, software, services, data or other materials not provided by ANS or approved by ANS in writing, if the Infringement would not have occurred but for such combination.
(b) Indemnification by Client. Client will indemnify and defend ANS and ANS's directors, officers, and employees against Losses arising from a Third-Party claim that results from: (i) Client's use of the Services or Products infringes the Intellectual Property rights of a Third-Party; (ii) Client's breach of the applicable terms of use, or these Terms; or (iii) Client's violation of any Applicable Laws.
(c) Process. The obligations of a Party ("Indemnitor") to defend or indemnify the other Party ("Indemnitee") under this Section 10 (Indemnification) are subject to the following: (i) the Indemnitee must promptly inform the Indemnitor in writing of any claim within the scope of the Indemnitor's defense or indemnity obligations set forth in these Terms, provided that Indemnitor will not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that the Indemnitor is prejudiced by any such failure to provide prompt notice; (ii) the Indemnitor will be given exclusive control of the defense of such claim and all negotiations relating to the settlement thereof (except that the Indemnitor may not make any admissions on the Indemnitee's behalf or settle any such claim without Indemnitee's approval unless the settlement unconditionally releases the Indemnitee of all liability and the Indemnitee may participate in the defense of the claim at its sole cost and expense) and (iii) the Indemnitee must reasonably assist the Indemnitor in all necessary respects in connection with the defense of the claim at the Indemnitor's expense.
(d) Exclusive Remedy. This Section 10 (Indemnification) states the Indemnitor's sole liability and the Indemnitee's exclusive remedy with respect to any type of claim described in this section.
(a) Exclusion of Certain Claims. Neither Party will be liable to the other Party or any other party for any consequential, indirect, special, punitive, incidental, exemplary or lost profits damages of any kind, whether foreseeable or unforeseeable, including damages for loss of data, goodwill, investments, use of money or use of facilities, interruption in use or availability of data, stoppage of other work or impairment of other assets, even if advised of the possibility of such damages, arising out of (i) the performance or nonperformance of these Terms or of software, Services, or Products; or (ii) any claim, cause of action, breach of contract, indemnity, or any express or implied warranty, misrepresentation, negligence, strict liability, or other tort. The previous sentence will not apply to instances of gross negligence or willful misconduct, a Party's breach of its confidentiality obligations set forth in Section 7 (Confidential Information), or a Party's indemnification obligations set forth in Section 10 (Indemnification).
(b) Limitation of Liability. ANS's aggregate liability will not exceed the fees paid or payable by Client to ANS under the applicable Order Documents in the three (3)-month period immediately preceding the event giving rise to the claim. The previous sentence does not apply to: (i) instances of a Party's gross negligence or willful misconduct, (ii) a Party's indemnification obligations set forth in Section 10 (Indemnification), (iii) Client's obligation to pay fees and Expenses when due and payable, (iv) any non-compliance with the Terms of Use, Terms of Service, or License Agreement of another Party or (v) any infringement or misappropriation of any Intellectual Property rights of another Party.
(c) Limitation of Claims. Except with respect to claims of infringement or misappropriation of any Intellectual Property, misuse of Confidential Information or Personal Information, or Client's failure to pay amounts due, neither Party may bring any claim relating to the Order Documents and these Terms more than two years after the events giving rise to the claim occurred.
(d) General. These exclusions and limitations apply even if the remedies are insufficient to cover all of the Losses or damages of Client or Client's Authorized Representatives. Without these limitations the fee for the Products and the Services would be significantly higher. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply and the Parties may have additional rights.
ANS may make modifications to these Terms or any Supplemental Terms ("Modifications”) and will provide a current version of these Terms including any Supplemental Terms on the ANS web site located at https://www.getadvanced.net/terms/conditions-of-sale (these "Terms"). If Modifications materially and adversely affect Client, and Client does not wish to accept such Modifications, then Client may stop using the Product or the Services affected by the Modifications and provide written notice to ANS. If Client does not stop using the affected Product or the affected Services as specified in this section, then Client will be bound by the modified terms beginning upon the effective date set forth in the Modification Notice contained herein.
(a) Relationship of the Parties. These Terms do not create a partnership, joint venture, agency, or fiduciary relationship between the Parties. Third-Party vendors and distributors and ANS's other business partners are independent of ANS and are not an Agent of ANS. ANS provides the Products and the Services to Client as an independent contractor. All persons retained by ANS to deliver the Products or the Services for Client will be either employees of ANS or Subcontractors of ANS and will not be employees of Client.
(b) Third-Party Applications. ANS is not responsible for, nor does ANS in any way endorse, any applications or websites of any Third Party which may be linked to ANS's website or found within ANS Documentation.
(c) Publicity. Neither Party will issue any public statement regarding these Terms without the other Party's prior written consent. Unless a Party has specifically authorized the other Party in writing, neither Party may include the name or logo of the other Party or its Affiliates in its lists of Clients or vendors.
(d) Future Technology. Client acknowledges and agrees that Client's purchase and current use of the Product or the Services has not relied on any potential availability of any future technology offerings, enhancements, or updated features or functionality.
(e) Governing Law; Dispute Resolution. These Terms will be governed by laws of the Commonwealth of Virginia, without regard to any laws, treaties, or conflicts of laws or principles that would apply the law of any other jurisdiction. Any irreconcilable disputes, controversies or claims arising out of or relating to these Terms, or the interpretation, performance or breach thereof, will be settled by binding arbitration in Albemarle County, Virginia. Judgment upon any award rendered by the arbitrator(s) may be entered and enforced in any court having jurisdiction. Notwithstanding the foregoing, prior to beginning any arbitration or litigation proceeding to resolve a dispute, the Parties agree to send a duly appointed representative to attend at least one mediation session for the purpose of exploring, in good faith, a negotiated resolution to the dispute.
(f) Equitable Relief. Each Party acknowledges that damages may be an inadequate remedy if the other Party or the Authorized Representatives violate the obligations under these Terms, and each Party will have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
(g) Force Majeure. Neither Party will be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including those arising from natural disaster, storm, flooding or other act of God; Product or component shortages, supply chain issues or labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; cybersecurity-related disruptions, acts of government; or acts of terrorism or war. A Party seeking relief from performance under this section must: (i) provide notice of such circumstances to the other Party as soon as practicable (ii) use commercially reasonable efforts to avoid or mitigate such circumstances and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than thirty (30) days, the other Party may, in its discretion, terminate the Subscription Services, if applicable. Such termination will not result in any liability by either Party, except that, if Client terminates the Subscription Services for ANS's failure or delay in performance, ANS will refund Client a prorated amount of any prepaid Subscription Service fees applicable to the unused portion of the Subscription Service (excluding any activation or other one-time fees).
(h) Force Majeure. Neither Party will be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including those arising from natural disaster, storm, flooding or other act of God; Product or component shortages, supply chain issues or labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; cybersecurity-related disruptions, acts of government; or acts of terrorism or war. A Party seeking relief from performance under this section must: (i) provide notice of such circumstances to the other Party as soon as practicable (ii) use commercially reasonable efforts to avoid or mitigate such circumstances and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than thirty (30) days, the other Party may, in its discretion, terminate the Subscription Services, if applicable. Such termination will not result in any liability by either Party, except that, if Client terminates the Subscription Services for ANS's failure or delay in performance, ANS will refund Client a prorated amount of any prepaid Subscription Service fees applicable to the unused portion of the Subscription Service (excluding any activation or other one-time fees).
(i) Assignment. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Neither these Terms nor any Service may be assigned or transferred by Client without the prior written consent of ANS with such consent not to be unreasonably withheld. Notwithstanding the foregoing, ANS may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business, or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that such assignee expressly assumes the obligations of ANS hereunder in writing.
(j) Severability. If any provision of these Terms is determined to be invalid or unenforceable by any court, then to the fullest extent permitted by law, that provision will be deemed modified to the extent necessary to make it enforceable and consistent with the original intent of the Parties and all other provisions of these Terms will remain in full force and effect.
(k) Waiver. No waiver of any provision of these Terms, nor consent by a Party to the breach of, or departure from, any provision of these Terms, will be binding on or effective against the waiving Party unless such a waiver is defined in writing and signed by the waiving Party, and such waiver will only be effective in the specific instance and for the purpose for which given.
(l) Attorneys' Fees and Costs. In any action involving the enforcement or interpretation of these Terms, the prevailing party, whether Client or ANS, will be entitled to its reasonable attorneys' fees and costs, including such fees and costs incurred in connection with any appeals, in addition to such other relief as may be provided by law.
(m) Entire Agreement. These Terms constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic, or oral communications, representations, agreements, or understandings between the Parties with respect thereto. Except as provided for in Section 12 (Modifications), these Terms may not be modified or amended except by a written instrument executed by both Parties. Except to the extent otherwise expressly specified, if there is any conflict between these Terms and any other Agreement between the Parties, then the following order of precedence applies: (i) any corresponding Supplemental Terms between the Parties, if applicable; (ii) the Order Document and (iii) these Terms.