PLEASE NOTE THAT OUR TERMS AND CONDITIONS WERE UPDATED ON OCTOBER 1, 2019, AND THAT THE UPDATED TERMS WILL APPLY TO YOUR ANS SERVICE UPON ANY RENEWAL, UPGRADE, OR ADDITIONAL PURCHASE MADE AFTER OCTOBER 1, 2019.
These ANS Terms and Conditions located at https://www.getadvanced.net/terms/conditions-of-sale (these "Terms"), together with any applicable Order Document(s) and applicable Supplemental Terms (collectively, the "Agreement") constitute a binding agreement between ANS and Client (each, a "Party") under which ANS provides Client the Services and /or the Products. Client accepts and agrees to be bound by these Terms by either (1) executing an Order Document that references these Terms, or (2) using the Services or accepting any Product.
1. DEFINITIONS. Unless otherwise defined in the Agreement, capitalized terms have the following meaning:
(a) "Affiliate" means an entity that controls, is controlled by, or is under common control with a Party. For this definition, "control" means direct or indirect ownership of more than 50% of the voting interests of the subject entity.
(b) "ANS" means Advance Network Systems, Inc., a Virginia corporation.
(c) "ANS Managed Technology Services" means services supplemental to the Services, including but not limited to professional consulting services, to be performed for Client by ANS's employees or contractors, as specified in the applicable Order Document.
(d) "ANS Technology" means the technology and Intellectual Property used in providing the products and services offered by ANS, including equipment, computer software programs, devices, networks, online services, and websites. ANS Technology does not include Third Party Applications.
(e) "Applicable Laws" means all applicable local, state, federal and international laws and regulations.
(f) "Authorized User" means any employee, contractor, representative, or other person acting on Client's behalf who is authorized by Client to use the Services or the Products and who has been supplied with access to the Services or Products by either Client or ANS, at Client's written request.
(g) "Client" means the legal entity that executes or otherwise accepts an Order Document, or uses the Services or the Products, and thereby accepts these Terms.
(h) "Client Data" means any Client information uploaded to ANS's systems by Client, or the unique Client output that is generated by the Services, and any information furnished by Client to ANS in connection with its use of the Services or Products.
(i) "Documentation" means information, as updated or revised by ANS from time to time, including training manuals, product or service-related materials or other similar information that ANS provides to Client, which may be in print or electronic format, and includes but is not limited to information found at the following location: https://www.getadvanced.net.
(j) "Expenses" means any reasonable, pre-approved expenses described in an Order Document or otherwise as being reimbursable to ANS by Client, that ANS actually incurs while providing Client the Services or Products.
(k) "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.
(l) "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.
(m) "Order Document" means a Sales Order, SOW, or other document, including electronic documents, used to purchase Services or Products from ANS.
(n) "Personal Information" means any information of an individual person that can be used to identify that person and that is protected by law. Personal Information is protected by the confidentiality provisions set forth in Section 8 (Confidential Information).
(o) "Products" means the ANS products which Client purchases from ANS, as specified in the applicable Order Document.
(p) "Sales Order" means ANS's sales order form that describes the Services, Products, fees, support plans, Expenses and any special terms for using the Services or Products that Client has ordered.
(q) "Services" mean the service offerings provided by ANS, as specified in the applicable Order Document.
(r) "SOW" means a statement of work executed by the Parties that describes the Services or Products that ANS will provide to Client, and any related obligations that may be more fully described in the SOW.
(s) "Third Party Products" means computer software programs and other technology that are provided or made available to Client by third parties.
2. THE SERVICES
(a) Use of the Services. ANS will furnish Client a pricing estimate for all Products and Services to be delivered to Client. Sales estimates will be valid for a maximum of thirty (30) days from the date of issuance. Unless specifically included, Sales estimates do not include any taxes, handling, shipping, transportation, duties or other charges or fees. ANS grants Client a non-exclusive, non-transferable, worldwide right to access and use the Services during the Term, solely for Client's internal business operations. ANS reserves all other rights. Client shall not use any Services or Products that are not set forth in an Order Document signed by Client and accepted by ANS, except as otherwise provided in the Terms. ANS's acceptance of Client's order occurs (i) for Products, at the time of shipment and (ii) for Services, at the time ANS commences the Services. An order acknowledgement does not constitute a formal acceptance of the Client's order. ANS may decline any Order Document submitted by Client for any reason.
(b) Service Rates. When furnishing sales estimates, ANS may utilize, one of two different labor rates. A loaded labor rate is inclusive of all service engineer and ancillary support services associated with providing each billable hour of labor. A non-loaded labor rate is inclusive only of the service engineer's time for providing each billable hour of labor. A non-loaded labor rate will incorporate, at the time of customer billing, any additional ancillary support time required to complete each project or support incident. These ancillary services include, but are not limited to, opening and documentation of service tickets, providing ongoing status updates of service tickets, management of tickets and issues, closing tickets and documenting results, follow up and invoicing of services provided. The non-loaded labor rate support adjustment is sixteen percent (16%). ANS reserves the right, from time to time, to adjust the additional corresponding support time associated with the non-loaded labor rate, and update the adjustment within these terms and conditions of sale.
(c) ANS's Responsibilities. ANS shall: (i) determine the best method, details, and means of performing any Order Document or work to be carried for Client (ii) if applicable, use commercially reasonable efforts to make the Services available, as defined in the Order Document, except for (1) planned downtime, or (2) unavailability cause by circumstances beyond ANS's reasonable control and (iii) conduct its business in compliance with Applicable Laws.
(d) Client's Responsibilities. Client is responsible for (i) the accuracy and completeness of the information furnished to ANS which is required for ANS to provide the Services or the Products, (ii) ensuring that the Services or Products are compatible with Client's business systems and requirements; (iii) the accuracy, quality, legality, completeness, and integrity of Client Data and the means by which Client acquired Client Data; and (iv) the maintenance and use of Client's hardware, network, internet connectivity, software, and other systems. Client shall comply with all Documentation and with all Applicable Laws. Client shall ensure that its Affiliates, Authorized Users (including its Affiliates' Authorized Users), employees, agents, and representatives comply with all of Client's obligations under the Agreement, and Client is responsible for their acts and omissions relating to the Agreement as though they were those of Client. Client will provide ANS with: (a) all information and assistance, as reasonably required by ANS, including its own appropriately qualified staff, to assist ANS with the performance of the Services and Products and (b) full and unfettered access including remote access to Client's information technology facilities, office facilities or other facilities either on or off Client's premise that are required for ANS's performance of the Services. Client understands and agrees that it is Client's sole responsibility to have its own current and working backup of all its software applications, data and other information. Client will also ensure that such backup is in place, available and in fully-functional working order, prior to the initiation of work by ANS, in a format that can be utilized by ANS should the need arise to restore such data, information or applications.
(e) Client Affiliates. Client may enable its Affiliates to use the Services or Products. All use of the Services or Products by Client's Affiliates will be under Client's Account unless otherwise agreed by ANS. When an Affiliate of Client uses the Services, all references to "Client" relating to the access or use of or restrictions or limitations on access or use of the Services in the Agreement are deemed to reference the Affiliate. Client is responsible for its Affiliates' and Affiliates' Authorized Users' compliance with the terms of the Agreement. Any act or omission of an Affiliate or its Authorized Users that would be a breach of the Agreement if done by Client will be deemed a breach of the Agreement by Client. ANS will invoice Client, not its Affiliates, for the Services used, and Client shall pay all invoices to ANS.
(f) Restrictions. Client shall only use the Services and Products as set forth in the Agreement and the Documentation, and not for the benefit of any third party. Client shall not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any ANS Technology; (ii) reproduce, modify, create, or prepare derivative works of any ANS Technology or Documentation; (iii) distribute or display any ANS Technology or Documentation other than to Client's Authorized Users; (iv) share, sell, rent, lease, or otherwise distribute access to the Services, or use the Services to operate any timesharing, service bureau, or similar business (except with respect to Client's Affiliates as expressly provided in Section 2(e)); (v) alter, destroy or otherwise remove any proprietary notices within ANS Technology or Documentation; or (vi) disclose the results of any benchmark tests to any third parties without ANS's prior written consent.
(g) Insurance. To the extent that ANS may perform work at Client's premises, both Client and ANS will maintain their own comprehensive liability insurance which adequately covers its operations including personal injury and property damage for each occurrence. ANS and Client will also maintain their own automobile liability coverage as well as Worker's Compensation coverage meeting all requirements and all Applicable Laws.
3. PROPRIETARY RIGHTS
(a) 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 the ANS Technology, the Documentation, ANS's Confidential Information, the Services, the Products, and all enhancements or improvements to, or derivative works of, the foregoing. Nothing in this Agreement transfers or conveys to Client any ownership interest in the ANS Intellectual Property. If Client provides ANS with any suggested improvements to the Services or Products, 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 3(b) (Suggestions) grants ANS a license to use any Inventions covered by a registered patent owned by Client.
(b) Client Data. Client retains all ownership rights in Client Data, Client's Personal Information, and Client's Confidential Information, including any Intellectual Property rights therein. ANS may retain, use, and disclose Client Data solely (i) for internal business purposes in order to maintain, evaluate, develop, and improve its Services and Products; (ii) to respond to a Client or Authorized User's support request; (iii) to fulfill its obligations to Client under the Agreement; or (iv) to comply with Applicable Laws. Nothing in the Agreement transfers or conveys to ANS any ownership interest in or to the Client Data, Client's Personal Information, or Client's Confidential Information.
(c) Aggregate Data. ANS shall strictly comply with Applicable Laws and the confidentiality provisions of the Agreement with respect to Aggregate Data. "Aggregate Data" means de-identified and anonymized sets of data that have been gathered by ANS for the purpose of expressing that information in summary form. Aggregate Data does not include any information that could be used to identify, or re-identify, Client; Client's clients or Clients; any products, goods, or services provided by Client; or any locations in which Client does business. ANS may use Aggregate Data for any purpose only to the extent that it complies with this Agreement, including the confidentiality obligations.
4. DISPUTES AND SERVICE SUSPENSION
(a) Payment Disputes. Client must promptly notify ANS, and in no event later than five (5) business days after delivery of any claimed shortage, any refusal to accept delivery, any other discrepancies associated with Products or Services, or any other payment dispute in writing (via email or U.S. mail) to ANS's accounting department. Such notice will be in writing and will be reasonably detailed in explaining any discrepancies or grounds for any such rejection. Failure to provide any such notice within such time will be deemed an acceptance in full of the Services, Products, and associated fee.
(b) Past Due Payments. In the event that Client has failed to pay ANS any amounts when due and payable, in addition to other remedies, ANS reserves the right to suspend performance of any Services or shipment of any Products, until Client's account is brought current. If ANS contracts with a collection agency to collect overdue invoices from Client under this Agreement, Client will be responsible for and agrees to pay all associated collection costs.
(c) Suspension of Performance. ANS shall make a good faith effort to contact and provide notice to Client in advance of any suspension. As reasonably practicable under the circumstances, ANS shall endeavor to resolve together with Client any circumstance that may give rise to ANS's suspension rights, which include, without limitation, the following: (i) a material risk to the security or performance of the Services, the Products, the network, or any other ANS Client or business partner; (ii) use of the Services or Products in violation of the Agreement; or (iii) delinquency of Client in its payment obligations for any undisputed fees. Unless otherwise agreed in a signed writing, payment will be considered delinquent if not received within 15 days following the due date set forth on an invoice. ANS acknowledges that suspending Client's right to access or use some or part of the Services is a significant action, and therefore ANS shall not exercise this remedy except in good faith and as necessary to resolve the issue giving rise to ANS's right to suspend the Services. ANS shall 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 advance of any suspension, ANS shall make a good faith effort to contact and provide notice to Client of such action.
(d) Effect of Suspension. If ANS suspends Client's ability to access the Products or the Services, (i) Client remains responsible for all fees and charges for those suspended Products or Services and for other Services to which Client continues to have access, if any; and (ii) Client will not be entitled to any compensation or credits for any period of suspension, unless suspension was due to ANS's error or omission.
5. TERM AND TERMINATION OF SUBSCRIPTION SERVICES
(a) Agreement Term. The term of the Agreement (the "Term") begins on the Effective Date of the Initial Subscription Term purchased and ends on the date of termination or expiration of the final Subscription Term.
(b) Subscription Terms. Client may purchase subscriptions to one or more Services during the Term. The effective period of each subscription is a "Subscription Term" and, depending on the timing and agreed terms of the applicable Order Documents, subscriptions for individual Services may or may not have different Subscription Terms. Each Initial Subscription Term begins on an "Effective Date," which is either: (1) the date ANS enters Client's Order Document into ANS's billing system or (2) an alternate date mutually agreed by the Parties in writing. When Services are provided by ANS in conjunction with Products purchased, acceptance of Products and Services is deemed to have taken place upon the Client's first day of beneficial use.
(i) Initial Subscription Term. Client's initial Subscription Term for a Service (the "Initial Subscription Term") is defined within the applicable Order Documents, Agreement documentation and related addenda used to purchase the Services or Products from ANS. begins on the Effective Date and ends on the first anniversary of the Effective Date, unless the Order Document specifies a different period.
(ii) Automatic Renewal. At the end of the then-current Subscription Term, each subscription to a Service will automatically renew for an additional term ("Renewal Subscription Term") unless: (a) Client provides written notice of non-renewal to ANS at least 90 days prior to the current term's expiration date or, (b) ANS provides written notice of non-renewal to Client. Clients must submit a notice of non-renewal or termination, in accordance with this termination policy, to ANS' Technical Services Coordinator email@example.com.
(c) Additional Services. If, after initially purchasing one or more Service Subscriptions, Client elects to purchase an additional Service Subscription, the Subscription Term for the additional Service Subscription will begin on the Effective Date established for the additional Services and Client will be separately charged for the activation and subscription fee for the additional Services. When Client upgrades or renews an existing Service Subscription, or purchases an additional Service Subscription, then all Services to which Client subscribes will become subject to the then-current Terms and Conditions.
(d) Termination for Cause. Either Party may terminate the Agreement or any affected Services by notice to the other (i) if the other Party materially breaches its obligations under the Agreement 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 that is not resolved within sixty (60) days of filing. Material breach by Client includes the following: (1) Client is unable to resolve any issue leading to suspension of Client's Services to ANS's reasonable satisfaction within thirty (30) days following notice of suspension, or (2) Client's use of the Services in violation of Applicable Law.
(e) Consequences of Termination for Cause. If Client terminates the Agreement or any Service as a result of ANS's material breach, then ANS shall refund Client a pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term of the terminated Services (excluding any activation or other one-time fees). If ANS terminates the Agreement or any Service due to Client's material breach, ANS shall not refund any amounts to Client.
(f) General Effects of Termination. Upon any termination of the Agreement: (i) all of Client's rights under the Agreement immediately terminate (with the exception of those surviving termination); (ii) except as set forth in Section 5(k) (Consequences for Termination for Breach or Cause), Client remains liable for all fees, charges, Expenses, and any other obligations Client has incurred during the Subscription Term; (iii) upon request, each Party shall immediately return or, if instructed, destroy the other Party's Confidential Information in its possession or control other than Confidential Information in automatic computer backups or that must be retained for regulatory, legal, or audit purposes or for compliance with its document retention policies; and (iv) ANS shall destroy or overwrite Client Data and Personal Information within a reasonable period of time, subject to Section 5(m) (Return and Retention of Data), and ANS's backup and data retention policies, which 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) Return and Retention of Data. Upon a request from Client received no later than sixty (60) days after the termination of this Agreement, ANS shall provide Client with Client Data stored on ANS's systems in a commonly used format reasonably determined by ANS. To fulfill certain tax audit requirements or as otherwise permitted by the Terms, ANS may retain some Client Data, provided that such retained Client Data will continue to be subject to the confidentiality provisions herein for as long as it is retained.
6. SHIPPING AND RETURN OF PRODUCTS
(a) Shipping and Delivery. Client agrees that the receipt of Product shipment (or electronic delivery) constitutes Client acceptance. Delivery of 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 for delivery to the carrier (F.O.B. Origin). Unless otherwise specified by Client in writing, all orders will ship via ANS's preferred carrier. Client will pay for any charged associated with special routing, packing, handling or insurance requested by Client and agreed to by ANS. If Client requests special shipping or handling, including expedited shipment, or third-party billing, Client will be responsible filing claims with the carrier and all freight and handling costs. ANS will not be liable for any delays in shipment or delivery beyond the reasonable control of ANS, or their suppliers, including but not limited to, those caused by Product unavailability or shortages or transportation failures. Client agrees that it will not export, re-export, or otherwise distribute Products, or direct Products thereof, in violation of any export control laws or regulations of the United States of America.
(b) Freight Damage. Client will promptly notify ANS' Technical Assistance Center ("TAC"), and in no event later than five (5) business days after delivery, of any Product received having either visible damage or having damaged contents upon receipt and opening. Such notice will be in writing and will be reasonably detailed (including supporting photographs) in explaining any damages. Failure to provide any such notice within such time will be deemed an acceptance in full of any such delivery. Products found to be defective out of the box may be returned for replacement. In a case of out of the box failure, Client must obtain a Return Materials Authorization ("RMA") Service Order Number from TAC within seven (7) days of receipt of defective Product and follow the procedures outlined in subsection (c) of this section for merchandise returns.
(c) Product Returns. In the case of Products purchased by Client and where failure is covered by the manufacturer's warranty during the warranty period, ANS will provide a system for Product returns and/or replacements. Restrictions apply to all Products whose license and content have been downloaded and installed, or where Product seals have been broken. A no return policy is effective for all non-defective software items. All returns require an RMA validly issued by TAC. No Products will be given an RMA without approval from the TAC. RMA-related Service Order Numbers issued to Client will be null and void if defective merchandise is not received within fifteen (15) days of the issuance of an RMA. Products must be returned to ANS in their original container, along with all packing materials, and freight pre-paid. All parts must be returned (e.g., cables, software, manuals, etc.). Any parts not returned will be billed at the cost to replace them. An original invoice with the item for return and its serial number must be included. The RMA Service Order Number(s) issued to Client by ANS should be clearly marked on the shipping label for each carton returned. Cartons with shipping labels with missing or unclear RMA Service Order Numbers are subject to refusal. ANS reserves the right to return any Product un-repaired and without notification should the Client return Product without original parts installed by the manufacturer. Returns which do not comply with the above-mentioned requirements will delay RMA processing and may be subject to an additional service charge.
(d) Replacement Lead Time. Replacement or repair will be made as soon as reasonably practical after a Product is properly returned, received, and processed by ANS. Unless otherwise specified in writing outside this Agreement (e.g. Client holds a separate maintenance contract), all Product replacements are subject to product stock availability. All replacement shipments of Products returned to the Client will be via UPS Ground Delivery Service, unless otherwise instructed. Client is responsible for any difference in freight charges between ANS's standard delivery method and an alternative shipping method chosen/requested by the Client.
7. FEES AND TAXES
(a) Amounts Due. Client shall pay all fees and amounts dues as specified in each Order Document or invoice. Client may be invoiced based on the Order Document and for usage-based fees. Except as otherwise specified in these Terms or an Order Document: (i) invoices are payable in the currency specified on the Order Document; and (ii) payment obligations are non-cancelable and fees paid are nonrefundable. Unless otherwise specified in an Order Document, ANS will separately invoice Client for any renewals, upgrades, overage fees, and additional Services purchased.
(b) Subscription Plans. Client's subscription plan for the Services is specified in the applicable Order Document. Client may not reduce Client's commitment under the Service subscription plan specified in the Order Document during the Service Subscription Term. Client is not entitled to any refund of fees paid or relief from fees due if the volume of Services Client actually uses is less than the volume Client ordered, and Client may not carry over any unused volume to Client's next Subscription Term. If Client wishes to reduce the volume of a Service subscription plan, then Client must notify ANS before the start of the next Renewal Subscription Term for the applicable Service and request a Service modification; the reduction will be effective at the start of that next Renewal Subscription Term.
(c) Taxes. Client is responsible for the payment of any applicable taxes, including without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Client's order of Services or Products assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified by inclusion in an Order Document, applicable taxes are excluded. In order to be honored, exemption certificates, valid in the place of delivery, must be presented to ANS prior to shipment.
(d) Order Cancellation Fee. Cancellation of Product orders by Client may be subject to a re-stocking or cancellation fee of twenty-five percent (25%) of the total order amount.
(e) Credit Terms. Unless otherwise stated in writing by ANS, Credit Terms are net thirty (30) days. Credit Terms may be offered to Client by ANS, at ANS's sole discretion, contingent upon ANS approval of Client's completed credit application containing financial information. Client agrees that information provided in a credit application submitted to ANS may require periodic updating in order to ensure its accuracy and continue Client's credit limit. Client agrees that it will promptly notify ANS of any significant change in its financial condition. ANS has the right to decline to extend credit terms to Client, change credit limits, or to require that the applicable purchase price for Products and Services be paid prior to shipment or delivery to Client. Prepayment is required for all orders placed without approved credit and for any shipment destined outside the continental United States.
(f) Annual Increases. Unless otherwise agreed in writing, following the Initial Subscription Term, Service fees are subject to evaluation and annual increases, which will become effective beginning upon the first day of each Renewal Subscription Term. ANS shall notify Client of any increase at least ninety (90) days prior to Client's Renewal Subscription Term. Such notice may be in any form of notice commonly used by ANS to communicate with Client. If Client objects to the increase, then Client may elect to not renew its order of Services. Client acknowledges that the following do not constitute fee increases: (i) additional fees for any additional Service that Client orders, and (ii) expiration of any discount or incentive programs to which Client was previously entitled.
(g) Payments and Collections. ANS will invoice Client for Products sold upon Product shipment or upon Product delivery to Client and all invoices will be due and payable according to Purchaser's current payment Terms at the time of invoice. ANS will invoice Client for Services either (i) upon completion of the Services, or (ii) in advance of each monthly subscription service period, all invoices will be due and payable according to Client's payment terms at the time of invoice. For Clients issued net 30 credit terms, payments not received within thirty (30) days after the date of invoice will be subject to a late penalty of 1.5% of the invoice per month, or the maximum rate allowed by law from the date of invoice, until paid in full. For Clients who pay by credit card, ANS retains the right to charge a credit card handling fee equal to 2.5% of total purchase price for orders equal to or greater than five-thousand dollars ($5,000). Client will not deduct any amounts owing from any ANS invoice without ANS's express written approval and corresponding credit memo; with such approval contingent upon Client providing all supporting documentation for such deduction as required by ANS. A $50.00 Service charge will be issued to Client for each returned check submitted to ANS.
8. CONFIDENTIAL INFORMATION
(a) Confidential Information. "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. Confidential Information includes, with respect to ANS, the ANS Technology and the Documentation, 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, prerelease 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 information that the receiving Party can establish: (i) (except with respect to Personal Information) 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 shall 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 shall 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 shall exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
(d) Restrictions on Use and Disclosure. Subject to the permitted disclosures set forth in Section 7(c) (Disclosures Required by Law), the receiving Party shall hold Confidential Information in strict confidence and shall 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 employee, advisor, or consultant ("Representatives") on the condition that the receiving Party: (i) ensures that such Representatives are bound by a written agreement that is as substantially protective as these Terms; and (ii) accepts full responsibility for its Representatives' use of the Confidential Information. The receiving Party shall 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, Personal Information, and Confidential Information. ANS shall implement and maintain commercially reasonable and appropriate technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to or publication of Client Data, Confidential Information, or Personal Information. ANS shall implement processes and maintain procedures designed to comply with Applicable Laws and shall, if applicable, assist Client's compliance with its data security obligations with respect to Personal Information in ANS's possession or control. The Agreement and the Documentation are Client's instructions for processing Client Data, and ANS shall not process Client Data for any other purpose. ANS may use subcontractors to facilitate its obligations under the Agreement. ANS shall use commercially reasonable measures to ensure that such subcontractors implement and comply with reasonable security measures in handling any Client's Data, Personal Information, or Confidential Information.
(f) Notice. ANS shall promptly notify Client, as soon as reasonably practicable and not later than 72 hours from the time of confirmation by ANS, of any known unauthorized access, use, or disclosure of any Client Data, Confidential Information, or Personal Information under ANS's control. Each Party shall 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 shall modify its processes and security program as necessary to remediate the vulnerability or breach at ANS's sole cost and expense.
(a) Mutual Warranties. Each Party represents and warrants to the other Party that (i) it has the authority to enter into this Agreement and perform its obligations hereunder; (ii) the Agreement does not conflict with any other agreement entered into by it; and (iii) it does not conduct business for any unlawful purpose.
(b) ANS's Warranties.
(i) ANS warrants to Client that it will provide the Services and perform its duties hereunder in a timely, good and workmanlike manner by qualified persons, in accordance with the degree of care observed in the industry generally, and that the provision of the Services will be in accordance with all applicable federal, state and local laws. ANS warrants that ANS Technology will perform in all material respects in accordance with its applicable, then-current Documentation. ANS shall not materially reduce Services or Service features or functionality during a Subscription Term (with the exception of remedies provided to ANS as a result of Client default, or upon expiration of a Subscription Term (with at least 90 days' written notice to Client).
(ii) If ANS fails to conform to any of the warranties in this Section (Section 9(b) Warranties, and if ANS does not render the ANS Technology conforming within 30 days of Client's notifying ANS of the non-conformance then, as Client's sole and exclusive remedy for any nonconformance, Client may immediately terminate the Agreement upon notice to ANS, and ANS shall refund Client a prorated amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term of the terminated Service (excluding any activation or other one-time fees). The refund will be calculated from the date that Client notifies ANS of the nonconformance. The remedies set forth in this section shall 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.
(iii) 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 OR DAMAGED OR STOLEN, NOR THAT IT WILL PROVIDE CONTINUOUS, UNINTERRUPTED, MALWARE-FREE OR SECURE SERVICES.
(iv) The warranties in this Section do not apply to the extent that any Services, products, systems, or software have been modified by persons other than ANS employees or persons authorized in writing by ANS.
(v) The warranties in the Agreement are for Client's sole benefit, and do not extend to any other person or entity.
(vi) ALL PRODUCT WARRANTIES ARE PROVIDED TO CLIENT SOLELY BY THE MANUFACTURER OF THE PRODUCTS. ANS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY AND ALL WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO ANY PRODUCT, INCLUDING 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. 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 reasonably assisting Client in its efforts to have the manufacturer either: replace the Product; repair the Product; or refund Client's purchase price for the Product.
(vii) Alterations, Modifications and Attachments to Products. Any alterations (including but not limited to scratches, labels, indelible marks and/or other defacements), modifications, additions, improvements or attachments to Product(s) not authorized in writing by ANS, will be undertaken solely at the Client's own risk and expense. If operation of a Product(s) is affected in any way by alterations, additions, improvements, attachments or by installation or other services performed by a party or parties other than ANS, any product warranty will be deemed waived by the Client, and ANS will have no further obligation to the Client.
(c) Client Warranties.
(i) Client represents and warrants that the information Client provides in connection with the purchase of products and Services, including billing information and purchase orders, is current, accurate, and complete; and that Client is not on the United States Department of Treasury, Office of Foreign Asset Control's list of Specially Designated National and Blocked Persons.
(ii) Client acknowledges, agrees and warrants Client's sole responsibility for: employing and continuously maintaining its own data backup system which can provide a current, working backup of its data, software applications, configurations and other data, as well as ensuring the availability of verified data backups that are stored in an off-site location. ANS assumes no liability for any Client system or process failure nor any data losses arising from such a failure. Likewise, Client warrants that it is solely responsible for employing its own antivirus/antimalware solution and that the manufacturer's most current version of this antivirus/anti-malware solution is actively and perpetually employed.
(d) DISCLAIMER OF IMPLIED WARRANTIES. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, ANS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, 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 YOUR 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 YOUR PRIVACY, 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 THIS AGREEMENT INCLUDING IMPLIED WARRANTIES OF NETWORK AND COMPUTER SYSTEMS SECURITY.
(a) Indemnification by ANS. ANS shall indemnify and defend Client and Client's directors, officers, employees, and Affiliates against any Losses arising from a third party claim that (1) the use of the Services in accordance with the Agreement infringes a copyright, registered trademark, issued patent, or other Intellectual Property right of such third party (an "Infringement"); or (2) results from ANS's violation of Applicable Laws. "Loss" means any liability, loss, claim, settlement payment (including any settlement the Indemnitee agrees to pay as long as it is in a written settlement approved by Indemnitor in writing), 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. ANS will have no obligation with respect to any actual or claimed Infringement to the extent that the Infringement is caused by (1) Client Data, (2) use or modification of the ANS Services other than as specified in the Documentation or these Terms, or (3) combination of 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 shall indemnify and defend ANS and ANS's directors, officers, and employees against Losses arising from a third-party claim that (i) Client's use of the Services or Products in violation of the Agreement infringes the Intellectual Property rights of a third party; (ii) results from Client's breach of the Agreement; or (iii) results from Client's violation of Applicable Laws.
(c) Process. The obligations of a Party ("Indemnitor") to defend or indemnify the other ("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 shall 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 shall 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 9 (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) Subject to the restrictions in this Section 10 (Modifications), ANS may modify these Terms, the Acceptable Use Policy, or any Supplemental Terms. If ANS modifies these Terms, the Acceptable Use Policy, or any Supplemental Terms, it will provide prior written notice ("Modification Notice") to Client of such modifications at least thirty (30) days prior to the effectiveness of the modifications. Notwithstanding the previous sentence, ANS may not provide prior notice if modifications are necessary to comply with Applicable Laws but will use commercially reasonable efforts to provide prior notice when practicable. If the modifications materially and adversely affect Client, and Client does not wish to accept such modifications, then Client may terminate Client's subscription to the affected Service by written notice to ANS within the 30-day period following the date of the Modification Notice, subject to the terms of this Section 10 (Modifications).
(b) If the Modification Notice states that the modifications will become effective upon commencement of a Renewal Subscription Term, then the modifications will become effective for all Services affected by the changes upon Service renewal. Client may avoid the applicability of the changes only by cancelling the renewal of Client's subscription prior to commencement of the Renewal Subscription Term.
(c) If Client does not terminate the affected Service subscription as specified in this Section 10 (Modifications), then Client will be bound by the modified terms beginning upon the effective date set forth in the Modification Notice.
12. EXCLUSION OF CERTAIN CLAIMS; LIMITATION OF LIABILITY
(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 the Agreement or of software, Services, or Products provided under the Agreement, 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 9 (Indemnification).
(b) Limitation of Liability. ANS's aggregate liability will not exceed the fees paid or payable by Client to ANS under the Agreement in the 12-month period immediately preceding the event giving rise to the claim. The previous sentence does not apply to instances of gross negligence or willful misconduct, to a Party's indemnification obligations set forth in Section 9 (Indemnification), to Client's obligations to pay fees and Expenses when due and payable, to noncompliance with the Acceptable Use Policy by Client, Client Affiliates or Authorized Users, or to any infringement or misappropriation by a Party of any Intellectual Property rights of the other 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 Agreement 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, its Affiliates or Authorized Users. Without these limitations the fee for the Services and Products 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.
(a) Relationship of the Parties. This Agreement does not create a partnership, joint venture, agency, or fiduciary relationship between the Parties. Distributors and ANS's other business partners are independent of ANS and are not ANS's agents. ANS provides Products and Services to Client as an independent contractor. All persons retained by ANS to perform Services for Client hereunder will be either employees 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 Third-Party Applications or websites linked to by ANS's website or Services.
(c) Publicity. Neither Party shall issue any public statement regarding the Agreement without the other Party's prior written consent. Unless a Party has specifically notified the other Party to the contrary in writing, either Party may include the name or logo of the other Party or its Affiliates in lists of Clients or vendors.
(d) Other Technology or Services; Changes. Client acknowledges and agrees that Client has not relied on any future availability of any service offerings, technology, or enhanced or updated features or functionality.
(e) Governing Law; Dispute Resolution. The Agreement will be governed by laws of the Commonwealth of Virginia, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. Any controversies arising out of or relating to this Agreement or the interpretation, performance or breach thereof will be settled by binding arbitration in Albemarle County, Virginia. Any dispute between the Parties concerning the interpretation or enforcement of this Agreement shall be settled in a reasonable, fair and timely manner without outside intervention. Therefore, prior to beginning any arbitration or litigation proceeding to resolve any dispute, there must be one meeting between the parties, or their representatives, at which a good faith attempt is made to resolve the dispute. Furthermore, each party will, if requested by another party, attend at least one mediation session for the purpose of exploring, in good faith, mediation of the dispute. Judgment upon any award rendered by the arbitrator(s) may be entered and enforced in any court having jurisdiction.
(f) Equitable Relief. Each Party acknowledges that damages may be an inadequate remedy if the other Party or the Authorized Users violate the obligations under the Agreement, and each Party shall 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 shall be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; 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 30 days, the other Party may, in its discretion, terminate this Agreement. Such termination will not result in any liability by either Party, except that, if Client terminates this Agreement for ANS's failure, ANS shall refund Client a pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term of the terminated Services (excluding any activation or other one-time fees).
(h) Notices. ANS will communicate announcements of general interest by email or by posting on its website. ANS shall provide Client with legal notices by email, mail, or courier to the address provided by Client. Client shall immediately notify ANS if Client's address for notice changes. Except as otherwise specified in the Agreement, all notices must be in writing, with account notices sent to Advanced Network Systems, Inc. ANS will not be responsible for non-delivery of any notice when it has been sent to the respective primary contact on file.
(i) Successors and Assigns. Either Party may assign the Agreement without the other Party's consent to an entity that acquires all or substantially all of its assets or that is an Affiliate of the assigning Party, provided that (i) the assigning Party must provide notice to the other Party of the assignment, (ii) the assignee must agree in writing to be bound by the Agreement, and (iii) the non-assigning Party may prohibit assignment to a competitor of the non-assigning Party or to an entity operating a business in violation of Applicable Law. Except as provided above, neither Party may assign its rights or obligations under the Agreement without the other Party's prior written consent, such consent not to be unreasonably withheld or delayed, and any attempt to so assign the Agreement will be null and void. The Agreement will bind and inure to the benefit of each Party's permitted successors and assigns.
(j) Severability. If any provision of the Agreement 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 the Agreement will remain in full force and effect.
(k) Waiver. No waiver of any provision of the Agreement, nor consent by a Party to the breach of or departure from any provision of the Agreement, will in any event be binding on or effective against such Party unless it is in writing and signed by such Party, and then the waiver will be effective only 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 this Agreement, 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. The Agreement 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 specified in Section 10 (Modifications), the Agreement may not be modified or amended except by a written instrument executed by both Parties. Client's standard terms of purchase (including purchase order terms), if any, are inapplicable. Except to the extent expressly specified otherwise, if there is any conflict between these Terms and any of the other Agreement documents, then the following order of precedence applies: (i) any addendum between the Parties, (ii) the Order Document, (iii) the SOW, (iv) the Supplemental Terms of Service if applicable, and (v) these Terms.