The following terms and conditions apply to the agreement formed between Anvyl, Inc., a Delaware corporation (“Anvyl”), and the client executing an Order Form that is accompanied by or references this document (“Client”).
Certain terms used in this Agreement are defined in the Glossary at the end of these Terms and Conditions. Other terms used in this Agreement are defined in the context in which they are used and will have the meanings there indicated.
2.1. Access Grant. Subject to Client’s continuing compliance with this Agreement and payment of the applicable fees, Anvyl hereby grants to Client a limited, personal, non-exclusive, non-transferable right during the Subscription Term for Authorized Users of Client and Affiliates of Client identified on the Order Form (“Authorized Client Affiliates”) to access through Anvyl’s website the features and functions of the Platform, and Anvyl Content on the Platform, to which Client has subscribed, solely for the internal business purposes of Client and Authorized Client Affiliates.
2.2. Authorized Users. On or as soon as reasonably practicable after the execution of this Agreement, Anvyl shall provide to Client the necessary access credentials and protocols to allow Authorized Users to access the Platform. Client may permit Client Sourced Suppliers to access and use the Platform as Authorized Users solely for purposes of facilitating the development, manufacture, storage and transport of Client Products on behalf of Client and Authorized Client Affiliates.
2.3. Use Restrictions. Client shall not (a) access or use the Platform or other Services to develop or support, or assist another party in developing or supporting, any products or services competitive with the Platform or other Services; (b) decompile, reverse engineer (unless required by law for interoperability) or use any other method in an attempt to view or recreate any of the source code of the Platform or extract any trade secrets from it; (c) remove any copyright notices, trademarks or other proprietary notices or restrictions from the Platform; (d) use the Platform or other Services to operate or support the business of a third party or to act as a service bureau or provider of application services to any third party; (e) interfere with the proper working of the Platform; (f) circumvent, disable, or interfere with security-related features of the Platform or features that prevent or restrict use, access to, or copying the Platform or any Content or other data, or that enforce limitations on use of the Platform or Content; (g) use the Platform or other Services for any unlawful purpose or in violation of any laws, rules or regulations; or (h) use the Platform or any other Services, or permit them to be used, for purposes of evaluation benchmarking, performance testing or other comparative analysis intended for publication or disclosure to third parties.
2.4. Platform Support Services. During the Subscription Term, Anvyl will provide Client with technical support and assistance for Authorized Users in accordance with Anvyl’s then current support policy available on the Platform (“Platform Support Services”). Anvyl reserves the right, from time to time, to make modifications to the Platform Support Services (or particular components thereof), provided that such modifications do not materially degrade the Platform Support Services. Anvyl further reserves the right to take down servers and other infrastructure hosting the Platform to conduct scheduled and emergency maintenance. Anvyl will not be responsible for any damages or costs incurred by Client due to unavailability of the Platform during scheduled or emergency maintenance.
2.5. Platform Security. Anvyl will employ commercially reasonable security and access controls designed to protect the data and information collected and stored on the Platform.
2.6. Platform Updates. Client will be given access to Updates of the Platform that Anvyl implements during the Subscription Term. Client acknowledges, however, that Anvyl may in the future offer optional value-added functions, features, or other capabilities for a separate fee.
3. Source services
In addition to subscribing to the Platform, Client may receive product sourcing marketplace services (“Sourcing Marketplace Services”) and other sourcing and supply chain management related Services from Anvyl in connection with the development, manufacture, storage and transport of Client Products (together with the Sourcing Marketplace Services, the “Supply Chain Management Services”), as specified in an Order Form or a Statement of Work. The identities and information concerning Anvyl Sourced Suppliers will be available to Client only in connection with Client’s purchase of Sourcing Marketplace Services from Anvyl. Client shall use the Supply Chain Management Services solely for the internal business purposes of Client and Authorized Client Affiliates. Supply Chain Management Services and associated fees will be documented in an Order Form and an associated Supply Chain Management Services Request Form or, depending on their nature and complexity, in a separate Statement of Work executed by the parties.
4. Client responsibilities
In addition to its other obligations under this Agreement:
- Client shall designate an individual to act as Client’s principal point of contact with Anvyl for purposes of this Agreement.
- Client shall use the Platform in accordance with all applicable user guides and other documentation furnished or made available (via the Platform or otherwise) by Anvyl to Client (“Documentation”).
- Client shall be responsible for the acts and omissions of its Affiliates and Authorized Users in connection with this Agreement. Without limiting the generality of the foregoing, Client shall ensure that Authorized Users comply with Anvyl’s online Acceptable Use Policy available on the Platform in connection with their use of the Platform. Anvyl, in its discretion, may suspend access to the Platform by Client or any Authorized User in the event of any violation of the Acceptable Use Policy until such violation is cured.
- Client shall provide Anvyl with accurate, complete and current information relating to Client Products (including specifications for manufacture), and shall provide cooperation and assistance to Anvyl, as reasonably required for Anvyl to perform the Services under this Agreement.
- Client shall be responsible for maintaining the security and confidentiality of all passwords associated with Client’s account, and for all activities that occur under Client’s account. If Client becomes aware of any unauthorized or illegal use of any such password or account, Client shall immediately notify Anvyl.
- Client shall use the Platform and Services in compliance with all applicable laws, rules and regulations, and shall comply with all laws, rules and regulations relating to the development, manufacture, labelling, storage, transport, marketing, sale and distribution of Client Products.
5.1. General. Anvyl’s fees for the Services will be as set forth in the applicable Order Form(s) and Statement(s) of Work. Client shall pay Anvyl’s fees and reimburse Anvyl for any expenses incurred by Anvyl on Client’s behalf in connection with the Services, including without limitation costs of providing samples, and shipping and handling costs. Except as provided in an Order Form, Supply Chain Management Services Request Form or SOW, all payment obligations are non-cancelable and all fees paid are non-refundable.
5.2. Payment. Except as otherwise specified in an Order Form, Supply Chain Management Services Request Form or Statement of Work, all fees shall be due and payable upon receipt of invoice by Client. If payment of any amount due under this Agreement is not made in full within thirty (30) days after receipt of invoice, the overdue balance will be subject to interest at the rate of one percent (1.0%) per month or the maximum legal rate, whichever is less. If payment is late by more than sixty (60) days, Anvyl may, upon written notice to Client, suspend Client’s access to the Platform and/or the performance of some or all of the Services until overdue amounts are paid in full. Anvyl shall be entitled to recover all reasonable costs, including attorneys’ fees, incurred in collecting any fees, expenses or other amounts owed by Client under this Agreement. If payment will be made by credit card, Client will provide credit card information to Anvyl, and Client authorizes Anvyl to charge such credit card for all fees and expenses payable under this Agreement. Unless otherwise specified in an Order Form, all fees are quoted and shall be paid in U.S. dollars.
5.3. Taxes. Anvyl’s fees do not include applicable taxes. Client will be responsible for and reimburse and hold Anvyl harmless from and against the payment of all taxes arising out of the provision of Services under this Agreement other than taxes based on Anvyl’s gross receipts or net income.
6. Warranties; Indemnities; Non-circumvention; Liability limits
- Anvyl warrants that the Platform, as made available to Client by Anvyl, will perform the material functions described in the Documentation when used in accordance with the Documentation. For breach of this warranty, Anvyl agrees to fix the material functionality at issue and, if Anvyl is unable to fix the deficiency, Client’s sole remedy shall be to terminate this Agreement and have Anvyl refund to Client the prorated unused portion of any pre-paid fees.
- Anvyl warrants that it will perform the Platform Support Services and Sourcing Services under this Agreement in a good and workmanlike manner. For breach of this warranty, Anvyl’s sole obligation and Client’s sole remedy will be for Anvyl to correct or re-perform the affected Services without undue delay to remedy the breach.
6.2. Dislcaimers. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 6 AND AS PERMITTED BY APPLICABLE LAW, THE PLATFORM AND OTHER SERVICES UNDER THIS AGREEMENT ARE PROVIDED TO CLIENT STRICTLY ON AN “AS IS” BASIS AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANVYL DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR OTHER SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS IN THE SERVICES OR DOCUMENTATION WILL BE CORRECTED. CLIENT ASSUMES FULL RESPONSIBILITY, WITHOUT ANY RECOURSE AGAINST ANVYL, FOR THE SELECTION OF THE PLATFORM AND OTHER SERVICES TO ACHIEVE CLIENT’S INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED THEREFROM IN CLIENT’S BUSINESS. FURTHER, ANVYL DOES NOT MAKE ANY REPRESENTATION OR WARRANTY CONCERNING SUPPLIERS (INCLUDING ANVYL SOURCED SUPPLIERS) AND SHALL HAVE NO LIABILITY TO CLIENT OR ANY OF ITS AFFILIATES IN CONNECTION WITH CLIENT’S ENGAGEMENT OF OR CONTRACTING WITH SUPPLIERS OR OTHER THIRD PARTIES OR IN CONNECTION WITH THE DEVELOPMENT, MANUFACTURE, STORAGE OR TRANSPORT OF CLIENT PRODUCTS BY SUPPLIERS OR OTHER THIRD PARTIES. CLIENT SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION OF AND CONTRACTING WITH SUPPLIERS AND OTHER THIRD PARTIES AND DETERMINING WHETHER EACH SUPPLIER AND OTHER THIRD PARTY IS CAPABLE OF PERFORMING THE DEVELOPMENT, MANUFACTURE, STORAGE AND TRANSPORT OF CLIENT PRODUCTS TO CLIENT’S SATISFACTION.
6.3. Indemnification of Client by Anvyl. Anvyl agrees to defend Client and Authorized Client Affiliates, and their respective officers, directors, employees, agents, successors and assigns (“Client Indemnitees”), from and against all Losses arising from any third party claim or action (a “Claim”) alleging that the Platform or Anvyl Content infringes such third party’s Intellectual Property Rights and to indemnify the Client Indemnities against all damages finally awarded against them (or the amount of any settlement Anvyl enters into) with respect to such Claim, provided that this indemnity shall not apply to the extent any claimed infringement is attributable to: (a) any use of Platform or Anvyl Content other than in accordance with the Documentation and this Agreement; (b) any modifications of the Platform or Anvyl Content made by or on behalf of Client (other than by Anvyl); (c) the combination of the Platform or any component thereof with any hardware, software or other item not furnished by Anvyl; or (d) Client’s continued use of the Platform or Anvyl Content after being notified of alleged infringement. In the event that a Claim of infringement is made or likely to be made under this Section 6.3, Anvyl, at its option, may (i) procure for Client the right to continue using the Platform or Anvyl Content (as applicable) under the terms of this Agreement, (ii) modify the Platform or Anvyl Content (as applicable) to be non-infringing, or (iii) terminate Client’s subscription to the Platform upon written notice to Client and refund to Client any pre-paid fees for the unused portion of the terminated Subscription Term. The provisions of this Section 6.3 set forth Client’s sole remedy and Anvyl’s entire liability with respect to infringement of third party Intellectual Property Rights.
6.4. Indemnification of Anvyl by Client. Except for any Claims in respect of which Anvyl is obligated to indemnify Client under Section 6.3, Client agrees to defend, indemnify and hold harmless Anvyl and its Affiliates, and their respective officers, directors, employees, agents, successors and assigns (“Anvyl Indemnitees”), from and against all Losses arising from any Claim that arises out of or relates to: (a) use of the Platform or other Services by Client, its Affiliates or Authorized Users; (b) the sourcing, development, manufacture, storage, transport, purchase, marketing, sale or distribution of any Client Products; or (c) the posting, display, distribution, broadcast, publication or other use of Client Data by or on behalf of Client or its Affiliates in connection with this Agreement, including Claims that any such use infringes or otherwise violates the rights of any third party (including Intellectual Property Rights, privacy, publicity or other personal or proprietary rights) or contains libelous, defamatory or otherwise injurious or unlawful material.
6.5. Indemnification Procedures. If any third party makes a Claim covered by Section 6.3 or Section 6.4 against a Client Indemnitee or Anvyl Indemnitee (a “Covered Party”) with respect to which the Covered Party intends to seek indemnification under this Agreement, the Covered Party shall give prompt written notice of the Claim to the indemnifying party, including a brief description of the amount and basis for the claim, if known; provided, however, that failure to do so shall not relieve the indemnifying party of its indemnification obligation, except to the extent that the indemnifying party can demonstrate that it is materially prejudiced as a result of such failure. Upon receiving such notice, the indemnifying party shall be obligated to defend the Covered Party against the Claim, and shall be entitled to assume control of the defense and settlement of the Claim. The Covered Party will provide the indemnifying party with reasonable cooperation and assistance in the defense of any Claim at the indemnifying party’s expense. The Covered Party may participate in the defense and settlement of the Claim at its own expense, using its own counsel, but without any right of control. The indemnifying party shall keep the Covered Party reasonably apprised as to the status of the Claim. Neither the indemnifying party nor any Covered Party shall be liable for any settlement of a Claim made without its consent. Notwithstanding the foregoing, the Covered Party shall retain responsibility for all aspects of the Claim that are not subject to indemnification by the indemnifying party hereunder.
6.6. Non-Circumvention. Client acknowledges and agrees that Subscription Fees and fees payable by Anvyl Sourced Suppliers to Anvyl based on product sales to Anvyl clients (including Client) through the Platform are important sources of revenue for Anvyl. Accordingly, Client agrees that all Client Products manufactured or supplied by an Anvyl Sourced Supplier during the Subscription Term shall be sourced solely through the Platform, unless such Anvyl Sourced Supplier manufactured or supplied Client Products for Client outside the Platform during the twelve months immediately prior to the date Client was first provided access to the name of such Anvyl Sourced Supplier through the Platform or other Services (any such Anvyl Sourced Supplier being referred to as a “Pre-Existing Supplier”). Client further agrees that, except for Pre-Existing Suppliers, it shall not use any Anvyl Sourced Suppliers or any of their Affiliates for the manufacture or supply of Client Products for a period of three (3) years after the end of the Subscription Term. In the event that Client breaches its obligation under the immediately preceding sentence, Client shall pay to Anvyl, as liquidated damages and not as a penalty, an amount equal to three (3) times Anvyl’s list price for a subscription to the Platform as of the end date of the Subscription Term. Such amount shall be due and payable by Client upon receipt by Client of notice of breach from Anvyl. Anvyl shall have the right to conduct audits (not more frequently than once every 12 months) during and after the Subscription Term to verify Client’s compliance with this Section 6.6 and, in connection with any such audit, Client shall provide Anvyl and its auditors access at all reasonable times to Client’s books and records relating to the acquisition of Client Products from Suppliers. In the event that Client is determined to have breached this Section 6.6, Client shall reimburse Anvyl for the cost of the audit.
6.7. Limitation of Liability. Except as expressly provided in this Section 6.7: (a) neither party shall have any liability under or in connection with this Agreement for any indirect, incidental, consequential, special, exemplary or punitive damages, nor any liability for lost revenues or profits, loss of data, loss of business opportunity, or business interruption, regardless of the theory of liability (including theories of contractual liability, tort liability, or strict liability), even if the liable party knew or should have known that those kinds of damages were possible; and (b) each party’s maximum cumulative liability under or in connection with this Agreement shall never exceed the injured party’s actual direct damages, capped at an amount equal to the total fees paid under this Agreement by Client to Anvyl for the twelve (12) month period preceding the occurrence of the last event giving rise to liability. The foregoing limitations of liability shall not be applicable to: (i) a party’s indemnification obligations under this Sections 6.3 and 6.4; (ii) a party’s violation of the Intellectual Property Rights of the other party; (iii) damages occasioned by a breach of Section 2.3 (Use Restrictions), Section 6.6 (Non-Circumvention) or Section 9 (Confidentiality); or (iv) fees, charges and expenses payable under this Agreement. Client acknowledges that this Section 6.7 is an essential part of this Agreement, absent which the economic terms and other provisions of this Agreement would be substantially different.
7. Duration and termination
7.1. Duration of Agreement. This Agreement commences on the Subscription Term start date set forth in the first Order Form executed by the parties and continues until all Subscription Terms and Services have expired or been terminated.
7.2. Subscription Term. Except as otherwise specified in an Order Form, a subscription to the Platform will be for a twelve (12) month Subscription Term (a “Subscription Period”); (b) subscriptions will renew automatically for successive 12-month Subscription Periods (each a “Subscription Renewal Term”) unless either party notifies the other in writing of non-renewal at least thirty (30) days prior to expiration of the then-current Subscription Term; and (c) the Subscription Fee and other Anvyl fees for each Subscription Renewal Term will be the list price in effect at the time of renewal, unless the parties agree to different pricing in writing at least forty-five (45) days prior to the commencement of the Subscription Renewal Term.
7.3. Termination. A party may terminate this Agreement and all Order Forms, Supply Chain Management Services Request Forms and SOWs hereunder: (a) for cause upon written notice to the other party if the other party has committed a material breach of this Agreement and the breach remains uncured thirty (30) days after the breaching party has received written notice of the breach from the non-breaching party; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.4. Effect of Termination on Fees. If this Agreement is terminated by Client pursuant to Section 7.3, any pre-paid fees for the unused portion of the terminated Subscription Term will be refunded to Client. In all other cases, all fees paid or payable for the terminated Subscription Term are non-cancellable and non-refundable, and any unpaid fees for the remainder of the terminated Subscription Term will become immediately due and payable.
7.5. Other Effects of Termination. Effective immediately upon expiration or termination of this Agreement: (a) Client shall cease all use of the Platform and other Services; and (b) neither party will have continuing rights to use any Confidential Information of the other party or to exercise any Intellectual Property Rights of the other party that were licensed under this Agreement. However, Client shall have thirty (30) days after any such expiration or termination to download or otherwise obtain an extract of any User Content stored in the Platform at the time of expiration or termination. Anvyl may delete all User Content following the expiration of such 30-day period.
7.6. Survival. Section 2.3 and Sections 4 - 10 of these Terms and Conditions, and any other provision of this Agreement that contemplates or governs performance or observance subsequent to its termination or expiration, or which is necessary for the proper interpretation, administration or enforcement of this Agreement, will survive the expiration or termination of this Agreement (or the applicable Order Form, Supply Chain Management Services Request Form or SOW) for any reason.
8. Proprietary rights
Affiliates or licensors own all Intellectual Property Rights in and to the Platform and other Services and Anvyl Content, and any derivative works thereof.
8.2. Client Ownership. As between the parties, Client and its Affiliates or licensors own all Intellectual Property Rights in and to all Client Data and Client Products, and any derivative works thereof. Client hereby grants to Anvyl during the term of this Agreement a non-exclusive, non-transferable, no-charge right and license to access, use, host, copy, display, process, transmit, and deliver Client Data (including design specifications and other Client Data relating to Client Products) in connection with the provision of Services under this Agreement.
8.3. Trademarks. Client hereby grants to Anvyl during the term of this Agreement a non-exclusive, non-transferable, no-charge right and license to use and display any name, logo and other trademarks of Client and its Affiliates designated by Client (“Client Trademarks”) in connection with the provision of Services under this Agreement. Subject to the foregoing license, Client will retain all Intellectual Property Rights that it may have in and to the Client Trademarks, and all use thereof by Anvyl shall inure to the sole benefit of Client. Client shall not: (a) use any name, logo or other trademark of Anvyl or its Affiliates (“Anvyl Trademarks”), or allow the use thereof by any Authorized Users, without the prior written consent of Anvyl; or (b) use any name, logo or other trademark of any Anvyl Sourced Supplier or its Affiliates (“Anvyl Sourced Supplier Trademarks”), or allow the use thereof by any Authorized Users, without the prior written consent of the applicable Anvyl Sourced Supplier. Any use of Anvyl Trademarks and Anvyl Sourced Supplier Trademarks shall inure to the sole benefit of Anvyl or the Anvyl Sourced Supplier (as applicable).
8.4. Feedback. If Anvyl receives from Client or any of its Affiliates or Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Platform or other Services or any other Anvyl products, offerings or services (“Feedback”), Anvyl may use, disclose and exploit such Feedback without restriction and without paying any royalties or other compensation, including to improve the Platform and other Services and to develop, market, offer, sell and provide other products and services.
8.5. No Implied Licenses. Client acknowledges that there are no licenses granted by Anvyl by implication under this Agreement. Anvyl reserves all rights that are not expressly granted herein.
9.1. Confidential Information. As used herein, “Confidential Information” shall mean: (a) information furnished or disclosed by or on behalf of either party or its Affiliates (the “Furnishing Party”) to the other party or its Affiliates (the “Receiving Party”) relating to business plans and processes, product development strategy and activity, product designs, corporate assessments and strategic plans, financial and statistical information, corporate developments, software, systems, client lists, contract terms, pricing, marketing plans and strategies, policies, practices, disputes or litigation; (b) other confidential, proprietary or trade secret information disclosed by or on behalf of the Furnishing Party that is marked or identified in writing as such at the time of its disclosure; (c) all other confidential, proprietary or trade secret information disclosed by or on behalf of the Furnishing Party, which a reasonable person would recognize as such; and (d) compilations or summaries of information or data that is itself Confidential Information. Without limiting the generality of the foregoing, Anvyl acknowledges and agrees that nonpublic information concerning Client Data and Client Products shall be considered to be Confidential Information of Client for purposes of this Agreement, and Client acknowledges and agrees that nonpublic information concerning the Platform and other Services and Anvyl Content shall be considered to be Confidential Information of Anvyl for purposes of this Agreement. The parties acknowledge and agree that the terms of this Agreement shall be deemed to be the Confidential Information of each party.
9.2. Confidentiality Obligations. Each party acknowledges that it may be furnished, receive or otherwise have access to Confidential Information of the other party in connection with this Agreement. The Receiving Party agrees to: (a) maintain such Confidential Information in strict confidence and not disclose such Confidential Information to third parties (except as permitted under this Agreement); (b) use and permit the use of such Confidential Information solely for the purpose of performing it obligations, or exercising its rights, under this Agreement; and (c) promptly notify the Furnishing Party in writing of any loss or unauthorized use, disclosure or access of the Furnishing Party’s Confidential Information of which it becomes aware, and cooperate with the Furnishing Party to minimize the violation and any damage resulting from it. The Receiving Party may disclose Confidential Information of the Furnishing Party to any employee, officer, director, contractor, agent or representative of the Receiving Party (including any auditor or legal counsel of the Receiving Party) who has a legitimate need to know the information in question for purposes of this Agreement and who is under a duty of non-disclosure with respect to such information.
9.3. Exceptions. The restrictions on use and disclosure set forth above shall not apply when, and to the extent that, the Receiving Party can demonstrate that Confidential Information: (a) is or becomes generally available to the public through no fault of the Receiving Party (or anyone acting on its behalf); (b) was previously rightfully known to the Receiving Party free of any obligation to keep it confidential; (c) is subsequently disclosed to the Receiving Party by a third party who may rightfully transfer and disclose such information without restriction and free of any obligation to keep it confidential; (d) is independently developed by the Receiving Party or a third party without reference to the disclosed Confidential Information; (e) is Platform usage metrics in an aggregate form and not attributable to the Furnishing Party; or (f) is required to be disclosed by the Receiving Party as a matter of law, provided that the Receiving Party uses all reasonable efforts to provide the Furnishing Party with at least ten (10) days’ prior notice of such disclosure and the Receiving Party discloses only that portion of the Confidential Information that the Receiving Party, in good faith and using ordinary care believes, is legally required to be furnished Party.
10.1. Governing Law. The validity, construction, and interpretation of this Agreement and the rights and duties of the parties shall be governed by the internal laws of the State of New York without regard to principles of conflicts of laws. The parties intend to avail themselves of the benefit of Section 5-1401 of the New York General Obligations Law. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply in any respect to this Agreement.
10.2. Force Majeure. Notwithstanding any other provision of this Agreement, neither party shall be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such party.
10.3. Client List. Anvyl may include Client’s name on Anvyl’s client list and may describe briefly, and in general terms, the nature of the Services provided by Anvyl to Client.
10.4. Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months following its termination or expiration, neither party will solicit or hire for employment, or solicit or engage on a contract basis, any of the other party’s current or previous employees involved in the performance or receipt of the Services under this Agreement (unless a period of 12 months has elapsed from the last date that the employee was employed by the other party); provided, however, that this paragraph will not be interpreted to bar non-targeted solicitation by general advertising, such as job offerings posted on the Internet, on bulletin boards, in newspapers, or otherwise disseminated through general publications or aimed at the public at large. A party shall pay to the other party, as liquidated damages and not as a penalty, an amount equal to one hundred thousand dollars ($100,000) for each individual hired or engaged by such party in breach of this Section.
10.5. Dispute Resolution. Except as relates to the enforcement of a party's Intellectual Property Rights, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be decided by a single arbitrator in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its then-current Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Arbitration shall take place in New York, New York unless the parties mutually agree to another location. Except as otherwise required by law, the parties agree to keep confidential and not disclose to third parties (other than a party’s legal counsel, auditors and professional advisors with a need to know and who are under obligations of confidentiality) any information or documents obtained in connection with the arbitration process, including the existence and resolution of the controversy or claim. Notwithstanding the foregoing, a party may, without waiving any remedy under this Agreement, seek from any court with jurisdiction, interim or provisional equitable relief necessary to protect such party’s rights or property. Any civil action relating to the enforcement of Intellectual Property Rights, seeking injunctive relief, challenging an arbitration proceeding or award or otherwise related to this Agreement will be instituted and maintained exclusively in the federal or state courts situated in New York.
“Affiliate” means with respect to any entity, any other entity which at any time, directly or through one or more intermediaries, controls, is controlled by or is under common control with such entity or its successors, where “control” (and its derivatives) means (a) the ability to direct the management or policies of an entity, or (b) the legal, beneficial or equitable ownership, directly or indirectly, of fifty percent (50%) or more of the capital stock (or other ownership interest, if not a corporation) ordinarily having voting rights of an entity.
“Agreement” means the Anvyl Subscription and Services Agreement between Client and Anvyl, consisting of these Terms and Conditions, including any attached documents referenced herein, and any Order Form, Supply Chain Management Services Request Form and Statement of Work entered into by Client and Anvyl that accompanies or references this document.
“Anvyl Content” means Content owned, originated or controlled by Anvyl that is made accessible to Client via the Platform or other Services, including without limitation listings of and information concerning Anvyl Sourced Suppliers.
“Anvyl Sourced Supplier” means any manufacturer or supplier that has entered into an agreement with Anvyl or any of its Affiliates to be listed on the Platform as a potential manufacturer or supplier of products for Anvyl’s clients.
“Authorized Users” means end users of Client and its Affiliates who have completed Anvyl’s online registration process or who otherwise receive a user ID or other access credentials from Anvyl or Client authorizing them to access and use the Platform.
“Client Data” means User Content and any other information or data of Client or Authorized Client Affiliates that is furnished to Anvyl in connection with the performance of the Sourcing Services.
“Client Product” means any merchandise or product of Client or Authorized Client Affiliates.
“Client Sourced Supplier” means any manufacturer or supplier of Client Products other than an Anvyl Sourced Supplier.
“Content” means any data, media, information and/or other type or form of content displayed, distributed or otherwise made available to a party through or in connection with the Platform or other Services, including User Content and Anvyl Content.
“Intellectual Property Rights” means all copyrights, patents, trademarks, service marks, trade secrets, moral rights and other proprietary and intellectual property rights of whatever nature.
“Losses” means all reasonable attorneys’ fees, reasonable costs of investigation, discovery, litigation and settlement, and any resulting liabilities, damages, settlements, judgments and awards, including associated taxes, interest and penalties.
“Order Form” means an order form issued by Anvyl and executed by the parties pursuant to which Client subscribes to the Platform and/or purchases other Services under this Agreement. Upon execution and delivery of an Order Form, it is deemed to form part of this Agreement.
“Platform” means Anvyl’s proprietary web-based software-as-a-service materials sourcing and data analytics platform made available by Anvyl for use by Authorized Users under this Agreement, including its technology components and Documentation.
“Services” means, collectively, the Platform, Platform Support Services and Sourcing Services provided by Anvyl under this Agreement.
“Supply Chain Management Services Request Form” mean a supplementary document entered into by the parties under this Agreement that documents Client’s request for certain Sourcing Services described in the associated Order Form and Anvyl’s agreement to provide such Sourcing Services, together with any special terms applicable to such Sourcing Services. Upon execution and delivery of a Supply Chain Management Services Request Form, it is deemed to form part of this Agreement.
“Statement of Work” (or “SOW”) means a supplementary document in a mutually agreed form that is entered into by the parties under this Agreement and describes certain Services to be provided by Anvyl to Client. Upon execution and delivery of an SOW, it is deemed to form part of this Agreement.
“Subscription Fees” means the fees payable by Client to Anvyl for the right to access and use the Platform, receive Platform Support Services, and (as applicable) receive Sourcing Marketplace Services, as set forth in the relevant Order Form.
“Subscription Term” means the period during which Authorized Users are permitted to access and use the Platform, as set forth in the applicable Order Form.
“Supplier” means any Anvyl Sourced Supplier or Client Sourced Supplier.
“Update” means any improvement, enhancement, modification and/or changes to the Platform offered or provided by Anvyl to its client base at no charge.
“User Content” means any Content submitted, posted or displayed by Authorized Users on the Platform.