Last Updated: July 12, 2016
You may not access the Website or use the Services if you are a direct competitor of Annuvia, except with our prior written consent. In addition, you may not access the Services or Website for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Client”, “you”, “yours” means the Party other than Annuvia agreeing to the terms hereof.
“Confidential Information” means information made available by one Party to the other that is either non-public or proprietary, including business plans, client lists and proprietary technology and data, but excludes information that (a) was in the possession of a Party prior to this Agreement or independently developed by the Party, or (b) publicly available or in the possession of a third other than in breach of a confidentiality agreement.
“Data” means your electronic data that you provide to us via the Services.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the properly completed ordering documents for purchases hereunder, including addenda thereto, that are agreed to by a User, a Channel Partner and the Channel Partner’s Client (customer), as applicable, and Annuvia from time to time; Order Forms include properly completed orders for Services on our Website. Order Forms are deemed incorporated herein by reference.
“Party” or “Parties” means Annuvia, the User, the Channel Partner, and the Channel Partner’s Client, as applicable.
“Products” means the products sold or leased to a Party by Annuvia.
“Purchased Services” means Services that a Party purchases from Annuvia.
“"Services” means the online, web-based applications and platform provided by Annuvia via https://www.onlineoversight.com and/or other designated websites or services as described in the User Guide, that are ordered by a Party as part of an Order Form, including associated offline components.
“User Guide” means the online user guide for the Services, accessible via https://www.onlineoversight.com, as updated from time to time by Annuvia.
“Users” means individuals who are authorized by you to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by you (or by us at your request). Users may include, but are not limited to, your employees, consultants, contractors and agents or third parties with which you transact business, unless such parties are our direct competitors.
2. UPDATES; ADDITIONAL TERMS AND CONDITIONS
3. PURCHASED SERVICES AND PRODUCTS
3.1. Provision of Purchased Services. We shall make the Purchased Services available to you pursuant to this Agreement and the relevant Order Forms during the Subscription Term. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.
3.2. Software Updates. The Services may download and install updates from time-to-time without further notice to you. These updates are designed to improve, enhance, and further develop the Services and may take the form of “bug” fixes, enhanced functions, new software modules, and new versions of the Services. You agree to receive such updates (and permit us to deliver these to you) as part of your use of the Services.
3.3. Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Purchased Services are purchased per device applicable to the Services, and access shall be granted to the Purchased Services by your reasonable number of specified Users, (ii) subscriptions for additional devices may be added during the Subscription Term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the Subscription Term in effect at the time the additional device subscriptions are added, and (iii) the added subscriptions shall terminate on the same date as the pre-existing subscriptions and pursuant to the termination rights below. User accounts assigned pursuant to Purchased Services are for designated users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Purchased Services.
3.4 Product Purchases. All purchases of Products are subject to the Terms of Sale located at: https://www.onlineoversight.com/site/terms_of_sale.
4. USE OF THE SERVICES
4.1 Our Responsibilities. We shall: (i) provide to you basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, and (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which we shall give at least 8 hours notice via the Purchased Services and which we shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), or (b) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays.
4.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of your Data and of the means by which you acquired your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services without our prior written consent, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
4.3. Compliance with Laws. We shall use commercially reasonable efforts to comply with all applicable laws and regulations in performance of the Services; provided, however, we do not intend to collect and you shall not send to us any protected health information as such term is defined under the Health Insurance Portability and Accountability Act and Health Information Technology for Economic and Clinical Health Act. We shall not be responsible for any liabilities arising out of the failure of you to comply with applicable laws and regulations. You shall ensure that all Products, whether purchased from us or a third party, are maintained in accordance with the third-party’s guidelines and in accordance with local and state laws. This Section 4.3 (Compliance with Laws) includes properly maintaining automated external defibrillator (AED) units, conducting regular Readiness Checks, and ensuring AED equipment has current electrode pads and batteries. Nothing in this section shall imply that we will be held responsible or liable for any of your failures to properly manage and maintain your AED equipment per any third-party guidelines or local or state laws.
4.4. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls you are permitted to make against our application programming interface, and, for Services that enable you to provide public websites, on the number of page views by visitors to those websites. Furthermore, in order to provide for the highest level of security and most efficient operability of our Services, our Services are designed to work with the latest internet browser versions. Outdated internet browser versions, may not be fully supported by our Services and may result in usability errors. Any additional limitations are specified in the User Guide. The Services provide real-time information to enable you to monitor your compliance with such limitations.
4.5 Geographic Restrictions. We provide this Website for use by persons domiciled in the United States of America. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States of America. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States of America, you do so on your own initiative and are responsible for compliance with local laws.
5. NO INSTALLATION
5.1. No Installation. Annuvia is not be responsible for the installation or maintenance of any Products as part of the Services provided by Annuvia. Client shall be solely responsible for the installation and maintenance of all Products purchased or leased by Client. Client shall indemnify, defend and hold Annuvia harmless from and against any and all losses, claims, damages or liabilities (including for attorneys’ fees) arising from the installation of the Products by Client, or by an employee, contractor or other agent of Client.
6. THIRD-PARTY PROVIDERS
6.1. Acquisition of Third-Party Products and Services from Annuvia. We may offer third-party Products for sale under Order Forms. If so, we do not make and disclaim all representations and warranties in connection with such third-party Products and services and in no way shall be held liable for the use (or non-use) of any third-party Products or services. We do, however, pass through any product warranties available from third-parties, if available, to you. The terms and conditions for such product or services warranties are to be made between you and the third- party.
6.2. Acquisition of Third-Party Products and Services from a Third-Party. Any other acquisition by you of third-party products or services, including but not limited to third-party applications and implementation, customization and other consulting services, and any exchange of data between you and any third-party provider, is solely between you and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by us as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.
6.3. Third-Party Applications and Your Data. If you install or enable third-party applications for use with Services, you acknowledge that we may allow providers of those third-party applications to access your Data as required for the interoperation of such third-party applications with the Services. We shall not be responsible for any disclosure, modification or deletion of your Data resulting from any such access by third-party application providers. The Services shall allow you to restrict such access by restricting Users from installing or enabling such third-party applications for use with the Services.
6.4. Google Services and Other Third Party Services. Service features that interoperate with Google services or other third party services used by us depend on the continuing availability of the Google API and/or other programs for use with the Services. If Google Inc., or other applicable third party service provider ceases to make the Google API and/or other dependent programs available on reasonable terms for the Services, we may cease providing such Service features without entitling you to any refund, credit, or other compensation.
7. FEES AND PAYMENT FOR PURCHASED SERVICES
7.1. Subscription Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on Purchased Services and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of device subscriptions purchased cannot be decreased during the relevant term of the Subscription Term as stated on the Order Form. Subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for devices added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the current term of the Subscription Term.
7.2. Invoicing and Payment. To pay for Purchased Services, you shall either provide us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to us. If you provide credit card information to us, you authorize us (or our third party payment processors) to charge such credit card for all Purchased Services listed in the Order Form for the Subscription Term. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, we will invoice you in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
7.3. Overdue Charges. If any fees due are not received from you by the due date, then at our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) we may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 7.2 (Invoicing and Payment).
7.4. Suspension of Service and Acceleration. If any amount owing by you under this or any other agreement for Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts you have authorized us to charge to your credit card), we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full.
7.5. Payment Disputes. We shall not exercise our rights under Section 7.3 (Overdue Charges) or 7.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and you are cooperating diligently to resolve the dispute.
7.6. Taxes. Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.
8. PROPRIETARY RIGHTS
8.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
8.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes, (iv) reverse engineer the Services, (v) scrape, crawl, or automatically access our Website to view, copy, or download information, or (vi) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
8.3. Ownership of Your Data. As between us and you, you exclusively own all rights, title and interest in and to all of your Data.
8.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you, including Users, relating to the current or future functionality, use or operation of the Services.
8.5. Copyright, Patent and Service/Trademark Policies. It is our policy to respond to notices of alleged infringements that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers.
8.6. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or
8.7. Your Passwords and Account Security. You are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services. Accordingly, you agree that you will be solely responsible to us for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify us immediately at email@example.com.
9.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include your Data; our Confidential Information shall include the Services and the terms and conditions of the Agreement and each Order Form; and Confidential Information of each Party shall include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
9.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement except as permitted herein, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, agents and third parties who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
9.3. Protection of Your Data. Without limiting the above, we shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data. We shall not (a) modify your Data, (b) disclose your Data except as compelled by law or as expressly permitted in writing by you, or (c) access your Data except to provide the Services or prevent or address service or technical problems, or at your request in connection with customer support matters.
9.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
10. LIMITED WARRANTIES AND DISCLAIMERS
10.1. Our Warranties. We warrant that (i) the Purchased Services shall perform materially in accordance with the User Guide, and (ii) subject to Section 6.4 (Google Services), the functionality of the Purchased Services will not be materially decreased during the Subscription Term. For any breach of either such warranty, your exclusive and sole remedy shall be as provided in Section 13.3 (Termination for Cause) and Section 13.4 (Refund or Payment upon Termination) below.
10.2 Your Warranties. You warrant that you have read and agree to the User Guide and understand our recommended technical specifications for the optimal performance of our Services, and you will not transmit to or through the Services any Malicious Code.
10.3. Warranty Disclaimer. You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER ANNUVIA NOR ANY PERSON ASSOCIATED WITH ANNUVIA MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER ANNUVIA NOR ANYONE ASSOCIATED WITH ANNUVIA REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, ANNUVIA HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
11. MUTUAL INDEMNIFICATION
11.1. Mutual Indemnification. Subject to Sections 10.1, 12.1, 13.3 and 13.4 herein, each Party shall defend, indemnify and hold harmless the other Party, its Affiliates, and each of their respective officers, employees and agents against all claims, damages, liability, losses, fines, judgments, costs, and expenses, including, without limitation, court costs and reasonable attorney fees (each a “Claim”), relating to or arising out of (a) indemnifying Party’s failure to comply with any applicable law; or (b) the indemnifying Party’s fraud, intentional misconduct or gross negligence (including, in the case of Client, any failure to maintain their equipment or act upon the maintenance or other suggestions provided as part of the Services). This indemnification shall be in addition to any specific indemnification provided for in the Agreement.
11.2. Exclusive Remedy. Other than as provided in Sections 13.3 and 13.4, this Section 11 (Mutual Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section. Notwithstanding the foregoing, nothing in this Section 11.2 shall limit a Party from seeking equitable relief as allowed under this Agreement.
12. LIMITATION OF LIABILITY
12.1. Limitation of Liability. IN NO EVENT SHALL THE LIABILITY OF ANNUVIA UNDER THE AGREEMENT (INCLUDING FOR INDEMNIFICATION AND ATTORNEYS’ FEES) EXCEED THE FEES PAID TO ANNUVIA UNDER THE AGREEMENT DURING THE 6 MONTHS PRECEDING ANY LIABILITY 12.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 7 (FEES AND PAYMENT FOR PURCHASED SERVICES). THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13. TERM AND TERMINATION
13.1. Term of Agreement. This Agreement commences on the date you accept it and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated.
13.2. Term of Purchased Subscriptions. Purchased subscriptions commence on the start date specified in the applicable Order Form or Website and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all purchased subscriptions shall automatically renew for additional periods equal to the expiring term or one year (whichever is shorter), and the initial term, along with any renewal subscription terms are deemed the “Subscription Term”, unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless we have given you written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% over the pricing for the relevant Purchased Services in the immediately prior term, unless the pricing in such prior term was designated in the relevant Order Form or Website as promotional or one-time.
13.3. Termination for Cause. A Party may terminate this Agreement and all purchased subscriptions for cause which is limited to a material breach (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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. A “material breach” for the purposes hereof is defined as a failure to perform in accordance with the terms and conditions of this Agreement and/or those of the Order Form covering the Services provided hereunder.
13.4. Refund or Payment upon Termination. Upon any termination properly noticed by you for Annuvia’s cause, we shall refund you any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination properly noticed by Annuvia for your cause, you shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to us for the period prior to the effective date of
13.5. Return of Your Data. Upon request by you made within 30 days after the effective date of termination of a Purchased Services subscription, we will make available to you for download a file of your Data in comma separated value (.csv) format (or other industry format at our discretion) along with any retrievable attachments in their native format. After such 30-day period, we shall have no obligation to maintain or provide any of your Data and may thereafter, unless legally prohibited and except for data on secured media backups, delete all of your Data in our systems or otherwise in our possession or under our control.
13.6. Surviving Provisions. Section 7 (Fees and Payment for Purchased Services), 8 (Proprietary Rights), 9 (Confidentiality), 10.4 (Disclaimer), 11 (Mutual Indemnification), 12 (Limitation of Liability), 13.4 (Refund or Payment upon Termination), 13.5 (Return of Your Data), 14 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 15 (General Provisions) shall survive any termination or expiration of this Agreement.
14. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
You are contracting with:
New Annuvia Company,
1800 US Hwy 51 N,
Woodruff, WI 54568
Notices should be addressed to:
The governing law is:
Wisconsin and controlling United States federal law
The courts having exclusive jurisdiction are located in::
Madison, WI, U.S.A.
14.2. Manner of Giving Notice. Except as provided in 15.11, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to you shall be addressed to the system administrator designated by you for your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You. 14.3. Governing Law; Venue and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to choice of law or conflicts of law. Exclusive venue in any action arising hereunder shall be in the state and federal courts located in Madison, WI. The Parties hereby consent to the jurisdiction of such courts and agree that they shall not challenge such venue or jurisdiction.
15. GENERAL PROVISIONS
15.1. Export Compliance. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or 15.2. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. As such, Annuvia shall be solely responsible for its operations, employees, and assistants.
15.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
15.4 Mediation. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through direct discussions, the Parties agree to first endeavor to settle the dispute by mediation administered by a recognized mediation firm under its Commercial Mediation rules. In the event of a mediation, the first shall be held in Madison, WI. Should there be additional mediations, the next will be held in the city where the Client’s headquarters are located with any further needs being met on a back and forth rotation. If mediations fail, then the Parties may take any action allowed under the Agreement and applicable governing law. President Fax: (866) 331-6442
15.5. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. 15.6. Non-Solicitation. During the term of the Agreement and for a two (2) year period thereafter, you shall not employ or solicit for employment any employee or independent contractor of Annuvia who was performing services for Annuvia while the Agreement was in effect.
15.7. Cooperation. You understand that your cooperation is required in order for us to render the Services on an effective and timely basis. You agree to cooperate with us in performance of the Services.
15.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
15.9. Attorney Fees. You shall pay on demand all of our reasonable attorney fees and other costs incurred by us to collect any fees or charges due us under this Agreement following your breach of Section 7.2 (Invoicing and
15.10. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. A Party’s sole remedy for any purported assignment by the other Party in breach of this paragraph shall be, at the non-assigning Party’s election, termination of this Agreement upon written notice to the assigning Party. In the event of such a termination, we shall refund to you any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
15.11. Electronic Communications. When you visit the Website or send emails to us, you are communicating with us electronically. By agreeing to this Agreement, you consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the Website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that we may send email to you for the purpose of advising you of changes or additions to the Website or for such other purposes as we deem appropriate.
15.12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.