These Anomify Terms and Conditions (“Terms and Conditions”) are entered into by and between Anomify, Ltd, 77 Stokes Croft., Bristol, BS1 3RD (“Anomify”) and customer named in the Agreement (“Customer”). This agreement consists of these Terms and Conditions together with the agreement(s), collectively (the “Agreement”). This Agreement sets forth the terms and conditions under which Anomify will provide the Services (as defined below) to Customer.
1. Scope of Services
1.1 Anomify agrees to provide Customer with the data analysis and event monitoring (“Services”) described on separate, mutually executed agreement as may from time to time be agreed hereunder.
1.2 Customer understands and agrees that (i) the Services are designed to identify anomalous events, (ii) it is up to the Customer to verify the findings of Anomify and to interface with its data sources regarding anomalies surfaced, (iii) there is no guarantee that the Services will catch every type of anomaly possible.
1.3 Each agreement shall define with specificity the Services to be provided to Customer, the Term, the applicable pricing, and other appropriate terms and conditions.
1.4 Each agreement shall be governed by these Terms and Conditions; however, in the event of any conflict between these Terms and Conditions and an agreement the provisions of the agreement shall prevail. 1.5 Subject to Section 4.4, Anomify shall have the right to use third parties (the “Consultants”) in performance of its obligations and Services hereunder.
2.1 The term of the Agreement shall begin on the Effective Date set out in the agreement and continue in effect for the period set out unless earlier terminated in accordance with the terms of the Agreement (the “Term”). Thereafter, this Agreement shall automatically renew for successive one (1) year terms unless and until earlier terminated in accordance with the terms of the Agreement.
2.2 The Agreement shall remain in effect until terminated by either party as provided herein; provided, however, that the Agreement shall not terminate in the event that any agreement executed hereunder remains in effect. Notwithstanding the foregoing, in the event a new agreement has not been executed hereunder for a period of ninety (90) days, the Agreement shall automatically terminate.
2.3 Each agreement remains in effect until it has expired on its own terms or is terminated in accordance herewith.
3. Price and Payment
3.1 The Services provided by Anomify shall be at the pricing set forth in the applicable agreement. In the event an agreement does not reference any specific pricing, such Services shall be provided at Anomify’s then current standard time and material rates and charges.
3.2 Unless set forth otherwise in the applicable agreement, Anomify will submit invoices for charges and expenses hereunder monthly in advance. Customer shall make payment of each invoice in GBP within Thirty (30) days from the invoice date. Customer shall bear all charges related to Foreign Exchange and inter-bank transfer.
3.3 Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month from the due date (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. All sums payable under the Agreement are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
4. Confidential/Proprietary Information
4.1 During the Term, each party may disclose to the other party certain information which includes, but is not limited to the Services, the terms and conditions of the Agreement (including pricing), software and other related materials furnished by Anomify, any information, business plan, concept, idea, knowhow, process, technique, program, design, formula, algorithm or work-in-process, any engineering, manufacturing, marketing, technical, financial, data, or sales information, or any information regarding suppliers, customers, employees, investors, or business operations, and any other information or materials, whether in written, or graphic, or any other form whether disclosed orally, or electronically, whether tangible or intangible and in whatever form or medium provided, or otherwise which is learned or disclosed in the course of discussions, studies, or other work undertaken between the parties disclosed by either party, before or after the Effective Date, as well as any information generated by a party that contains, reflects, or is derived from such information (collectively, “Confidential Information”). Customer’s Confidential Information expressly includes the identity of Customer’s affiliates, clients or advertisers, traffic volumes and revenue numbers (“Customer Data”). Anomify’s Confidential Information expressly includes, but shall not be limited to Anomify’s information and databases profiling the reputation of particular IP addresses and Anomify’s digital forensics software, tools, techniques, strategies, information and databases (including information relating to device ID reputation) (“Anomify Services Data”).
4.2 Without granting any right or license, the obligations of the parties in this clause 4 shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality to the disclosing party; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice (where permitted by law or regulation) is promptly given to the party whose Confidential Information is to be disclosed so that such party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.
4.3 Nothing in the Agreement shall be construed to convey any title or ownership rights to the Services or other Anomify Confidential Information, including the Anomify Services Data, or to any patent, copyright, trademark, or trade secret embodied therein, to Customer, or to grant any other right, title, or ownership interest to the Anomify Confidential Information, including the Anomify Services Data. Nothing in the Agreement shall be construed to convey any title or ownership rights to Customer’s Confidential Information, or to any patent copyright, trademark, or trade secret embodied therein, to Anomify, or to grant any other right, title, or ownership interest to the Customer Confidential Information. Customer hereby grants Anomify a fully paid, worldwide, perpetual, royalty-free license to use the Customer Data solely as required in connection with its performance of the Services to Customer and for other customers of Anomify. Notwithstanding anything to the contrary herein, Anomify may use information learned from Customer’s referring sources and affiliate IDs as required in connection with the performance of the Services subject to the anonymization and aggregation of such data. Neither party shall, in whole or in part, sell, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in the Agreement. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.
4.4 Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Consultants who (i) require access to it in the course of their assigned duties and responsibilities in connection with the performance of their obligations under the Agreement and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth herein or are under a legal obligation or ethical duty to be bound by the confidentiality obligations contained herein.
4.5 Customer shall not reverse engineer the Services, or disassemble, decompile, or otherwise apply any procedure or process to the Services in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Services or other software provided hereunder or any algorithm, process, procedure or trade secret information contained in the Services or any software provided by Anomify.
4.6 Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief (without the need to post security) in the event the other party does not fulfill its obligations under this Section
4.7 Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Services or other Anomify materials provided to Customer shall be owned by Anomify, and Customer hereby agrees to assign any such rights to Anomify. Nothing in the Agreement shall preclude Anomify from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Anomify in the performance of the Services hereunder.
5. Representations, Warranties, Undertakings and Indemnification
5.1 Customer and Anomify represent and warrant to the other that they have the right to enter into the Agreement and that all Services performed under the Agreement shall be performed using reasonable care and skill.
5.2 For the purposes of the Data Protection Act 1998 (“DPA”) the parties agree that Anomify shall be the Data Controller of Personal Data it collects in the performance of the Services. Anomify undertakes to comply with all applicable obligations placed upon it by the DPA in relation to the processing of Personal Data for the performance of the Services. Capitalised terms in this clause have the meaning attributed to them in the DPA.
5.3 Customer acknowledges that in order to perform the Services Anomify requires access to Customer data.
5.4 EXCEPT AS OTHERWISE STATED IN THE AGREEMENT, NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS, WARRANTIES, EXPRESS OR IMPLIED INCLUDING EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
5.5 Each party shall indemnify (the “Indemnifying Party”) and hold the other party (the “Indemnified Party”) and its directors, officers and employees harmless from and against (i) a material breach of the Agreement by the Indemnifying Party including any representation and warranty contained herein, and (ii) any failure of the Indemnifying Party to comply with any applicable laws, rules or regulations. The indemnity obligations of this paragraph are contingent on giving the Indemnifying Party prompt written notice of any such claim; provided that failure to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations so long as such failure does not materially prejudice the Indemnifying Party. The Indemnifying Party will have sole control over the litigation or settlement of such claim, provided that any settlement shall be subject to the Indemnified Party’s approval, which shall not be unreasonably withheld.
6. Limitation of Liability
6.1 NEITHER PARTY EXCLUDES OR LIMITS ITS LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, FOR FRAUD OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
6.2 SUBJECT TO CLAUSE 6.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE ON ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE GREATER OF THE AMOUNT OF CHARGES PAID BY CUSTOMER HEREUNDER FOR THE SERVICES IN THE SIX (6) MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO THE CLAIM BUT IF AT SUCH TIME THE AGREEMENT HAS BEEN IN EFFECT FOR LESS THAN SIX (6) MONTHS THE LESSER OF EITHER (a) THE AVERAGE MONTHLY REVENUE SINCE INCEPTION OF Anomify, TIMES SIX (6) , OR (b) £250,000.
6.3 SUBJECT TO CLAUSE 6.1 IN NO EVENT SHALL EITHER PARTY OR ITS CONSULTANTS BE LIABLE FOR ANY:
6.3.1 BUSINESS INTERRUPTION;
6.3.2 LOSS OF PROFITS;
6.3.3 LOSS OF BUSINESS OPPORTUNITIES;
6.3.4 LOSS OF GOODWILL OR REPUTATION;
6.3.5 LOSS OF OR CORRUPTION OF DATA,
6.3.6 SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE OR WHERE THE POSSIBILITY OF SUCH DAMAGE IS FORSEEABLE.
7.1 Without affecting any other right or remedy available to a party, the Agreement may be terminated prior to expiration, completion or just termination in accordance with the following:
7.2 Upon termination or expiration of the Agreement, Customer shall promptly (and in no event more than thirty (30) days thereafter) pay Anomify for all Services prior to the time of termination and for which payments have not been made unless otherwise agreed.
7.3 Upon termination or expiration of the Agreement or any Schedule, each party shall (at the option of the other party) deliver to the other or destroy (with certification of destruction provided) all copies of all applicable Confidential Information of the other party. Notwithstanding the foregoing, the party receiving the Confidential Information of the disclosing party may retain one (1) copy of the Confidential Information solely for legal and compliance purposes so long as such copy is kept in accordance with the terms of the Agreement and the receiving party ceases using such Confidential Information for business purposes.
8. General Terms and Conditions
8.1 Independent Contractor. There parties to the Agreement are independent contractors and nothing in the Agreement shall be deemed to make either party an agent, employee, partner or joint venturer of the other party. Neither party shall have any authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
8.2 Expenses and Legal Fees. In the event any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby.
8.3 Assignment. Neither party may assign or transfer its rights under the Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign the Agreement without prior written consent to a successor in interest via merger or share or asset purchase or sale. Any assignment or transfer in violation of this Section shall be null and void.
8.4 Survival. The provisions of the Agreement that by their nature and context are intended to survive termination of the Agreement, which includes but shall not be limited to, Sections 1.4, 3, 4, 5.4, 6, 7.3 and 8.16 of the Agreement, shall survive termination or expiration of the Agreement. Each party’s confidentiality obligations shall survive the termination of the Agreement for a period of two (2) years.
8.5 Notices. Any notice, approval or consent required or permitted under this Agreement shall be in writing and sent to the addresses set forth on the applicable Insertion Order or to the email or facsimile address provided by the recipient and will be deemed to have been duly given upon (i) delivery if delivered personally, (ii) within three (3) days if mailed by first-class, registered post, postage
8.6 prepaid, return receipt requested, (iii) upon the date of delivery if sent via courier service, or (iv) upon the date of the confirmed email or facsimile if sent via email or facsimile, provided that in all cases of email notification, a physical copy of such notice is promptly sent by first class registered post to the recipient’s address as set forth on the applicable Insertion Order.
8.7 Force Majeure. Neither party shall be liable to the other party for any delay or failure of said party to perform its obligations hereunder (except for payment obligations) if such delay or failure arises from any cause or causes beyond the reasonable control of such party. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by either party in providing required resources or support or performing any other requirements hereunder.
8.8 Reservation of Rights. Each party reserves all rights not specifically granted herein.
8.9 Entire Agreement. The Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals, prior discussions and writings between the parties with respect thereto. The terms and conditions of any purchase order or other instrument issued by Customer in connection with the Services which are in addition to or inconsistent with the terms and conditions of the Agreement shall not be binding on Anomify, unless signed by both parties. Each party acknowledges that, in entering into the Agreement it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not) (a “Representation”) other than as expressly set out in the Agreement. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract. Nothing in this clause shall limit or exclude any liability for fraud.
8.10 Modifications. No variation of the Agreement shall be effective unless it is in writing and signed by an authorised representative of both Anomify and Customer. The Agreement may be altered, amended or modified, by agreement between both parties at any time. The parties hereto agree that the most recent agreement shall govern.
8.11 Non solicitation. During the Term and for a period one (1) year thereafter, Customer or Anomify agree not to directly or indirectly solicit, nor attempt to solicit or entice away, the services of any employee of Anomify or Customer involved with the provision of the Services without the prior written consent of Anomify or Customer.
8.12 Headings. Headings are for reference purposes only, have no substantive effect, and shall not affect the interpretation of the Agreement.
8.13 No Waiver. No failure or delay in enforcing any right or exercising any remedy provided under the Agreement will be deemed a waiver of any that or any other right or remedy. The failure of a party to enforce at any time any of the provisions of the Agreement, or the failure to require at any time performance by one or both of the parties of any of the provisions of the Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter.
8.14 Severability and Reformation. If any portion of the Agreement is determined to be or becomes unenforceable or illegal, such portion shall be amended to the minimum extent necessary in order for the Agreement to remain in effect in accordance with its terms as modified by such amendment.
8.15 No Third Party Rights. No one other than a party to the Agreement and their permitted assignees, shall have any right to enforce any of its terms.
8.16 Choice of Law and Venue. THE AGREEMENT AND ANY DISPUTE OR CLAIM ARISING OUT OF OR IN CONNECTION WITH IT OR ITS SUBJECT MATTER OR FORMATION (INCLUDING NON-CONTRACTUAL DISPUTES OR CLAIMS) SHALL BE GOVERNED BY AND INTERPRETED BY THE LAWS OF ENGLAND AND THE PARTIES IRREVOCABLY AGREE THAT THE COURTS OF ENGLAND SHALL HAVE EXCLUSIVE JURISDICTION.