THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY CONFIRMED ORDER FORMS ENTERED INTO BY YOU AND ADVANCED NETWORK INFORMATION, INC. (“SERVICE PROVIDER”) ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT”.
BY ACCEPTING, YOU ARE AGREEING ON BEHALF OF THE ENTITY ORDERING THE SOFTWARE AS A SERVICE (“SAAS SERVICES”) (“CUSTOMER” OR “YOU”) THAT CUSTOMER/YOU WILL BE BOUND BY AND BECOME A PARTY TO THE AGREEMENT AND CERTIFYING THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER.
IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT, DO NOT SELECT THE “ACCEPT” BOX OR SIGN (EITHER MANUALLY OR ELECTRONICALLY) THE ORDER FORM.
UNLESS AND UNTIL CUSTOMER HAS AGREED TO BE BOUND BY ALL OF THE TERMS OF THE AGREEMENT, CUSTOMER HAS NOT BECOME A LICENSEE OF, AND IS NOT AUTHORIZED TO USE THE SAAS SERVICES. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DAY THAT YOU CHECK THE “ACCEPT” BOX OR SIGN (EITHER MANUALLY OR ELECTRONICALLY) THE ORDER FORM ISSUED TO YOU BY SERVICE PROVIDER.
BY ACCESSING AND USING THE SAAS SERVICES AND THE ASSOCIATED WEBSITE, APPLICATIONS AND TOOLS, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND THE CONFIRMED ORDER FORM. THIS AGREEMENT AND THE CONFIRMED ORDER FORM ARE REQUIRED FOR YOU TO ACCEPT IN CONNECTION WITH YOUR INITIAL AND ALL SUBSEQUENT USE OF THE SAAS SERVICES.
This Agreement governs the use by Customer of the SaaS Services provided by Service Provider. This Agreement consists of a Confirmed Order Form (as defined in Section 6 below) that provides the type, quantity and payment terms for the SaaS Services and this Agreement (which may be modified from time to time). In the event of conflict among terms, the order of priority shall be the Confirmed Order Form and this Agreement.
Service Provider agrees to provide the SaaS Services described in each Confirmed Order Form, and Customer agrees to pay for the SaaS Services and comply with the terms and conditions set forth in this Agreement and each Confirmed Order Form.
2. Term of Service.
Service Provider grants to Customer a limited, non-exclusive, terminable, non-transferable license to access the SaaS Services by any means on which the parties may agree, and to use the SaaS Services during the Subscription Term subject to the Agreement located at http://knowledge-bytes.com/terms.html as Service Provider may revise the Agreement from time to time.
4. Customer Representations.
Customer represents and warrants that Customer has all necessary authorization to purchase and pay for the SaaS Services indicated in each Confirmed Order Form. You represent and warrant that (i) you have full power and authority to enter into the Agreement, and to agree to all the terms and conditions contained therein and in the Confirmed Order Form; (ii) only you and your Users shall be permitted to access the SaaS Services and any related tools, applications, information and materials provided in connection with the SaaS Services; and (iii) you shall obtain and maintain in effect all permits, licenses and authorizations necessary for the purchase and intended use of the SaaS Services.
5. Customer Access.
Customer agrees to provide, install and maintain, at Customer’s expense, data communication lines pursuant to minimum specifications prescribed by Service Provider from time to time. Customer shall be responsible for ongoing charges for Customer’s own use of such data communication lines.
6. Order Form and Confirmed Order Form.
Customer shall order the SaaS Services on an Order Form consistent with Service Provider’s then current commercial terms. The Order Form shall contain the type, quantity and payment terms for the SaaS Services and may contain other details of the SaaS Services. If the Order Form is consistent with Service Provider’s then current terms, Service Provider will confirm the SaaS Services in a Confirmed Order Form or modify the Order Form by agreement of the parties and such modification shall be confirmed in a Confirmed Order Form. The parties may enter into one or more Order Forms that subsequently become Confirmed Order Forms, each of which provides a general description of the SaaS Services to be provided to Customer. For any Order Form submission to be effective, it must be in writing and signed or otherwise authenticated by Customer. Electronic and fax documents are considered to be in writing for this purpose. All terms and conditions set forth in this Agreement are automatically incorporated in, and deemed part of, each such Order Form and every Confirmed Order Form.
7. Precedence; No Other Agreements.
8. Description of SaaS Services.
The SaaS Services are an online platform for content curation and content aggregation from which Customers and its Users can access information from Customer sources, external third party websites or sources, or content which has been uploaded to Site by Customer. SaaS Services consist of a curation and aggregation software platform (including software updates, new versions or new releases) along with related documentation (on-line or in print) and any other services that may be offered from time to time by Service Provider.
9. SaaS Services; Grant of License to Use; Support.
If SaaS Services are obtained pursuant to a Confirmed Order Form, Service Provider grants you and those categories of people you specifically designate in the Confirmed Order Form (that is, employee, student, staff, contractor, etc.) (collectively, the “Users”), for the Subscription Term indicated in the Confirmed Order Form, a limited, non-exclusive, terminable, non-transferable license to access and use the services, tools and applications provided through the SaaS Service subject to this Agreement. The SaaS Service may include download areas and product information provided by Service Provider or third-party vendors. All SaaS Services, including any updates, enhancements, new features, and/or the addition of any new Web properties, are subject to this Agreement. All rights not expressly granted to you and your Users pursuant to this Agreement are reserved to Service Provider, and all uses of the SaaS Service not expressly permitted hereunder are prohibited. Service names and/or branding associated with the SaaS Service are owned by Service Provider or third parties, and may not be used without Service Provider’s prior written consent. Some materials may be copyrighted. Neither you nor your User’s will remove any copyright notices. Service Provider grants no express or implied rights of any nature to you or your User’s under any patents, copyrights, trademarks, or trade secret information.
During the Subscription Term, and at no additional charge to the Customer, Service Provider will provide Customer with the following support for the SaaS Services (“Service Support”): Problem resolution and configuration assistance. Customer may purchase additional Service Support via submission of an Order Form that, if agreed to or modified by Service Provider, will be confirmed in a Confirmed Order Form. Customer understands and agrees that Service Provider may subcontract and/or assign the provision of its Service Support to a third party.
10. Service Level.
ANI shall provide the online Services in accordance with the then-current Service Level Agreement (“SLA”), a current copy of which can be found in Appendix 1 attached. ANI may review and change this SLA over time but cannot materially reduce its obligations therein without prior written customer approval.
11. Permitted/Limited and Prohibited Uses.
a) Limited Use.
You and your Users may access the SaaS Services and use the SaaS Services solely to support and operate in your internal business. Service Provider reserves the right, in its sole discretion, to limit your and/or your Users’ use of the SaaS Services in the event that Service Provider determines that your and/or your Users’ use thereof to be inconsistent with such purposes, and/or otherwise inconsistent with this Agreement.
b) Prohibited Uses.
You agree, for yourself and all your Users, as a condition of use of the SaaS Services, not to use the SaaS Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You and your Users may not use the SaaS Service in any manner that could damage, disable, overburden, or impair any Service Provider or subscriber server, or the network(s) connected to any Service Provider or subscriber server, or interfere with any other party’s use and enjoyment of any of the SaaS Services. You and your Users may not attempt to gain unauthorized access to any part of the SaaS Services, other accounts, computer systems or networks connected to any Service Provider or subscriber server or to any part of the SaaS Services, through hacking, password mining or any other means. You and your Users may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the SaaS Services. Except as expressly set forth herein, you and your Users may not directly or indirectly (i) rent, copy, reproduce, market, commercialize, alter, modify, transmit, perform, create derivative works of, publish, sub-license, distribute, or circulate or otherwise transfer rights or usage of the SaaS Services, or any associated applications, tools or data thereof; (ii) disassemble, decompile, or reverse engineer the software used to provide the SaaS Services, or use a robot, spider, or any similar device to copy or catalog any materials or information made available through the SaaS Services; (iii) sell or resell the SaaS Services or any part thereof (including, but not limited to software, code, associated applications, tools or data); or (iv) take any actions, whether intentional or unintentional, that may circumvent, disable, damage or impair the SaaS Services’ control or security systems, or allow or assist a third party to do so.
WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF ANY SOFTWARE OR CODE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION OR ANY OTHER PURPOSE IS EXPRESSLY PROHIBITED.
c) Suspension of Service.
12. Ownership; Subscriber and User Submissions.
a) As between you and your Users and Service Provider, any material or information provided by Service Provider as part of the SaaS Services, and any associated applications, tools or data, and all additions, modifications and improvements made or specified by Service Provider, its agents or contractors, are the property of Service Provider, and are protected by United States and international copyright, trademark and patent laws, as applicable. By using the SaaS Services, neither you nor your Users gain any ownership interest in such items.
b) Service Provider does not claim ownership of the usage information you or your Users provide for the use and operation of the SaaS Services. Service Provider and its vendors and contractors may use such information to operate and administer the SaaS Services. In addition, Service Provider may retain, analyze, use and share such information in anonymous, filtered, or aggregate form for general business purposes.
c) Service Provider reserves the right to upgrade, modify, replace or reconfigure the SaaS Services at any time, provided that you will be provided at least thirty (30) days’ advance notice for changes that materially and adversely affect any use of the SaaS Services. Service Provider may also change the fee schedule, support terms, and service level agreements for the SaaS Services subject to at least thirty (30) days’ advance notice, except that the change will not apply for the remainder of the Term of Service to the amount and type of SaaS Services you have contracted for under existing Confirmed Order Forms. Any such notice may be given and shall be effective if communicated by Service Provider in an email sent to your account representative, or if included in any amendment, extension or new version of this Agreement or any Confirmed Order Form.
d) Nothing in this Agreement shall inhibit, hamper, encumber or otherwise impede Service Provider’s freedom to modify or improve the SaaS Services.
13. Information, Data and Content Submittals.
In connection with the SaaS Services you shall not submit to the Service Provider any material that is illegal, misleading, defamatory, indecent or obscene, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”). You will be responsible to ensure that Users do not submit any Objectionable Matter and will be responsible for actions of your Users. In addition, Service Provider may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Service Provider’s website; you and your Users will be bound by any such rules. You and your Users will comply with all applicable laws regarding your data, use of the SaaS Services and your content, including, but not limited to applicable laws and regulations involving private data and any applicable export controls. Service Provider reserves the right to remove any your or your User’s data that constitutes Objectionable Matter or violates any Service Provider rules regarding appropriate use, but is not obligated to do so. Service Provider reserves the right to remove any personal information of an individual upon request from such individual.
14. Service Provider Granted Limited License to You and Your User’s Data and Content; Disclosure.
Subject to the terms and conditions of this Agreement, you grant to Service Provider a non-exclusive license to use, copy, store, transmit and display your and your User’s data and content to the extent reasonable to provide and maintain the SaaS Service for your use. Service Provider will not use your or your User’s data or content and use commercially reasonable security measures to protect your and your User’s data and content against unauthorized disclosure or unauthorized use. However, if required by law, Service Provider may disclose any of your or your User’s data or content. Additionally, Service Provider may display your company name and logo in advertising the client relationship.
15. Links to Third Party Sites.
The SaaS Service may provide links that allow you or your Users to leave Service Provider’s site and/or access third party websites. The linked sites in many cases are not under the control of Service Provider and Service Provider is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. Service Provider is not responsible for webcasting or any other form of transmission received from any linked site. Service Provider provides these links only as a convenience, and the inclusion of any link does not imply endorsement by Service Provider of the site. You agree that Service Provider is not responsible for the availability of such external sites or resources, and does not endorse and is not liable for any content, advertising, products or other materials on or available from such sites or resources. In addition, you agree that Service Provider is not responsible for any and all third party information that may be provided to you through the SaaS Service (e.g., through the integration of the SaaS Service with a third party online application or service).
16. Use of Passwords; Internet.
a) You are responsible for providing and administering usernames and passwords for all Users (the “Log-In Information”). Each User must have a valid unique username and unique password for the purpose of accessing the SaaS Services. You and your Users must keep all Log-In Information strictly confidential. Log-In Information may be used only by the assigned User and may not be shared or transferred without your consent and control. You shall ensure that each User has a unique username and you authorize Service Provider to review and search passwords at any time to confirm the uniqueness of each username and reject access to the SaaS Services for any User should Service Provider determine that more than one User is using at username. You are responsible to maintain the security and confidentiality of all User usernames and passwords. Service Provider is entitled to treat all communications that are identified by means of such usernames and passwords as you may authorize. You shall maintain accurate records necessary to verify the number of Users and/or objects and shall provide Service Provider with such records on request. If you have more Users and/or objects than you have paid for under a Confirmed Order Form, you shall immediately pay the applicable fees for such Users and/or objects commending on the effective date of the Confirmed Order Form through the remainder of the current Subscription Term.
b) You and your Users are responsible for maintaining the confidentiality of that User’s unique username and unique password. You and your Users are responsible for any and all activities that occur under all of your Users’ accounts. You agree to notify Service Provider immediately of any unauthorized use of your Users’ accounts or any other breach of security. Service Provider will not be liable for any loss that you or a User may incur as a result of someone else using your Users’ passwords or accounts, either with or without the applicable Users’ knowledge.
c) Service Provider does not guarantee the security of any information transmitted to or from you or any User over the Internet, including through the use of e-mail. Access to the Internet, if employed, is your and each User’s sole responsibility and the responsibility of Internet provider(s) you select. Service Provider does not accept any responsibility for failure of service due to Internet facilities, including related telecommunications or equipment.
17. Communications from Service Provider.
Service Provider may periodically contact Customer or Users for customer service purposes. By accessing the SaaS Services, You and each User consent to receive such communications. You agree that Service Provider may reference its business relationship with you in its marketing or sales materials.
18. Payments, etc.
You agree to pay at the time indicated in each Confirmed Order Form all payments due from you thereunder. If not otherwise indicated in the Confirmed Order Form, all payments are due thirty (30) days from invoice.
You shall provide Service Provider with complete and accurate billing and contact information as Service Provider may reasonably require by email or written notice. This information shall include Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact, as well as the name, user name and password of the designated person with whom Service Provider will directly work with and through on all matters relating to this Agreement or any Confirmed Order Form (“Support Contact”). Service Provider may act and rely on all information and instructions provided to Service Provider from the Support Contact. You agree to update this information promptly by means of email to Service Provider, and in any case within 30 days, if there is any change.
You agree to accept responsibility for paying and reporting (a) all VAT, federal, state and local taxes, however designated, levied or based on account of the purchase price of the SaaS Services or on account of your acquisition or ownership or use of the Products (exclusive only of taxes based on net income derived by Service Provider), and (b) all foreign taxes, export or import tariffs, and custom duties, however designated, levied or based in connection with the purchase of the SaaS Services. You agree to hold Service Provider harmless from all claims and liability arising in connection with Customer’s failure to report or pay such taxes.
In the event that you default in any of the terms and conditions of this Agreement or a petition for bankruptcy is filed by or against you, then, to the extent permitted by applicable law, Service Provider shall have the right to exercise one or more of the following remedies: (a) To declare the entire amount of the unpaid total purchase price due and payable plus all service fees that would otherwise come due for the remainder of the Term of Service, together with interest thereon at the lesser of 18% per annum or the then highest allowable legal rate per annum and/or (b) To terminate this Agreement as to any or all of the Confirmed Order Forms. All remedies of Service Provider hereunder are cumulative and may, to the extent permitted by law, be exercised concurrently or consecutively and jointly or severally, and the exercise of any one remedy shall not be deemed to be an election of such remedy to preclude the exercise of any other remedy. No failure on the part of Service Provider to exercise, and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by Service Provider of any right or remedy hereunder preclude any other or further exercise of any partially exercised right or remedy.
19. Changes to the Terms of Service Agreement.
SERVICE PROVIDER RESERVES THE RIGHT TO CHANGE THE TERMS OF THIS AGREEMENT FROM TIME TO TIME. SUCH CHANGES WILL BECOME EFFECTIVE WHEN SERVICE PROVIDER POSTS THE REVISED TERMS OF THIS AGREEMENT AS PART OF THE SERVICE OR ON ANY RELATED WEBSITE. THE MOST CURRENT VERSION OF THE AGREEMENT CAN BE REVIEWED BY CLICKING ON THE “TERMS OF SERVICE AGREEMENT” HYPERTEXT LINK LOCATED IN THE HOME PAGE FOR THE SAAS SERVICE. YOU SHOULD CHECK THE TERMS OF THE AGREEMENT FROM TIME TO TIME, AS YOU ARE BOUND BY THE AGREEMENT SO POSTED FROM AND AFTER THE TIME THE CHANGES ARE POSTED FOR ALL FUTURE CONFIRMED ORDER FORMS. A REVISED AGREEMENT SHALL SUPERSEDE ALL PREVIOUS VERSIONS.
20. Termination of the Agreement; Effect of Termination or Expiration.
In the event that You breach or Your Users breach any term of this Agreement and such breach is not cured within 10 days after receipt of notice thereof from Service Provider, Service Provider, in its sole discretion, may suspend or terminate Your or any of Your User’s passwords, accounts or their use of the SaaS Services and/or terminate the Agreement in whole or in part immediately upon written notice to You. Notwithstanding the foregoing, there shall be no cure period for any default that is not curable.
Upon expiration or prior termination of this Agreement, all rights granted herein shall revert to Service Provider. All access to and use of the SaaS Services by Users must then cease, and all materials, applications and tools downloaded from the SaaS Service must be immediately erased, deleted, or destroyed.
The provisions of Sections 7, 11, 18, 20, 21, and 24 shall survive either termination pursuant to this Agreement or cancellation, as well as the completion of work hereunder.
21. No Warranties; Limitation of Liability; Indemnity.
a) THE SAAS SERVICES AND ANY TOOLS, APPLICATIONS, INFORMATION OR MATERIALS PROVIDED TO YOU IN CONNECTION WITH THE SAAS SERVICES AND CONTENT ARE PROVIDED AN “AS IS,” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES OF ANY KIND, PAST OR PRESENT, WHETHER STATUTORY, COMMON-LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULTS OR OUTPUT, SECURITY AND NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SERVICE PROVIDER DOES NOT GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR ACCURACY OF THE SAAS SERVICES. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED BY THE SAAS SERVICES IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. NEITHER SERVICE PROVIDER NOR ITS LICENSORS OR ANY OTHER PROVIDERS TO SERVICE PROVIDER WARRANT THAT USE OF THE SAAS SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. SERVICE PROVIDER IS NOT RESPONSIBLE FOR THE OPERATION OR PERFORMANCE OF THE INTERNET OR ANY OTHER NETWORK. THE SAAS SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND SERVICE PROVIDER IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SERVICE PROVIDER OR ITS EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF SERVICE PROVIDER’S OBLIGATIONS HEREUNDER. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR ANY LOST OR CORRUPTED DATA, DOWNTIME, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, INCLUDING NEGLIGENCE OR STRICT LIABILITY.
b) Service Provider shall not be liable for loss, injury or damage of any kind to you, your Users, or any other person or entity resulting from any use, condition, performance, defect or failure of the SaaS Services, including, but not limited to any loss, use, misuse, release of or disclosure of your or your User’s content or data (whether or not such loss, use, misuse, release or disclosure is authorized by you, your Users or by any other person or entity). You and your Users release and waive all claims against Service Provider, its parent, subsidiaries, affiliated companies, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing (the “Service Provider Group”), from any and all claims, damages, liabilities, costs and expenses arising out of or in any way connected or associated with your and your Users’ use of the SaaS Services. California residents waive any rights they may have under §1542 of the California Civil Code, which reads: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You and your Users agree to release unknown claims and waive all available rights under California Civil Code §1542 or under any other statute or common law principle of similar effect. To the extent permitted by applicable law, this release covers all such claims regardless of the negligence of the Service Provider Group.
c) IN NO EVENT WILL SERVICE PROVIDER’S AGGREGATE LIABILITY EXCEED THE TOTAL SUBSCRIPTION FEES DUE TO SERVICE PROVIDER UNDER A SPECIFIC CONFIRMED ORDER GIVING RISE TO THE CLAIM FOR A TWELVE (12) MONTH PERIOD MEASURED BY THE MONTHLY PAYMENT OBLIGATION UNDER THAT CONFIRMED ORDER FORM AT THE TIME OF THE EVENT GIVING RISE TO SUCH CLAIM, OR TEN THOUSAND DOLLARS ($10,000), WHICHEVER IS LESS.
d) You shall defend at your expense, indemnify, and hold Service Provider harmless from and against all Losses arising out of or in connection with any claim, suit, action, or proceeding against Service Provider which is associated with, arises out of or results from (i) a claim by a third party alleging that the your or your User’s data or content or other data or content provided by you or your Users to Service Provider infringes the intellectual property rights or other rights of a third party or has caused harm to a third party or (ii) any alleged breach of Sections 4, 9, 11, 13 or 16.
e) The provisions of this Section 21 and other sections and paragraphs of this Agreement providing for limitation of or protection against Service Provider’s liability shall also protect Service Provider’s officers, directors, employees and agents and shall apply to the full extent permitted by law and regardless of fault and regardless of the legal or equitable theory on which the claim was brought (contract, tort (including negligence), strict liability or otherwise) and shall survive either termination pursuant to this Agreement or cancellation, as well as the completion of work hereunder.
22. Reporting Infringement.By accessing and/or using the SaaS Services, Users agree to report to Service Provider all claims or suspected claims of copyright or other infringement of Service Provider’s intellectual property or other proprietary rights. Claims of infringement should be directed to Service Provider at
By accessing and/or using the SaaS Services, Users agree to report to Service Provider all claims or suspected claims of copyright or other infringement of Service Provider’s intellectual property or other proprietary rights. Claims of infringement should be directed to Service Provider at email@example.com.
23. Modification or Discontinuation of SaaS Services.
Service Provider reserves the right at any time and from time to time to modify, temporarily or permanently, the SaaS Service (or any part thereof). In the event that Service Provider modifies the Service in a manner which removes or disables a feature or functionality on which you materially rely, Service Provider, at your request, shall use commercially reasonable efforts to substantially restore such functionality to you. In the event that Service Provider is unable to substantially restore such functionality with reasonable effort, you shall have the right to terminate the Agreement and receive a pro-rata refund of the subscription fees paid under the Agreement for the terminated portion of the Term, to the extent that you have paid such fees in advance. You acknowledge that Service Provider reserves the right to discontinue offering the SaaS Service at the conclusion of your then-current Term. You agree that Service Provider shall not be liable to you or to any third party for any modification of the Services.
If, by reason of fire, earthquake, flood, natural disaster, act of terrorism, accident, labor disturbances or other differences with workers, work slowdowns or stoppages (for any reason), inability to secure workers, lack of facilities, equipment failure or repair, act of God, civil disturbance, armed conflict, acts or threats of terrorism, epidemics, or acts or omissions of any governmental authority, acts of sabotage, riots, or precedence of priorities granted at the request or for the benefit, directly or indirectly, of any government or any subdivision or agency thereof or acts of any public enemy, voluntary or involuntary compliance with any valid or invalid governmental or military order, regulation, request, or recommendation, malicious mischief, failure to receive necessary information from Customer, delay or lack of transportation facilities, failure of source of supply including, but not limited to, failure of Service Provider’s contractors, suppliers or sub-providers; or any cause which is beyond the reasonable control of Service Provider (“Force Majeure”), whether of a kind or nature herein specified, or if a contingency the nonoccurrence of which was the basic assumption on which this Agreement was made, and as a result, Service Provider’s performance is delayed, or prevented, directly or indirectly, Service Provider may suspend, in whole or in part, the performance of its obligations under these Terms during the continuance, and to the extent, of such Force Majeure.
You acknowledge and agree that the SaaS Services and the tools, applications, information and materials provided in connection with the SaaS Services possess a special, unique and extraordinary character that makes difficult the assessment of the monetary damages that would be sustained as a result of unauthorized use, and that unauthorized use may cause immediate and irreparable damage to Service Provider for which Service Provider would not have an adequate remedy at law. Therefore, you agree that, in the event of such unauthorized use, in addition to such other legal and equitable rights and remedies as may be available to Service Provider, Service Provider shall be entitled to injunctive and other equitable relief without the necessity of proving damages or furnishing a bond or other security.
This Agreement shall inure to benefit and bind the parties hereto, their successors and assigns. Neither party may assign this Agreement without written consent of the other, except to a related entity or the successor of all or substantially all of the assignor's line of business or assets to which this Agreement relates.
Service Provider may give either (a) as a note on a screen presented immediately after completion of the log in authentication credentials at the log in screen, or (b) by email to the email address provided for this purpose by you or (c) by written communication sent by first class mail or by courier service to your address on record in your account. Such notice will be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class mail) or 12 hours after sending (if provided by electronic means), or, if earlier, when received. You may give notice to Service Provider (deemed given upon receipt) at any time by any of the following: letter delivered by nationally recognized courier service or first class mail to: P.O. Box 2204, Spring Valley, CA 91979-2204. Service Provider may, by giving notice, change its applicable address or other contact information.
This Agreement shall be construed and enforced under the laws of the State of California, USA without reference to the choice of law principles thereof. User hereby consents to and submits to the jurisdiction of the Federal and state courts located in Santa Clara County, State of California. User waives any defenses based upon lack of personal jurisdiction or venue, or inconvenient forum. All claims must be brought within twelve (12) months following the date such claim arose.
Service Provider and Customer are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
This Agreement supersedes all prior agreements between the parties and constitutes the entire agreement between the parties as to the subject matter hereof. If any provision herein is unenforceable, then such provision shall be of no effect on any other provision hereof. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties.
No waiver of any breach hereof shall be deemed a waiver of any other breach hereof. Section headings are provided for convenience only, and shall not be used to construe the meaning of any section hereof.
“Subscriber” means a customer of ANI who has received a Confirmed Order form and has agreed to the terms of a Terms of Service Agreement for ANI’s Knowledge Bytes offering.
Availability of Services: Knowledge Bytes service is available 99.5% of the time each month, not including scheduled downtime. Typical service availability in any given month, not including scheduled downtime, is 100%. Scheduled downtime for regular maintenance and upgrades will occur between Friday Midnight to Sunday 10:00 PM (GMT -8). On occasion minor fixes may be deployed between 10:00 PM and Midnight (GMT -8), Monday – Friday.
Upgrades: Upgrades and additions to features and functionality will be made available to Subscribers at ANI’s discretion. Maintenance upgrades, where Subscribers existing functionality is enhanced in some way, may be included at no additional charge. ANI reserves the right to charge for any additional features and functionality not previously available to Subscriber that ANI may introduce to the Software from time-to-time.
Disaster Recovery Time: ANI schedules full backups of each Subscriber’s data every 24 hours. ANI has a continuity of business plan in place designed to enable Knowledge Bytes’ applications to recover with the latest backed-up data within 24 hours of a catastrophic failure.
Application Response Time: Although typically the application response time will be less, Knowledge Bytes will provide an application response time of less than 5 seconds for most application activities. Activities that require large data transfers, complex database queries, or large database updates, such as searches and reports will take longer. There will be times when ANI does not have control over response time, such as issues with the Subscriber’s internal network, issues with the internet backbone, or slow desktop and/or laptop system response due to other activities on the system.
Response to Critical Issues: Critical issues (such as a bug in an application that is preventing normal use of the application) in the system are typically solved within 48 hours of discovering them. If it is safe in ANI’s discretion to deploy the fix to production without causing disruption to production, it is deployed as soon as possible. If deployment of a fix may disrupt production, the deployment is scheduled during a low-use hour of the night. Less serious issues are prioritized accordingly and fixed within monthly patch release cycles.
Scalability: The Knowledge Bytes platform and infrastructure support scaling deployments enabling growth of content and concurrent users.
Internet Access Issues: System access, performance and recovery time may be affected by Internet access issues beyond ANI’s control. This includes but is not limited to worms, viruses, malware, Denial of Service attacks, etc. Internet DNS propagation process may make URLs inaccessible from all Internet locations for up to another 48 hours.
User Device Issues: ANI will ensure that Knowledge Bytes will operate using the current browser versions of Safari, Chrome, Firefox and Internet Explorer. Individual subscriber device issues are outside the scope of support.
Limit of Liability: As stated in the Terms of Service Agreement, ANI’s liability if unable to fulfill the terms of this SLA is limited to possible refunds of subscription services. See http://knowledge-bytes.com/terms.html for complete details.