Version 1.0 - April 2024
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF ANAGRAM’S SERVICES. IT INCLUDES AND INCORPORATES YOUR ORDER FORMS, AS WELL AS ANAGRAM’S WEBSITE
TERMS OF USE,
PRIVACY POLICY AND SUPPORT TERMS, AND THE
BUSINESS ASSOCIATE AGREEMENT. BY ACCEPTING THIS AGREEMENT, BY (1) EXECUTING THIS AGREEMENT OR (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU (HEREAFTER, “CUSTOMER” OR “YOU”) AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. This Agreement is effective between Customer and Anagram as of the date You accept it.
1. DEFINITIONS
1.1
1.1. “Affiliate” means, with respect to Anagram or Customer, any entity that directly or indirectly controls, is controlled by, or is under common control with Anagram or Customer, respectively. "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.
1.2
"Anagram" means Anagram Inc., a Delaware corporation.
1.3
“Authorized Locations” means Customer’s or Users’ locations authorized to use the Services under an Order Form or online purchasing portal.
1.4
"Customer" means the company or other legal entity accepting this Agreement.
1.5
“Customer Data” means electronic data and information submitted or uploaded by or for Customer or Users to the Services in connection with (a) the creation or administration of its Anagram accounts, such as first and last name, username and email address of a User or Customer’s billing contact, and (b) Customer’s use of the Services.
1.6
“Customer Systems” means systems, platforms, services, software, devices, hardware, sites and/or networks used by Customer or Users for its operations.
1.7
“Documentation” means Anagram’s applicable Services’ documentation, and its user guides and policies, as updated by Anagram from time to time, and made available to Customer.
1.8
“Order Form” means an ordering document or online order specifying in writing the Authorized Locations and Services to be provided hereunder that is entered into between Anagram and an authorized representative of Customer, including any addenda and supplements thereto.
1.9
“Services” means the services that are purchased by Customer under an Order Form or online purchasing portal, and made available online by Anagram, including associated Anagram offline or mobile components, as described herein or in the Documentation.
1.10
“User” means each party authorized by Customer to use a Service and to whom Customer has supplied a user identification and password. Users may include, for example, Customer’s and Customer’s Affiliates’ employees, consultants, contractors, agents and patients, and third parties with which Customer transacts business. Customer may also designate Anagram as a User.
2. ANAGRAM RESPONSIBILITIES
2.1 Provision of Services
Anagram will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, exclusive of any time the Services are not available as a result of one or more Exceptions listed below. “Exceptions” means any of: (a) Customer’s breach of this Agreement or an Order Form; (b) Customer’s failure to configure and use the Services in accordance with the Documentation; (c) failures of, or issues with, Customer’s Systems; (d) force majeure events described in Section 11.3; (e) Anagram’s suspension of Users’ access to the Services pursuant to Section 3.3 or 4.5; or (f) maintenance during a window for which Anagram provides notice to Customer by email or through the Services in advance. Anagram will provide support to Users as described in the Anagram Support Terms or in the applicable Order Form (“Support”). Without limiting any of Customer’s remedies under this Agreement in connection with the Services themselves, Customer’s sole and exclusive remedy for any alleged failure by Anagram to provide Support with reasonable skill, care and diligence shall be re-performance of the applicable Support.
2.2 Protection of Customer Data
Anagram will implement and maintain appropriate technical and operational measures to protect the security, confidentiality and integrity of Customer Data from unauthorized access, use, alteration, or disclosure of Customer Data (other than by Customer or Users). The terms of the Business Associate Agreement (“BAA”), available at
https://www.anagram.care/business-associate-agreement, are hereby incorporated by reference and shall apply to the extent Customer Data includes Protected Health Information, as defined in the BAA.
3. USE OF SERVICES
3.1 Subscriptions
Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Anagram regarding future functionality or features.
3.2 Location Usage
Services are provided only at Authorized Locations specified in the applicable Order Form or in the applicable online purchasing portal.
3.3 Customer Responsibilities
3.3.1
Customer will designate Users for each Authorized Location. Customer will (a) be responsible for Users’ compliance with this Agreement, Order Forms and Documentation, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer and Users acquired Customer Data and Customer’s use of Customer Data with the Services, (c) obtain, maintain and comply with the terms and conditions of any Customer Systems, equipment and ancillary services needed to connect to, access or otherwise use the Services, (d) properly configure the Services in accordance with the Documentation, enabling single sign-on for Customer’s accounts, and securing access passwords, keys, tokens or other credentials used by Customer in connection with the Services (collectively, “Customer Credentials”), (e) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Customer Credentials, and notify Anagram promptly of any such unauthorized access or use, and (f) use Services only in accordance with this Agreement, Order Forms, Documentation and applicable laws. Any use of the Services in breach of the foregoing by Customer or Users that in Anagram’s judgment threatens the security, integrity, or availability of Services, or compliance with law, may result in Anagram’s immediate suspension of the Services, however Anagram will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension and, in Anagram’s sole discretion, to limit any such suspension to only the scope (e.g., User, Authorized Location, and/or time period) Anagram deems necessary to protect the security, integrity, or availability of the Services or use of the Services in compliance with law.
3.3.2
If Customer uses Anagram to manage all or any part of the Services for Customer or Users, Customer will assure that Anagram receives complete and accurate information, including, without limitation, patient information, insurance payer information, including procedure information and codes, and any other necessary records, information, documentation and consents. Customer will provide access to its Customer Systems necessary for Anagram to carry out its provision of the Services. Customer and Users shall be and remain responsible for all codes assigned to patient charts, the accuracy, legality and appropriateness of such codes, the accuracy of fee schedules, the accuracy of all other data provided to Anagram, and all billing decisions that affect the accuracy of bills and the amount of reimbursement. Should a bill need to be resubmitted based on a Customer or User billing error, Customer shall be responsible for any limited fees associated with resubmission. Customer and Users hereby designate, make, constitute and appoint Anagram, for the purpose of accomplishing the duties set forth herein, as their true and lawful attorney and agent-in-fact, and Anagram may execute, endorse, accept and deliver in the name of Customer or Users, any and all checks, orders, drafts or any other instrument evidencing the right to payment and receive cash or any other form of payment in the name of, and on behalf of, Customer or Users and shall be, and hereby is, authorized to deposit any and all funds collected in a deposit account for the benefit of Customer or Users.
3.3.3
Customer acknowledges and agrees (i) that when Anagram provides benefits coverage and reimbursement information, Anagram is providing estimates of benefits coverage and reimbursement information based on available information found from the third-party insurer, (ii) that these estimates may vary from actual amounts Customer, Users or patients will collect from the insurer when the actual claim is processed by the insurer, and (iii) that if Customer or Users request an assignment of benefits on a claim submitted by Anagram, Customer or Users assume all liability for loss related to discrepancies between any estimate provided by Anagram and the actual reimbursement from the insurer. Customer and Users agree that Anagram is not responsible or liable for any discrepancies between the benefits coverage and reimbursement estimates provided by Anagram and the actual reimbursements Customer, Users or patients receive.
3.4 Usage Restrictions
Customer will not, and will assure that Users will not, (a) make any Service available to anyone other than Customer or Users, or use any Service for the benefit of anyone other than Customer and Users, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service 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 a Service to store or transmit malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Services in a way that circumvents an Authorized Location limitation, or use any Services to access or use any of Anagram intellectual property except as permitted under this Agreement, an Order Form or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, other than framing on Customer’s own intranets or otherwise for its own internal business purposes, (j) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
4. FEES AND PAYMENT
4.1 Payment for Services
Customer agrees to pay all fees for Customer’s use of Services in accordance with this Agreement and the applicable Order Form(s) (collectively, the “Fees”). As set forth in the applicable Order Form(s), (i) Fees are either subscription-based or usage-based and are calculated as set forth in the Order Form, (ii) subscription-based Fees are payable in advance and usage-based Fees are payable within 14 days from an invoice date, (iii) Fee payment obligations are non-cancelable, (iv) Fees paid are non-refundable, and (v) Services purchased cannot be decreased during the relevant subscription term. The criteria for calculating Fees vary by Service type and feature as specified in the Order Form. Customer will provide Anagram with valid and updated credit card information or other digital payment method. For subscription-based Fees, Customer authorizes Anagram to charge such credit card or digital payment method for all Services, subscriptions and Fees listed in Order Form(s) for the initial subscription term and any renewal subscription term(s) as provided for in Section 10.2. For usage-based Fees, Customer may elect to pay by a method other than a credit card or other digital method. If Customer so elects, Customer will pay usage-based Fees invoices within 14 days from the invoice date and in accordance with the relevant Order Form. Customer is responsible for providing complete and accurate billing and contact information to Anagram and notifying Anagram of any changes to such information.
4.2 Payment Disputes
Customer must assert any good faith dispute with regard to Fees in writing within 10 days of receipt of the invoice giving rise to the dispute. Except in the event of a good faith dispute, if Customer fails to make payment when due, without limiting Anagram’s other rights and remedies: (a) Anagram may charge interest on the past due amount at a rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Anagram for all reasonable costs incurred by Anagram in collecting any late payments or interest, including reasonable attorneys’ fees; and (c) if such failure continues for 30 days or more, Anagram may suspend Customer’s and Users’ access to the Services until such amounts are paid in full. Anagram will not exercise its suspension or termination rights or apply interest on late fees if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.
4.3 Taxes
Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Anagram has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Anagram will invoice Customer and Customer will pay that amount unless Customer provides Anagram with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Anagram is solely responsible for taxes assessable against it based on its income, property and employees.
5. PROPRIETARY RIGHTS AND LICENSES
5.1 License by Customer
By submitting Customer Data to the Services, Customer hereby grants to Anagram, its Affiliates, and contractors the right, and is expressly instructing Anagram, its Affiliates, and contractors, to use Customer Data in order to provide and support the Services as described in this Agreement, the Order Forms(s), and Documentation. Anagram will be liable for the actions and omissions of its Affiliates and contractors undertaken in connection with Anagram’s performance under this Agreement to the same extent that Anagram would be liable if performing the Services directly. Customer authorizes Anagram to use information about Customer’s configuration and use of the Services (“Usage Data”) and Customer Data to: (a) manage Customer’s account, including to calculate Fees; (b) provide and improve the Services and support; (c) manage Anagram’s business and operations; and (d) provide insights, service and feature announcements, and other reporting. Customer agrees that Anagram may use aggregated or anonymized Customer Data and Usage Data for any business purpose during or after the term of this Agreement, including without limitation to develop and improve Anagram products and services and to create and distribute insights, reports and other materials. Anagram’s use of Usage Data and Customer Data shall at all times be subject to Anagram’s obligations under this Agreement, including those of security under Section 2.2, confidentiality under Section 6, and privacy under the Anagram Privacy Policy.
5.2 License by Anagram
Subject to this Agreement and the applicable Order Form(s), Anagram hereby grants to Customer the right to access and use the Services in accordance with the Documentation during the term described in Section 10.
5.3 Limited Grant
As between the parties: (a) Customer owns all right, title and interest in and to Customer’s Systems and Customer Data, including in each case all associated intellectual property rights, and (b) Anagram owns all right, title and interest in and to the Services, Documentation, and feedback (such as suggestions, enhancement requests, recommendations, and corrections provided by Customer or Users relating to the operation of the Services), including in each case all associated intellectual property rights. Except for the rights expressly granted by one party to the other in this Agreement, all rights are reserved by the granting party. All rights granted by each party to the other hereunder are limited, nonexclusive and, except as otherwise provided in this Agreement, non-transferable.
5.4 Statistical Data
Anagram owns the statistical data derived from the operation of the Services (“Data”). Nothing herein shall be construed as prohibiting Anagram from utilizing the Data to optimize and improve the Services or otherwise operate Anagram’s business; provided that if Anagram provides Data to third parties, such Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Customer, any Users or any patients to any third party.
5.5 U.S. Government Customers
The Services are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Customer or any User is using Services on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer and Users must immediately discontinue use of the Services. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
6. CONFIDENTIALITY
6.1 Definition of Confidential Information
“Confidential Information” means all 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. Confidential Information of Customer includes Customer Data; Confidential Information of Anagram includes the Services, Documentation, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does 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.
6.2 Protection of Confidential Information
As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.
6.3 Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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 civil 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 that Confidential Information.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Representations
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 Anagram Warranties
Anagram warrants that during an applicable subscription term (a) Anagram will not materially decrease the overall security of the Services, (b) the Services will perform materially in accordance with the Documentation, and (c) Anagram will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in Section 10.3 and Section 10.4.
7.3 Warranty Disclaimers
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.4. Additional Disclaimers
EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL SERVICES, SUPPORT AND ANY OTHER MATERIAL ARE PROVIDED BY ANAGRAM ON AN “AS IS” AND “AS AVAILABLE” BASIS. ANAGRAM MAKES NO REPRESENTATION OR WARRANTY, AND HAS NO SUPPORT OBLIGATIONS OR LIABILITY, EXCEPT WITH RESPECT TO THE SERVICES AND SOLELY TO THE EXTENT SET FORTH HEREIN. WITHOUT LIMITING THE OTHER PROVISIONS OF THIS SECTION 7, ANAGRAM MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, DOCUMENTATION, OR ANY OTHER MATERIAL, OR RESULTS OF THE USE THEREOF, WILL: (a) MEET CUSTOMER’S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (d) BE ERROR FREE OR (e) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH CUSTOMER SYSTEMS.
8. MUTUAL INDEMNIFICATION
8.1 Indemnification by Anagram
Anagram will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Anagram in writing of, a Claim Against Customer, provided Customer (a) promptly gives Anagram written notice of the Claim Against Customer, (b) gives Anagram sole control of the defense and settlement of the Claim Against Customer (except that Anagram may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Anagram all reasonable assistance, at Anagram’s expense. If Anagram receives information about an infringement or misappropriation claim related to a Service, Anagram may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Anagram’s warranties under Section 7.2, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid Fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with Customer Systems, if the Services or use thereof would not infringe without such combination; or (3) a Claim against Customer arises from Customer’s breach of this Agreement, applicable Order Forms or the Documentation.
8.2 Indemnification by Customer
Customer will defend Anagram against any claim, demand, suit or proceeding made or brought against Anagram by a third party alleging that any Customer Data or Customer’s use of Customer Data with the Services infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of Customer Data or the Services in an unlawful manner or in violation of the Agreement, an Order Form or the Documentation (each a “Claim Against Anagram”), and will indemnify Anagram from any damages, attorney fees and costs finally awarded against Anagram as a result of, or for any amounts paid by Anagram under a settlement approved by Customer in writing of, a Claim Against Anagram, provided Anagram (a) promptly gives Customer written notice of the Claim Against Anagram, (b) gives Customer sole control of the defense and settlement of the Claim Against Anagram (except that Customer may not settle any Claim Against Anagram unless it unconditionally releases Anagram of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Anagram arises from Anagram’s breach of this Agreement, applicable Order Forms or the Documentation.
8.3 Exclusive Remedy
This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability
EXCEPT FOR A BREACH OF AN OBLIGATION IN SECTION 3.3, SECTION 4, OR SECTION 8 (EACH, AN “EXCLUDED LIABILITY”), THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND CUSTOMER’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 4 OR AN EXCLUDED LIABILITY OF EITHER PARTY.
9.2 Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. TERM AND TERMINATION
10.1 Term of Agreement
This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
10.2 Term of Purchased Subscriptions
The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional subscription periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the then-current term. The pricing during any renewal term will be at Anagram’s applicable list price in effect at the time of the applicable renewal.
10.3 Termination for Cause
Anagram may terminate any Order Form upon written notice to Customer if Customer fails to pay any amount due under the Order Form that is not disputed in good faith in accordance with Section 4.3, and such failure continues more than 30 days after Anagram provides Customer with written notice. Either party may terminate this Agreement effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured at the expiration of the subscription term or 30 days after the non-breaching party provides the breaching party with written notice of such breach for 6 month or annual subscriptions. In addition, either party may terminate all Orders Forms and this Agreement, effective on written notice to the other party, in the event that the other party (i) becomes insolvent, enters into bankruptcy or any similar financial reorganization or legally binds itself to any such reorganization or (ii) makes any assignment of its rights or assets for the benefit of its creditors.
10.4 Effect of Termination
Upon expiration or earlier termination of an Order Form: (a) all rights granted to Customer with respect to Services under such Order Form will terminate effective as of the effective date of termination; (b) Anagram will have no obligation to provide the applicable Services to Customer or Users after the effective date of the termination; and (c) subject to Section 4.3, the parties will make any payments required under Section 10.5.
10.5 Payments at Termination
If an Order Form or this Agreement is terminated early pursuant to Section 10.3, Customer will not be entitled to a refund of paid subscription-based Fees. All subscription-based Fees, including committed Fees and accrued Fees, for the remainder of the subscription or renewal term will become immediately due and payable. Usage-based Fees owed at termination will be calculated as the greater of the product of:
the average amount of monthly Fees paid to Anagram over the three full calendar months immediately preceding the termination date, times (ii) the number of full calendar months then remaining in the then-current subscription term, as of the termination date (which period shall include the calendar month in which the termination date occurs); and
the minimum monthly Service Fee specified in an Order Form, times (ii) the number of full calendar months then remaining in the then-current subscription term, as of the termination date (which period shall include the calendar month in which the termination date occurs).
10.6 Surviving Provisions
Sections 4, 5, 6, 7.3, 7.4, 8, 9, 10.4, 10.5 and 11, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any termination or expiration of this Agreement, and Section 2.2 will survive any termination or expiration of this Agreement for so long as Anagram retains possession of Customer Data.
11. GENERAL PROVISIONS
11.1 Export Compliance
The Services, other Anagram technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Anagram and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Service in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
11.2 Sanctions
Neither party will, directly or indirectly, deliver Services to (i) an individual, entity, country, or region identified on the Consolidated Screening List, available at
https://www.trade.gov/consolidated-screening-list, (ii) an individual or entity in Russia or Belarus ((i) and (ii) collectively, “Sanctions Target”), or (iii) to any party that is 50% owned by one or more Sanctions Target. Each party represents that (a) it is not a Sanctions Target; and (b) it is not otherwise prohibited (based on 50% ownership, location for operations or use or other legally relevant factors) from providing or receiving Services, as applicable, without a license or other approval under Section 11.1.
11.3 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. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
11.4 Third-Party Beneficiaries
There are no third-party beneficiaries under this Agreement.
11.5 Waiver
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.6 Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11.7 Assignment
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent, not to be unreasonably withheld; provided, however, either party may assign this Agreement in its entirety, including all Order Forms, without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8 Governing Law and Venue
This Agreement and any disputes arising out of or related hereto will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to this Agreement, the parties’ consent to exclusive jurisdiction and venue in the state and Federal courts located in Delaware. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.9 Notices
All notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
11.10 Dispute Resolution
The parties agree to first attempt to mutually resolve any dispute under this Agreement informally through negotiation. If the dispute has not been resolved after 30 days, the parties agree to resolve any claim, dispute, or alleged breach (excluding any claims for injunctive or other equitable relief as provided below) by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS. The arbitration will be conducted in Delaware. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator is binding and may be entered in any court of competent jurisdiction. Either party may seek injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.
11.11 Force Majeure
Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments for Services), when and to the extent such failure or delay is caused by events outside of the reasonable control of the affected party, including acts of God; pandemics; flood, fire or explosion; war, invasion, riot or other civil unrest; terrorist or criminal acts; cyberattacks; internet disruptions; embargoes or blockades in effect on or after the date of this Agreement; or national or regional emergency, provided that, in each case, the affected party will provide prompt notice to the other party, stating the period of time the occurrence is expected to continue, and use diligent efforts to end the failure or delay and minimize the effects of such force majeure event.
11.12 Entire Agreement and Order of Precedence
This Agreement is the entire agreement between Anagram and Customer regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
11.13 No Assignment of Benefits
This Agreement is not intended to constitute, and shall not be construed or deemed to constitute, an assignment of benefits within the meaning of Section 1842(b)(6)(a) of the Social Security Act, 42 U.S.C. § 1395(u)(b)(6)(a), and the Rules and Regulations promulgated thereunder.