This Anodyne AI Master Subscription Agreement ("MSA") entered into by and between Anodyne AI Inc., a Delaware corporation ("Anodyne AI"), and the entity or person (i) executing an order form for the Services that expressly references this MSA ("Order Form"), (ii) accepting an Order Form via private offer on a cloud service provider marketplace or (iii) signing up for and accessing the Services on a free trial basis ("Trial Services") who, in each case, agrees to be bound by this MSA to the exclusion of all other terms (as applicable, "Customer") (each of Customer and Anodyne AI, a "Party", and together, the "Parties"). The MSA consists of the terms and conditions set forth below and incorporates by reference any ancillary documents (e.g., attachments, addenda, exhibits) expressly referenced herein.
The "Effective Date" of this MSA is (a) the effective date of the first Order Form executed by the Parties, (b) the date Customer first accepts a private offer containing an Order Form or (c) in the case of Trial Services, the date Customer receives its credentials to access the Services accepting this MSA through Anodyne AI's free trial sign-up, as applicable.
"Services" means the Anodyne AI products and services that are made available to Customer by Anodyne AI hereunder. Subject to the terms and conditions of this MSA, Anodyne AI will make commercial reasonable efforts to have Services available to Customer for the service period of Customer's subscription ("Service Period").
"Fees" means the fees payable by Customer to Anodyne AI for the applicable Services, as set forth on the Order Form. Customer is responsible for all Fees set forth in the Order Form. Anodyne AI will invoice Customer for such Fees using the billing information set forth therein. If Customer purchases a subscription to the Services using a credit card or similar online payment method, Anodyne AI will bill that payment method for all Fees due, including renewals and add-on purchases, as applicable, unless another payment method is requested in writing by Customer. Customer shall pay all Fees in accordance with the payment terms set forth in the applicable Order Form. Except as expressly set forth in this MSA, all payment obligations are non-cancelable and Fees are non-refundable and not subject to set off. In the event of non-payment of Fees by Customer for fifteen (15) days after the due date of an invoice, Anodyne AI reserves the right to (i) immediately suspend Customer's access to the Services until Customer pays the entire remaining balance of Fees and/or (ii) charge interest on past due amounts at the lesser of one and a half percent (1.5%) or the highest interest rate allowed by law. Anodyne AI will promptly restore Customer's access to the Services once such non-payment is cured.
If Customer has a bona fide belief that an invoice is incorrect, Customer must contact Anodyne AI within thirty (30) days of the date of the applicable invoice ("Dispute Period"). Upon receipt of such notice, Anodyne AI and Customer will work together in good faith to resolve the dispute and, if such disputed amount(s) are deemed legitimate, Customer agrees to pay such amounts promptly upon resolution of the dispute (and in any event, within 30 days thereafter). If Customer does not notify Anodyne AI of a dispute within the Dispute Period, all invoiced Fees will be deemed legitimate and owing in accordance with this MSA.
Fees do not include taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction ("Taxes"). Customer is responsible for paying all Taxes associated with its purchase of the Services, excluding Taxes based on Anodyne AI's net income or receipts, property or employees.
Prices specified in the Order Form may include discounts or promotional pricing. Anodyne AI may change prices for the Services and/or discontinue or change any promotion, sale, or special offer in its sole discretion; provided that any such changes or discontinuations will only be effective upon the commencement of Customer's next Service Period and will not impact the Fees payable for the then-current Service Period. Anodyne AI will provide Customer with reasonable notice of any Fee increases prior to the expiration of the then-current Service Period.
Notwithstanding anything to the contrary in this MSA, where Customer has purchased the Services through a marketplace offered by a cloud service provider (e.g., Amazon Web Services, Google Cloud Platform, Microsoft Azure, etc.), Customer agrees to pay the Fees specified on the applicable cloud service pricing page(s) (including any notes included on such page(s)) or in any offer accepted by Customer in the cloud service provider marketplace, as applicable. Customer agrees that all Fees shall be paid through billing of Customer's account with such cloud service provider and that any refund to which Customer may be entitled under this MSA or an Order Form may be provided in the form of a credit back to Customer's account with such cloud service provider.
If Customer registers for Trial Services, Anodyne AI will make the applicable Trial Services available to Customer pursuant to this Section 2.4.1 once Customer is approved for such Trial Services until the earlier of: (a) the end of the trial period communicated to Customer; (b) the start date of any Order Form entered into by Customer for Service(s) in exchange for payment; or (c) termination by Anodyne AI in its sole discretion (such period, the "Trial Services Period").
ANY CUSTOMER INFORMATION (AS DEFINED BELOW) THAT CUSTOMER PROVIDES OR MAKES AVAILABLE TO ANODYNE AI DURING THE PROVISION OF TRIAL SERVICES WILL BE PERMANENTLY DELETED AT THE END OF THE TRIAL SERVICES PERIOD UNLESS CUSTOMER ENTERS INTO AN ORDER FORM FOR THE SAME SERVICES AS THOSE COVERED BY THE TRIAL SERVICES OR EXPORTS SUCH CUSTOMER INFORMATION BEFORE THE END OF THE TRIAL SERVICES PERIOD.
From time to time, Anodyne AI may make Beta Offerings available to Customer at no charge. "Beta Offerings" means pre-release services, features, or functions identified as alpha, beta, preview, early access, or words or phrases with similar meanings. Customer may elect to try such Beta Offering(s) in its sole discretion. Beta Offerings are intended for evaluation purposes, not for production use, and may be subject to additional terms. Beta Offerings are not considered "Services" under this Agreement; however, all prohibited uses, Customer obligations and terms regarding Anodyne AI's ownership concerning the Services shall apply to Beta Offerings. Unless otherwise stated or communicated to Customer, any Beta Offerings trial period will expire upon the date that a version of the Beta Offerings becomes generally available without a "Beta Offerings" designation. Anodyne AI may discontinue Beta Offerings at any time in its sole discretion and may never make them generally available.
NOTWITHSTANDING SECTIONS 1.2 (SUPPORT), 7 (REPRESENTATIONS, WARRANTIES AND DISCLAIMERS) AND 8 (INDEMNIFICATION) BELOW, TRIAL SERVICES AND BETA OFFERINGS ARE PROVIDED "AS-IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY AND ANODYNE AI SHALL HAVE NO SUPPORT OR INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE TRIAL SERVICES OR BETA OFFERINGS UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE ANODYNE AI'S LIABILITY WITH RESPECT TO THE TRIAL SERVICES AND BETA OFFERINGS SHALL NOT EXCEED ONE THOUSAND DOLLARS ($1,000.00). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 9 (LIMITATION OF LIABILITY) BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS MSA TO ANODYNE AI AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER'S USE OF THE TRIAL SERVICES, ANY BREACH BY CUSTOMER OF THIS MSA AND ANY OF CUSTOMER'S INDEMNIFICATION OBLIGATIONS HEREUNDER.
This MSA commences on the Effective Date and will remain in effect until all Order Forms have expired or been terminated in accordance with this Section 3.
The Service Period for each Order Form shall be set forth therein; provided that if the Order Form does not specify a Service Period, the Service Period will be one (1) year. Unless otherwise expressly stated in the applicable Order Form, upon expiration of the Service Period, the Customer's subscription will automatically renew for successive one- (1) year Service Periods unless Customer provides Anodyne AI with notice of termination at least thirty (30) days prior to the end of the then-current Service Period.
A Party may terminate this MSA or an Order Form for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured after ten (10) days from the date of the breaching Party's receipt of such notice; (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors that is not dismissed within sixty (60) days of the commencement thereof; or (c) immediately by Anodyne AI if Customer violates Section 4.5 (Prohibited Uses) of this MSA. Non-payment of Fees by Customer for thirty (30) days after the due date of an invoice and any violation of Section 4.6 (Prohibited Uses) will be considered material breaches of this MSA.
Termination of this MSA will concurrently terminate all active Order Forms. Upon termination of this MSA and/or an Order Form, (a) Customer will have no further right to use the Services under the terminated or canceled Order Form(s) and Anodyne AI will remove Customer's access to the same, and (b) unless otherwise specified herein, Customer will not be entitled to a refund of Fees paid; provided that if Customer terminates for Anodyne AI's uncured material breach in accordance with Section 3.2 (Termination for Cause), Customer shall be entitled to a pro-rata refund of any prepaid, unused Fees paid to Anodyne AI. The following Sections will survive termination: Section 2 (Fees and Payment) for any Fees due and payable at the time of termination, Section 3.3 (Effect of Termination and Survival), Section 4 (Ownership, License, and Use of the Services), Section 5 (Confidentiality), Section 7.3 (Disclaimers), Section 8 (Indemnification), Section 9 (Limitation of Liability), and Section 10 (Miscellaneous). Termination of this MSA will not limit a Party's liability for obligations accrued as of or prior to such termination or for any breach of this MSA.
Each Party will retain all rights, title and interest in any of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and proprietary rights ("Intellectual Property Rights"). Anodyne AI will retain all Intellectual Property Rights in and to the Services and all components of, or used to provide, the Services and any other materials developed by Anodyne AI in its performance hereunder that derive from, improve, enhance or modify the Services or other Anodyne AI pre-existing intellectual property (collectively with the corresponding Intellectual Property Rights, "Services Information"). Customer will retain Intellectual Property Rights in all information uploaded to the Services by or on behalf Customer (other than Feedback as described below), including any outputs or results thereof produced by the Services from such information (excluding any Anodyne AI intellectual property embedded therein) (collectively, "Customer Information").
Customer may, under this MSA, provide suggestions, enhancement requests, recommendations about the Services, or other feedback to Anodyne AI ("Feedback"). Customer hereby grants Anodyne AI a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services, or otherwise use any Feedback; provided that Anodyne AI may not breach its obligations of confidentiality under Section 5 in doing so. Anodyne AI also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by such Feedback and, as between the Parties, Anodyne AI shall own all right, title and interest in and to such derivatives.
Subject to Customer's compliance with the terms and conditions of this MSA (including any limitations and restrictions set forth on an applicable Order Form), Anodyne AI hereby grants Customer a non-exclusive, non-transferable, non-sublicensable limited right and license to access and use the Services or Trial Services, as applicable, solely during the applicable Service Period or Trial Service Period for Customer's internal business purposes. Customer hereby grants Anodyne AI a non-exclusive, non-transferable, non-sublicensable right and license to use Customer Information solely to provide the Services to Customer. Notwithstanding anything to the contrary, Anodyne AI may generate, collect, use, and analyze usage data generated or derived from Customer's use of the Services ("Usage Data"), including log data and metadata, to develop, improve, promote, support, and operate its products and services; provided that such Usage Data may only be shared with third parties in a manner that is aggregated and/or anonymized and does not identify Customer or any Authorized Users.
As used herein, "Confidential Information" of a Party ("Disclosing Party") means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other Party ("Receiving Party") or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. Services Information is Anodyne AI's Confidential Information and Customer Information is Customer's Confidential Information under this MSA. The Receiving Party agrees to keep Confidential Information in confidence using the same degree of care that the Receiving Party uses to protect its own Confidential Information (but in no event less than reasonable care). Except as expressly permitted in this MSA, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party's prior written consent; provided the Receiving Party may disclose Confidential Information to its and its Affiliates' employees and contractors who have a legitimate need to know such information and who are bound by obligations of confidentiality and non-use at least as protective of the Confidential Information as those in this Section 5. The Receiving Party will not use the Disclosing Party's Confidential Information except to perform its obligations or exercise its rights under this MSA, such obligations including, in the case of Anodyne AI, to provide the Services. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding to the extent permissible according to applicable law. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party. Due to the unique nature of Confidential Information, the Parties agree that the Disclosing Party shall be entitled to seek an injunction or similar equitable relief against any breach or threatened breach of this Section without the necessity of posting any bond or showing irreparable harm.
Anodyne AI will implement and maintain appropriate administrative, physical and technical safeguards during the Service Period to protect the security, confidentiality and integrity of Customer Information. Anodyne AI's current security and data protection practices shall be made available upon reasonable request in a commercially reasonable manner. Customer's use of the Services is subject to the privacy policy as made available at Privacy Policy ("Privacy Policy").
Each Party represents that it has validly entered into this MSA and has the legal power to do so.
For questions about these Terms of Service, please contact us at legal@anodyneai.com