Last Updated: September 1, 2015
Welcome to AnyPresence. Please read these terms of service (these "Terms") carefully as they form a contract between you (“you” or “Customer”) and AnyPresence, Inc., a Delaware corporation ("AnyPresence", “AP”, "we", "us", or "our"). These Terms govern your access and use of the Services.
By accepting these Terms, either by registering, downloading, signing and executing an Order Form that references these Terms, or using any of the Services you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising to AnyPresence that you have the authority to bind that organization to these Terms (in which event, "you" and "your" will refer to that organization and each of its Users) unless that organization has a separate contract in effect with us, in which event the terms of that contract will govern your use of the Service.
You may use the Service only in compliance with these Terms and only if you have the power to form a contract with AnyPresence and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES. Should you have any questions concerning these Terms, please contact: support@anypresence.com with “Terms of Service” in the subject line.
1. ACCESS TO THE SERVICE
You may use the Service as a User, on a non-exclusive basis, solely in strict compliance with these Terms and all applicable laws. When granted access to the Services, your access may or may not be limited by User Groups. User Groups will typically be defined in an Order Form. Any Professional Services shall be described in a separate SOW, which may be referenced or incorporated into an Order Form. You agree that your purchases of the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.
2. YOUR ACCOUNT
To obtain access and use Services, you may be required to obtain an account with AnyPresence, by telephonically providing information, faxing information, emailing information, providing information on social media, completing a registration form, obtaining a license key, receiving pre-configured access, receiving an invitation from your User Group, receiving an invitation from AnyPresence, or designating a user ID and password. Until you are approved for an account your access to the Service will be limited to the areas of the Service, if any, that AnyPresence makes available to the general public. When obtaining an account with AnyPresence you must: (a) provide true, accurate, current and complete Account Data; and (b) maintain and promptly update the Account Data to keep it true, accurate, current and complete by any self service mechanism if available or by notifying AnyPresence at support@anypresence.com.
If an organization such as an employer, school, or prime contract holder, gave you your account, that organization may have rights to your account and may manage your account, reset your password, delete installed software if any, or suspend or cancel your account; view your account's usage and profile data, including how and when your account is used; and read or store Content in your account. If you are an individual User of the Service, and the domain of the primary email address associated with your account is owned by an organization and was assigned to you as an employee, contractor, or member of such organization, and that organization wishes to establishes a commercial relationship with us and add your account to such relationship, then, if you do not change the email address associated with your account, your account may become subject to the commercial relationship between AnyPresence and such organization and controlled by such organization.
3. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION
By using the Service, you understand that we may send you communications or data regarding the Services, including but not limited to: (a) notices about your use of the Services, including any notices concerning violations of use; (b) updates; and (c) promotional information and materials regarding AnyPresence's products and services, via electronic mail. We shall make reasonable efforts to give you the opportunity to opt-out of receiving promotional electronic mail from us by following the opt-out instructions provided in the message.
4. USE OF SERVICES
You must keep your account information, license keys, and passwords confidential and not authorize any third party to access or use the Service on your behalf, unless we provide explicit approval to share your account with third parties. If you are using the Service on behalf of a User Group in an organization, then the Order Form or contract between AnyPresence and the organization shall govern how you may or may not share your access to the Service. In some cases, you may share your account and any associated Content and Customer Applications with AnyPresence to provide support for the Service in which case AnyPresence will not be liable for any loss or damage arising from supporting your account. AnyPresence will not be liable for any loss or damage arising from unauthorized access to your account by third parties.
You will not: (a) sell, resell, rent or lease the Services without written explicit approval from AnyPresence, (b) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use the Services to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of the Services or any data contained therein (e) attempt to gain unauthorized access to the Services or their related systems or networks; (f) create derivate works based on the Services, (g) reverse engineer the Services; (h) access the Services in order to build a competitive product or Service, or copy any features, functions or graphics of the Services; (i) hold AnyPresence liable for content, data, or other information that may be a violation of personal privacy, HIPAA rules, PCI compliance, or any other content and data specific laws and regulations. (j) use the Service in a way that violates or infringes upon the Intellectual Property Rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (k) store or transmit any Content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; (l) abuse, harass, stalk or otherwise violate the legal rights of a third party; (m) interfere with or disrupt servers or networks used by AnyPresence to provide the Service or used by other users' to access the Service; (n) violate any third party regulations, policies or procedures of such servers or networks or (o) harass or interfere with another user's full use and enjoyment of the Service
You represent and warrant that the Service will not be downloaded or used in, or transported to, a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a "terrorist-supporting" country, and neither the Customer nor any User is listed on any U.S. Government list of prohibited or restricted parties. You agree to follow the guidelines, terms, and any other conditions for 3rd party devices and services on which Customer Applications may be used.
Except for material that we license to you through the Service, we do not claim ownership of any Content that is transmitted, stored, or processed in your account. We also don't control, verify, or endorse the Content or Customer Applications that you and others make available on the Service.
You hereby grant AnyPresence and its contractors the right to transmit, use and disclose Content posted on the Service solely to the extent necessary to provide the Service, as otherwise permitted by these Terms, or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency which AnyPresence believes in good faith requires AnyPresence to disclose information to assist in preventing the death or serious bodily injury of any person.
You represent and warrant that: (a) you have all the rights in the Content necessary for you to use the Service and to grant the rights in this Section; and (b) the storage, use or transmission of the Content doesn't violate any law or these Terms.
You will: (a) be solely responsible for the nature, quality and accuracy of the Content, (b) ensure that the Content (including the storage or transmission thereof) and your use of the Services complies with these Terms and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; (d) maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access; and (e) under no circumstance keep an older version of our Software and in particular a download based Software product in use if a new version has been made available from AnyPresence.
You agree to use commercially reasonable efforts to prevent unauthorized access to the Service. You must immediately notify AnyPresence in writing of any unauthorized use of: (a) any Content (b) any account; or (c) the Service that comes to your attention. In the event of any such unauthorized use by any third party that obtained unauthorized access through you, you will take all steps necessary to terminate such unauthorized use. You will provide AnyPresence with such cooperation and assistance related to any such unauthorized use as AnyPresence may reasonably request.
5. THIRD PARTY LICENCES AND CONTENT STORED IN THE UNITED STATES
All transactions using the Services are between you and the applicable third party. The Services may contain features and functionalities linking you or providing you with certain functionality and access to third party functionality, content, including web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole; you acknowledge that we are not responsible for such content or services. We may also provide some content to you as part of the Services. However, AnyPresence is not an agent of any transacting party, nor or we a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between you and the applicable third-party. Similarly, we are not responsible for any third party content you access with the Services, and you irrevocably waive any claim against us with respect to such sites and third-party content. AnyPresence shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for your dealings with any third party related to the Services, including the delivery of and payment for goods and services. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our breach.
To the extent any Third-Party Components are included and necessary to use the Service, AnyPresence shall make reasonable efforts to secure any and all such licenses for you to use any Third-Party Components during the term of the Service. Upon termination of the Services, and if applicable, any and all licenses to Third-Party Components necessary to use the any Customer Applications shall be your responsibility, and AnyPresence thereafter shall have no further responsibility whatsoever to secure the licenses necessary, as applicable, to any such Third-Party Components.
The licenses granted to you shall not include the right to modify the intellectual property of Third-Party Components whatsoever. In addition, the licenses granted shall only entitle you to use the AP Libraries as part of Customer Applications, and shall not include the right for you to use or distribute the AP Libraries or any other AnyPresence technology, Software or code on a standalone basis in any manner whatsoever without prior written consent from AnyPresence.
Any other acquisition by you of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between you and any third-party provider, is solely between you and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by us as “certified” or otherwise, except as specified in an executed Order Form. In addition to, and without limiting the generality of the foregoing, nothing herein shall be construed to require AnyPresence to provide for, or bear any responsibility with respect to any telecommunications network, computer network, hardware, mobile device management software, mobile device by any manufacturer required by you to obtain access from the Internet and to use any of the Services.
If you install or enable Third-Party Applications for use with the Services, you acknowledge that we may allow providers of those Third-Party Applications to access your Content as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification, or deletion of your Content resulting from any such access by Third-Party Application providers.
Our Services may interoperate with widely adopted third-party services (e.g., Google, LinkedIn, Facebook, Twillio, SendGrid, Heroku, Amazon Web Services, Rackspace, IBM Soft Layer, Microsoft Azure, Salesforce.Com, Microsoft Sharepoint, SAP, Oracle, Citrix XenMobile, Citrix NetScalar, Apperian, Docker, Savvis, ADP, VMWare, etc.) and depend on the continuing availability of those third-party APIs and programs for use with the Services. If any third-parties, whether software or hardware providers, cease to make their APIs or programs available on reasonable terms for the Services, we may cease providing support for features related to the ceased third-party service without entitling you to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR SERVICES
You shall pay all fees for our Services as specified in- executed Order Forms, or any other agreement signed by you and AnyPresence. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on Services purchased and payment obligations are non-cancelable and fees paid are non-refundable. You shall pay to AnyPresence the fees for the Services within net 30 days of the date of invoice. You shall have no right to withhold or reduce fees under these Terms or set off any amount against fees owed for alleged defects in the Service. All fees not paid when due shall accrue interest at the lesser of 1.0% per month or the maximum rate allowed under applicable law.
All information that you provide to register with AnyPresence, Inc. including your credit card information is subject to AnyPresence 's Privacy Policy. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable at the beginning of the Initial Subscription Term and all subsequent Billing Periods, including upgrades. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. We accept the following credit cards at this time: Visa, MasterCard, American Express, or Paypal. For your convenience and continuous subscription benefits as a customer, if your payment method reaches its expiration date and you do not edit your credit card information or cancel your account, you authorize us to continue billing that credit card on file including extending the expiration date until we are notified by you or the credit card company that the account is no longer valid.
If any amount owed by you under these Terms or any other agreement for our Services is 30 or more days overdue, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend our services to you until such amounts are paid in full.
Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with your purchase of Services. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.
7. SUSPENSION AND TERMINATION OF USE OF THE SERVICE
These Terms shall remain in effect until all executed Order Forms have expired or been terminated (the “Term”). Subscriptions purchased by you commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein (see Section 17). Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The price or cost during any such renewal term shall be the same as that during the prior term unless we have given you written notice of a pricing increase at least 45 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
A party may terminate any Order Form for cause: (i) upon 30 days written notice to the other party of a material breach of these Terms or such Order Form if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Upon any termination for cause by us, you shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
Upon request by you made within 10 days after the effective date of termination of a paid Services subscription, we will make reasonable efforts to provide access to your account to extract your Content and other customer-specific configurations. After a 30-day period, we shall have no obligation to maintain or provide any of your Content and shall thereafter, unless legally prohibited, delete all of your Content in Our systems or otherwise in our possession or under our control.
Upon termination or expiration of all Order Forms all licenses or license keys granted to Customer to any and all AnyPresence Services and to any and all Third-Party Components shall immediately terminate. Customer retains ownership of the Customer Applications.
We reserve the right to suspend your access to or use of the Service for: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause AnyPresence to have legal liability or disrupt others' use of the Services; (c) the suspicion or detection of any malicious code, virus or other harmful code by you or in your account; (d) scheduled downtime and recurring downtime; (e) unplanned technical problems and outages. You acknowledge that if your access to the Service is suspended, you may no longer have access to the Content that is stored with the Service.
Upon termination by AnyPresence, for reasons other than cause, you may request access to your Content and/or data, which we will make available for an additional fee. You must make such request with five (7) calendar days following termination. Otherwise, any Content and/or Data you have stored with the Service will not be retrievable, and we will have no obligation to maintain any data stored in your account.
In addition to other termination provisions, if your account it not currently subject to a paid subscription plan with us, we at our discretion may terminate your account if: (a) you do not engage in any activity in your account within thirty (10) days after becoming a User; or (b) you do not engage in any activity in your account for any period of forty-five (45) consecutive days. In the event of such termination, any Content you may have stored will be lost.
8. UPDATES TO THE SERVICE
AnyPresence will make reasonable efforts to notify you of updates to the Services, however we reserve the right, in our sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Service at any time. We may add or remove functionalities or features. If you are using a download based Software from AnyPresence, you will be required to install the most current version of our Software to both receive support from AnyPresence and remain in compliance with this agreement or Terms.
9. SOFTWARE
If you receive Software from us, its use is governed in one of two ways: If you are presented with license terms that you must accept in order to use the Software, those terms apply; if no license is presented to you, these Terms apply. We reserve all other rights to the Software.
We may automatically check your version of the Software. We may also automatically download to your computer or device new versions of the Software.
Any Software is licensed, not sold. Unless we notify you otherwise, the Software license ends when your Service ends. You must then promptly uninstall the Software, or we may disable it. You must not work around any technical limitations in the Software.
The Software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the Software without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department's compliance list at http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern. You represent and warrant that you're not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
10. PROPRIETARY RIGHTS
As between AnyPresence and you, AnyPresence or its licensors own and reserve all right, title and interest in and to the Service and AnyPresence IP, other than the rights explicitly granted to you to use the Service in accordance with this Terms and any Customer Applications. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by AnyPresence. As between us and you, you own all rights, title and interest in and to all Customer IP. In the event that you provide comments, suggestions and recommendations to AnyPresence with respect to the Service (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Service) (collectively, "Feedback"), you hereby grant to AnyPresence a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Service.
11. PRIVACY
In order to operate and provide the Service, we collect certain information about you. As part of the Service, we may also automatically upload information about your computer or device, your use of the Service, and Service performance. We use and protect that information as described in the privacy policy located at http://www.anypresence.com/privacy/ ("Privacy Policy"). You further acknowledge and agree that we may access or disclose information about you, including the Content, in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect the rights or property of AnyPresence or our customers, including the enforcement of our agreements or policies governing your use of the Service; or (c) act on a good faith belief that such access or disclosure is necessary to protect the personal safety of AnyPresence employees, customers, or the public.
We retain the right to block or otherwise prevent delivery of any type of file, email or other communication to or from the Service as part of our efforts to protect the Service, protect our customers, or stop you from breaching these Terms.
12. WARRANTY DISCLAIMER
EXCEPT AS PROVIDED IN THE ANYPRESENCE SERVICE LEVEL AGREEMENT AVAILABLE AT WWW.ANYPRESENCE.COM/SERVICE LEVELS, ANYPRESENCE PROVIDES THE SERVICE AS IS, WITH ALL FAULTS AND AS AVAILABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANYPRESENCE MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
ANYPRESENCE'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ANYPRESENCE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
13. INDEMNIFICATION
To the extent permitted by law, you will defend, indemnify and hold AnyPresence harmless against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content provided by you, or your use of the Service, in breach of these Terms: (a) infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of AnyPresence's actions); or (b) violates applicable law or these Terms. AnyPresence will reasonably notify you of any such claim or demand that is subject to your indemnification obligation.
14. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ANYPRESENCE, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF ANYPRESENCE HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF ANYPRESENCE AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO AN AMOUNT EQUAL TO THREE MONTHS OF YOUR SERVICE FEE FOR THE SERVICE. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.
15. GOVERNING LAW; LOCATION FOR RESOLVING DISPUTES
The laws of the State of Virginia, U.S.A. govern the interpretation of these Terms and apply to claims for breach of these Terms, regardless of conflict of laws principles. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will, only to the extent required by applicable law, be subject to the laws of your state of residence in the United States, or, if you live outside the United States, the laws of the country in which you reside. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts for Fairfax County, Virginia, USA, for all disputes arising out of or relating to these Terms. AnyPresence may assign this contract to another entity at any time with or without notice to you.
16. NOTICES
We may send you, in electronic form, information about the Service, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Service or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don't consent to receive notices electronically, you must stop using the Service. You may provide legal noticed to us via email to support@anypresence.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: AnyPresence, Inc. Attn: CFO’s Office. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
17. SUBSCRIPTION PERIOD AND REFUNDS
The Service may be available to you on an annual subscription period basis.
Annual Subscription Plan -- The subscription period for the Annual Subscription Plan will be one year and will automatically renew each year on the anniversary of your Annual Subscription Plan unless you cancel your Annual Subscription Plan in accordance with these Terms at least ten (10) days prior to your renewal date. You will be billed annually for the Annual Subscription Plan on or about the same day each year until such time that you cancel your Annual Subscription Plan. For the avoidance of doubt, please note, you will not be permitted to cancel, reduce the number of seats, or downgrade the AnyPresence Service you have selected until the anniversary of your Annual Subscription Plan. There will be no refunds for Annual Subscription Plan payments. Please be certain you are committing to a one (1) year period if you select the Annual Subscription Plan.
18. COPYRIGHT COMPLAINTS AND REMOVAL POLICY
AnyPresence does not tolerate Content that appears to infringe any copyright or other Intellectual Property Rights or otherwise violates these Terms and will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. We reserve the right to delete or disable Content alleged to violate these Terms and to terminate repeat infringers. Our designated agent for notice of alleged copyright infringement is: DLA Piper LLP
19. INTELLECTUAL PROPERTY NOTICES
All contents of the Site and Services including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright © AnyPresence, and/or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved.
AnyPresence and the AnyPresence logo are including without limitation, either trademarks, service marks or registered trademarks of AnyPresence, Inc., and may not be copied, imitated, or used, in whole or in part, without AnyPresence's prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners.
AnyPresence may have patents, patent applications, trademarks, copyrights, or other Intellectual Property Rights covering subject matter that is part of the Service. Unless we have granted you licenses to our intellectual property in these Terms, our providing you with the Service does not give you any license to our intellectual property. Any rights not expressly granted herein are reserved.
20. MISCELLANEOUS
20.1. Severability; Entire Agreement.
These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms will remain in effect. This is the entire contract between you and us regarding the Service. It supersedes any prior contract or oral or written statements regarding your use of the Service.
20.2. Changes.
We reserve the right to revise these Terms from time to time. We will date and post the most current version of these Terms on the AnyPresence website. Any changes will be effective upon posting the revised version of these Terms (or such later effective date as may be indicated at the top of the revised Terms). If in our sole discretion we deem a revision to these Terms to be material, we will notify you via the Service and/or by email to the email address associated with your account. Notice of other changes may be provided via the Site or related AnyPresence blogs or social media outlets. Therefore, we encourage you to check the date of these Terms whenever you visit the Site to see if these Terms have been updated. Your continued access or use of any portion of the Service constitutes your acceptance of such changes.
20.3. Assignment and transfer.
We may assign, transfer, or otherwise dispose our rights and obligations under these Terms or any Order Form or SOW, in whole or in part, at any time without notice. You may not assign these Terms or any Order Form or SOW or transfer any rights to use the Service.
20.4. Independent Contractors; No third-party beneficiaries.
AnyPresence and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.
20.5. Claims.
You must bring any claim related to these Terms or the Service within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it isn't filed in time, the claim is permanently barred.
20.6 Waiver.
The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
20.7 Government Use.
If you are a U.S. government entity, you acknowledge that any Software and User Guides that are provided are "Commercial Items" as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
21. Definitions
Unless otherwise defined herein, capitalized terms used herein shall have the following meaning:
“Account Data” means information about yourself, your company, or your organization as requested during the registration or access granting process.
“AnyPresence IP” means the AnyPresence Platform, AP Applications, the AP Libraries, and any other AnyPresence proprietary software, information, document templates, and project tools, including, without limitation, the look, feel, and user interface designs, architecture, class libraries, and documentation and any and all updates, upgrades, improvements, derivative works or modifications thereof.
“AnyPresence Platform” means the web-based design-time environment, and all related software, including associated offline components, but excluding Third-Party Applications, which offers You a development platform to assemble, generate and deploy cross-platform mobile apps, SDK libraries, and a backend server.
“AP Application” means a pre-built application available from the AnyPresence Platform.
“API” means application programming interface.
“AP Libraries” means any and all AnyPresence libraries (e.g., push notification extension, pre-built database connectors, etc.) and other common components within the Customer Applications which are necessary to run applications generated from the AnyPresence Platform, and which may be used across multiple apps and customers.
“Content” means all electronic data or information submitted or stored by You to the Services or using the Services.
“Customer Application” means any and all mobile applications and backend servers built through use of the AnyPresence Platform, (i.e., Customer- specific object definitions, Customer-specific custom business logic, other Customer-specific configurations, and user interface elements included in any such applications and generated by the AnyPresence Platform), but excluding at all times any AnyPresence IP or Third-Party Components that may be contained in such applications.
“Customer IP” shall mean all Content and Customer Applications. Customer IP shall exclude at all times all AnyPresence IP included within any such applications (e.g., AP Libraries), and all Third-Party Components.
“Hosting Services” means the hosting of a production instance of the Customer Application(s) by AnyPresence on behalf of Customer.
"Intellectual Property Rights” means any and all rights existing from time to time under patent, copyright, trademark, trade secret, unfair competition, moral rights, publicity rights, or privacy rights laws, and any and all other proprietary rights.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering documents for purchases of Services hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
“Professional Services” means all software implementation, training, configuration, data migration, consulting and/or professional services performed by or on behalf of AnyPresence for Customer.
"Services" means access to the AnyPresence Platform, AP Applications, AP Libraries, APIs, Hosting Services, Professional Services, Software, and all other products or services provided by AnyPresence that are described in an Order Form and/or Statement of Work.
“Site” means www.anypresence.com.
“SOW” means a statement of work executed by the parties that specifies the Professional Services to be performed by AnyPresence and such other terms as the parties may agree.
“Term” shall have the meaning as set forth in Section 7 of the Agreement.
"Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the AnyPresence Platform, and are identified as third-party applications.
“Third-Party Components” means any third party software necessary for use of the Services, including but not limited to any Customer Applications, and shall include open source software and third party proprietary software licenses as identified by AnyPresence from time to time during the Term.
"User" means an individual who is authorized by you to use the Services, for whom subscriptions to a Platform Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees.
"User Guide" means the online documentation for the Services, accessible via http://docs.anypresence.com/ as updated from time to time.
“User Group” means a department, division, company, enterprise, or any other declared logical grouping of users who have licensed or have subscribed to the Services.