Subscription Agreement

1.1. The Anomalo Subscription Agreement (“this Agreement”) allows you or the organization you represent (“the Customer”) to use Services as provided below and describes the contractual relationship between the Customer and Anomalo, Inc. arising from the use of Anomalo Products.

1.2. THE CUSTOMER CAN USE SERVICES ONLY IF YOU READ, UNDERSTAND, AND ACCEPT THIS AGREEMENT AND HAVE THE AUTHORITY TO ACCEPT THIS AGREEMENT ON CUSTOMER’S BEHALF. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO.

1.3. The Customer accepts this Agreement by executing an applicable Order or clicking “I accept” or similar terms to accept these terms when first downloading, installing, using, or accessing Services, or directing anyone else to download, install, use, or access Services on the Customer’s behalf. These terms are available at https://anomalo.com/legal/subscription.

2.1. “Anomalo IP” means the Services, Documentation, Services Feedback, Anonymous Training Data, Logging Data, and all modifications and derivative works of the foregoing, as well as all related intellectual property rights. Anomalo IP does not include Customer Data or Customer’s Confidential Information.

2.2. “Anonymous Training Data” means data and information related to Customer’s use of the Services that Anomalo collects and uses in an aggregated and anonymized manner, including without limitation data collected to compile statistical and performance information related to the provisioning and operation of the Services. Anonymous Training Data does not include Customer Data.

2.3. “Authorized Reseller” means a reseller, distributor, or other partner that Anomalo has authorized to resell Services and accept an Order with the Customer for Services. Authorized Resellers include without limitation authorized marketplaces such AWS Marketplace and GCP Marketplace.

2.4. “Authorized User” means Customer’s employees, officers, contractors, advisors, affiliates, service providers, and agents who Customer authorizes to access and use the Services as allowed under this Agreement.

2.5. “Customer Data” means data, information, and other content or material that is provided, uploaded, submitted, or made available by the Customer to the Services or otherwise accessed by the Services. Customer Data does not include Anomalo IP.

2.6. “Data Protection Law” means Data Protection Laws as defined in the DPA.

2.7. “Data Quality Service” means the monitoring Services that Anomalo provides for daily monitoring of the data in the Customer’s data warehouse to identify anomalies and data quality issues with any newly added data.

2.8. “Documentation” means Anomalo’s user manuals, handbooks, guides, and other training or supporting documentation relating to the Services provided by Anomalo to the Customer either electronically or in hard copy form.

2.9. “DPA” means the Anomalo Data Processing Addendum that is available at https://anomalo.com/legal/dpa.

2.10. “Effective Date” means the date the Customer first accepts this Agreement pursuant to the processes provided under Section 1 and 3. If an Effective Date is specified in the Customer’s acceptance, that date shall be the Effective Date. Otherwise, the Effective Date shall be the date of the last signature effecting Customer’s acceptance.

2.11. “Fees” means all amounts paid or payable by the Customer under this Agreement, including through an applicable Order.

2.12. “Harmful Code” means any computer code or other computer instructions, devices, or techniques, including without limitation those known as disabling devices, trojan horses, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, or damages Customer’s network or computer systems. Harmful Code does not include code Anomalo intentionally includes for the purpose of accessing or using, or facilitating access to or use of, Services, suspending access or use of Services, or providing support, each in accordance with terms and conditions of this Agreement.

2.13. “Logging Data” means data and information describing the status or runtime performance of the Services, including without limitation detailed runtime logs and data relating to tracking of Customer’s engagement with any user interface included in the Services. Logging Data does not include Customer Data or Customer’s Confidential Information.

2.14. “MSP Partner” means a managed services provider (MSP), an original equipment manufacturer (OEM) partner, or similar partner authorized by Anomalo to provide or manage Services to the MSP Partner’s end customers.

2.15. “Order” means an ordering instrument or other writing that incorporates these terms by reference and is either accepted by the Company and Anomalo or accepted by the Company and an Authorized Reseller. For example, Orders may include executed order forms and quotes issued by Anomalo and accepted by the Customer with a purchase order.

2.16. “Party” means either Anomalo or Customer, and “the Parties” mean both Anomalo and Customer.

2.17. “Personal Data” means Personal Data as defined in the DPA.

2.18. “Services” means Anomalo’s subscription-based software, software-as-a-service, or other products and services as provided in applicable Orders and Schedules. Any software that is distributed or otherwise provided to the Customer hereunder (including without limitation any software identified in an Order) shall be deemed to be part of “Services” and subject to this Agreement except as specifically provided in an Order.

2.19. “Services Feedback” means any communication or materials sent to Anomalo by the Customer or any of its employees, contractors, or other agents by mail, email, telephone or otherwise that suggests or recommends changes to Anomalo IP, including without limitation new features or functionality. Services Feedback includes without limitation comments, questions, and similar statements related to such suggestions or recommendations, but does not include Customer Data or Customer’s Confidential Information that may have been included with such feedback.

2.20.“Service Suspension Grounds” means the occurrence of one or more of the following events:

2.21. “Subscription Term” means the period the Customer may access and use Services as provided in an applicable Order.

2.22. “Table Observability Service” means the monitoring Services that Anomalo provides for hourly monitoring of the metadata from the Customer’s data warehouse to detect issues with data freshness, data volume, and unexpected schema changes.

2.23. “Trial Services” means Services that Anomalo may offer to the Customer on an evaluation, trial, testing, beta access, or free-to-Customer basis.

3.1. Order Process. The Customer and Anomalo may execute an Order to obtain Services described in the Order for the use of such Services for the Subscription Term. All Orders are subject to this Agreement and applicable Schedules described below. Orders are not cancellable and, except as provided in this Agreement, not refundable.

3.2. Schedules. The Customer’s use of certain Services is subject to applicable Schedules that are incorporated into and subject to this Agreement, including Schedules based on deployment types, different Services, and Trial Services. Schedules not attached to this Agreement shall be executed separately, appended to, or incorporated by reference into an applicable Order. Multiple Schedules may apply to an Order depending on the nature of the Services. Applicable Schedules shall be specified in an applicable Order or otherwise through the operation of this Agreement.

3.3. Orders Through Authorized Resellers and Marketplaces. An Order through an Authorized Reseller are subject to this Agreement except as to Section 8 (Fees and Payment) and except as agreed by Anomalo in writing. All references to an Order in this Agreement shall refer to an ordering document between the Customer and the Authorized Reseller or Marketplace. Any terms or conditions agreed to between the Customer and an Authorized Reseller that are in addition to, or in conflict with, this Agreement are not binding on Anomalo and have no force or effect with respect to Anomalo.

3.4. Orders Through MSP Partners. An Order through an MSP Partner shall be subject to such terms, conditions, and product configurations as may be applicable to Services provided through the given partner. This Agreement shall govern the use of Services by a Customer’s end user through an MSP Partner except as agreed by Anomalo in writing. Any terms or conditions agreed to between Customer and an MSP Provider that are in addition to this Agreement are not binding on Anomalo and have no force or effect with respect to Anomalo.

4.1. License. Subject to Customer’s full compliance with all terms and conditions of this Agreement, Anomalo grants Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15.2) license to access and use the Services and Documentation during the applicable Subscription Term, as provided in this Agreement, applicable Schedules, and applicable Orders, solely for Customer’s internal use and benefit. For Services, Customer’s use shall be in accordance with applicable Documentation and all acceptable use policies that Anomalo may provide from time to time. For Documentation, Customer’s use shall be solely in connection with the use of Services under an applicable Order.

4.2. Reservation of Rights. Anomalo retains all right, title, and interest in and to Anomalo IP and all software, software-as-a-service, products, work and other intellectual property and moral rights related to Anomalo IP or otherwise created, used, or provided by Anomalo for the purposes of this Agreement, including any copies and derivative works of the foregoing. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third-party any intellectual property rights or other right, title, or interest in or to Anomalo IP.

4.3. Provision of Services. Anomalo shall provide to Customer the necessary passwords, network links, connections, or other access information to allow Customer to access the Services. Anomalo may in its sole discretion modify, enhance, or otherwise change the Services, provided that such changes do not materially limit or adversely affect the Services provided to Customer under this Agreement.

4.4. Use Restrictions. Customer shall not directly or indirectly: (1) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code, or underlying structure, ideas, algorithms, or other software components of the Services or any software, Documentation, or data provided by Anomalo, each except to the extent allowed where this restriction is prohibited by applicable law; (2) copy, reproduce, modify, translate, or create derivative works of the Services or Documentation, in whole or in part; (3) use or access the Services for timesharing or service bureau purposes, use Services for the benefit of any third party, use Services to process data for any third party, or use or access Services for any purpose other than for the internal use and benefit of Customer as set forth in this Agreement, each except as specifically provided in an applicable Order; (4) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, display, transfer, or otherwise make available the Services or Documentation to any third-party; (5) alter, remove, obscure, or destroy any product identification, proprietary marks, copyright, or other notices from the Services or Documentation; (6) use or permit the use of the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including without limitation applicable laws and regulations related to privacy, intellectual property, consumer and child protection, obscenity, or defamation); (7) make the Services available to anyone other than Authorized Users or otherwise use Services in excess of contractual use limits as provided in this Agreement, any applicable Schedule, or any applicable Order, (8) bypass, delete, or disable copy protection or security mechanisms associated with the Services or otherwise use Services in any manner that circumvents or attempts to circumvent use limits or technological access control measures; or (9) permit any Authorized User, person, entity, or third party to do any of the foregoing.

4.5. Suspension. Notwithstanding anything to the contrary in this Agreement, Anomalo may temporarily suspend Customer’s use or access to any or all the Services if any Service Suspension Ground occurs (“Service Suspension”). Anomalo shall use commercially reasonable efforts to provide prior notice of any Service Suspension and to provide updates regarding resumption of access to the Services following any Service Suspension. Anomalo shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension Ground is cured. Anomalo will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur because of a Service Suspension. Customer will remain responsible for all Fees incurred through a Service Suspension.

5.1. Service Availability. Subject to this Agreement and Schedule 4 – Service Availability, Anomalo shall use commercially reasonable efforts to make the Services available as provided in the applicable Schedule (“Service Availability”). Commercially reasonable efforts allow for Service Suspensions as provided in Section 4.4 above and other Permitted Downtime as provided in an applicable Schedule.

5.2. Support. Subject to this Agreement and Schedule 5 – Support, Anomalo will grant access to Services and provide assistance over e-mail or chat for the purpose of allowing the Customer to use the Services as documented.

6.1. Safeguards for Services. Anomalo will maintain reasonable administrative, physical, and technical safeguards for the Services to protect against the accidental or unauthorized access, use, alteration, or disclosure of Customer Data processed or stored on a computer or other information technology resource or service owned or controlled by Anomalo in connection with the Services (“Safeguards”). Such Safeguards include the mechanisms and procedures described in Anomalo’s Privacy Policy available at https://anomalo.com/legal/privacy as Anomalo may update from time to time in its sole discretion and without notice.

6.2. Security Incidents. Anomalo will notify Customer of an actual or attempted access or use of Customer Data by an unauthorized third party within twenty-four (24) hours of the discovery of the actual or attempted access or use (“Security Incident”).

6.3. Protection for Personal Data. If Customer uses Services to process Customer Data that includes such Personal Data, the DPA shall apply and be incorporated by reference into this Agreement to extent that it applies to Personal Data processed by Anomalo through Services.

7.1. Generally. Customer shall only allow access and use of Services by its Authorized Users. Customer is responsible and liable for all uses of Anomalo IP resulting from Customer’s use of Anomalo IP and all use allowed by Customer, including without limitation as to Services, as to all acts and omissions of Authorized Users, and as otherwise provided in this Agreement. All references in this Agreement to Customer’s use of Services includes access or use by its Authorized Users and any other access or use by Customer or its employees, officers, contractors, advisors, affiliates, service providers, and agents.

7.2. Prevention of Unauthorized Use. Customer will use reasonable efforts to prevent any unauthorized use of the Services and will promptly notify Anomalo of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use.

7.3. Third-party Services. Services may be operated on, with, or using application programming interfaces (APIs) or other services operated or provided by third parties (“Third-party Services”). Third-party Services also include services that Customer may be required to obtain and maintain to use the Services. Anomalo is not responsible for the operation of any Third-party Services nor the availability or operation of the Services to the extent such availability and operation are dependent upon Third-party Services. Customer is solely responsible for procuring all rights necessary for it to access Third-party Services and for complying with any applicable terms or conditions for such Third-party Services. Anomalo does not make any representations or warranties with respect to Third-party Services or any third-party providers and is not responsible for any charges or other liabilities related to Third-party Services, including as to liabilities arising from Customer’s use or misuse of such Third-party Services. Any exchange of data or other interaction between Customer and a Third-party Service is solely between Customer and such Third-party Service and is governed by such Third-party Service’s terms and conditions.

8.1. Fees. Customer shall pay Anomalo the Fees as set forth in this Agreement or an applicable Order without offset or deduction. Customer shall make all payments in United States Dollars on or before the due date set forth in the applicable Order. If Customer fails to make any payment when due, without limiting Anomalo’s other rights and remedies: (1) Anomalo may charge interest on the past due amount at the rate of 1% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (2) Anomalo may suspend Customer’s access to any portion or all of the Services until such amounts are paid in full if Customer’s failure to pay continues for ten (10) days or more; and (3) Customer shall reimburse Anomalo for all costs incurred by Anomalo in collecting late payments or interest, including attorneys’ fees, court costs, and collection agency fees.

8.2. Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority, on any amounts payable by Customer under this Agreement other than taxes imposed on Anomalo’s income.

8.3. Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Subscription Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Anomalo may, at its own expense, on reasonable prior notice, inspect and audit Customer’s records with respect to matters covered by this Agreement (“Audit”) at any time during the Subscription Term and for a period of two years after the termination or expiration of this Agreement. If such Audit reveals that Customer has underpaid Anomalo with respect to any amounts due and payable for the Subscription Term, Customer shall promptly pay the amount necessary to rectify such underpayment, together with interest as provided in Section 8(a), as well as the costs of the Audit if the Audit determines that Customer’s underpayment equals or exceeds 5% for the Subscription Term.

9.1. Confidential Information. From time to time during the Subscription Term, Anomalo and Customer may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in writing, electronic, or other form or media, that the receiving Party should reasonably deem as confidential, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure, is: (1) in the public domain or subsequently enters the public domain through no action or inaction of the receiving Party; (2) known to the receiving Party at the time of disclosure; (3) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (4) independently developed by the receiving Party without use or reference to the disclosing Party’s Confidential Information.

9.2. Use of Confidential Information. The receiving Party shall not, without the prior written consent of the disclosing Party, use the disclosing Party’s Confidential Information for any purpose other than as expressly allowed by this Agreement or disclose the disclosing Party’s Confidential Information to any person or entity except the receiving Party’s employees or other agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to (a) comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order, or (b) establish or prosecute a Party’s rights under this Agreement, including by making court filings that include Confidential Information.

9.3. Customer Data. Customer shall retain all right, title, and interest in and to the Customer Data, including all intellectual property rights. Anomalo may internally use Customer Data for the purpose of providing Services to Customer and as otherwise provided by this Agreement. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of Customer Data. Customer is solely responsible for ensuring it has sufficient right to use Customer Data, including as to processing Customer Data through Services.

9.4. Use of Personal Data. To the extent that Customer Data includes Personal Data, Anomalo will (1) process, retain, use, and disclose such Personal Data only as necessary to provide Services and as otherwise permitted under this Agreement, (2) not retain, use, or disclose such Personal Data for any commercial purposes other than as permitted under this agreement, and (3) not sell such Personal Data to any third-party.

9.5. Anonymous Training Data. Anomalo may (1) collect and internally use and create modified copies of, but not disclose to any third party, Customer Data for the purpose of generating Anonymous Training Data, and (2) use such Anonymous Training Data for any purpose, including without limitation to improve, evaluate, test, operate, promote, and market the Services or Anomalo’s other products and services for the Customer, other customers, or any third party, as well as otherwise for Anomalo’s business purposes.

9.6. Logging Data. Anomalo may collect, use, and disclose Logging Data for any purpose.

9.7. Services Feedback. Anomalo may collect, use, and disclose Services Feedback for any purpose.

9.8 Confidential Information and Customer Data on Termination. On the expiration or termination of this Agreement, the receiving Party shall promptly delete or return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information except as required under applicable law or required for the receiving Party’s ordinary record keeping procedures. Anomalo will delete all copies of Customer Data, whether in written, electronic, or other form or media, upon the expiration or termination of this Agreement. Each Party’s confidentiality and non-use obligations regarding Confidential Information are effective as of the Effective Date and expire five years from the date first disclosed to the receiving Party except as to Confidential Information that constitutes a trade secret as determined under applicable law, for which such confidentiality and non-use obligations shall survive for as long as such Confidential Information remains subject to trade secret protection under applicable law. Notwithstanding anything to the contrary in this Agreement, Anomalo may delete Customer Data if Customer’s account becomes ninety (90) days or more delinquent.

10.1. General. Anomalo and Customer each represent and warrant that (1) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization; (2) it has full power and authority to enter into this Agreement and carry out its performance under this Agreement; (3) its performance under this Agreement do not conflict with any other agreement to which it is or will be a party or by which it is otherwise bound; and (4) its performance under this Agreement will not violate applicable laws or regulations.

10.2. Anomalo’s Warranties. Anomalo represents and warrants that (1) Services will perform in material conformance with the Documentation, (2) it will not knowingly include in Services released to the public and provided to the Customer under this Agreement any Harmful Code, and (3) it will provide support under this Agreement in a professional and workmanlike manner. Customer’s sole remedy for any failure by Anomalo to meet the warranties in this Section 10.2, and Anomalo’s sole liability for such failures, shall be for Anomalo to use commercially reasonable efforts to correct the failure.

10.3. Customer’s Warranties. Customer represents and warrants that it has all rights necessary to provide Customer Data to Anomalo pursuant to this Agreement without any infringement, violation, or misappropriation of any third-party rights, including without limitation intellectual property rights and rights of privacy.

10.4. Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET OUT IN THIS SECTION 10, ANOMALO PROVIDES ANOMALO IP “AS IS” AND ANOMALO HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ANOMALO DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEAL, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ANOMALO DOES NOT WARRANT THAT ANOMALO IP, OR ANY RESULTS OF THE USE OF ANOMALO IP, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, OPERATE WITHOUT INTERRUPTION, BE COMPATIBLE OR WORK WITH ANY SERVICES, SOFTWARE, OR SYSTEM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

11.1. Indemnification by Anomalo. Anomalo shall indemnify, defend, and hold harmless Customer from and against all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) incurred by Customer (“Losses”) resulting from any third-party claim, suit, action, or proceeding (“Third-party Claim”) that the Services infringe or misappropriate such third party’s intellectual property rights, including without limitation rights related to patents, copyrights, or trade secrets (“IP Indemnification”).

11.2. Indemnification by Customer. Customer shall indemnify, hold harmless, and, at Anomalo’s option, defend Anomalo from and against any Losses resulting from (1) any Third-party Claim that Customer Data infringes or misappropriates such third-party’s intellectual property rights, including without limitation rights related to patents, copyrights, or trade secrets; (2) any Third-party Claim excluded from indemnity obligation in Section 11.1 above; (3) any Third-party Claim arising from Customer’s negligence or willful misconduct; and (4) any Third-party Claim arising from Customer’s use of Services not authorized under this Agreement. Customer cannot settle any Third-party Claim against Anomalo under this sub-division unless Anomalo consents to such settlement. Anomalo has the right, at its option and expense, to defend itself against any such Third-party Claim or to participate in the defense by counsel of its own choice.

11.3. Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES—AND ANOMALO’S SOLE LIABILITY AND OBLIGATIONS—FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

12.1. Liability Cap. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ANOMALO OR CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO ANOMALO UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12.2. Waiver of Indirect Liabilities. IN NO EVENT WILL ANOMALO OR CUSTOMER BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (1) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (2) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (3) LOSS OF GOODWILL OR REPUTATION; (4) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (5) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ANOMALO WAS ADVISED O THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSS OR DAMAGES WERE OTHERWISE FORESEEABLE.

12.3. Exclusions. THE FOREGOING LIMITATIONS IN THIS SECTION 12 SHALL NOT LIMIT THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11, DAMAGES ARISING OUT OF THE BREACH OF CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 9 BY EITHER ANOMALO OR CUSTOMER, OR DAMAGES ARISING OUT OF THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF EITHER ANOMALO OR CUSTOMER.

13.1. Term. The term for this Agreement shall continue for one year from the Effective Date or as otherwise provided in an applicable Order. This Agreement will automatically renew for successive year terms unless earlier terminated as provided in this Section 13 or, if no Orders are active or pending, either Anomalo or Customer gives notice of non-renewal at least sixty (60) days prior to the expiration of the current one-year term. The term for Orders shall be for the Subscription Term as provided in applicable Orders and Schedules unless earlier terminated as provided in this Section 13.

13.2. Termination for Breach or Insolvency. In addition to any other express termination right provided in this Agreement (1) either Party may terminate this Agreement or any applicable Order, effective on written notice to the other Party, if the other Party materially breaches this Agreement and fails to cure its breach within thirty (30) days of receiving written notice of such breach (or ten (10) days for breach based on Customer’s failure to pay any amount when due); and (2) either Party may terminate this Agreement or any applicable Order, effective on written notice to the other Party, if the other Party (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (b) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject to any proceeding under applicable bankruptcy or insolvency law, (c) makes or seeks to make a general assignment for the benefit of its creditors, or (d) applies for has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge or sell any material portion of its property or business.

13.3. Refund on Termination. Upon termination of this Agreement or an applicable order for any reason before the end of the Subscription Term, Anomalo will provide a pro-rated refund to Customer based on the date of termination to the end of the applicable Subscription Term. No expiration, early termination, or Service Suspension will affect Customer’s obligation to pay all Fees that have become due before such expiration or termination or related to such Service Suspension.

13.4. Other Effects on Expiration or Termination. In addition to any other express effects expressly provided by this Agreement, upon the expiration or early termination of this Agreement, Customer shall immediately discontinue all use of Anomalo IP and Customer shall delete, destroy, or return all copies of Anomalo IP and certify in writing to Anomalo that the Anomalo IP has been deleted, destroyed, or returned.

13.5. Survival. This Section 13 and Sections 2, 7, 8, 9, 10, 11, 12, and 14 shall survive the expiration or termination of this Agreement. No other provisions of this Agreement survive the expiration or termination of this Agreement.

14.1. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any part of any of the provisions of this Agreement will be effective unless expressly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement (1) no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver of this Agreement and (2) no single or partial exercise of any right, remedy, power, or privilege arising from this Agreement will preclude any other or further exercise or the exercise of any other right, remedy, power, or privilege.

14.2. Assignment. Neither Anomalo nor Customer may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which shall not unreasonably withhold, condition, or delay such consent, except that either Party may assign this Agreement without consent of the other Party to the assigning Party’s successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning Party of any of its obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.

14.3. Conflict. In the event of a conflict between this Agreement and an Order or a Schedule, this Agreement shall control unless the Order or Schedule expressly overrides a specific term or terms in this Agreement. In the event of a conflict between an Order and a Schedule, the Schedule shall control unless the Order expressly overrides a specific term or terms in the Schedule. In the event of a conflict between this Agreement, Order, or Schedule with the DPA, the DPA will control unless this Agreement, Order, or Schedule expressly overrides a specific term or terms in the DPA.

14.4. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

14.5. Entire Agreement. This Agreement, together with any other documents incorporated by reference and all applicable Orders and Schedules, constitute the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to the subject matter. No terms or conditions included in a purchase order or other similar instrument issued by Customer shall have any effect.

14.6. Equitable Relief. The breach or threatened breach by either Party of any of its obligations under this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy. In the event of such breaches or threatened breaches, the other Party will be entitled to equitable relief, including a restraining order, injunction, specific performance, and any other relief that may be available from any court, without having any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

14.7. Export Regulation. The Services utilize software and technology that may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction, country, or person to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the United States.

14.8. Force Majeure. In no event shall either Party be deemed to have breached this agreement, or be otherwise liable to the other Party under this Agreement, for any failure or delay in performing its obligations under this Agreement, except for any obligations to make payments, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or the passage of law or any action taken by a governmental or public authority, including the imposition of an embargo.

14.9. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the city of San Francisco. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

14.10. Notice. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, “a Notice”) must be in writing and addressed to the applicable Party at the address set forth in this Agreement or an applicable Order, or to such other address or mechanism that may be designated by the Party to receive a Notice from time to time in accordance with this Section. All Notices must be delivered by personal delivery, a nationally recognized overnight courier with all fees prepaid, certified or registered mail with return receipt requested and postage fees prepaid, or email. Except as otherwise provided in this Agreement, a Notice is only effective (1) upon actual receipt of the Notice by the receiving Party (or attempted delivery in the case of a refusal to receive the Notice), and (2) the Party giving Notice has complied with the requirements of this Section. For email, actual receipt of the Notice occurs at the time of initial delivery by email when followed by either a written confirmation of receipt, read receipt, or automatic reply.

14.11. Relationship. Anomalo and Customer are independent contractors to each other and nothing in this Agreement or any Schedule or Order shall be construed to create a partnership, joint venture, agency, employer-employee, or other relationship. Neither Anomalo nor Customer has the authority to act for, bind, or incur any debts or liabilities on behalf of the other. There are no third-party beneficiaries to this Agreement.

14.12. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated in this Agreement be consummated as originally contemplated to the greatest extent possible.

14.13. U.S. Government Rights. The Documentation and each of the software components that constitute the Services are each a “commercial item” (as that term is defined at 48 C.F.R. § 2.101) consisting of “commercial computer software” and “commercial computer software Documentation” (as such terms are used in 48 C.F.R § 12.212. Accordingly, if Customer is an agency of the government of the United States, or any contractor for such an agency, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and its contractors, or (2) 48 C.F.R. § 12.212 with respect to all other agencies, contractors, and users of the United States government.