1.1 Software License. During the Term (as defined below) specified on an Order Form (which may include an online form) issued by Angler or Angler’s authorized reseller, Angler grants to the Customer identified on the Order Form a non-exclusive, non-transferable, non-sublicensable license to use the Angler Solution (as defined below) for Customer’s internal business purposes, in accordance with the end user or technical documentation provided by Angler to Customer (the “Documentation”). “Angler Solution” means the hosted version of the Angler Software which is made accessible to Customer by Angler. “Angler Software” shall mean: (a) the object code version of the software products listed on the Order Form; (b) any Documentation; and (c) any updates, upgrades, and/or modifications of the forgoing which Angler provides to Customer.
1.2 Restrictions. Except as expressly authorized in this Agreement, Customer shall not, and shall not authorize any third party to: (a) sublicense, transfer, loan, distribute, use or duplicate the Angler Solution or the Angler Software, or any portion thereof; (b) use the Angler Software by, or for the benefit of any third party; (c) modify, translate, or prepare derivative works based upon the Angler Solution or the Angler Software; (d) reverse-compile or decompile, disassemble or otherwise reverse engineer the Angler Software, except to the extent expressly required to be permitted by applicable law; (e) alter, remove, or obscure any copyright, trademark, or other proprietary notices on or in the Angler Solution or the Angler Software; (f) use the Angler Solution to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights; and/or (g) use the Angler Solution to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. Customer shall make any disclosures and obtain any consents as required by any applicable law, rule or regulation for the use, processing, transfer, disclosure, or access to Customer data by the Angler Solution. Notwithstanding any terms to the contrary in this Agreement (except for the license expressly granted in Section 1.1), as between the parties, Angler, owns all right, title and interests in and to the Angler Solution, the Angler Software, the Reports, the Learnings, and any derivative works derived therefrom, and all intellectual property rights embodied in or related to any of the foregoing.
2. PROFESSIONAL SERVICES. If Customer purchases professional services related to the Angler Solution (“Professional Services”) as set forth on the Order Form, Angler will provide those Professional Services in accordance with the SOW provided by Angler.
3. SUPPORT. Subject to Customer’s payment of the applicable Fees for the license, Angler shall provide Support for the Angler Software as set forth in Exhibit A during the Term.
4. CUSTOMER DATA. "Customer Data" means data pertaining to Customer's employees, customers, users or other individuals provided by Customer to Angler. Customer shall own all intellectual property rights in and to the Customer Data, provided that Customer grants Angler a license to Customer Data for the purposes of providing the Angler Solution. Angler will provide the security measures for the Angler Solution set forth in Angler’s then-current Security, Compliance, and Privacy Schedule. Angler will, unless legally prohibited, delete all Customer Data within thirty (30) days after any expiration or termination of this Agreement.
5. PAYMENT. Customer shall pay to Angler or Angler’s authorized reseller the Fees in the amounts and at the times specified on the Order Form or in an SOW. Excluding taxes based on Angler’s income, Customer is liable for all taxes, duties and customs fees associated with the Fees, whether or not Angler invoices Customer for them. Past due accounts shall be charged interest on a monthly basis, calculated at one and one-half percent (1.5%) per month of the unpaid balance or the maximum rate allowable by law. At the end of each calendar quarter during the Term, Angler may invoice Customer for any use of the Angler Solution in excess of the quantity for which Customer has paid Fees, prorated for the remainder of the Initial Term or then-current Renewal Term.
6. TERM AND TERMINATION
6.1 Term. This Agreement shall commence on the Effective Date and (a) if the Angler Solution is provided on an evaluation basis, shall continue for the Evaluation Term set forth on the Order Form or, if no Evaluation Term is specified, for 30 days from the Effective Date; and (b) if the Angler Solution is not provided on an evaluation basis, shall continue for the Initial Term set forth on the Order Form. At the end of the Initial Term, this Agreement will automatically renew for additional twelve (12) month terms (each, a “Renewal Term”) unless either party provides notice to the other at least sixty (60) days before the end of the Initial Term or then-current Renewal Term. Except as provided in an Order Form, the fees for any Renewal Term will be at Angler’s then-current rate. The Initial Term and any Renewal Terms are collectively the “Term”.
6.2 Termination. This Agreement may be terminated by either party: (a) upon thirty (30) days written notice if the other party materially breaches any provision of this Agreement and the breach remains uncured within that thirty (30) day period; or (b) effective immediately, if the other party ceases to do business, otherwise terminates its business operations, becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, or comparable proceeding, or if any proceeding is filed against it (and not dismissed within ninety (90) days); or (c) effective immediately, upon any breach of Section 1.2 of this Agreement.
6.3 Effect of Termination. Upon any expiration or termination of this Agreement: (a) all licenses and rights granted by Angler to Customer hereunder shall terminate; (b) Customer will cease all use of the Angler Solution and the Angler Software; (c) Customer shall immediately return to Angler or destroy the Angler Software, all duplicates, and any Angler Confidential Information in its possession or control; and (d) Customer shall pay to Angler within thirty (30) days of the date of termination any fees accrued prior to the date of termination and if this Agreement is terminated for any reason other than Angler’s uncured breach, any fees that would have been payable for the remainder of the Initial Term or then-current Renewal Term.
6.4 Survival. The provisions of Sections 1.2, 5, 6, 7, 8.3, 8.4, 9, and 10 shall survive and remain effective after the effective date of termination or expiration of this Agreement.
7.1 Angler, at its own expense (including payment of attorneys’ fees, expert fees, and court costs), shall defend Customer from any and all third party claims that the Angler Solution or the Angler Software infringes any patent or copyright or misappropriates any third party’s trade secret and shall indemnify Customer from any amounts assessed against Customer in a resulting judgment or amounts to settle claims, provided that Customer: (a) gives Angler prompt written notice of any claim; (b) permits Angler to control and direct the defense or settlement of any claim; and (c) provides Angler all reasonable assistance in connection with the defense or settlement of any claim. If Customer’s use of the Angler Solution or the Angler Software is (or in Angler’s opinion is likely to be) enjoined, Angler, at its expense and in its sole discretion, may: (a) procure the right to allow Customer to continue to use the Angler Solution and the Angler Software, or (b) modify or replace the Angler Solution or the Angler Software or infringing portions thereof to become non-infringing, or (c) terminate Customer’s right to use the affected portion of the Angler Solution or the Angler Software and refund any pre-paid, unused Fees paid therefor. Angler shall have no obligations under this Section to the extent any infringement claim is based upon or arising out of: (w) any modification or alteration to the Angler Solution or the Angler Software not made by Angler; (x) any combination or use of the Angler Solution or the Angler Software with products or services not approved by Angler in writing; (y) Customer’s continuance of allegedly infringing activity after being notified thereof; and/or (z) use of the Angler Solution or the Angler Software not in accordance with the terms of this Agreement.
7.2 Customer shall defend Angler (including payment of attorneys fees, expert fees and court costs) from any third party claims resulting from any breach of Section 1.2 provided that Angler: (a) gives Customer prompt written notice of any claim; (b) permits Customer to control and direct the defense or settlement of any claim; and (c) provides Customer all reasonable assistance in connection with the defense or settlement of any claim.
8. WARRANTY; SUPPORT; DISCLAIMER; LIMITATION OF LIABILITY.
8.1 Solution Warranty. Angler warrants to Customer that, during the Term the Angler Solution will materially perform in accord with the Documentation at the Service Level Availability found at Exhibit A (the “SLA”). Angler’s entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for Angler to provide the Service Credits as set forth in the SLA, or if in Angler’s judgment, Angler will be unable to meet the Service Level Availability, to refund the Fees paid for any period during which the Angler Solution are non-conforming and any pre-paid, unused Fees and to terminate this Agreement. The warranties in this Section 8.1 do not cover non-conformances due to: (x) any modification, reconfiguration or maintenance of the Angler Solution performed by anyone other than Angler; (y) any use of the Angler Solution on a system that does not meet Angler’s minimum standards; or (z) any network, software or hardware not provided by Angler. Angler shall be responsible under this Section 8.1 only if Customer provides Angler with a written warranty claim detailing the non-conformance in the Angler Solution within thirty (30) days of the non-conformance.
8.2 Service Warranty. Angler represents and warrants to Customer that all services provided by Angler shall be performed in a manner conforming to generally accepted industry standards and practices for similar services. Angler’s entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for Angler to re-perform the nonconforming services, provided that Angler must receive written notice of the nonconformity from Customer no later than thirty (30) days after the original performance of the services by Angler.
8.3 Evaluation License. Notwithstanding the provisions of Sections 8.1 and 8.2, if the Angler Solution is provided on an evaluation basis, Angler shall have no warranty obligations with respect thereto and Angler’s sole obligation shall be to use reasonable efforts to support Customer’s use of the Angler Solution.
8.4 To the maximum extent permitted by law, except as expressly warranted herein, the Angler Solution, the Angler Software and any other software, hardware or services provided by Angler hereunder are provided without warranties of any kind, either express or implied and all other warranties are disclaimed, including but not limited to implied warranties of merchantability or fitness for a particular purpose.
8.5 Except for a breach by either party of its obligations under section 1.2 of this Agreement, (a) in no event shall either party be liable for consequential, exemplary, punitive, incidental, indirect or special damages or costs, including lost profits or costs of procurement of substitute goods, whether or not the party has been advised of the possibility of those damages or costs; and (b) in no event will the aggregate liability of either party, or any of Angler’s third party licensors under this Agreement (under any theory of liability) exceed the Fees received by Angler from Customer (and in the case of Customer’s liability, Fees paid and due to Angler) in the twelve (12) month period prior to the claim, whether any remedy set forth herein fails of its essential purpose or otherwise.
9. CONFIDENTIAL INFORMATION
9.1 “Confidential Information” means any non-public data, information and other materials regarding the products, services or business of a party (and if either party is bound to protect the confidentiality of any third party’s information, of that third party) provided to the other party. Without limiting the foregoing, the Angler Software, third-party reference data, model algorithms, model parameters, model output scores, performance data, benchmark results, and technical information relating thereto, the Documentation, Angler’s pricing information and the terms and conditions of this Agreement (but not its existence) are the Confidential Information of Angler. Confidential Information shall not include information which: (a) is already known to the Receiving Party without restriction prior to disclosure by the Disclosing Party; (b) becomes publicly available without fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; or (d) is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of the required disclosure and reasonably cooperates with the Disclosing Party in limiting the disclosure.
9.2 Disclosure and Use. Each party (the “Receiving Party”) agrees to keep the Confidential Information of the other party (the “Disclosing Party”) in confidence and not to use the Confidential Information except in performing hereunder. Except as expressly authorized herein, the Receiving Party agrees to: (a) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case with less than reasonable care; and (b) disclose the Disclosing Party’s Confidential Information only to those employees and contractors of the Receiving Party who have a need to know the information for the purposes of this Agreement, provided that any employee and contractor shall be subject to a binding written agreement with respect to Confidential Information at least as restrictive as the terms of this Agreement. The Receiving Party shall indemnify and hold the Disclosing Party harmless for any non-compliance of the Receiving Party’s employee or contractor with the terms of this Agreement. Subject to an appropriate obligation of confidentiality, Angler may disclose the terms of this Agreement and any other ordering or purchasing documents between the parties related to this Agreement to its third-party licensors for the purpose of Angler’s compliance with the terms of the license agreements with those third-party licensors.
10.1 Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement for causes beyond that party’s reasonable control and occurring without that party’s fault.
10.2 Compliance with Laws; Export Control. Customer shall use the Angler Solution in compliance with all applicable laws, statutes, rules and regulations. Customer acknowledges that the Angler Software or technical information provided hereunder may be subject to United States or other governments’ export laws, rules and regulations, and any use or transfer of that technical information or products made using technical information must be permitted or authorized under those laws, rules or regulations. Except as expressly permitted in this Agreement, Customer shall not export or import the Angler Solution or any technical information provided under this Agreement. Customer at its own expense shall indemnify, defend and hold Angler and its licensors’ free and harmless from any and all claims, damages, losses, costs, actions and expenses, including attorneys’ and experts’ fees, arising from any breach of its obligations in this Section 10.2.
10.3 Open Source Code. Components of the Angler Solution may be covered by so-called “open source” software licenses (“Open Source Software”). Customer’s use of any Open Source Software is subject to and governed by the applicable license accompanying, linked to or embedded in that Open Source Software (each an “Open Source License”). Angler grants Customer a license to use the Open Source Software to the full extent permitted by the applicable Open Source License.
10.4 Learnings. The Angler Solution may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of the Angler Solution and/or the systems on which they are installed (“Reports”) and provide such Reports to Angler, and Angler, notwithstanding any terms to the contrary in this Agreement, may generate scores and other material from a machine learning model trained on Customer’s data (“Learnings”) and use such Learnings for another machine learning model trained on another customer’s data to be used by Angler and its customers.
10.5 Notice. Any and all notices or other information to be given by one of the parties to the other shall be deemed sufficiently given when forwarded by certified mail (receipt requested), overnight delivery or hand delivery to the other party to the address set forth on the Order Form. Notices shall be deemed to have been received on the first business day following the day of overnight transmission or hand delivery or on the fifth business day following the day of forwarding by certified mail. The address of either party may be changed at any time by giving notice to the other party in accordance with the foregoing.
10.6 Relationship of the Parties. Neither the making of this Agreement nor the performance of its provisions shall be construed to constitute either of the parties hereto an agent, employee, partner, joint venturer, or legal representative of the other.
10.7 U.S. Government End-Purchaser. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Angler Software and accompanying documentation provided by Angler are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms.
10.8 Severability; Waiver. Should any term of this Agreement be declared void or unenforceable that provision shall modified or eliminated to the minimum extent necessary and the declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to future breaches.
10.9 Assignment. Except in the event of a party’s merger, acquisition or sale of all or substantially all of its assets, neither this Agreement, nor any rights, licenses or obligations hereunder, may be assigned by either party without the prior written consent of the other. Any attempted assignment in violation of this Agreement shall be void and without effect.
10.10 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of California, excluding rules governing conflict of law and choice of law. The federal and state courts within Santa Clara County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of, and venue in, those courts and service of process being affected upon it by registered mail and sent to the address set forth at the beginning of this Agreement. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to this Agreement nor to any dispute or transaction arising out of this Agreement. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
10.11 Entire Agreement. This Agreement and the Exhibits attached hereto sets forth the entire agreement of the parties with respect to the subject matter contained herein, and no oral or written statement or representations not contained in this Agreement shall have any force or effect. This Agreement may be amended only upon the written consent of both parties.
Angler AI Service Level Agreement (SLA)
This Angler AI Service Level Agreement (“SLA”) is a policy governing the use of the Services under the terms of the Angler AI Master Subscription Agreement (the “MSA”) between Angler AI and Customer. Unless otherwise provided herein, this SLA is subject to the terms of the MSA and capitalized terms not otherwise defined will have the meaning set forth in the MSA. This SLA states Customer’s sole and exclusive remedy for any failure by Angler AI to meet the Service Commitment (as defined below).
Technical Support Commitment
a) Technical support will provided via the web application or by email.
b) Support will be provided during non-holiday work days from 9 a.m. to 5 p.m. U.S. Pacific Time
c) Support will be provided in English.
Angler AI will use commercially reasonable efforts to make Services available with a Monthly Uptime Percentage (defined below) of at least 99.9% during any calendar month (the “Service Commitment”). In the event the Services do not meet the Service Commitment, Customer will be eligible to receive Service Credits by following the process in this SLA.
“Downtime” means loss of external connectivity by all End Users.
“Downtime Period” means a period of at least five consecutive minutes of Downtime.
“Monthly Uptime Percentage” means the total number of minutes in a month, minus the number of Downtime minutes suffered during Downtime Periods in a month, divided by the total number of minutes in a month.
“Planned Maintenance” means a period of scheduled maintenance that may result in loss of external connectivity by all End Users.
“Emergency Maintenance” means a period of un-scheduled maintenance that may result in loss of external connectivity by all End Users.
“Service Credit” is a dollar credit based on pro-rated fees, calculated as set forth below, that Angler AI may credit to Customer’s next invoice for failure to meet the Service Commitment.
Monthly Uptime Percentage | Service Credit
Less than 99.9% but equal to or greater than 99.0% | 1 Days
Less than 99.0% but equal to or greater than 95.0% | 3 Days
Less than 95.0% | 7 Days
Credit Request Procedures
To receive a Service Credit, Customer must submit a claim by contacting Angler AI support via email at firstname.lastname@example.org within 30 days from the time Customer becomes eligible to receive the Service Credit. The claim must include the dates and times of each Downtime Period. Failure to comply with these requirements will forfeit Customer’s right to receive a Service Credit. The maximum amount of Service Credits for a month will not exceed 50% of the fees applicable to that month. Angler AI’s proprietary system tracking Service Downtime will be the sole basis for resolution of any dispute regarding Service Credits.
The Service Commitment does not apply to: (a) any Beta Services, (b) use of the Services not in compliance with the Documentation, (c) any suspension or termination of rights to use the Services permitted under the MSA, (d) any usage limits, (e) loss of connectivity caused by factors outside of Angler AI’s reasonable control, including resulting from (i) any force majeure event including systemic Internet failures, (ii) Customer’s software or hardware, or third-party software or hardware, or both, (iii) failure of Customer’s network connection, (iv) Third-Party Services, or (v) activity in violation of the MSA, or (f) planned or emergency maintenance.
Angler AI may, at its sole discretion [but no more than three instances per month], perform Planned Maintenance that may result in loss of external connectivity for a period not to exceed four (4) hours in a single instance. Angler AI will communicate the date and time of Planned Maintenance to the Administrator at least three (3) business days in advance.
On rare occasions, Angler AI may need to perform Emergency Maintenance in order to protect the integrity of the Services due to security issues, virus attacks, spam issues, or other unforeseen circumstances. Emergency Maintenance may occur immediately with no advance notification. However, Angler AI will notify the Administrator regarding the Emergency Maintenance as soon as possible.