This Website License Agreement (“Agreement”), dated as of July 1, 2021 (the “Effective Date”), is by and between AnyML, Inc. a Delaware corporation (“Licensor”) and End User either an entity or individual (“Licensee”) (each a “Party” and together “Parties”).
WHEREAS, Licensee desires to use the Website (as defined below);
WHEREAS, Licensor owns the Website and the Licensed Content (as defined below);
WHEREAS, Licensee wishes to access the Website and use the Licensed Content; and
WHEREAS, Licensor is willing to license the Licensed Content to Licensee, subject to all terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
For purposes of this Agreement, the following terms have the following meanings. Other terms defined in the body of this Agreement shall have the meanings so given.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect ownership of more than fifty percent (50 %) of the voting securities of a Person.
“Confidential Information” means any information that is treated as confidential by a Party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing, in each case to the extent it is; (a) if in tangible form, marked as confidential; or otherwise, identified at the time of disclosure as confidential, or (b) would be considered as confidential information by one who is reasonably knowledgeable and experienced in the field to which the information relates. With respect to each Party, the terms of this Agreement are Confidential Information of the other Party.
“Content Item” means each discrete creative work that is included in the Licensed Content.
“End User” means each natural person that has access to Licensed Content on the Licensee Site.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Licensed Content” means those materials, results, and content identified and displayed in the Website.
“Licensee Site” means the Website.
“Losses” means losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Mark” means any trademark, trade name, service mark, design, logo, domain name or other indicator of the source or origin of any product or service.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Website” means https://anyml.com
2. Delivery of Content.
During the Initial Term, except as otherwise set forth herein, Licensor shall make available to Licensee the Licensed Content for display on the Licensed Site. Licensor reserves the right to modify the Licensed Content in its sole discretion. Licensor is not liable for delays or failures of delivery.
3. License Grants.
3.1. Content License.
3.2. Content License Restrictions.
The license granted is subject to the following:
(a) Licensee shall not use the Website or Licensed Content other than as expressly permitted herein and in accordance with all terms and conditions of this Agreement. Licensee shall not copy, duplicate, transfer, save or transmit via any method the Licensed Content nor display the Website, whether in person or by screen sharing, video or any other electronic means the Website to any Person other than the Licensee. Licensee may not make any contemporaneous notes of any factual, graphical or mathematical representation concerning the Website or the Licensed Content.
(b) Licensee shall not make the Licensed Content available, or otherwise use the Licensed Content, except as expressly licensed pursuant to this Agreement. Any use by Licensee of the Licensed Content on any other website, mobile site or application or other media of Licensee other than the Licensee Site herein requires a separate written agreement between Licensor and Licensee, and Licensor has no obligation to enter into any such agreement.
(c) Licensee shall not permit the Licensed Content to be, or appear to be, reproduced, displayed or distributed on, as part of or in connection with any website or other online (including mobile) area other than the Licensee Site whether by framing, in-line linking, appearing in a new window or otherwise.
(d) Licensee shall not edit, alter, modify, combine with other content or create any derivative works of the Licensed Content without the prior written consent of Licensor.
(e) Licensee shall not display, and shall not permit others to display, on the Licensee Site any images or content that is or could be reasonably construed to be offensive, pornographic, defamatory or libelous, infringing the intellectual property rights of any third party, promoting terrorism or other unlawful violence, or for any other purpose that violates applicable Law.
(f) All uses of the Licensed Content that do not comply fully with the provisions of this Agreement shall for all purposes be deemed beyond the scope of the license granted hereunder. Any violation of this Agreement by Licensee shall be a material breach of this Agreement for which Licensor may terminate this Agreement as set forth herein.
4. Audit Right.
During the Initial Term and for five (5) years thereafter, Licensee shall maintain complete and accurate books and records regarding its use of the Website and Licensed Content. Licensee shall make such books and records, and appropriate personnel, available during normal business hours for audit by Licensor or its authorized representative; provided that Licensor shall:
(a) provide Licensee with reasonable prior notice of any audit;
(b) undertake an audit no more than once per calendar year, unless a prior audit has disclosed a balance due; and
(c) conduct or cause to be conducted such audit in a manner designed to minimize disruption of Licensee’s normal business operations. Licensor may take copies and abstracts of materials audited.
5. Term and Termination.
The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any express provision of this Agreement, shall continue for 30 days (the “Initial Term”). Licensor may terminate this Agreement at any time in its sole discretion. Upon any expiration or termination of this Agreement:
a) All licenses granted under this Agreement shall also terminate, and Licensee shall immediately delete from its systems and servers all Licensed Content and any other materials provided by Licensor. Upon Licensor’s written request, Licensee shall promptly provide Licensor with written certification of such deletion.
b) Each Party shall;
(i) return to the other Party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information,
(ii) permanently erase all of the other Party’s Confidential Information from its computer systems and
(iii) certify in writing to the other Party that it has complied with these requirements.
c) Surviving Terms. The provisions set forth in the following Sections, and any other right or obligation of the Parties in this Agreement that, by their nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
6. Representations and Warranties. Mutual Representations and Warranties.
Each Party represents and warrants to the other Party that:
a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering;
b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;
c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and
d) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT: (A) EACH PARTY HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, UNDER THIS AGREEMENT; AND (B) LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Each Party shall indemnify, defend and hold harmless the other Party against all Losses arising out of or resulting from any claim, suit, action or proceeding (each, an “Action”) by an unaffiliated third party related to or arising out of a claim that the information and/or data uploaded to the Website or that results in Licensed Content or Licensee’s use of the Website or the Licensed Content solely in compliance with this Agreement, infringes a copyright or trademark right of any third party. The indemnified Party shall promptly notify the indemnifying Party in writing of any Action and cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnifying Party shall not settle any Action in a manner that adversely affects the rights of the indemnified Party without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified Party may retain counsel of its choice to observe the proceedings at its own cost and expense.
8.1 Obligation of Confidentiality.
Each Party (the “Recipient”) acknowledges that in connection with this Agreement such Party may gain access to Confidential Information of the other Party (the “Disclosing Party”). As a condition to being furnished with Confidential Information, the Recipient agrees, during the Initial Term and, for five (5) years thereafter, that Confidential Information excludes such information required to be disclosed pursuant to federal or state securities rules and regulations, including but not limited to, disclosure of the Company in their filings with the Securities and Exchange Commission, and to:
a) not use the Disclosing Party’s Confidential Information other than in connection with performing its obligations under this Agreement and shall make no use of any such Confidential Information, directly or indirectly, in any manner to the detriment of the Disclosing Party or in order to obtain any competitive benefit with respect to the Disclosing Party; and
b) maintain the Disclosing Party’s Confidential Information in confidence and, subject to Section 8.2 below, not disclose any of the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent; provided, however, that Recipient may disclose the Disclosing Party’s Confidential Information to its officers, employees, consultants and legal advisors (“Representatives”) who:
(i) have a “need to know” for purposes of the Recipient’s performance under this Agreement,
(ii) have been apprised of this restriction; and
(iii) are themselves bound by nondisclosure restrictions at least as restrictive as those set forth in this Section 8.
The Recipient shall be responsible for ensuring its Representatives’ compliance with, and shall be liable for any breach by its Representatives, of this Section 8. The Receiving Party shall employ the same efforts it uses with respect to its own confidential information to safeguard the Disclosing Party’s Confidential Information from use or disclosure to anyone other than as permitted hereby.
(a) Confidential Information does not include information of the Disclosing Party that:
(i) is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party;
(ii) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; or
(iii) is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
(b) If the Recipient becomes legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Recipient shall:
(i) provide prompt written notice to the Disclosing Party notice so that the Disclosing Party may seek a protective order or other appropriate remedy or waive its rights under this Section 8; and
(ii) disclose only the portion of Confidential Information that it is legally required to furnish.
If a protective order or other remedy is not obtained, or the Disclosing Party waives compliance, the Recipient shall, at the Disclosing Party’s expense, use reasonable efforts to obtain assurance that confidential treatment will be afforded the Confidential Information.
9.1. Further Assurances.
Upon a Party’s reasonable request, the other Party shall, at its sole cost and expense, promptly execute and deliver all such further documents and instruments, and take all such further actions, necessary to give full effect to the terms of this Agreement.
9.2. Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other party in any manner whatsoever.
9.3. Public Announcements.
Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s Marks, in each case, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed; except the provisions of this paragraph excludes such information required to be disclosed pursuant to federal or state securities rules and regulations including, but not limited to, disclosure of the Company in their filings with the Securities and Exchange Commission.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the Parties as follows (or as otherwise specified by a Party in a notice given in accordance with this Section):
Notices sent in accordance with this Section shall be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail (in each case, with confirmation of transmission), if sent during normal business hours of the recipient, and on the next business day, if sent after normal business hours of the recipient; or (d) on the third business day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
For purposes of this Agreement, (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation;” (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (f) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (g) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (h) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
13. Entire Agreement.
This Agreement, together with any attached Schedules and any other documents incorporated herein by reference, constitutes 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, representations and warranties, both written and oral, with respect to such subject matter.
This Agreement is personal to Licensee. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Agreement is void from the outset and shall be of no force or effect. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
15. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
16. 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 Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
18. Governing Law; Submission to Jurisdiction.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule.
19. Attorneys’ Fees.
In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
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. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.