Last updated 2019.03.28
These Provider Terms and Conditions, in combination with any other terms or agreements incorporated herein by reference, (collectively, the “Agreement”) constitutes a legally binding agreement by and between Anamiya Inc. (“Company”), a corporation organized in Virginia, and you and your employees, agents, contractors and any other entity on whose behalf you accept these terms (referred to herein as “you” and “Provider”). This Agreement is effective as of the date of Provider’s first registering as a Provider on the Website (the “Effective Date”). Provider’s use of, and Company’s provision of, Company’s Services (as defined below) are governed by this Agreement. By accessing or using the Services or Website, Provider agrees to be bound by this Agreement.
Company and Provider may be referred throughout the Agreement individually as “Party” or together as “Parties”.
In consideration of the promises and mutual covenants herein, the Parties agree as follows:
1. DOCUMENT PRIORITY
Should any conflict arise between this Provider Agreement and the Company’s Terms of Use, this Provider Agreement shall control solely with respect to the subject matter herein. With regard to any such conflict, in all other respects other documents shall prevail. All capitalized terms not otherwise defined herein shall have the meanings prescribed to them in said Terms of Use. For Providers, the term “Agreement” as used in the Company’s Terms of Use shall be interpreted to include these Provider Terms and Conditions.
2. THE PROVIDER LISTING SERVICE
2.1 Provider Listing. As a Provider, you may create a listing on the Service for your business. You warrant that all information you provide in connection with your Provider listing shall be accurate. You understand that Users may post reviews and other User content into your listing page (“User Content”), and that while you will be provided with an opportunity to respond to such postings, you may not be afforded an opportunity to delete or edit such content. You agree that Company shall have no liability for any User Content posted to your Provider listing.
3. PROVIDER IP
3.1 Provider IP Ownership. Provider owns, and hereby warrants to own, all worldwide right, title, and interest in and to its trademarks and service marks, and any intellectual property, including but not limited to images and text descriptions, posted to the Website (the “Provider Intellectual Property”). Provider hereby grants to Company a non-exclusive, irrevocable, royalty-free, worldwide, transferable, sublicensable, perpetual license to use, display, reproduce, make derivatives from, and distribute the Provider Intellectual Property as necessary to offer, display, operate, market, sell, and improve the services at Company’s sole discretion. Provider shall indemnify Company against any third-party claim of infringement arising from or related to the Provider Intellectual Property.
4. FEES AND PAYMENT TERMS
4.1 Fees. Some portions of the Services may incur a fee. Provider will pay Company the fees for the Service or the selected portion thereof as set forth on the Website (the “Fee”).
4.2 Payment; Late Payment. If Company has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one and one-half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Company. Provider shall reimburse Company for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
4.3 Refund of Fees. Upon any termination due to a material breach of the Agreement by Provider, fees already paid to Company shall not be refunded. Upon any such termination due to a material breach of the Agreement by Company, a prorated portion of any prepaid fees shall be returned to Provider.
5. CONFIDENTIALITY
5.1 Confidential Information. By virtue of this Agreement, the Parties may have access to each other’s Confidential Information. “Confidential Information” means all information or knowledge provided by one Party, including such Party’s agents or contractors, to the other relating to this Agreement and the subject matter hereof, whether in physical or electronic form or pursuant to visits to premises and in any form or medium in which such information may be recorded or kept which: a.) if disclosed in writing, is marked as “confidential” or “proprietary”; b.) if disclosed orally, is summarized in writing by the disclosing Party and sent to the receiving Party within thirty (30) days of the initial disclosure; or c.) that given the nature of the information or the circumstances surrounding its disclosure should reasonably be considered as confidential. Confidential Information shall include, but not be limited to, trade secrets; documentation, reports and manuals, algorithms, ideas, concepts, methodologies, test data, test results, testing procedures and processes; technologies and software; techniques; business information; financial information; business plans; User lists; marketing information; sales plans; and/or sales projections. The terms and conditions of this Agreement shall be deemed the Confidential Information of both Parties and neither Party shall disclose such information except to such Party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers that have a bona fide need to know such information, provided that any such third-parties shall, before they may access such information, either a.) execute a binding agreement to keep such information confidential or b.) be subject to a professional obligation to maintain the confidentiality of such information.
5.2 Exclusions. Confidential Information shall not include information that: a.) is or becomes publicly known through no act or omission of the receiving Party; b.) was in the receiving Party’s lawful possession prior to the disclosure; c.) is rightfully disclosed to the receiving Party by a third-party without restriction on disclosure; or d.) is independently developed by the receiving Party, which independent development can be shown by written evidence.
5.3 Use and Nondisclosure. During the term of this Agreement, and for a period of five (5) years after expiration or termination thereafter, neither Party shall make the other’s Confidential Information available to any third-party or use the other’s Confidential Information for any purpose other than exercising its rights and performing its obligations under this Agreement. Each Party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either Party use less effort to protect the Confidential Information of the other Party than it uses to protect its own Confidential Information of like importance. Each Party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with confidentiality obligations that are at least as restrictive as the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing Party must provide the non-disclosing Party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing Party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
6. TERM AND TERMINATION
6.1 Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue until Provider ceases its use of the Service or the Agreement is terminated earlier per the terms below.
6.2 Termination for Breach. Either Party may terminate this Agreement should the other Party fail to cure a material breach of its terms within fifteen (15) days of receiving written notice thereof.
6.3 Effect of Termination. Upon termination of this Agreement, Provider will cease all use of the Provider listing Service.
6.4 Survival. The following sections shall survive the termination of this Agreement for any reason: 4, 5, 7, and 8. Further any provisions that must survive to fulfill their essential purpose shall do so.
7. INDEMNIFICATION
7.1 Indemnity. In addition to, and without in any way limiting, Provider’s indemnification obligations arising from the Company Terms of Use, Provider will defend, indemnify, and hold harmless Company and the Company Associates against any third-party claim, suit, or proceeding arising out of or related to Provider’s alleged or actual use of, misuse of, or failure to use the Provider listing Service, including without limitation claims by Users who have discovered, contacted, or otherwise became aware of Provider via the Provider listing Service.
8. GENERAL
8.1 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
8.2 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.