ALTR Solutions Inc Terms of Service
TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY. THIS IS A BINDING AGREEMENT BETWEEN ALTR SOLUTIONS, INC., A DELAWARE CORPORATION WITH A REGISTERED ADDRESS OF 108 WILD BASIN ROAD S, BUILDING 2, SUITE 150, AUSTIN, TX 78746 (“ALTR”) AND THE COMPANY OR LEGAL ENTITY YOU REPRESENT, AS SET FORTH IN YOUR COMMERCIAL TERMS FORM (AS DEFINED BELOW) (HEREINAFTER “CUSTOMER”). ALTR IS WILLNG TO GRANT CUSTOMER ACCESS TO AND USE OF ALTR SOFTWARE AND ALTR SERVICES ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE ACCEPTANCE BOX OR ACCESSING OR USING THE ALTR SOFTWARE OR ALTR SERVICES, CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL SUCH ACCESS OR USE IS SUBJECT TO THIS AGREEMENT. ANY SUCH ACCESS OR USE WILL CONSTITUTE CUSTOMER’s ACCEPTANCE AND WILL RESULT IN A LEGALLY ENFORCEABLE AGREEMENT BETWEEN ALTR AND CUSTOMER. BY ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO ACCESS OR USE ANY ALTR SOFTWARE OR ALTR SERVICES. ALTR AND CUSTOMER MAY EACH ALSO BE REFERRED TO AS “PARTY” AND TOGETHER, THE “PARTIES”.
As used in this Agreement, capitalized terms not otherwise defined herein have the meaning set forth below:
1.1. “Additional Services” means integration, custom development, enablement, and/or professional services that are beyond the scope of ALTR Support Services and as outlined in one or more Commercial Terms Forms.
1.2. “Aggregate Data” means aggregate, anonymized and/or statistical information or analyses created and developed by ALTR from performance and usage data generated through Customer’s use of the ALTR Software or ALTR Services. For clarity, Aggregate Data is de-identified so that Customer cannot be identified as the source within the Aggregate Data.
1.3. “ALTR Client-Side Software” means any ALTR Software that ALTR installs on Customer networks and application servers on-premises, or that Customer hosts, including (i) via a private cloud instance deployed within Customer’s computing environment, or (ii) one or more systems or networks designated by Customer and hosted by a third party hosting service provider engaged by Customer as modified or enhanced by ALTR through any Additional Services provided hereunder.
1.4. “ALTR Cloud Services” means any ALTR Software Subscription Services whereby Customer is granted access to ALTR Software that ALTR hosts in any environment under ALTR’s control.
1.5. “ALTR Services” means all of the services provided by ALTR in the Commercial Terms Forms, including ALTR Software Subscription Services, ALTR Support Services, and Additional Services.
1.6. “ALTR Software” means any software owned by ALTR and provided by ALTR to Customer under a Commercial Terms Form.
1.7. “ALTR Software Subscription Services” or “Subscription” means the software services ordered by Customer under a Commercial Terms Form, which may include various capabilities of ALTR Client-Side Software and any other ALTR Software that ALTR provides to Customer. For clarity, ALTR Software Subscription Services may include ALTR Cloud Services.
1.8. “ALTR Support Services” means any services provided by ALTR to correct reported or known issues or problems that (i) prevent the ALTR Client-Side Software and ALTR Cloud Services from conforming in any material respect to its specifications or documentation provided by ALTR, and (ii) are reproducible by Customer or ALTR. ALTR Support Services are governed by the terms set forth in ALTR’s Service Level Agreement.
1.9. “Change of Control” means a transaction wherein more than fifty percent (50%) of the controlling interests of Customer are sold, merged, divested or otherwise taken over by a third party.
1.10. “Commercial Terms Form(s)” means the paper or electronic form (including any exhibits, schedules, supplements, or addenda thereto) under which Customer may order the applicable ALTR Services and ALTR Software to be provided pursuant to this Agreement. The terms and conditions of any Commercial Terms Form are hereby incorporated by reference into the Agreement.
1.11. “Confidential Information” means all proprietary information, financial information and other commercially valuable or sensitive information in whatever form, including embodiments of know-how and information regarding know-how, including formulae, research and development, compositions, manufacturing and production processes and techniques, methods, technical data, designs, graphs, drawings, devices, models, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals and any other materials or information of whatever description which a Party has identified as confidential, proprietary or of a commercially sensitive nature a Party should know is regarded as confidential, proprietary or of a commercially sensitive nature by the other Party.
1.12. “Effective Date” means the effective date of the first Commercial Terms Form executed by the Parties.
1.13. “Personal Information” means any information or data that identifies or could reasonably be used to identify a natural person, including: a person’s first and last name, home or other physical address, telephone number, fax number, email address or other online identifier, Social Security number or other third-party issued identifier (including state identification number, driver’s license number, or passport number), biometric data, health information, credit card or other financial information (including bank account information), and IP address, geolocation information, cookie information, or any other device-specific number or identifier.
1.14. “Subsidiaries” means any direct or indirect, in either case wholly-owned, subsidiaries of Customer now or hereafter existing prior to any Change of Control of Customer. For avoidance of confusion, Subsidiaries shall not include a joint venture or any entity not fully-owned by Customer or one of its wholly-owned consolidated subsidiaries.
1.15. “Third Party Software” means any software or application programming interfaces provided by third parties, as necessary for Customer to use the ALTR Software, including any software acquired or licensed by any such third party directly to Customer, as evidenced by a written agreement directly between Customer and such third party.
2. altr software and services.
2.1. Commercial Terms Form Procedure – Subscription. Promptly following the Parties’ mutual execution of any Commercial Terms Form covering ALTR Software Subscription Services, ALTR will make the applicable ALTR Client-Side Software and access to the ALTR Software Subscription Services available to Customer during the applicable Term as set forth in such Commercial Terms Form. During the Term specified in the applicable Commercial Terms Form, Customer has a limited, revocable, non-transferable and non-sublicensable license to use, for its own behalf and on behalf of its Subsidiaries, the ALTR Software Subscription Services specified therein, subject to any restrictions contained in this Agreement and the applicable Commercial Terms Form..
2.2. Commercial Terms Form Procedure – Additional Services. Promptly following the Parties’ mutual execution of any Commercial Terms Form covering Additional Services, ALTR will make the applicable Additional Services available to Customer during the applicable Term as set forth in such Commercial Terms Form.
2.3. Third Party Software. Any Third Party Software (which, for clarity, does not include Open Source Software, for which Section 2.4 below applies) will remain the sole and exclusive property of such third parties. All uses of Third Party Software by Customer are subject to applicable license terms between Customer and such third parties providing the Third Party Software, and ALTR disclaims all representations or warranties as to such Third Party Software.
2.4. Open Source Software. Some ALTR Software may contain or be provided with Open Source Software. Customer hereby acknowledges that the terms of the third party licenses governing such Open Source Software, in addition to the terms and conditions of this Agreement, shall govern Customer’s use of such Open Source Software.
2.5. Restrictions. Except as expressly permitted in this Agreement or a Commercial Terms Form, Customer may not, and may not permit a third party to: (i) decompile, disassemble, or otherwise reverse engineer ALTR Software or ALTR Services or attempt to reconstruct, discover, or view any source code, underlying ideas, algorithms, file formats or programming interfaces of ALTR Software or ALTR Services by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) distribute, sell, rent, lease, or use ALTR Software or ALTR Services (or any portion thereof) for time sharing, hosting, service provider, or like purposes, except as is necessary for Customer and its Subsidiaries for their applications as licensed hereunder, as it may be amended; (iii) modify, translate or create derivative works of any part of the ALTR Software or ALTR Services; (iv) attempt to circumvent or disable the security key mechanism that protects the ALTR Software or ALTR Services against unauthorized use (except and only to the extent that applicable law prohibits or restricts such restrictions).
2.6. ALTR Audit Rights. ALTR may perform an audit and inspection of Customer’s records, facilities and hosted networks related to the ALTR Client-Side Software to confirm Customer’s compliance with this Agreement with respect to use of the ALTR Client-Side Software and Customer accounts within ALTR Software Subscription Services, provided that any such audit will be conducted in a manner so as not to unreasonably interfere with Customer’s business and shall not be requested more than once per year unless the additional request is due to a Change of Control involving Customer.
3. Payment of fees and expenses.
3.1. Payment of Fees. Customer shall pay ALTR the fees indicated on and as specified in any Commercial Terms Form. Unless otherwise provided in a Commercial Terms Form (i) all payment obligations are non-cancelable and (ii) payments are non-refundable. To the extent not specified in a Commercial Terms Form, the initial payment for the ALTR Software Subscription Services must be made prior to the Effective Date. ALTR will invoice Customer in accordance with any Commercial Terms Form. Unless provided for otherwise in the Commercial Terms Form, all fees shall be paid to ALTR within thirty (30) calendar days of the date of the invoice. In the event a Commercial Terms Form does not reference any specific pricing for Additional Services, such services shall be provided at ALTR’s then-current standard time and material rates unless otherwise agreed in writing between the parties.
3.2. ALTR Out-of-Pocket Expenses. Customer shall reimburse ALTR for all reasonable, pre-approved out-of-pocket expenses incurred in performance of any Additional Services. Expenses may be billed to Customer monthly and shall be paid consistent with the terms herein.
3.3. Late Payments; Suspension. Any late payment of undisputed fees shall, at ALTR’s election, be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. If any undisputed fees are thirty (30) days or more past the due date for payment of such fees under Section 3.1 of this Agreement, ALTR reserves the right to suspend Customer’s access to all ALTR Software and ALTR Services until such non-payment is remedied by Customer.
3.4. Taxes. The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse ALTR and hold ALTR harmless for all sales, use, VAT, excise, property or other taxes or levies which ALTR is required to collect or remit to applicable tax authorities which arise out of this Agreement or a Commercial Terms Form. This provision does not apply to ALTR’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished ALTR with a valid tax exemption certificate.
3.5. Disputed Fees. If Customer wishes to dispute any fees (each a “Dispute”) Customer must notify ALTR in writing of Customer’s good faith reason(s) for such Dispute within thirty (30) days of receipt of the applicable invoice on which such fees appear. In the event of a Dispute, Customer must still pay any amount that is not disputed.
4. SUPPORT SERVICES.
4.1. Support Services: Generally. ALTR shall use commercially reasonable efforts to provide ALTR Support Services. ALTR will make available to Customer a variety of means for contacting ALTR Support Services, including telephone or email. Telephone and email support will be available during business hours on Eastern Time Zone, unless otherwise agreed in writing. Additional terms governing ALTR Support Services as to ALTR Software Subscription may be set forth in an addendum to the Commercial Terms Form. Terms governing ALTR Support Services are set forth in ALTR’s Service Level Agreement.
4.2. Exclusions. ALTR shall not be obligated to provide ALTR Support Services for any Customer applications, Third Party Software or any software or applications that Customer owns or uses on its computer systems and networks other than the ALTR Client-Side Software and ALTR Cloud Services delivered to Customer pursuant to this Agreement (collectively the “Unsupported Code”). ALTR makes no guarantees regarding the service availability of Unsupported Code and shall not be liable for any failures or delays in such service availability.
5.1. Reservation of Rights. By executing the Agreement, Customer irrevocably acknowledges that, Customer has no ownership interest in ALTR Software or the ALTR Services (including any modifications or improvements thereto), ALTR’s intellectual property rights or any other materials ALTR provides to Customer. Except as otherwise expressly set forth in this section, ALTR shall own all right, title, and interest in all ALTR Software, ALTR Services, and all ALTR materials, subject to any limitations associated with intellectual property rights of third parties. ALTR reserves all rights not specifically granted herein. Intellectual property shall include, but not be limited to, all intellectual property rights wherever in the world, whether registerable or unregisterable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing-off rights, unfair competition rights, patents, petty patents, utility models, and rights in designs).
5.2. Aggregate Data. As between the Parties, ALTR owns and shall continue to own all right, title and interest in and to all Aggregate Data, and ALTR may use such Aggregate Data for the purpose of: (i) supporting Customer’s use of the ALTR Software and ALTR Services; (ii) maintaining and improving the ALTR Software and ALTR Services; and (iii) developing new features and functions for the ALTR Software and ALTR Services.
6.1. Confidentiality of ALTR Client-Side Software and ALTR Cloud Services; Trade Secrets. Confidential Information of ALTR includes: (i) ALTR Software (including, for clarity, ALTR Client-Side Software), any ALTR-developed or provided source code, and other related materials furnished by ALTR; (ii) the oral and visual information relating to the ALTR Software; (iii) the driver installed by ALTR on Customer’s applications and platform, (iv) any information or materials provided by ALTR to Customer and related to this Agreement prior to the Effective Date, and (v) this Agreement (including all terms and conditions) and any documentation generated or created as a result of the same. Customer acknowledges that certain of the Confidential Information of ALTR in this Section may constitute trade secrets of ALTR under applicable law (the “Trade Secrets”).
6.2. Exceptions. Without granting any right or license, Confidential Information shall not include, and the obligations of the Parties under this Section 6 shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the Party receiving Confidential Information (“Receiving Party”) and through no breach of confidentiality owed to the Party disclosing Confidential Information (“Disclosing Party”); (ii) is independently developed by the Receiving Party without use of the Confidential Information provided by the Disclosing Party; (iii) is rightfully obtained from a third party without breach of any obligation of confidentiality owed to the Disclosing Party; or (iv) is already known by the Receiving Party without breach of any obligation of confidentiality owed to the Disclosing Party prior to obtaining the Confidential Information from the Disclosing Party. In addition, neither Party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court with competent jurisdiction or authorized agency of government, provided that notice is promptly given to the Disclosing Party so that it may seek a protective order and engage in other efforts to minimize the required disclosure. The Parties shall cooperate fully in seeking such protective order and in engaging in such other efforts to protect and maintain the confidentiality of the information in question.
6.3. Ownership of Confidential Information. Nothing in this Agreement shall be construed to convey any right, title or ownership interests to or in (i) Confidential Information, or (ii) any patent, copyright, trademark, or trade secret embodied therein. The Receiving Party shall not, in whole or in part, sell, lease, license, assign, transfer, impair, or disclose the Confidential Information of the Disclosing Party to any third party and shall not copy, reproduce, make available for viewing by a third party, or distribute the Confidential Information except as expressly permitted in this Agreement. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, viewing, reproduction or distribution of the Confidential Information, and in no circumstances shall the Parties use less than commercially reasonable efforts to assure the same.
6.4. Non-Disclosure. Each Party agrees at all times to keep strictly confidential all Confidential Information belonging to the other Party. Each Party agrees to restrict access to the other Party’s Confidential Information only to those employees or direct subcontractors who (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Agreement.
6.5. Injunctive Relief. Each Party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the Party disclosing such confidential information imminent irreparable injury and that the Disclosing Party shall be entitled to, in addition to any other remedies available at law or in equity, to seek temporary, preliminary, and permanent injunctive relief (without the posting of any bond and without proof of actual damages) as a remedy for any such actual, or threatened or potential, breach of this Agreement and, in particular, any confidentiality provision herein.
6.6. Suggestions/Improvements to Software and Services. Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding ALTR Software, ALTR Services, or other ALTR materials provided to Customer shall be owned by ALTR, and Customer hereby assigns any such rights, including all intellectual property rights thereto, to ALTR. Nothing in this Agreement shall preclude ALTR from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by ALTR in the performance of services hereunder.
7.1. Both Parties. Customer and ALTR warrant that each has the right to enter into this Agreement and that the Agreement is binding as to each Party.
7.2. ALTR. ALTR represents and warrants to Customer that: (i) the ALTR Client-Side Software and ALTR Cloud Services shall substantially conform to the specifications and documentation provided by ALTR in writing to Customer (provided that such ALTR Client-Side Software and ALTR Cloud Services are not modified by Customer or a third party); and (ii) ALTR will perform the Additional Services obligations hereunder using qualified personnel in a professional, workmanlike and diligent manner consistent with industry standard. Customer’s sole and exclusive remedy for breach of the foregoing warranties in this Section is to request that ALTR correct any defect or event giving rise to the breach, provided that Customer must notify ALTR of such defect or event giving rise to the breach within thirty (30) days of becoming aware of the defect. Upon receipt of such notice, ALTR shall use commercially reasonable efforts to cure any material defect within forty five (45) days of receipt of the notice or within ninety (90) days for any non-material defect. If ALTR is unable to cure the defect within the applicable cure period, Customer shall have the right to terminate this Agreement.
7.3. Viruses. As of the date ALTR delivers the ALTR Client-Side Software or any updates or upgrades thereto to Customer, ALTR represents and warrants such ALTR Client-Side Software has been tested, using a commercially available tool available at that time, and is, to ALTR’s knowledge, free of any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines,” “disabling code,” “cookie” or other computer software routines or programming devices designed to permit unauthorized persons to access Customer’s or its clients’ systems, data or Confidential Information. Customer acknowledges that ALTR Client-Side Software may contain computer software routines or programming devices permitting ALTR to protect its ALTR Software, and that the warranty in this Section 7.3 does not apply to or pertain to such routines or programming devices. Due to the continual development of new techniques for intruding or attacking networks, ALTR does not warrant that ALTR Software will be free of vulnerability to intrusion or attack.
7.4. Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES IN SECTION 7 OF THIS AGREEMENT, ALTR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED REGARDING THE ALTR SOFTWARE (INCLUDING THIRD PARTY SOFTWARE) AND ALTR SERVICES (AND ANY RESULTS TO BE OBTAINED FROM THE USE THEREOF), INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, ACCURACY, TIMELINESS, COMPLETENESS, AND ORIGINALITY, NONINFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE OF TRADE OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION, AND THE ALTR SOFTWARE AND ALTR SERVICES ARE PROVIDED “AS IS”. ALTR does not warrant that the ALTR SOFTWARE OR ALTR SERVICES shall be uninterrupted, free from error, or that the ALTR SOFTWARE OR ALTR SERVICES shall meet the needs of the Customer or resolve any problems encountered by Customer.
7.5. No Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under this Agreement are VOID if Customer has made changes to the ALTR Software or ALTR Services or has permitted any changes to be made other than by or with the express, written approval of ALTR.
8. LIMITATION OF LIABILITY.
8.1. Liability Cap. EXCEPT FOR: (i) LIABILITY ARISING OUT OF CUSTOMER’S MISAPPROPRIATION OR MISUSE OF ALTR SOFTWARE OR ALTR SERVICES, ANY INTELLECTUAL PROPERTY RIGHTS OWNED BY ALTR THEREIN, OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS OWNED BY ALTR; (ii) LIABILITY ARISING FROM ANY BREACH OF THE CONFIDENTIALITY OBLIGATION SET FORTH IN SECTION 6 OF THIS AGREEMENT BY THE ACTS OF EITHER PARTY OR THEIR RESPECTIVE EMPLOYEES OR DIRECT CONTRACTORS; OR (iii) LIABILITY ARISING FROM INDEMNIFICATION OBLIGATIONS IN SECTION 12 OF THIS AGREEMENT (COLLECTIVELY “EXCLUDED LIABILITY”), IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), INDEMNIFICATION OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID TO ALTR BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISING TO LIABILITY OF SUCH PARTY UNDER THIS AGREEMENT, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
8.2. Disclaimer of Damages. EXCEPT FOR EXCLUDED LIABILITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, DATA, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9. TERM AND TERMINATION.
9.1. Term. This Agreement shall remain in effect during the term specified in the Commercial Terms Form (the “Term”) and shall continue to be in effect until all Commercial Terms Forms have expired. Pricing and terms may change as agreed in writing between the Parties after the initial Term of the Agreement. Any such changes shall be reflected in an updated and amended Commercial Terms Form.
9.2. Renewal. Renewal of the entire Agreement shall only require the execution of a new Commercial Terms Form.
9.3. Termination by ALTR. This Agreement and any license created hereunder may be terminated by ALTR at the end of any Term. This Agreement and any license created hereunder may also be terminated by ALTR (i) if Customer fails to pay undisputed fees hereunder within thirty (30) days following Customer’s receipt of notice for failure to timely pay; (ii) on thirty (30) days written notice to Customer if Customer fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Customer’s receipt of ALTR’s notice; or (iii) if Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern or is unable to pay its debts as they come due.
9.4. Termination by Customer. This Agreement may be terminated by Customer on thirty (30) days written notice to ALTR (i) if ALTR fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from ALTR’s receipt of Customer’s written notice, (ii) if ALTR files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern, or (iii) if ALTR fails to cure any material defect pursuant to Section 7.2 within the applicable cure period after receipt of written notice from Customer. Customer’s sole and exclusive remedy under (i) or (iii) above shall be the refund of prorated fees for the prepaid, unused term of the Agreement.
9.5. Effect of Termination. Except as otherwise explicitly provided herein, upon termination or expiration of this Agreement: (i) Customer shall no longer access the ALTR Software or ALTR Services (subject to the final sentence of this Section), and Customer shall not circumvent any security mechanisms contained therein; (ii) ALTR Client-Side Software must be promptly uninstalled; (iii) Customer must also return to ALTR any and all copies of ALTR Software or other ALTR materials, and (iv) Customer must return ALTR’s Confidential Information (including but not limited to software, firmware and drivers provided by ALTR pursuant to the Agreement), and destroy any tangible copies of ALTR’s Confidential Information in Customer’s possession, custody or control and certify in writing to ALTR within ten (10) days after termination that Customer has completed the foregoing.
9.6. Other Remedies. Termination of this Agreement shall not limit either Party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement.
10. CUSTOMER OBLIGATIONS.
10.1. Ancilliary Agreements. Customer agrees that no employees of ALTR shall be required to individually sign any agreement in order to perform any services hereunder including, but not limited to, access agreements, security agreements, facilities agreements or individual confidentiality agreements.
10.2. Right to Customer Information and Data. Customer represents and warrants that (i) it has full right, title and interest in and to the information and data that ALTR will have access to, store, transmit and protect pursuant to this Agreement (“Data”), (ii) the Data does not infringe upon, misapproriate or otherwise violate any third party’s intellectual property, privacy or other rights, (iii) Customer has the legal right to disclose all Data that it does in fact disclose to ALTR under, pursuant to or in connection with this Agreement, and (iv) the Data and its use and processing by ALTR does not violate any applicable law, including international and domestic data protection or data privacy laws. Customer agrees that it shall indemnify and hold harmless ALTR and its employees, principals, interest holders and representatives for any claims, causes of action, lawsuits, agency or administrative proceedings brought against or involving ALTR as a result of an actual or claimed breach of this provision. Notwithstanding anything to the contrary in this Agreement, ALTR may use Customer’s Data (including providing such Data to third parties) for the purpose of improving its products and services provided that such use is in accordance with Section 6 of this Agreement, and Customer’s Data is anonymized in a manner that the Customer cannot be identified
10.3. Data Security; Routine Network Scanning. Customer will implement, maintain, and adhere to a written information security program that incorporates administrative, technical, and physical safeguards (including provisions for reasonable disaster recovery and vulnerability testing) designed to ensure the security, confidentiality, and integrity of ALTR’s Confidential Information and ALTR Software on any of Customer’s systems or networks which comes into Customer’s possession as a result of this Agreement. Customer will implement, maintain and adhere to a rigorous virus scanning routine and network scanning routine. Customer will notify ALTR immediately in the event of a virus or threat detection relating to ALTR Software.
11. DATA SECURITY; USE OF PERSONAL INFORMATION
11.1. Data Security Policy. ALTR will implement, maintain, and adhere to a written information security program that incorporates administrative, technical, and physical safeguards (including provisions for reasonable disaster recovery and vulnerability testing) designed to ensure the security, confidentiality, and integrity of Customer’s Confidential Information stored using the ALTR Cloud Services or stored by ALTR on any of its systems or networks which is collected or comes into ALTR’s possession as a result of performing Additonal Services hereunder. ALTR makes no guarantees, representations or warranties regarding the security of Third Party Software. While ALTR does not make any guaranteesof performing Additional Services hereunder, representations or warranties regarding the security of Open Source Software, ALTR takes commercially reasonable measures to monitor Open Source Software used by the ALTR Software using a commercially available tool. ALTR will release patches and updates to ALTR software within a reasonable period of time after the identification by Customer or after identification by ALTR of any Open Source Software requiring modification.
11.2. Audits. To the extent ALTR has undergone any audit (e.g., SAS 70, SSAE-18, SOC 2), whether performed by or on behalf of ALTR, that assesses the effectiveness of ALTR’s written information security program as relevant to the Software, ALTR shall provide Customer with the results of any such audit upon Customer’s request. ALTR has no obligation to provide to Customer any audit results to which ALTR has access regarding Third Party Software incorporated into ALTR Software, unless the applicable third party authorizes ALTR to provide such audit results to Customer. In the event that Customer hosts any of ALTR’s Software in its hosting environment, Customer will provide any audit reports (e.g., SAS 70, SSAE-18, SOC 2), whether performed by or on behalf of Customer, that assesses the effectiveness of Customer’s information security program as relevant to the Software, Customer shall provide ALTR with the results of any such audit upon ALTR’s request.
11.3. Collection and Use of Personal Information. Customer acknowledges that, during and in connection with Customer’s use of the ALTR Software or ALTR Services, ALTR may collect Personal Information of Customer and its authorized users. ALTR may use such Personal Information as necessary to provide the ALTR Software and ALTR Services to Customer, or any products or services Customer requests from ALTR hereunder. Customer agrees that ALTR may share such Personal Information with third parties: (i) when ALTR has Customer’s permission or consent to share such Personal Information; (ii) as necessary to provide the ALTR Software or ALTR Services to Customer, or any products or services Customer requests from ALTR hereunder; (iii) in connection with information that Customer or its authorzied users request that ALTR share; (iv) if it is necessary to share such Personal Information in order to investigate, prevent or take action regarding a violation of law, a violation of this Agreement, or technical problems and malfunctions in computer systems and networks that support the ALTR Software or ALTR Services; or (v) in response to a request under applicable law or court order.
For any Personal Information obtained from individuals in the European Union or United Kingdom, the following additional provisions shall apply: (a) in connection with such processing of such Personal Information, ALTR shall implement, maintain, and adhere to a written information security program that incorporates administrative, physical and technical safeguards and security procedures to protect the Personal Information to which ALTR may have access that are no less rigorous than generally accepted industry practices; (b) ALTR shall only process data provided by Customer or its authorized users, including Personal Information, in a manner as instructed by Customer or as otherwise expressly authorized by this Agreement—such instructions may include implementation of recommendations from a supervising authority or other technical or administrative matters related to the security of such processing; (c) data provided by Customer or its authorized users, including Personal Information, shall not be repurposed or shared across other applications, environments, or business units of ALTR or its service providers not providing ALTR Software or ALTR Services to Customer pursuant to this Agreement; (d) ALTR shall obtain Customer’s prior written consent before providing such Personal Information to a third party for processing and such third party shall be obligated to comply with this Section 11.3 and other provisions of this Agreement applicable to such processing; and (e) Customer may perform (or have performed) an audit and inspection of ALTR’s records and facilities related to the ALTR Software to confirm ALTR’s compliance with this Agreement with respect to the processing of any such Personal Information, provided that any such audit will be conducted in a manner so as not to interfere with ALTR’s business and shall not be requested more than once per year unless the additional request is due to Customer’s good faith belief that such Personal Information has been used or disclosed without authorization.
11.4. Analytics. ALTR may use analytics services such as Google Analytics and other tools to enable ALTR to monitor and analyze web traffic and monitor user behavior. ALTR may use the results from such services or tools to improve the ALTR Software or ALTR Services.
11.5. GDPR Data. To the extent ALTR’s provision of ALTR Software to Customer is subject to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (i.e., the General Data Protection Regulation), then the Parties will cooperate in good faith to promptly execute a Data Processing Addendum in a form mutually agreed between the Parties.
12.1. Indemnity by ALTR. ALTR shall indemnify, defend and hold harmless Customer and its Subsidiaries, officers, directors, agents, representatives and employees (collectively, the “Customer Indemnitees”) from any third party claims or, causes of action, penalties, claims, costs, expenses or damages (“Losses”), arising out of, or relating to (i) any third party claim that the ALTR Software, when used in accordance with this Agreement, violates, infringes or misappropriates any valid and issued intellectual property rights of any third party; or (ii) any act of gross negligence or willful misconduct by ALTR. Notwithstanding the foregoing, ALTR shall have no duty to indemnify, defend or hold harmless Customer Indemnitees for Losses to the extent resulting from: (a) Customer use of the ALTR Software in violation of the terms of this Agreement or any written documentation or instructions provided by ALTR to Customer governing the ALTR Software; (b) Customer combining the ALTR Software with any items, including software, hardware, information, or other technology, that are not provided to Customer by ALTR; (c) modification or alteration of the ALTR Software by Customer or any third party without ALTR’s express written authorization and direct supervision; (d) failure of Customer to use updated or modified ALTR Software provided by ALTR; (e) compliance by ALTR with designs, plans or specifications furnished by or on behalf of Customer; (f) use of the Data as authorized herein; or (g) any gross negligence or willful misconduct of Customer. In the event that the ALTR Software becomes, or in ALTR’s reasonable opinion is likely to become, the subject of any such claim, ALTR may, in its sole discretion, (1) procure the right to continue for Customer to continue using the ALTR Software, (2) modify the ALTR Software in any manner deemed advisable by ALTR so as to make them non-infringing, or (3) if the preceding options are not, in ALTR’s reasonable opinion, feasible, then ALTR may terminate this Agreement in whole or in part, provided that ALTR must refund Customer for any prepaid fees associated with the allegedly infringing ALTR Software, for any usused portion of the prepaid Term.
12.2. Indemnity by Customer. Customer shall indemnify, defend and hold harmless ALTR and its officers, directors, agents, representatives and employees from any Losses arising out of, or relating to, (i) any claim that any Data, software or materials provided by Customer to ALTR violate, infringe or misappropriate any intellectual property rights of any third party; (ii) any claim that the ALTR Software, as a result of ALTR’s compliance with Customer’s designs, specifications or instructions, violates, infringes or misappropriates any intellectual property rights of any third party, (iii) any act of gross negligence or willful misconduct by Customer, or (iv) any network intrusion into Customer’s hosted network that compromises, accesses or exposes ALTR’s Confidential Information (including source code of the ALTR Software).
12.3. Conditions for Indemnification. Each Party’s indemnification obligations shall be conditioned on the following: (i) the indemnified Party shall provide prompt written notice of any claim to the indemnifying Party, provided that any failure to provide such prompt written notice will only relieve the indemnifying Party of its obligations to the extent its ability to defend such claim is materially prejudiced by such failure; (ii) the indemnifying Party shall not consent to entry of any judgment or admission of any liability of the indemnified Party without the prior written approval of the indemnified Party; and (iii) the indemnified Party shall cooperate in the defense of any claim as reasonably required by the indemnifying Party at the indemnifying Party’s sole expense. It is acknowledged and agreed that nothing contained herein (a) shall be considered a waiver by either Party of any remedy or right, in law or equity, all of which are expressly reserved without prejudice; and (b) prevents the indemnified Party from obtaining separate counsel at such Party’s sole expense.
13.1. Compliance With Laws. Customer and ALTR each agree to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement including but not limited to those related to data privacy and export compliance. The Parties agree that the Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or by UCITA, the application of which is expressly excluded.
13.2. Assignment. Neither ALTR nor Customer may assign this Agreement or otherwise transfer any license created hereunder without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to its successor as part of a corporate reorganization, consolidation, merger or sale of substantially all assets of such party, provided the assignee assumes all obligations in this Agreement. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the parties and their respective successors and permitted assigns. Any assignment or transfer in violation of this Section shall be null and void and the non-assigning Party shall have the right, in its sole discretion, to terminate this Agreement in the event this provision is breached.
13.3. Survival. The provisions set forth in Sections 1, 3, 5, 6, 7, 8, 9.5, 9.6, 10.2, 10.3, 11, 12, and 13 of this Agreement shall survive termination or expiration of this Agreement and any applicable license hereunder.
13.4. Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing. Unless otherwise specified, all notices to ALTR shall be sent to the attention of the CEO and its General Counsel. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has allegedly been breached and the date on which alleging Party became aware of the alleged breach.
13.5. Force Majeure; Events Outside of a Party’s Control. Neither Party shall be liable to the other Party for any delay or failure to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of the failing or delaying Party. Such causes shall include, but are not limited to, acts of God, acts of war, floods, fires, explosions, loss of electricity or other utilities, civil unrest, terrorist attacks, riots or protests, viruses, fault of the internet or any public telecommunications network, or, in the case of ALTR, fault or failure of the Customer’s computer systems or networks, fault or failure of a third party infrastructure used to deliver the Service, or delays by Customer in providing required resources or support or performing any other requirements hereunder.
13.6. Restricted Rights. Use of the Software by or for the United States Government (the “U.S. Government”) is conditioned upon the U.S. Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall (a) advise ALTR if Data involves or will be shared with any governmental entity, (b) be responsible for assuring that this provision is included in all agreements with the U.S. Government and (c) make sure that the Software, when delivered to the U.S. Government, is correctly marked as required by applicable U.S. Government regulations governing such Restricted Rights as of such delivery.
13.7. Entire Agreement. This Agreement (along with all Commercial Terms Forms executed hereunder) constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals, presentations, negotiations and prior discussions and writings between the parties with respect thereto. Any signed copy of this Agreement made by reliable means (e.g., photocopy or facsimile) shall be considered an original.
13.8. Order of Precedence. In the event of an express conflict between the terms and conditions of this Agreement and a Commercial Terms Form, the terms and conditions of the Commercial Terms Form shall prevail.
13.9. Modifications. The Parties agree that this Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each Party.
13.10. Publicity. With the exception of disclosures to existing or prospective customers or investors, neither Party may make any public announcements regarding the other Party or this Agreement without the prior written consent of the other Party.
13.11. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
13.12. Severability and Reformation. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined by a court of competent jurisdiction to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
13.13. Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of any such section nor in any way affect the Agreement.
13.14. Acceptance. The Parties have indicated their acceptance of this Agreement by executing this document.
13.15. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF ANY STATE OR JURISDICTION. ANY ACTION ARISING OUT OF, OR RELATED TO, THIS AGREEMENT SHALL BE BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN AUSTIN, TEXAS AND EACH PARTY HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.