Alloy Software Terms of Service

THIS IS AN AGREEMENT (hereinafter “Agreement”) BETWEEN YOU OR THE ENTITY THAT YOU REPRESENT (hereinafter “You” or “Your”) AND ALLOY SOFTWARE CORPORATION (hereinafter “Alloy Software”) GOVERNING YOUR USE AND ACCESS TO OUR SERVICES, CLIENT SOFTWARE, AND WEBSITES (hereinafter “Service” or “Services”). PLEASE READ THE FOLLOWING TERMS OF SERVICE (hereinafter “Terms”) CAREFULLY BEFORE USING THE SERVICE.

BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, AGENT, OR CONTRACTOR OF A CORPORATION, PARTNERSHIP, OR SIMILAR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service through any online provisioning, registration, or order process or (b) the effective date of the first Service Order Form, as applicable, referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.

1.       Provision of Service

Alloy Software will make the Services and Software available to Customer pursuant to this Agreement, the Managed Hosting Agreement (where applicable), the applicable SOF, and the Documentation, and provide such Services in accordance with these Terms, including the Data Protection Agreement (“DPA”) (if applicable), the Business Associate Agreement (“BAA”) (if applicable), the Privacy Notice, and laws and government regulations applicable to Alloy Software’ business, during each Subscription Term. During the Subscription Term, Alloy Software grants to Customer a limited, non-exclusive right to access and use the Services and Software only for its internal business purposes, for up to the number of Users included in the Service Plan or otherwise noted in the SOF, including the right to download, install and use the Mobile Apps in connection with the authorized use of the Services.

2.      Beta Services

We may offer certain Services as closed or open beta services (“Beta Service” or “Beta Services”) for the purpose of testing and evaluation. The Beta Services may contain bugs, errors and other problems and you agree and acknowledge that Alloy Software makes no representation or warranty of any kind with respect to the Beta Services. You agree that we have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. We will be the sole judge of the success of such testing and the decision, if any, to offer the Beta Services as commercial services. You will be under no obligation to acquire a subscription to use any paid Service as a result of your subscription to any Beta Services. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to you. You agree that Alloy Software will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any of the Beta Services for any reason.

3.      Modification of Terms

From time to time, Alloy Software may modify this Agreement. Unless otherwise specified by Alloy Software, changes become effective for Customer upon renewal of the then-current Subscription Term or entry into a new Service Order Form after the updated version of these Terms goes into effect. Alloy Software will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email, newsletter, or other means.

4.     Responsibilities of Customer

  1. Customer Account. Customer may need to register for an Account to place orders or access or receive the Services. You agree to (i) provide true, accurate, complete, and current information about yourself as prompted by the sign-up process; (b) keep Account information current, accurate and complete so that Alloy Software may send notices, statements, and other information to Customer via email or through its Account, which notifications will be subject to this Agreement and the Privacy Notice. Customer will be responsible for maintaining the confidentiality of User credentials for accessing the Services and will notify Alloy Software promptly of any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which Customer becomes aware. Alloy Software and its Affiliates will not be liable for any damage or loss that may result from Customer’s breach of the foregoing obligations.
  2. Use Restrictions. Customer agrees not to use the Alloy Software Technology (as defined below) to: (i) process data on behalf of any third party other than Customer’s Users and End Users; (ii) send unsolicited communications, junk mail, spam, or other forms of duplicative or unsolicited messages in violation of spamming or other laws; (iii) engage in unlawful conduct, including but not limited to violation of any person’s privacy or publicity rights; (iv) store or transmit any content that infringes upon any third party’s intellectual property rights; (v) interfere with or disrupt the integrity or performance of the Services and their components; (vi) post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (vii) post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (viii) track cookies, ad exchanges, ad networks, data brokerages, or to send electronic communications (including e-mail) in violation of applicable law.

In addition,  Customer will not: (ix) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Alloy Software Technology available to any third party other than Users and End Users, and then only in furtherance of its permitted business purposes as expressly permitted by this Agreement; (x) modify, adapt, or hack the Alloy Software Technology or otherwise gain or attempt to gain unauthorized access to the Alloy Software Technology, its related systems or networks; (xi) falsely imply any sponsorship or association with Alloy Software; (xii) decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any portion of Alloy Software Technology. Without limiting the foregoing, Customer is solely responsible for ensuring that Customer’s use of the Alloy Software Technology is compliant with all applicable laws and regulations.

5.      Customer Data

  1. Use of Customer Data. As between the parties, Customer and its licensors retain all right, title, and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Alloy Software Technology. Subject to the terms of this Agreement, Customer hereby grants to Alloy Software and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Services, Software, Mobile Apps, and perform all related obligations owed to Customer under this Agreement, or as may be required by law. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Alloy Software under this Agreement. Customer agrees not to upload any Customer Data containing electronic patient health records or information (“ePHI”) unless Customer has entered into a Business Associate Agreement with Alloy Software, which will govern the parties’ respective obligations with respect to any ePHI uploaded by Customer to the Services, Software, or Mobile Apps.  Upon mutual execution of a BAA, the BAA is incorporated by this reference into this Agreement and is subject to its terms. If Customer is permitted to submit ePHI data into the Service, Software or Mobile App, then Customer may submit such data to Alloy Software and/or the Service only by uploading it as Customer Data. Unless a BAA is in place, Alloy Software will have no liability under this Agreement for ePHI supplied by Customer or any User or End User, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules, or regulations. Customer agrees not to upload credit cardholder data to the Service, Software or Mobile App.
  2. Data Security. The parties will comply with the terms of a Data Processing Agreement with respect to the provision and processing of Personal Data as defined in the DPA. Alloy Software will use appropriate technical and organizational measures in the Services to protect the Customer Data from unauthorized access, processing, loss, or disclosure. Alloy Software measures are designed to provide a level of security appropriate to the risk of processing the Customer Data within the Services. Customer understands that Alloy Software and its Affiliates will process Customer Data in accordance with applicable data protection laws, this Agreement, including the DPA, and the Privacy Notice.

6.     Intellectual Property

  1. Ownership Rights. Customer Data is Customer’s Confidential Information under this Agreement. Customer and its licensors retain all right, title, and interest in and to the Customer Data and all of Customer’s Confidential Information provided under this Agreement, and Alloy Software obtains no rights in the foregoing except for the express rights granted in this Agreement and the Privacy Notice. Alloy Software and its licensors retain all right, title, and interest in and to Alloy Software Technology. Customer acknowledges that the Services are offered as online, hosted solutions, and that Customer has no right to obtain a copy of the underlying computer code for any Services, for any downloadable Software, in object code format. Alloy Software may freely use and incorporate into Alloy Software’ products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users or End Users relating to Alloy Software products or services. Feedback and any other suggestions are provided by Customer exclusively “AS IS,” in Customer’s sole discretion, and will not be used by Alloy Software in any way that identifies or permits identification of Customer, its Affiliates, Users, or End Users.
  2. Usage Data. Usage Data includes but is not limited to query logs, and any data (other than Customer Data) relating to the operation, support and/or about Customer’s use of the Services, Software, Alloy Software’ websites, or Alloy Software’ APIs (“Usage Data”). Notwithstanding anything to the contrary in this Agreement, Alloy Software may collect and use Usage Data to develop, improve, support, and operate its products and services. Alloy Software will not share Usage Data that includes Customer’s Confidential Information with a third party except (i) in accordance with Section 7 (Confidentiality) of this Agreement, or (ii) to the extent the Usage Data is aggregated and anonymized such that Customer and Customer’s Users and End Users cannot be identified. Alloy Software may use feedback and Customer (or Customer’s End Users) data to provide Customer reports on Customer’s usage/implementation of the Service, or for Alloy Software’ product development.
  3. Updates. Alloy Software may update the Services and Software from time to time and Customer may receive notifications of Updates. Any Updates to the Services and Software are subject to this Agreement. Customer agrees that its purchase of the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Alloy Software with respect to future functionality or features.
  4. Other Services. Certain other services, such as third-party applications, are made available to Customer through the Alloy Software Customer Portal (currently located at https://support.alloysoftware.com/) (“Third Party Services”). These Third Party Services may integrate with the Services and are not licensed by Alloy Software pursuant to this Agreement, but are governed by the third party provider’s terms and conditions and privacy policies that accompany them, which Customer must separately accept. By enabling Third Party Services, Customer understands and agrees that Alloy Software is neither responsible for Customer’s use of these Third Party Services, nor does it provide any warranties whatsoever for these Third Party Services. Alloy Software is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Third Party Services, or Customer’s reliance on the privacy practices, data security processes or other policies of such Third Party Services. Customer understands that Alloy Software is not responsible for providing technical support for the Third Party Services and that Alloy Software is not responsible for the data hosting and data transfer practices followed by the providers of such Third-Party Services.

7.      Fees and Payment

  1. Fees and Payment. All charges associated with Customer’s Account (“Fees”) are set forth in the applicable SOF or Website, and are due and payable in full within thirty (30) days from the invoice date or as stated in the applicable SOF. Payment obligations are non-cancelable, regardless of utilization by the Customer and except as expressly permitted in this Agreement, Fees paid are non-refundable. Customer will pay the Fees through an accepted payment method as specified in the applicable SOF or Website.
  2. Service Plan. The Customer may increase their Service Plan, or User count, or Audit License count at any time by submitting an additional SOF. The cost of the new Service Plan or added licenses will be prorated to the number of months, remaining in the current Subscription Period, including a partial month, if applicable. During the Term, may not reduce their Service Plan or User count.
  3. Late Payments. If undisputed Fees are more than thirty (30) days overdue, then, following written notification from Alloy Software, Alloy Software may suspend Customer’s access to the Services and/or Mobile Apps, including, without limitation, Customer’s Account, until such unpaid Fees are paid in full.
  4. Payment Disputes. Alloy Software will not exercise its rights under Section 5(b) (Late Payments), 6(d) (Termination for Cause) or Section 6(c)(i) (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
  5. Applicable Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer agrees to pay applicable direct or indirect Taxes associated with its purchases hereunder, which, to the extent Alloy Software is legally required to collect the same, will be itemized on the Alloy Software invoice. If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer will gross up the payments so that the Alloy Software receives the amount actually quoted and invoiced. If Alloy Software has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced and paid by the Customer, unless, prior to the payment due date, the Customer provides Alloy Software with a valid tax exemption certificate authorized by the appropriate taxing authority.
  6. Orders by Affiliates. Customer’s Affiliates may purchase Services directly from Alloy Software by executing an SOF which is governed by the terms of this Agreement. Such SOF will establish a new and separate agreement between the Customer’s Affiliate and the Alloy Software entity signing such SOF. If the Affiliate resides in a different country than Customer, then the SOF may include modifications to terms applicable to the transaction(s) (including but not limited to tax terms and governing law).
  7. Purchases from Channel Partners. Customer may procure use of any Services, Software, or Mobile Apps from a third-party authorized reseller of Alloy Software, including third-party marketplaces (“Channel Partner”) pursuant to a separate agreement with the Channel Partner. Customer’s use of any Services, Software, or Mobile Apps procured through a Channel Partner will be subject to the terms of this Agreement, and all fees payable for such use will be payable to the Channel Partner pursuant to the terms agreed to between Customer and Channel Partner. Customer understands and agrees that, if Customer purchased the Services, Software, or Mobile Apps subscriptions via a Channel Partner, service credits and refunds payable under this Agreement may be payable or applied by Channel Partner acting on behalf of Alloy Software in proportion to the fees paid by Customer to the Channel Partner, and the discharge by the Channel Partner of such obligations will relieve Alloy Software of the same under this Agreement.

8.     Term, Termination and Suspension

  1. Term. This Agreement is effective as of the Effective Date (or, for online Customers, the date of sign up on the Website) and will continue through the then-current Subscription Term. Service Plans commence on the start date specified in the relevant SOF (or, for online Customers, the date of sign up on the Website) and continue for the Subscription Term specified therein.
  2. Renewal. Unless otherwise set forth in the SOF, Customer’s subscription to the Services will NOT renew automatically. If your subscription is identified as an automatic renewal on the SOF, the subscription will be automatically renewed and the payment method on file with Alloy Software will be charged based on the chosen subscription plan unless you notify Alloy Software within 1 week of your intent to cancel the paid subscription to the Service. BY SIGNING SUCH ORDER FORM OR SERVICE ORDER OR ACCEPTING THESE SERVICES UNDER SUCH ORDER FORM OR SERVICE ORDER YOU UNDERSTAND AND AGREE THAT UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION TO THE PAID SERVICES (1) YOUR SUBSCRIPTION TO THE PAID SERVICES WILL AUTOMATICALLY RENEW AT THE END OF THE SUBSCRIPTION PLAN PERIOD AND CONTINUE FOR ANOTHER SUBSCRIPTION PERIOD; (2) YOU WILL AUTOMATICALLY BE BILLED AT THE START OF EACH NEW SUBSCPRIPTION PLAN PERIOD; AND (3) THAT PERIODIC CHANGES FOR EACH NEW SUBSCRIPTION PERIOD WILL BE AUTOMATICALLY BILLED TO YOUR DESIGNATED BILLING PAYMENT METHOD. YOU MAY TERMINATE ENROLLMENT IN AUTOMATIC RENEWAL WITH AT LEAST 48 HOURS NOTICE FROM THE END OF THE SUBSCRIPTION PERIOD BY CALLING ALLOY SOFTWARE SALES LINE AT 1-973-661-9700. IF YOU CANCEL WITHIN 24 HOURS OF THE AUTOMATIC RENEWAL ALLOY SOFTWARE WILL VOID THE NEW SUBSCRIPTION PERIOD AND GIVE A FULL REFUND OF THE SERVICE FEES CHARGED WITH THE RENEWAL. IF YOU CANCEL WITHIN 10 BUSINESS DAYS OF THE AUTOMATIC RENEWAL ALLOY SOFTWARE WILL VOID THE NEW SUBSCRIPTION PERIOD AND GIVE A 90% REFUND OF THE SERVICE FEES CHARGED WITH THE RENEWAL. AFTER THE 10TH BUSINESS DAY, THE PAYMENT IS NON-REFUNDABLE.
  3. Suspension. Alloy Software may suspend Customer’s access to the Services, Software, Mobile Apps and/or Customer’s Account, on the following grounds: (i) late payment/non-payment of undisputed Fees, per the process noted in Section 5(b) above; (ii) non-renewal of the Services by Customer; (iii) Customer’s or its Users’ breach of Section 2 (Use Restrictions); or (iv) in the event suspension is deemed necessary by Alloy Software to prevent or address the introduction of Malicious Software (as defined in Section 8.b below), a security incident, or other harm to Customer, Alloy Software, or Alloy Software’s other customers. Alloy Software will notify Customer of any such suspension. Alloy Software will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or Alloy Software Technology, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved.  Such suspension will in no way affect Customer’s other obligations under this Agreement.
  4. Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
  5. Free Trial Customers. Upon the expiration of Customer’s free trial, Alloy Software may immediately suspend Customer’s access to the Services. Customer must export Customer Data before the end of the free trial or Customer Data will be permanently deleted. Alloy Software will have no obligation to maintain, store or otherwise retain Customer Data beyond the end of the free trial period.
  6. Data Export. Upon termination or expiration of this Agreement or any SOF for any reason, Customer’s access to the Services, Software, Mobile Apps, APIs and other Alloy Software Technology will terminate. Alloy Software strongly recommends that Customer export all Customer Data before Customer closes Customer’s Account. Customer agrees, following the termination or expiration of this Agreement or an unrenewed Subscription Term, that Customer Data will be retained or deleted in accordance with the Supplemental Terms, as applicable to Customer. Where Customer Data is retained by Alloy Software and can be exported, Customer may contact Alloy Software within fourteen (14) days following the effective date of termination to have Alloy Software export Customer’s Customer Data. Customer Data cannot be recovered once it is deleted.

9.     Confidentiality

Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information.  The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing.  If the receiving party is required by law or court order to disclose Confidential Information of the disclosing party, then the receiving party will, to the extent legally permitted, provide the disclosing party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information.  The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

10.  Warranties/Disclaimer of Warranties

  1. Service Warranty. Alloy Software warrants that the Services, Software or Mobile Apps will perform in all material respects in accordance with the Documentation. Provided that Customer provides written notice of a claim within thirty (30) days after first becoming aware of a breach of the foregoing warranty, Alloy Software will use diligent efforts to correct the Services, Software, or Mobile Apps so the foregoing warranty is met, and if Alloy Software is unable to make such corrections in a timely manner, either party may terminate the applicable SOF, and Customer, as its sole and exclusive remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services, Software or Mobile Apps purchased thereunder. This warranty will not apply if the error or non-conformance was caused by Customer’s breach of this Agreement or Customer’s or its Users’ misuse of the Services, Software, and Mobile Apps, modifications to the Services, Software, and Mobile Apps by anyone other than Alloy Software or its representatives, or third-party hardware, software, or services used in connection with the Services, Software, and Mobile Apps.
  2. Malware Warranty. Alloy Software warrants that the Services hosted by Alloy Software will be monitored using commercially available means to attempt to detect and prevent the introduction of any computer instructions, circuitry or other technology means whose purpose or effect is to disrupt, damage or interfere with the authorized use of, or allow access to, the computer and communications facilities or equipment of Alloy Software or Customer, including, without limitation, any code containing viruses, Trojan horses, worms, backdoors, trap doors, time-out devices or similar destructive or harmful code or code that self-replicates (collectively, “Malicious Software”).
  3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

11.    Limitation of Liability

  1. SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY.
  2. EXCEPT FOR DATA CLAIMS OR IP CLAIMS, EACH PARTY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED OR PAYABLE TO ALLOY SOFTWARE IN THE TWELVE MONTHS PRECEDING THE CLAIM (“THE GENERAL LIABILITY CAP”).
  3. IN THE CASE OF IP CLAIMS AND DATA CLAIMS, ALLOY SOFTWARE AND ITS AFFILIATES’ TOTAL LIABILITY TO THE CUSTOMER AND ITS AFFILIATES FOR ALL SUCH CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP (“SUPERCAP”).
  4. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SUPERCAP. SIMILARLY, THE FOREGOING CAPS WILL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE APPLICABLE CAP.
  5. THE PARTIES AGREE THAT THIS SECTION 9 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE SOF.

12.  Indemnification

  1. Indemnification by Alloy Software. Alloy Software will defend Customer and its Affiliates, from any third party claim alleging that Customer’s use of the Alloy Software Technology as contemplated hereunder infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless Customer and its Affiliates from and against any damages and costs awarded against Customer or its Affiliates, or agreed in settlement by Alloy Software (including reasonable attorneys’ fees) resulting from such IP Claim. Alloy Software will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the Alloy Software Technology by Customer, its Affiliates or Users; (ii) modification of the Alloy Software Technology by anyone other than Alloy Software or its representatives; (iii) or the combination, operation or use of the Alloy Software Technology with other data, hardware or software not provided by Alloy Software. If Customer’s use of the Alloy Software Technology results (or in Alloy Software’s opinion is likely to result) in an IP Claim, Alloy Software may at its own option and expense (a) procure for Customer the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonably as determined by Alloy Software, then either Customer or Alloy Software may terminate Customer’s subscription to the Service, whereupon Alloy Software will refund Customer, on a pro-rated basis, any Fees Customer has previously paid Alloy Software for the corresponding unused portion.  The sections above state Alloy Software’s entire liability and Customer’s exclusive remedy with respect to an IP Claim.
  2. Indemnification by Customer. Customer will defend Alloy Software and its Affiliates from any third party claim (“Claim”), and will indemnify and hold harmless Alloy Software and its Affiliates from and against any damages and costs awarded against Alloy Software and its Affiliates, or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) modifications of the Services, Software, Mobile Apps, or Documentation by Customer, its Affiliates, Users, or third party contractors, (ii) Customer’s or its Affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein, (iii) Customer’s or its Affiliate’s violation of laws applicable to Customer’s or its Affiliate’s business, and (iv) any dispute between Customer or its Affiliate and an End User pertaining to Customer’s or the Affiliate’s commercial offerings. Customer will have no liability or obligation with respect to any Claim if such claim is caused in whole or in part by (a) Alloy Software’s or its Affiliate’s breach of this Agreement or violation of applicable law, or (b) acts or omissions leading to Alloy Software’s obligation to indemnify Customer pursuant to Section 10(a) above.
  3. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 10, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense, and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section will not relieve the indemnifying party of its obligations under this Section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed. Any indemnification obligation under this Section 10 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.

13.   Miscellaneous

  1. Use of Third Parties for Payment Processing. Alloy Software may use a third-party service provider to manage payment processing provided that such service provider is not permitted to store, retain, or use Customer’s payment account information except to process Customer’s payment information for Alloy Software. Customer must notify Alloy Software of any change in Customer’s payment account information, either by updating Customer’s Account or by e-mailing Alloy Software at billing@alloysoftware.com.
  2. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all SOFs), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void.
  3. Entire Agreement. This Agreement, together with any SOF, the Privacy Notice, and Managed Hosting Agreement (if applicable), constitutes the entire agreement and supersedes any and all prior agreements or communications between Customer and Alloy Software regarding the subject matter hereof. In the event of a conflict between this Agreement, the Privacy Notice, the Managed Hosting Agreement, or any SOF or purchase order and this Agreement, the order of precedence will be, first, the Privacy Notice, second, the SOF, third, the Managed Hosting Agreement, and fourth, this Agreement. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of this Agreement will remain in effect.
  4. Publicity Rights. Alloy Software may identify Customer as an Alloy Software customer in its promotional materials. Customer may request that Alloy Software stop doing so by submitting an email to privacy@alloysoftware.com at any time. Please note that it may take us up to thirty (30) days to process a request.
  5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
  6. Survival. In the event your use of the Services is terminated or lapses or you are no longer a user of Alloy Software, certain provisions of this Agreement will continue to remain in effect, including, but not limited to, Section 4.b (Use Restriction), 6 (Intellectual Property), 7 (Fees and Payment), 8 (Term, Termination and Suspension), 9 (Confidentiality), 10 (Warranties), 11 (Limitation of Liability), 12 (Indemnification), 13.c (Entire Agreement), 13.f (Survival), 13.g.  (Notices), 13.j (Governing Law) and 13.k (Dispute Resolution) and 14 (Definitions) will survive any termination of termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
  7. Notices. All notices to be provided by one party to the other under this Agreement may be delivered in writing by (i) nationally recognized overnight delivery service or US mail to the mailing address provided on the SOF; or (ii) electronic mail to the e-mail address provided for Customer’s Account. The address for a notice to Alloy Software is: Alloy Software Inc., 400 Broadacres Dr., Unit 100, Bloomfield, New Jersey, 07003 with a copy to admin@alloysoftware.com by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as permitted above.
  8. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Alloy Software at admin@alloysoftware.com.
  9. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to but not limited to, acts of God, acts of government, acts of terror or civil unrest, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks (“Force Majeure Event”). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement and all SOFs on written notice to the non-performing party. If Alloy Software is the party experiencing the Force Majeure Event and as a result thereof is unable to provide the Services, Software or Mobile Apps for the period noted herein, and Customer terminates this Agreement and all SOFs, then Alloy Software will provide Customer a refund of fees paid by Customer pro-rated as of the date the Force Majeure Event commenced.
  10. Governing Law. This Agreement is governed by the laws of the State of New Jersey without regard to conflict of laws principles. The parties hereby submit to the exclusive personal jurisdiction of the federal and state courts of the State of New Jersey, Morris County for any claims or dispute relating to this Agreement.
  11. Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by arbitration in Morris Country, New Jersey. The arbitration will be administered by JAMS pursuant to its arbitration rules and procedures. Judgment on the Award may be entered in any court having jurisdiction. This section will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
  12. Export Compliance and Use Restrictions. The Services and other Software or components of the Services which Alloy Software may provide or make available to Customer or Users may be subject to U.S. (or other territories) export control and economic sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). Customer agrees to comply with all the Export Control Laws as they relate to access to and use of the Services, Software, and such other components by Customer and Users. Customer shall not access or use the Services if Customer is located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations, including, without limitation, a country or territory that is subject to comprehensive U.S. trade sanctions (including Crimea, Cuba, Iran, North Korea, and Syria) (a “Prohibited Jurisdiction”) and Customer shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents, warrants and covenants that (i) Customer is not named on, or owned or controlled by any party named on any U.S. government (or other government) list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) Customer is not a national of, located in, or a company registered in, any Prohibited Jurisdiction, (iii) Customer shall not permit Users to access or use the Service in violation of any Export Control Laws, (iv) no Customer Data created or submitted by Customer is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws, and (v) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer and Customer’s Users are located. Customer further agrees that Customer will not use the Services to disclose, transfer, download, export or re-export, directly or indirectly, any Customer Data to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which Customer may be subject. Customer acknowledges that the Service(s) and other Software may not be available in all jurisdictions and that Customer is solely responsible for complying with the Export Control Laws.
  13. Federal Government End Use Restrictions. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Service is licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.

14.  Definitions

“Account” means any accounts or instances created by or on behalf of Customer for access to and use of any of the Services.

“Affiliate” or “Subsidiary” means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.

“Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Customer Data” means, all electronic data, text, messages or other materials, including, without limitation, Personal Data of Users and End Users, submitted to the Services by Customer or its Users through Customer’s Account in connection with Customer’ use of the Services. “Data Claims” means any claims arising from either (a) a party’s breach of Section 3 (Customer Data), Section 7 (Confidentiality), the DPA, the BAA (if applicable), or the Privacy Notice, where such breach results in the unauthorized disclosure of Customer Data, or (b) breach of Section 2 (b) (Use Restrictions).

“Documentation” means, the then-current, generally available user documentation provided by Alloy Software detailing the functionalities of the Software and the Services.

“End User” means, any person or entity other than Customer or Customer’s Users with whom Customer interacts using the Services.

“Alloy Software Technology” means, (i) the Services, Software, Mobile Apps, Documentation, Alloy Software’s APIs, Alloy Software’s website(s) and any content published on the Alloy Software’s websites, (ii) any training materials, support materials, templates, tools, methodologies, or know-how, (iii) Alloy Software’s Confidential Information and (iv) any modifications or derivative works of the foregoing.

“Managed Hosting Agreement” means a signed agreement between the Customer and Alloy Software, which sets fort additional terms and conditions for subscription-based cloud hosting services, including the definition of support services and applicable service levels.

“Mobile App” means, the Alloy Software-branded Software applications provided by Alloy Software to enable access and use of the Services through mobile or other handheld devices (such as apps on iOS or Android devices).

“Personal Data” means, data relating to an individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under applicable data protection laws).

“Privacy Notice” means, Alloy Software’s privacy notice currently at https://www.alloysoftware.com/resources/privacy/, as updated from time to time.

“Service Order Form or SOF” means, (i) any service order referencing this Agreement and executed by Customer and Alloy Software, or (ii) any online ordering document or process completed by Customer, including any online registration through a Website, each of which detail, the Services subscribed to and corresponding Service Plans, the number of Users authorized to use the Services, Fees payable to Alloy Software, the applicable Subscription Term, and any relevant additional terms and conditions.

“Services” means, the Alloy Software software-based service offerings identified on the SOF and any Updates, including any Software, API or Documentation made available by Alloy Software with such offering, but excludes any applications or APIs separately provided by third parties.

“Service Plans” means, the pricing plans and other packaged offering limitations for and the applicable Services for which Customer subscribes with respect to any User.

“Software” means the generally available software provided by Alloy Software in connection with Customer’s use of the Services, and includes Mobile Apps, but excludes any applications or APIs that are provided by third parties.

“Subscription Term” means, the period stated on a SOF during which Customer subscribes to the Services.

“Update” means, the generally available updates, upgrades, hot fixes, patches, workarounds to the Software or Service provided by Alloy Software to all subscribing customers, but excludes separately priced new products or modules.

“User” or “Agent” means, any individual who is authorized by Customer to use the Services, including an Account administrator, employees, consultants, contractors, and agents of Customer or its Affiliates, and third parties with which Customer or its Affiliates transact business.