ALLOY TECHNOLOGIES, INC.
TERMS AND CONDITIONS
By signing the Order Form to which these Terms and Conditions are attached (the “Order Form”), Alloy and Customer agree to be bound by these Terms and Conditions. Capitalized terms not defined herein shall have the meaning set forth in the Order Form. These Terms and Conditions and the Order Form shall collectively be referred to as the “Agreement.”
1. Access to the Service; Service Availability
Subject to Customer’s compliance with the terms and conditions of this Agreement, Alloy grants Customer the right to access and use the services specified in the attached Order Form (collectively, the “Service,” or “Services”) during the Term (as defined below) for the internal business purposes of Customer, only as provided herein.
In the event Customer is accessing the Services in order to evaluate the Services in a non-production environment, Alloy grants to Customer a personal, temporary, limited, nonexclusive, nonassignable, nonsublicensable license to access and use the Cloud Services during the for the period set forth in the applicable Order Form solely for the purpose of evaluating the suitability of the Services for Customer’s production use subject to the license restrictions, terms and conditions of this Agreement.
Alloy may periodically release new features ahead of its general availability for the purpose of receiving feedback from select customers (the “Beta Services”). In the event Customer is accessing the Service in order to evaluate the Beta Services, then Alloy hereby grants to Customer a personal, temporary, limited, nonexclusive, nonassignable, nonsublicensable license, for the period set forth in the applicable Order Form, to access and use the Beta Services and any related Documentation, subject to the license restrictions, terms and conditions of this Agreement.
Alloy shall use commercially reasonable efforts to ensure 99% Service Availability. “Service Availability” is defined as the percentage of a particular month (based on 24 hour days for the number of days in the subject month) that the Service was available for access. “Scheduled Maintenance” does not factor into Service Availability; provided that Alloy shall provide Customer with 7 days advanced notice prior to any Scheduled Maintenance.
2. Security; Support; Service Levels
Alloy will use its commercially reasonable efforts to maintain the security and integrity of the Service and will provide telephone support to Customer. Alloy will provide Customer with support for the Service. If the Service becomes substantially unavailable to Customer due to defects with the Service, Alloy will respond to Customer: (i) within twenty-four (24) hours from Customer’s notification to Alloy of such unavailability, if such notice is provided during normal business hours (Monday-Friday, 9:00 a.m. – 6:00 p.m. Pacific Time); or (ii) within twenty-four (24) hours of the start of the next business day, if outside of normal business hours. At Customer’s request and subject to Customer’s approval, Alloy may elect to offer “for fee” extended support options and Professional Services consultation. Such services may include, among other things: extended training services (e.g. ongoing in-person training), change-management consulting, engineering support to the extraction and transmission of Customer’s internal data (e.g. ERP integration), advanced system configuration (e.g. Customer internal templates). Unless otherwise specified, extended support and Professional Services will be billed at the rate of $300 per hour.
3. Changes to Services
If Alloy provides Customer with any upgrades, patches, enhancements, or fixes for the Services (“Updates”), then such Updates will become part of the Services and subject to this Agreement. Notwithstanding the foregoing, Alloy shall have no obligation under this Agreement or otherwise to provide any such Updates or any other support for the Services to Customer. Customer understands that Alloy may cease supporting old versions or releases of the Services at any time in its sole discretion.
For purposes of this Agreement, “Confidential Information” means the terms and conditions of this Agreement, customer data and all non-public information about the disclosing party’s business or activities that is proprietary and confidential, which shall include all business, financial, technical and other information of either party including the Services and underlying software, algorithms and information embodied therein, whether or not it is marked or designated by such party as “confidential or “proprietary” at the time of disclosure. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party rightfully knew prior to receiving such information from the disclosing party; or (iv) the receiving party develops independent of any information originating from the disclosing party. This Agreement including its rates, terms and incentives shall be considered Confidential Information. Each party agrees that: (a) it will not disclose to any third party any Confidential Information disclosed to it by the other party except as expressly permitted in this Agreement; (b) it will not use any Confidential Information disclosed to it by the other party except as necessary to perform its obligations under this Agreement; and (c) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, each party may disclose Confidential Information of the other party to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law. In the event the information sought is Confidential Information of the other party, the party from whom the information is sought shall promptly inform the other party of such requested disclosure in writing unless prohibited from such notification by lawful order of the court.
5. Ownership; Feedback
Alloy retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Alloy for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Subject to the preceding sentence, Customer shall retain all right, title and interest in and to all Customer Data. Customer may from time to time provide suggestions, comments or other feedback to Alloy with respect to the Service or Beta Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Alloy notwithstanding anything else. Customer shall, and hereby does, grant to Alloy a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose; provided that such license grant shall not be construed to relieve Alloy of any confidentiality obligations it may have hereunder with respect to Customer Data. Nothing in this Agreement will impair Alloy’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute. For the avoidance of doubt, enhancements to the Services made during this Agreement, even if made in whole or in part as a consequence of Feedback provided by Customer, belong exclusively to Alloy.
6. Fees and Payment
Customer shall pay Alloy fees for the Service as set forth in the Order Form (“Fees”). Unless otherwise specified in the Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars upon receipt of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law, plus expenses of collection including reasonable attorney’s fees. Customer shall be responsible for all taxes associated with the Service other than taxes based on Alloy’s net income. All Fees paid are non-refundable and are not subject to set-off.
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; or (vi) use the Service to build an application or product that is competitive with any Alloy product or service. Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to providing Customer Data (as defined below) for the Service as well as providing any third-party authorizations or Customer credentials for Alloy to use in order to obtain Customer Data from third parties, including, but not limited to: (a) the receipt and transmission of Electronic Data Interchange (EDI) files on behalf of Customer; (b) access to web-based vendor-facing portals and (c) APIs hosted by Customer’s own customers/partners identified in the Initial Coverage section on the Order Form (collectively, “Third Party Platforms”) or as mutually agreed between Customer and Alloy. Customer shall use the Service in compliance with all applicable laws, regulations and third party service terms and conditions. Customer shall not (and shall not permit any third party to), directly or indirectly, take any action or upload, download, post, submit or otherwise distribute or facilitate distribution of any material on or through the Service, that: (1) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; (2) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (3) constitutes unauthorized or unsolicited advertising, junk or bulk email (“spamming”); (4) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Alloy or any third party; or (5) impersonates any person or entity, including any employee or representative of Alloy. Additionally, Customer shall not: (A) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (B) bypass any measures Alloy may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service).
Customer agrees to allow Alloy to: (i) use Customer’s name and logo as an Alloy customer in Alloy’s marketing materials including its website without implying Customer’s endorsement of Alloy or the Service; (ii) issue a press release within two (2) weeks of the Effective Date indicating that Customer has agreed to take a license to the Service, the contents of which will be pre-approved by Customer and which shall not be unreasonably withheld; and (iii) publish a case study that describes how the Service was used to solve Customer’s business needs, subject to Customer’s prior review and approval.
9. Customer Data; Third-Party Platforms
For purposes of this Agreement, “Customer Data” shall include all of the following: (i) any applications, data, identification credentials, information or material provided, uploaded, or submitted by Customer, or at Customer’s request or with Customer’s permission, to the Service in the course of using the Service; (ii) any data within Customer’s private storage area on the Service, if any; (iii) any applications, data, information or material obtained, downloaded, extracted or received by Alloy from any Third Party Platform or outside source on behalf of Customer, including but not limited to the third parties identified in the Initial Coverage section of the Order Form, or using identification credentials provided or authorized by Customer. Customer, not Alloy, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, including the Customer Data obtained from any Third Party Platform whether or not that data is obtained through the use of Customer’s identification credentials provided to Alloy by Customer. Customer represents and warrants to Alloy that Customer owns all right and title and interest to and in the Customer Data, and that the Customer Data, the use thereof in connection with the Services and the access thereto by Alloy does not and shall not infringe the intellectual property, proprietary, or other rights of any third party. Customer also represents and warrants to Alloy that Customer can grant Alloy permission to use Customer’s identification credentials or authorizations for the Third Party Platforms for the purpose of Alloy providing the Services to Customer under the terms of this Agreement. Alloy is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Alloy’s gross negligence or willful misconduct. In addition, Alloy is not responsible for any unauthorized access to or unauthorized use of Customer’s Third Party Platforms unless such access is due to Alloy’s gross negligence or willful misconduct. Alloy shall maintain compliance with industry standard security precautions with respect to Customer Data. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, and any person who gains access to Customer Data, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Customer hereby grants Alloy a limited, non-exclusive, sublicensable, transferable, fully-paid, worldwide right and license to use Customer Data in order for Alloy to provide the Services to Customer. In addition, Customer grants Alloy a limited, non-exclusive, sublicensable, transferable, fully-paid, worldwide right and license to use Customer Data, de-identified and in aggregate, in various analyses and to incorporate such data and analyses in its product offerings without attribution to Customer. As between Alloy and Customer, Customer shall own and hereby reserves all right, title and interest in the Customer Data. With respect to any software or service that is distributed or provided to Customer by a third-party for use on Customer premises or devices, Customer hereby grants Alloy a non-exclusive, non-transferable, non-sublicensable license to use such software during the Term only in connection with Alloy providing the Services to Customer. Customer represents and warrants that it has the authority to grant the rights to Alloy specified in this Section 9.
10. Term; Termination
Unless earlier terminated in accordance with this Section 10, the term of this Agreement (the “Term”) shall be as set forth on the Order Form. In the event of a material breach of this Agreement by the either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Alloy may suspend Customer’s password, account or use of the Service if: (i) Customer’s account is more than sixty (60) days past due; or (ii) Customer’s breach of this Agreement results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Alloy’s ability to provide access to the Service to other customers; provided that: (a) Alloy shall use reasonable good faith efforts to work with Customer to resolve or mitigate the consequences of such breach in order to resolve the issue without resorting to suspension; (b) prior to any such suspension, Alloy shall use commercially reasonable efforts to provide notice to Customer describing the nature of the breach; (c) Alloy shall reinstate Customer’s password, account, or use of the Service, as applicable, if Customer cures such breach within thirty (30) days of receipt of such notice; and (d) if Customer fails to cure such breach within such cure period, Alloy may, in its sole discretion, terminate this Agreement. If specified in the Order Form, either party may elect not to renew this Agreement provided written notice is given within the timeframe specified in the Order Form. All provisions of this Agreement which by their nature should survive termination or non-renewal shall survive termination or non-renewal, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Customer shall defend, indemnify, and hold harmless Alloy, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, actions, judgments, costs and expenses (including reasonable attorneys’ fees), that arise from or relate to any third party claim arising out of or related to: (i) Customer’s use or misuse of, or access to, the Service or otherwise from Customer Data; (ii) any breach or alleged breach of any of Customer’s obligations or representations and warranties hereunder or Customer’s violation of this Agreement; (iii) infringement by Customer, or any third party using Customer’s account, of any intellectual property or other right of any person or entity; (iv) a claim alleging that any Customer Data infringes the rights of, or has caused harm to, a third party; or (v) a claim related to Alloy’s access or extraction of Customer Data using the credentials or authorization provided by Customer. Alloy reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer shall assist and cooperate with Alloy in asserting any available defenses.
12. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
13. Limitation of Liability
IN NO EVENT SHALL ALLOY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID BY CUSTOMER TO ALLOY HEREUNDER IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
This Agreement represents the entire agreement between Customer and Alloy with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Alloy with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving written notice to the other party. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Alloy shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Alloy’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. This Agreement is not assignable, transferable or sublicensable by Customer except with Alloy’s prior written consent, and any action or conduct in violation of the foregoing shall be void and without effect. Alloy may freely assign, transfer or delegate any of its rights and obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Alloy to act with respect to a breach of this Agreement by Customer or others shall not constitute a waiver and shall not limit Alloy’s rights with respect to such breach or any subsequent breaches.