1. SERVICES
1.1 Performance. Subject to the terms and conditions of this Agreement, Alleo shall provide the Service to Customer during the Term, and Customer may access and use the Service for the sole purpose of using communication platform with which the Service is integrated (“Purpose”). Additionally, Alleo may permit installation of the Service into a server or other machine at Customer’s site (each, a “Machine”) for use by Customer. Customer shall be responsible for ensuring that access to and use of the Service by its employees or consultants is in accordance with the terms and conditions of this Agreement. Alleo grants to Customer, a limited, nontransferable (except as otherwise provided herein), non-sublicensable, nonexclusive license to install, access and use the Service during the Term (a) in object code form for Purpose, and (b) in accordance with this Agreement.
1.2 Third-Party Software; Subcontracting. To the extent that the Service incorporates any third-party software licensed by Alleo, then, in addition to the terms set forth herein, Customer must comply with any additional terms, restrictions, or limitations applicable to such third-party software. Additionally, Customer acknowledges that Alleo shall have the right to subcontract performance of its hosting services, in which event the service terms provided by any third-party hosting provider (including, without limitation, any service levels that are stricter than the service levels offered by Alleo) will be incorporated herein by reference.
1.3 Security. Customer shall ensure that its users of the Service (“Users”), shall comply with all of Alleo’s rules and regulations and security restrictions in connection with use of the Service as provided from time to time. Each User, and as applicable Machine if used as installed on-premise, will be assigned a unique user identification name and password for access to and use of the Service (“User ID”). Customer shall be solely responsible for ensuring the security and confidentiality of all User IDs provided to Customer. Customer acknowledges that it will be fully responsible for all liabilities incurred through use of any of its User IDs and that any transactions under its User IDs will be deemed to have been performed by Customer. Customer must purchase a User ID for each unique Machine.
1.4 Proprietary Rights. Customer acknowledges Alleo’s proprietary rights in the Service and associated documentation and shall protect the proprietary nature thereof. If Customer suggests any new features, functionality or performance for the Service that Alleo subsequently incorporates into the Service (or any other software or service), Customer hereby acknowledges that (i) Alleo shall own, and has all rights to use, such suggestions and the Service (or any other service) incorporating such new features, functionality, or performance shall be the sole and exclusive property of Alleo; and (ii) all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon Alleo. Customer shall not disassemble, decompile, reverse engineer, modify, transcribe, store, translate, sell, resell, lease, or otherwise transfer or distribute the Service or its associated documentation, in whole or in part, without prior authorization in writing from Alleo. In the event of any breach of this Section 1.4, Customer agrees that Alleo will suffer irreparable harm and shall therefore be entitled to obtain injunctive relief against Customer.
2. DATA RIGHTS
2.1 Customer Information. Customer grants to Alleo a non-exclusive license to copy, use and display any and all personally identifiable data, information or communications sent, or entered by Customer and/or Users while accessing the Service (“Customer Information”) solely to the extent necessary for Alleo to provide the Service to Customer. Customer shall own and, subject to the provisions of Section 2.3 below, retain all right, title and interest, including all intellectual property rights, in and to all Customer Information. Customer acknowledges that Alleo exercises no control whatsoever over the content of the Customer Information and it is the sole responsibility of Customer, at its own expense, to provide the information, and to ensure that the information Customer and Users transmit or receive complies with all applicable laws and regulations now in place or enacted in the future. Alleo is under no obligation, however, to review Customer Information for accuracy, potential liability or for any other reason.
2.2 Data Retention. Customer agrees that Alleo’s obligation to keep or maintain any Customer Information obtained in the course of performance of the Service shall not extend beyond the expiration of fourteen (14) days following the termination of this Agreement.
2.3 Data Collection. Alleo shall have the right to utilize data capture, syndication and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally identifiable data or information (including, without limitation, Customer Information) resulting from Customer’s and User’s access and use of the Service (“Blind Data”). To the extent that any Blind Data is collected by Alleo, such Blind Data may be used by Alleo for any lawful purpose without a duty of accounting to Customer, provided that the Blind Data is used only in an aggregated form, without specifically identifying the source of the Blind Data. Without assuming any obligations or liabilities of Customer, Alleo agrees use commercially reasonable efforts to comply with the applicable U.S. laws and regulations respecting the dissemination and use such Blind Data.
2.4 Data Security. The Service is designed to be connected to and to communicate information and data via a network interface. It is Customer’s sole responsibility to provide and continuously ensure a secure connection between the Service and Customer’s or its User’s Machine and IT network or any other network (as the case may be). Customer shall, and shall ensure that its Users, establish and maintain any appropriate network security measures (including, but not limited to, to the installation of firewalls, installation of antivirus programs, and periodic data backups) to protect the Service and Customer’s systems and network from and against any security breaches, unauthorized access, interference, intrusion or theft of data or information.
3. CUSTOMER OBLIGATIONS
3.1 Assistance. Customer shall provide all reasonable assistance and cooperation requested by Alleo in connection with providing any support or troubleshooting assistance concerning the Service. Alleo reserves the right to assess additional fees for any delay caused, in whole or in part, by Customer.
3.2 Hardware. Customer shall procure, install and maintain all Machine, equipment, Internet connections and other hardware (other than the hardware constituting the support center maintained at Alleo’s facilities) necessary for Customer and Users to connect to and access the Service.
3.3 Conduct. Customer agrees not to: (i) copy, decompile, reverse engineer, disassemble, attempt to derive the source code, modify or create derivative works of the Service or any Service related documentation; (ii) upload or distribute in any way files that contain viruses, trojans, worms, time bombs, logic bombs, corrupted files, or any other similar software or programs that may damage the operation of the Service or another’s computer; (iii) use the Service for illegal purposes; (iv) interfere or disrupt networks connected to the Service; (v) upload, post, promote or transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature; (vi) upload amounts of data and/or materials in excess of any limits specified by Alleo from time to time and not to create large numbers of accounts or otherwise transmit large amounts of data so as to clog the Service or comprise a denial of service attack or otherwise so as to have a detrimental effect on the Services; or (vii) upload, promote, transmit or post any material that encourages conduct that could constitute a criminal offence or give rise to civil liability. Customer acknowledges that it is responsible for compliance with all recording laws. Alleo may take whatever remedial action it determines in its sole discretion is appropriate if Customer violates these restrictions, including, but not limited to, immediate suspension or cancellation of the Service.
3.4 Compliance with Legal Requirements. Customer agrees to:
(a) Obtain all requisite written consents and authorizations necessary to provide or otherwise process any data and content through the Service and User represents and warrants that all such required consents and authorizations have been obtained;
(b) Submit accurate, complete and up-to-date information at all times in accessing and using the Service;
(c) Maintain all licenses and permits required to conduct User’s business and to immediately notify Alleo if any license or permit is (or is threatened to be) subject to discipline or is revoked, terminated or otherwise restricted in any way; and
(d) Maintain complete and accurate records of User’s compliance with the obligations set forth in this Agreement. During User’s use of the Service and for a period of one (1) year thereafter, Alleo shall, upon its reasonable request, be given access to all of User’s records, documentation, files and inventory pertaining to User’s use of the Program for auditing purposes and to determine User’s compliance with this Agreement.
3.5 Indemnification by Customer. Customer hereby irrevocably and unconditionally agrees, to the fullest extent permitted by law, to defend, indemnify, and hold harmless Alleo and its officers, directors, employees, and agents (the “Alleo Indemnitees”) from and against any and all claims, liabilities, losses, costs, damages, and/or expenses of any kind whatsoever (including reasonable attorney’s fees) that Alleo Indemnitees may incur directly or indirectly, wholly or partially arising from or in connection with (i) Customer’s non-compliance with law; and (ii) its use of the Service (other than for claims of infringement for which Alleo owes Customer an obligation of indemnification pursuant to Section 6.1 below). This Section shall survive the termination or expiration of this Agreement.
4.
4.1 Fees. Customer, or if agreed by Alleo the applicable reseller, will pay the fees set forth in the applicable order form, SOW, or other ordering document for use of the Service in accordance with the payment terms set forth therein. All fees are non-refundable and non-returnable. The Parties specifically intend that no part of any consideration or obligations hereunder is a prohibited act intended for the recommending or arranging for the referral of business or the ordering of items or services; nor are the payments intended to induce illegal referrals of business.
4.2 Payments. All payments due to Alleo shall be made in United States Dollars. All payments not made when due shall be subject to late charges of the lesser of: (i) one and one-half percent (1.5%) per month of the overdue amount; or (ii) the maximum amount permitted under applicable law. Customer shall reimburse Alleo for all fees and expenses, including reasonable attorneys’ fees, Alleo incurs to collect, or attempt to collect, amounts owed by Customer to Alleo.
4.3 Taxes. Customer shall pay all sales, use and excise taxes relating to, or under, this Agreement, exclusive of taxes based on or measured by Alleo’s net income, unless Customer is exempt from the payment of such taxes and timely provides Alleo with evidence of such exemption.
5. WARRANTY; DISCLAIMERS
5.1 Limited Warranty. Alleo shall perform the Services in accordance with its then current service levels for the Service, which may be updated from time to time. Exhibit C contains a copy of Alleo’s service levels as of the date of this Agreement, but which may be updated by Alleo from time to time.
5.2 Disclaimers. EXCEPT FOR THE LIMITED SERVICE LEVEL WARRANTY SET FORTH ABOVE, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. Alleo MAKES NO REPRESENTATION OR WARRANTY (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ACCURACY MERCHANTABILITY, OR NONINFRINGEMENT. Alleo DOES NOT WARRANT THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
6. INFRINGEMENT AND INDEMNIFICATION
6.1 Infringement Indemnity. Alleo will defend and indemnify Customer against third-party claims that the Service used by Customer in accordance with this Agreement infringes or misappropriates the third-party’s intellectual property rights in the United States, provided that: (a) Customer agrees to notify Alleo promptly in writing of Customer’s knowledge of a claim; (b) Alleo has sole control of the defense and all related settlement negotiations; and (c) Customer shall provide Alleo with the assistance, information, and authority reasonably necessary to perform such defense. Alleo shall have no liability for any claim of infringement resulting from: (i) Customer’s alteration or modifications of the Service without Alleo’s prior written approval (ii) Customer Information; or (iii) the combination or use of the Service with software, data, or material not furnished by Alleo.
6.2 Mitigation/Termination. In the event that some or all of the Service is held or is reasonably believed by Alleo to infringe the rights of a third party, Alleo shall have the option, at its expense, to: (i) modify the Service to make it non-infringing; or (ii) obtain a license that permits Customer to continue using the Service. If neither of such options can be exercised by Alleo on a commercially reasonable basis and the infringing materials materially affect the Service or the ability of Alleo to meet its obligations under this Agreement, then Alleo may terminate this Agreement.
6.3 Exclusive Remedy. This Section 6 states Alleo’s entire liability and exclusive remedy for infringement of third-party intellectual property rights.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL Alleo BE LIABLE FOR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, RELIANCE, CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS OR GOODWILL, BUSINESS INTERRUPTION OR INTERFERENCE, OR INABILITY TO USE OR INTERFERENCE WITH USE OF SERVICE) REGARDLESS OF WHETHER IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Alleo’S TOTAL LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES EXCEED THE AMOUNTS PAID BY CUSTOMER TO Alleo IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO A CLAIM ARISING HEREUNDER.
8. TERM; TERMINATION
8.1 Termination by Alleo for Material Breach. Either Party may terminate this Agreement if the other Party is in material breach hereunder and has not cured the breach within thirty (30) days after written notice specifying the breach.
8.2 Automatic Termination. This Agreement, and all rights and obligations hereunder, shall automatically terminate in the event that Customer breaches any of its obligations under Sections 1.4 or 3.3.
8.3 Termination upon Insolvency. This Agreement may be terminated by a Party immediately and without notice in the event the other Party: (i) becomes unable to pay its debts generally as they become due, (ii) makes a general assignment for the benefit of creditors, (iii) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it, (iv) is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent, (v) seeks or consents to reorganization under any bankruptcy act, or (vi) ceases to do business itself or through a successor.
8.4 Modification of Cessation of Services. Alleo may terminate this Agreement, at any time, in the event that Alleo ceases to provide the Services.
8.5 Effect of Termination. Upon termination of the Agreement for any reason, Customer’s right to use the Service shall immediately cease. Following the expiration or termination of this Agreement, Alleo may continue to provide the Service to Users (other than Customer) pursuant to Alleo’s EULA and Customer shall cooperate with Alleo with the transition thereof. Termination of this Agreement shall not relieve either party of any obligation accrued prior to the termination date. Termination shall not affect the obligations of the Parties under Sections 1.3, 1.4, 2.2, 2.3, 2.4, 3.3, 3.4, 3.5, 4, 5, 7, 8.5, 9, and 10.
9. CONFIDENTIAL INFORMATION
9.1 Definition. “Confidential Information” means the Service, its associated documentation, Alleo’s pricing for the Service, and other information disclosed by Alleo under this Agreement that is designated as confidential or that by its nature would reasonably be expected to be kept confidential.
9.2 Exclusions. Notwithstanding the previous paragraph, Alleo’s Confidential Information shall not include information that (i) is or becomes publicly available through no act or omission of Customer; or (ii) was in Customer’s lawful possession prior to the disclosure and had not been obtained by Customer either directly or indirectly from Alleo; or (iii) is lawfully disclosed to Customer by a third party not bound by a duty of non-disclosure; or (d) is independently developed by Customer without access to or use of the Confidential Information.
9.3 Nondisclosure. Customer agrees to hold the Confidential Information in confidence. Customer agrees not to make the Confidential Information available in any form to any third party or to use the Confidential Information for any purpose other than performing its obligations or enjoying its rights under this Agreement. Customer agrees to use the same degree of care that it uses to protect its own confidential information of a similar nature and value, but in no event less than a reasonable standard of care, to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement. Customer represents that it has, with each of its employees who may have access to any Confidential Information, an appropriate agreement sufficient to enable it to comply with all of the terms of this Section 9.
9.4 Required Disclosure. Notwithstanding the foregoing, Customer may disclose the Confidential Information to the extent that such disclosure is required by law or court order, provided, however, that Customer provides to Alleo prior written notice of such disclosure and reasonable assistance in obtaining an order protecting the Confidential Information from public disclosure.
9.5 Termination/Expiration. After termination or expiration of this Agreement, Customer shall return to Alleo any Confidential Information in Customer’s possession or control.
10. MISCELLANEOUS
10.1 Relationship Between the Parties. This Agreement shall not be construed as creating any agency, partnership, joint venture, or other similar legal relationship between the Parties; nor will either Party hold itself out as an agent, partner, or joint venture party of the other party.
10.2. Compliance with Law. Each Party shall comply with all applicable laws and regulations of governmental bodies or agencies in its performance under this Agreement.
10.3. Notice. Whenever notice is required to be given under this Agreement, such notice shall be in writing and shall be addressed to the recipient at the Notice Address of such Party, or to such other address as the addressee shall have last furnished in writing to addressor.
10.4. Waiver. No waiver shall be implied from conduct or failure to enforce rights. No waiver shall be effective unless in a writing signed by both Parties.
10.5. Severability. If any provision of this Agreement is held to be invalid, void or unenforceable, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect.
11.0. Assignment. Customer may not assign or delegate any of its rights, interest or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Alleo. Alleo may assign and delegate this Agreement to successors in the event of a merger, acquisition or other change in control. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
10.7. Governing Law. This Agreement and all claims related to it, its execution or the performance of the parties under it, shall be construed and governed in all respects according to the laws of the United States of America, and the State of Indiana without regard to the conflict of law provisions thereof. Any action or proceeding arising out of or relating to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction located in Indianapolis, Indiana.
10.8. Force Majeure. Alleo shall not be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any Act of God, or any government or any governmental body, war, insurrection, acts of terrorism, the elements, strikes or labor disputes, or other similar or dissimilar causes beyond Alleo’s control. Customer acknowledges that the performance of certain of Alleo’s obligations may require the cooperation of third parties designated by Customer and outside the control of Alleo. In the event such third parties fail to cooperate with Alleo in a manner that reasonably permits Alleo to perform its obligations, such failures shall be considered as causes beyond the control of Alleo for the purposes of this Section and shall not be the basis for a determination that Alleo is in breach of any of its obligations under this Agreement or is otherwise liable. Either Party may terminate at its option this Agreement if any such situation continues for thirty (30) days and prevents the continued performance of this Agreement by the other Party.
10.9 Entire Agreement. This Agreement and the SOWs and Exhibits referenced herein shall constitute the complete agreement between the Parties and supersedes all previous agreements or representations, written or oral, with respect to the subject matter hereof. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. It is expressly agreed that any terms and conditions of any purchase order or similar instrument of Customer shall be superseded by the terms and conditions of this Agreement to the extent that such terms may be in conflict.
10.10. Counterparts; Facsimile Signatures. This Agreement may be executed in counterparts which, when taken together, shall constitute one and the same instrument. Facsimile signatures shall have the same effect as original signatures.