Services. After the parties complete and execute the Order Form, Alooma will provide
the Services to Customer in accordance with the Agreement. Customer may use the Services in accordance with
Data Processing and Security.
Use of Customer Data. Alooma will not access or use Customer Data, except as necessary to
provide the Services and TSS to Customer.
Data Processing and Security Terms. The Data Processing and Security Terms are incorporated by
this reference into the Agreement.
Updates to Data Processing and Security Terms. Alooma may only change the Data Processing and
Security Terms as expressly permitted therein.
Consents. Customer is responsible for any consents and notices required to permit (a) Customer’s
use and receipt of the Services and (b) Alooma’s accessing, storing, and processing of data provided by Customer
(including Customer Data, if applicable) under the Agreement.
Compliance. Customer will (a) ensure that Customer and its End Users’ use of the Services complies
with the Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized access
or use of the Services, and (c) promptly notify Alooma of any unauthorized use of, or access to, the Services
of which Customer becomes aware.
Use Restrictions. Customer will not, and will not allow End Users to, (a) copy, modify, create a
derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any
of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable
law); (b) sell, resell, sublicense, transfer, or distribute the Services; or (c) access or use the Services (i)
in a manner intended to avoid incurring Fees; (ii) for materials or activities that are subject to the International
Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (iii) in a manner that
breaches, or causes the breach of, Export Control Laws; (iv) use the Services to operate or enable any
telecommunications service or to place or receive calls from any public switched telephone network, or (v) to
transmit, store, or process health information subject to United States HIPAA regulations except as permitted
by an executed HIPAA BAA. Alooma does not intend use of the Services to create obligations under HIPAA or FERPA,
and makes no representation that the Services satisfy HIPAA or FERPA requirements. In regards to HIPAA, if Customer
is (or becomes) a Covered Entity or Business Associate (as defined in HIPAA), Customer will not use the Services for
any purpose or in any manner involving Protected Health Information (as defined in HIPAA) unless Customer has
received prior written consent to such use from Alooma.
Updates to Services and Terms.
Limitations on Changes. Alooma may update the Services, provided the updates do not result in a material
reduction of the functionality, performance, availability, or security of the Services.
Changes to Terms. Alooma may update the URL Terms, provided the updates do not (a) result in a material
degradation of the overall security of the Services, (b) expand the scope of or remove any restrictions on Alooma’s
processing of Customer Data as described in the Data Processing and Security Terms, or (c) have material adverse
impact on Customer’s rights under the URL Terms. Alooma will notify Customer of any material updates to the URL Terms.
Permitted Changes. Section 4.1 (Limitations on Changes) and Section 4.2 (Changes to Terms) do not limit
Alooma’s ability to make changes required to comply with applicable law or address a material security risk, or that
are applicable to new or pre-general availability Services or functionality.
Payment. If applicable, Alooma will invoice Customer for the Fees. Customer will pay Alooma all invoiced
amounts by the Payment Due Date. Customer’s obligation to pay all Fees is non-cancellable. All payments due are
in the currency described in the invoice. Wire transfer payments must include the bank information described in
Taxes. If applicable, Alooma will itemize any invoiced Taxes. Customer will pay invoiced Taxes unless Customer
provides a valid tax exemption certificate. Customer may withhold Taxes if Customer provides a valid receipt evidencing
the Taxes withheld.
Invoice Disputes. If applicable, Customer must submit any invoice dispute before the Payment Due Date.
If the parties determine that Fees were incorrectly invoiced, Alooma will issue a credit equal to the agreed amount.
(a) If applicable, Customer’s payment of Fees is overdue if Alooma has not received it by the Payment Due Date.
If Customer’s payment is overdue, then Alooma may (i) charge interest on overdue amounts at 1.5% per month
(or the highest rate permitted by law, if less) from the Payment Due Date until paid in full, and (ii) Suspend
the Services or terminate the Agreement.
(b) If applicable, Customer will reimburse Alooma for all reasonable expenses (including attorneys’ fees) incurred
by Alooma in collecting overdue payments except where such payments are due to Alooma’s billing inaccuracies.
Purchase Orders. If Customer requires a purchase order number on its invoice (if applicable), Customer will
provide a purchase order number in the Order Form. If Customer does not provide a purchase order number, then (a) Alooma
will invoice Customer without a purchase order number, and (b) Customer will pay invoices without a purchase order number
referenced. Any terms on a purchase order are void.
Services Suspension. Alooma may immediately Suspend Customer’s use of the Services if (a) there is an Emergency
Security Issue or (b) Alooma is required to Suspend such use immediately to comply with applicable law.
Limitations on Services Suspensions. If Alooma Suspends Services, then (a) Alooma will provide Customer with
notice of the cause for Suspension without undue delay, to the extent legally permitted, and (b) the Suspension will be
to the minimum extent and for the shortest duration required to resolve the cause for Suspension.
Intellectual Property Rights. Except as expressly stated in the Agreement, the Agreement does not grant either party
any rights, implied or otherwise, to the other’s content or Intellectual Property. As between the parties, Customer retains
all Intellectual Property Rights in Customer Data and Alooma retains all Intellectual Property Rights in the Services and
Feedback. At its option, Customer may provide feedback and suggestions about the Services to Alooma (“Feedback”).
If Customer provides Feedback, then Alooma and its Affiliates may use that Feedback without restriction and without obligation
Brand Features. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property
Rights to those Brand Features. A party may revoke the other party’s right to use its Brand Features with written notice to the
other party and a reasonable period to stop the use. Neither party may display or use the other party’s Brand Features beyond
what is allowed in the Agreement without the other party’s prior written consent.
Obligations. Subject to Section 8.2 (Disclosure of Confidential Information), the recipient will use the other party’s
Confidential Information only to exercise its rights and fulfill its obligations under the Agreement. The recipient will use
reasonable care to protect against disclosure of the other party’s Confidential Information to parties other than the recipient’s
employees, Affiliates, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep
it confidential. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations.
Disclosure of Confidential Information.
a. General. Regardless of any other provision in the Agreement, the recipient and its Delegates may disclose the other party’s
Confidential Information (i) with the other party’s written consent or (ii) in accordance with a Legal Process request, subject
to Section 8.2 (b) (Legal Process Notification).
b. Legal Process Notification. The recipient will use commercially reasonable efforts to notify the other party before disclosing
that party’s Confidential Information in accordance with Legal Process. Notice is not required before disclosure if the recipient
is informed that (i) it is legally prohibited from giving notice or (ii) the Legal Process relates to exceptional circumstances
involving danger of death or serious physical injury.
c. Opposition. The recipient will, and will ensure that its Delegates will, comply with the other party's reasonable requests to
oppose disclosure of its Confidential Information.
Term and Termination.
Agreement Term. The Agreement will remain in effect for the Term unless it expires or is terminated in accordance with the
Renewal. At the end of the initial term of the Agreement and related Order Form as specified in Order Information section
of the attached Order Form, the Agreement, upon written consent by both parties, may renew for consecutive terms of 30 days or as
may be specified in an accompanying invoice or Order Form (each a “Renewal Term”). Either party may provide the other party with
written notice of its decision not to renew at least 30 days before the end of the then-current Renewal Term (if applicable).
Termination for Breach. Either party may terminate the Agreement if the other party (i) is in material breach of the Agreement
and fails to cure that breach within 30 days after receipt of written notice, (ii) ceases its business operations, or (iii) or becomes
subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
Effect of Termination. If the Agreement terminates or expires, then (a) all rights and access to the Services will terminate
(including access to Customer Data) and (b) Alooma, if applicable, will send Customer a final invoice for payment obligations.
Survival. The following Sections will survive expiration or termination of this Agreement: Section 5 (Payment Terms),
Section 7 (Intellectual Property), Section 8 (Confidentiality), Section 11 (Disclaimer), Section 12 (Indemnification), Section 13
(Liability), Section 9.4 (Effects of Termination), Section 16 (Benchmarking), Section 19 (Miscellaneous), and Section 20 (Definitions).
Representations and Warranties. Each party represents and warrants that: (a) it has full power and authority to enter into this
Agreement and (b) will comply with all laws and regulations applicable to its provision, receipt, or use of the Services.
Disclaimer. Except as expressly provided for in the Agreement, to the fullest extent permitted by applicable law, Alooma (a) does
not make any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for
a particular use, noninfringement, or error-free or uninterrupted use of the Services or Software and (b) makes no representation about content
or information accessible through the Services. The Services are not intended to be used for High Risk Activities. Any use of the Services for
High Risk Activities by Customer or its End Users will be at Customer’s own risk, and Customer will be solely liable for the results of any failure
of the Services when used for High Risk Activities.
Alooma Indemnification Obligations. Alooma will defend Customer and its Affiliates participating under the Agreement Customer Indemnified
Parties”), and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that the
Customer Indemnified Parties’ use of Alooma Indemnified Materials infringes the third party’s Intellectual Property Rights.
Customer Indemnification Obligations. Customer will defend Alooma and its Affiliates and indemnify them against Indemnified Liabilities in any
Third-Party Legal Proceeding to the extent arising from (a) any Customer Indemnified Materials or (b) Customer’s or an End User’s use of the Services
in breach of the Use Restrictions.
Indemnification Exclusions. Section 12.1 (Alooma Indemnification Obligations) and Section 12.2 (Customer Indemnification Obligations) will not
apply to the extent the underlying allegation arises from (a) the indemnified party’s breach of the Agreement or (b) a combination of the Alooma
Indemnified Materials or Customer Indemnified Materials (as applicable) with materials not provided by the indemnifying party under the Agreement,
unless the combination is required by this Agreement.
Indemnification Conditions. Sections 12.1 (Alooma Indemnification Obligations) and Section 12.2 (Customer Indemnification Obligations) are
conditioned on the following:
a. The indemnified party promptly notifies the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding
and cooperates reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 12.4
(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 12.1 (Alooma Indemnification
Obligations) or Section 12.2 (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.
b. The indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party,
subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement
requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s
prior written consent, not to be unreasonably withheld, conditioned, or delayed.
a. If Alooma reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then Alooma may, at its sole option and
expense: (i) procure the right for Customer to continue using the Services; (ii) modify the Services to make them non-infringing without materially
reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative.
b. If Alooma does not believe the remedies in Section 12.5 (a) are commercially reasonable, then Alooma may suspend or terminate the impacted Services.
Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 12 (Indemnification) states the parties’ sole
and exclusive remedy under the Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 12
a. To the extent permitted by applicable law and subject to Section 13.2 (Unlimited Liabilities), neither party will have any Liability arising out
of or relating to the Agreement for any (i) indirect, consequential, special, incidental, or punitive damages or (ii) lost revenues, profits, savings,
b. Each party’s total aggregate Liability for damages arising out of or relating to the Agreement is limited to the Fees Customer paid under the
Agreement during the 12 month period before the event giving rise to Liability.
Unlimited Liabilities. Nothing in the Agreement excludes or limits either party’s Liability for:
a. subject to Section 11 (Disclaimer), death, personal injury, or tangible personal property damage resulting from its negligence or the negligence
of its employees or agents;
b. its fraud or fraudulent misrepresentation;
c. its obligations under Section 12 (Indemnification);
e. Its payment obligations under the Agreement; or
f. matters for which liability cannot be excluded or limited under applicable law.
Technical Support Services by Alooma. Alooma will provide TSS to Customer during the Term in accordance with the
Provision of Software. Alooma may make Software available to Customer, including third-party software. Customer may choose to use the
Software in connection with Customer’s use of the Services. Some Software may be subject to third-party license terms, which Alooma will provide
Ceasing Software Use. If the Agreement terminates or expires, then Customer will stop using the Software.
Benchmarking. Customer may only publicly disclose (directly or through a third party) the results of any comparative
or compatibility testing, benchmarking, or evaluation (each, a “Test”) of the Services, if the disclosure includes all information reasonably necessary
for Alooma or a third party to replicate the Test. If Customer conducts, or directs a third party to conduct, a Test of the Services and publicly discloses
the results directly or through a third party, then Alooma (or an Alooma-directed third party) may conduct Tests of any publicly available cloud products or
services provided by Customer and publicly disclose the results of any such Test (which disclosure will include all information necessary for Customer or a
third party to replicate the Test).
Publicity. Either party may issue publicity or general marketing communications concerning its involvement with the
other party, subject to such other party’s prior written approval, which will not be unreasonably withheld or denied; provided, that Customer hereby
approves the display by Alooma of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval
upon written notice to Alooma.
Copyright Policy. Alooma provides information to help copyright holders manage their intellectual property online, but
Alooma cannot determine whether something is being used legally without input from the copyright holders. Alooma will respond to notices of alleged
copyright infringement and may terminate repeat infringers in appropriate circumstances as required to maintain safe harbor for online service providers
under the U.S. Digital Millennium Copyright Act. If Customer believes a person or entity is infringing Customer’s copyrights and would like to notify
Alooma, Customer can find information about submitting notices, and Alooma’s policy about responding to notices, at
Notices. Alooma will provide notices to Customer by sending an email to the Notification Email Address. Customer will provide notice to Alooma
under this Agreement by sending an email to email@example.com. Notice will be treated as received when the email is sent. Customer is
responsible for keeping its Notification Email Address current throughout the Term.
Emails. The parties may use emails to satisfy written approval and consent requirements under the Agreement.
Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a)
the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under this
Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign
Change of Control. If a party experiences a change of Control other than an internal restructuring or reorganization, then (a) that party will
give written notice to the other party within 30 days after the change of Control and (b) the other party may immediately terminate this Agreement any
time within 30 days after it receives that written notice.
Force Majeure. Neither party will be liable for failure or delay in performance of its obligations to the extent caused by circumstances beyond
its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.
Subcontracting. Alooma may subcontract obligations under this Agreement but will remain liable to Customer for any subcontracted obligations.
No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
Severability. If any part of the Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.
No Third-Party Beneficiaries. The Agreement does not confer any benefits on any third party unless it expressly states that it does.
Equitable Relief. Nothing in the Agreement will limit either party’s ability to seek equitable relief.
Governing Law. All claims arising out of or relating to the Agreement or the Services will be governed by California law, excluding that state’s
conflict of laws rules, and will be litigated exclusively in the federal or state courts of Santa Clara County, California; the parties consent to
personal jurisdiction in those courts.
Amendments. Except as specifically described otherwise in the Agreement, any amendment to the Agreement must be in writing, expressly state that
it is amending the Agreement, and be signed by both parties.
Independent Development. Nothing in the Agreement will be construed to limit or restrict either party from independently developing, providing,
or acquiring any materials, services, products, programs, or technology that are similar to the subject of the Agreement, as long as the party does
not breach its obligations under the Agreement in doing so.
Entire Agreement. The Agreement states all terms agreed between the parties, and supersedes any prior or contemporaneous agreements between
the parties relating to the subject matter of the Agreement. In entering into the Agreement, neither party has relied on, and neither party will
have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly
described in the Agreement. The Agreement includes URL links to other terms (including the URL Terms), which are incorporated by reference into
Conflicting Terms. If there is a conflict among the documents that make up this Agreement, the documents will control in the following order:
the Order Form, the Agreement, and the URL Terms.
Conflicting Languages. If the Agreement is translated into any other language, and there is a discrepancy between the English text and
the translated text, the English text will control.
Counterparts. The parties may execute the Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken
together will constitute one instrument.
Electronic Signatures. The parties consent to electronic signatures.
Headers. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the Interpretation
of the Agreement.
"Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
“Alooma Indemnified Materials” means Alooma’s technology used to provide the Services and Alooma’s Brand Features.
“BAA or “Business Associate Agreement” is an amendment to the Agreement covering the handling of Protected Health Information (as defined
“Brand Features” means each party’s trade names, trademarks, logos, domain names, and other distinctive brand features.
“Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and that
is marked as confidential or would normally be considered confidential information under the circumstances. Customer Data is Customer’s Confidential Information. Confidential Information does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.
“Control” means control of greater than 50% of the voting rights or equity interests of a party.
“Customer Data” means data provided to Alooma by Customer through the Services.
“Customer Indemnified Materials” means Customer Data and Customer Brand Features.
“Emergency Security Issue” means either: (a) Customer’s or End Users’ use of the Services, where such use could disrupt: (i) the Services;
(ii) other customers’ or their end users’ use of the Services; or (iii) the Alooma network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
“End Users” means individuals whom Customer permits to use the Services.
“Export Control Laws” means all applicable export and re-export control laws and regulations, including (i) the Export Administration
Regulations (“EAR”) maintained by the U.S. Department of Commerce, (ii) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (iii) the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State.
“Fees” means the amounts, including Taxes, invoiced to Customer for the Services as agreed to by both parties.
“FERPA” means the Family Educational Rights and Privacy Act of 1974 as it may be amended from time to time, and any regulations issued
“High Risk Activities” means activities where the failure of the Services could lead to death, serious personal injury, or severe
environmental or property damage.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations
issued under it.
“including” means including but not limited to.
“Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party, and (ii) damages and costs finally awarded
against the indemnified party and its Affiliates by a court of competent jurisdiction.
“Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.
“Intellectual Property Right(s)” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights,
database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
“Legal Process” means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental
regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
“Liability” means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or
contemplated by the parties.
“Notification Email Address” means the email address(es) designated by Customer in the Order Form.
“Order Form” means an order form issued by Alooma and executed by Customer and Alooma specifying the Services Alooma will provide to Customer
under the Agreement.
“Payment Due Date” means 30 days from the invoice date.
“Prices” has the meaning stated in the applicable Order Form (if applicable). Prices do not include Taxes.
“Services” means the then- current services provisioned by Alooma to the Customer, in which Alooma provides Customer access to a web based data
pipeline and stream processor in order to provide a solution designed to aid Customer in collecting and organizing Customer Data (including any
“Software” means any downloadable tools, software development kits, or other such computer software provided by Alooma for use in connection
with the Services, and any updates Alooma may make to such Software from time to time.
“Suspend” or “Suspension” means disabling access to or use of the Services or components of the Services.
“Taxes” means all government-imposed taxes, except for taxes based on Alooma’s net income, net worth, asset value, property value, or
“Term” means the Initial Term and all Renewal Terms.
“Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal
(including any appellate proceeding).
“TSS” means the then-current technical support service provided by Alooma to Customer under the TSS Guidelines.