These Terms and Conditions ("T&Cs"), together with the signed Service Agreement (the "Service Agreement" and together with these T&Cs, the "Agreement"), are made and entered into on the date indicated as the Start Date in the Service Agreement with respect to the provision by Alooma to the Customer with a data pipeline, a transformation interface and stream processor in order to provide a solution that will help the Customer collect and organize data (the "Alooma Service"). The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and agreements. Any term not defined herein shall have the meaning assigned to it in the Service Agreement
1. Alooma Service
Subject to the Agreement, Alooma shall provide Customer access to the Alooma Service and shall grant Customer the right to use the Alooma Service solely in connection with the services that Customer provides to its client through its applications and websites as detailed in the Service Agreement (“Customer Service”). To the extent Alooma provides Customer any Software, Alooma grants Customer a limited, revocable, nonexclusive, nontransferable and nonsublicensable license to install and use the Software solely as required in order to use the Alooma Service, and any reference to the Alooma Service shall include the Software. "Software" means any API, SDK, software, code, technology and any updates or new versions thereof that Alooma may provide to Partner as part of the Alooma Service.
2. Alooma Intellectual Property Rights & Restrictions
All intellectual property rights in the Alooma Service and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with Alooma. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Alooma Service, or any part thereof for any purpose; (ii) not represent that it possess any proprietary interest in the Alooma Service; (iii) not directly or indirectly, take any action to contest Alooma's intellectual property rights or infringe them in any way; (iv) except as specifically permitted hereunder, not use the name, trademarks, tradenames, and logos of Alooma.
3. Customer's Content
3.1. Ownership. Customer's Content is and shall remain Customer's property and shall be used at Customer's sole and absolute responsibility. Alooma does not screen Customer's Content, does not back up any Customer's Content and is not responsible for any use of the Customer's content. All intellectual property rights in the Customer Content provided to Alooma by Customer lie exclusively with Customer.
3.2. Warranties and Covenants. By providing or otherwise making available Customer's Content to Alooma, Customer hereby warrants and represents that: (i) the copying, uploading and use of the Customer's Content does not infringe upon any third party's proprietary rights, including intellectual property rights; (ii) Customer has fully complied with any thirdparty licenses, permits and authorizations required in connection with such Customer's Content; (iii) the Customer's Content does not contain any viruses, worms, Trojan horses or other harmful or destructive code or content; and (iv) the Customer's Content is not obscene or libelous, does not violate the right of privacy or publicity of any third party or is not otherwise illegal. Customer shall provide its end users with any notice and obtain any consent from end users as required by applicable laws and regulations in connection with the collection, use and disclosure of any Customer Content to Alooma via the Alooma Service.
3.3. License to Alooma. Customer hereby grants Alooma a worldwide, nonexclusive, royaltyfree, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all data, information, files or other materials and content that Customer makes available to Alooma for the purpose of utilizing the Alooma Service (“Customer's Content”), solely to the extent required to perform the Alooma Service. The above licenses granted by Customer shall terminate upon removal or deletion of Customer's Content from the Alooma Service or the termination of this Agreement. UNDER NO CIRCUMSTANCES WHATSOEVER WILL ALOOMA BE LIABLE IN ANY WAY FOR ANY CUSTOMER'S CONTENT AND ANY USE THEREOF IN ANY WAY, INCLUDING, WITHOUT LIMITATION, FOR ANY ERRORS OR OMISSIONS, OR FOR ANY INFRINGEMENT OF THIRD PARTY'S RIGHTS, LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OR DISPLAY OF ANY CUSTOMER'S CONTENT TRANSMITTED, UPLOADED OR OTHERWISE MADE AVAILABLE IN CONNECTION WITH THE ALOOMA SERVICE. CUSTOMER SHALL INDEMNIFY AND HOLD ALOOMA HARMLESS FROM ANY AND ALL CLAIMS OF WHATEVER NATURE AND KIND, BROUGHT IN ANY COURT OR TRIBUNAL ARISING FORM OR IN CONNECTION WITH THE USE OR DISPLAY OF THE CUSTOMER'S CONTENT OR RESULTING FROM ANY CUSTOMER'S CONTENT.
During the term hereof, each party may have access to certain nonpublic proprietary, confidential or trade secret information or data of the other party, whether furnished before or after the Effective Date, and regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the "Confidential Information"). Confidential Information shall exclude any information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement or any use of or reference to the Confidential Information. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its, directors, officers, employees, advisors or consultants (collectively, the "Representatives") on a strict “need to know” basis only and provided that such Representatives are bound by written agreements to comply with the confidentiality obligations as protective as those contained herein; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is required by legal process or any applicable law, rule or regulation, to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief. The parties' obligations with respect to Confidential Information shall expire five years from the date of termination or expiration of this Agreement, unless a longer period of protection applies under applicable law, either as trade secret information or otherwise.
5. Mutual Warranties
Each party represents and warrants that (i) this Agreement constitutes a legal, valid and binding obligation of it, enforceable against it in accordance with the terms of this Agreement, and (ii) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation.
6. Disclaimer of Warranties
ALOOMA PROVIDES THE USAGE OF THE ALOOMA SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE OR ACCURACY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALOOMA DOES NOT WARRANT THAT THE ALOOMA SERVICE OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERRORFREE OR WITHOUT INTERRUPTION.
7. Third Party Software
The Software contains open source components. Such open source components are protected under copyright law and are licensed under specific license terms. Please see link for the applicable license terms of the open source components.
8.1. Customer's Indemnities. Customer shall defend, indemnify and hold harmless Alooma, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of or related to (a) the Customer Service and Customer Content; or (b) Customer's breach of its obligations and warranties under Section 3.2.
8.2. Alooma's Indemnities. Alooma shall defend, indemnify and hold Customer harmless, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) pursuant to a third party claim arising out of an allegation that the Alooma Service infringes any intellectual property right of a third party.
8.3. Indemnification Procedure. The indemnified party shall provide the indemnifying party with: (a) prompt written notice of such claim; (b) sole control over the defense and settlement of such claim; and (c) information as may be reasonably requested by the indemnifying party. The indemnified party will have the right to approve the counsel selected by the indemnifying party for defense of any such claim, which approval will not be unreasonably withheld.
9. Limitation of Liability
EXCEPT FOR INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT, MISREPRESENTATION OR FOR WILLFUL MISCONDUCT, ALOOMA’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ALOOMA SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO ALOOMA DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL ALOOMA BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT ALOOMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
10. Taxes; Costs
Customer is solely responsible for payment of any taxes resulting from the use of the Alooma Service. If any such taxes are required to be withheld, Customer shall pay an amount to Alooma such that the net amount payable to Alooma after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. Except as expressly provided in this Agreement, each party shall bear its own costs and expenses incurred in rendering performance of this Agreement.
11. Term; Termination
This Agreement shall commence on the Start Date and shall remain in effect for the period stated in the Service Agreement. Either party may terminate this Agreement at any time by giving the other party with 30 days prior written notice thereof. In addition, either party may terminate this Agreement by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within 30 days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. Upon termination or expiration of this Agreement for any reason whatsoever, Customer will immediately cease use of the Alooma Service and either party shall return to the other party all of the other party's Confidential Information then in its possession. Sections 2, 4, 6, 8, 9, 11, 13 and 15 shall survive any expiration or termination of this Agreement
12. Force Majeure
Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
13. Governing law
This Agreement is governed by the laws of the State of New York, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the courts of State of New York.
Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party’s prior written/verbal approval, which shall not be unreasonably withheld or denied.
A party may not transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor of all assets of a party via a merger or acquisition of substantially all assets of the applicable party, subject to such successor's assumption of all rights and obligations hereunder. Any purported assignment contrary to this section shall be void.