PLEASE READ CAREFULLY: THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY ("CUSTOMER" OR "YOU"), REPRESENTS AND WARRANTS THAT THEY HAVE FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. UNLESS THE CUSTOMER HAS ANOTHER VALID AGREEMENT FOR THE PURCHASE AND USE OF ALTDIGITAL PRODUCTS AND SERVICES, THESE TERMS AND CONDITIONS GOVERN YOUR RIGHTS TO USE THE ALTDIGITAL PRODUCTS AND SERVICES. BY ASSENTING TO THESE TERMS (EITHER BY CLICKING, CHECKING A BOX, OR PLACING AN ORDER) CUSTOMER ACCEPTS THESE TERMS AND CONDITIONS, WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN CUSTOMER AND ALTDIGITAL, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ON BEHALF OF ITSELF AND ANY AFFILIATES PERFORMING HEREUNDER (COLLECTIVELY, "ALTDIGITAL"). IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL THE TERMS AND CONDITIONS OR IF THE INDIVIDUAL DOES NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT ASSENT AND CUSTOMER WILL NOT BE AUTHORIZED TO ACCESS OR USE THE PRODUCTS AND SERVICES. THESE TERMS AND CONDITIONS ARE BINDING AS OF THE EARLIEST OF THE DATE THAT CUSTOMER ACCEPTS THE TERMS AND CONDITIONS HEREIN, THE DATE SET FORTH ON AN ORDER OR THE DATE ON WHICH CUSTOMER DOWNLOADS, INSTALLS, ACTIVATES OR USES THE PRODUCT OR SERVICE.
These AltDigital Terms and Conditions are a master agreement that cover all AltDigital services but provisions regarding specific products or services apply only to the extent you have purchased, accessed or used such products or services.
1. Definitions
"Affiliate" means any entity that a party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent), or with which it is under common control (e.g., sibling).
"Agreement" means these AltDigital Terms and Conditions together with each Order.
"API" means an application program (or programming) interface.
"AltDigital Competitor" means a person or entity in the business of developing, distributing, or commercializing automation, security, or information technology products or services substantially similar to or competitive with AltDigital's products or services.
"AltDigital Data" shall mean the data generated by the AltDigital Offerings. For the avoidance of doubt, AltDigital Data does not include Customer Data.
"AltDigital Tool" means any AltDigital proprietary software-as-a-service, software, or other tool that AltDigital uses in Services, which may be specified in the applicable SOW. AltDigital Tools may include AltDigital's products.
"Customer" means as the context requires, in addition to the entity identified above, any Customer Affiliate that places an Order under these AltDigital Terms and Conditions, uses or accesses any Offering hereunder, or benefits from the Customer's use of an Offering.
"Customer Contractor" means any individual or entity (other than an AltDigital Competitor) that: (i) has access or use of a Product under this Agreement solely on behalf of and for Customer's Internal Use, (ii) has an agreement to provide Customer (or its Affiliates) services, and (iii) is subject to confidentiality obligations covering AltDigital's Confidential Information.
"Customer Contractor Services" means products, services or content developed or provided by Customer Contractors, including, but not limited to, third party applications complimentary to the Offerings, implementation services, managed services, training, technical support, or other consulting services related to, or in conjunction with, the Offerings.
"Customer Data" means any data generated by the AltDigital Offerings that describe or are the results of Customer's processes and collected by: (i) the Products, and/or (ii) the AltDigital Tools. Customer Data is considered Customer's Confidential Information (defined in Section 7 Confidentiality) and subject to the exclusions, exceptions and obligations set forth therein. For avoidance of doubt, Customer Data includes reports, diagrams, and policies that may be generated by the Offerings.
"Documentation" means AltDigital's end-user technical documentation included in the applicable Offering.
"Error" means a reproducible failure of a Product to perform in substantial conformity with its applicable Documentation.
"Internal Use" means access or use solely for Customer's and subject to the Section entitled Affiliates, Orders and Payment; Affiliates and the Section entitled Access and Use Rights, its Affiliates', own internal information security purposes. By way of example and not limitation, Internal Use does not include access or use: (i) for the benefit of any person or entity other than Customer or its Affiliates, or (ii) in any event, for the development of any product or service. Internal Use is limited to access and use by your and your Affiliates' employees and Customer Contractors (except as set forth in the Section entitled Customer Contractors), in either event, solely on your behalf and for your benefit.
"Managed Services" means, collectively, (i) Embedded Security Professional, (ii) Automation as a Service, (iii) IT Center of Excellence, (iv) the technical support services for certain Products provided by AltDigital, (v) training, and (vi) any other AltDigital services provided or sold with Products. Managed Services do not include Professional Services.
"Offerings" means, collectively, any Products, Managed Services, or Professional Services.
"Order" means any purchase order or other ordering document (including any SOW) accepted by AltDigital or a reseller that identifies the following ordered by Customer: Offering, Offering quantity where applicable, price and Subscription/Order Term.
"Personal Data" means information provided by Customer to AltDigital or collected by AltDigital from Customer used to distinguish or trace a natural person's identity, either alone or when combined with other personal or identifying information that is linked or linkable by AltDigital to a specific natural person. Personal Data also includes such other information about a specific natural person to the extent that the data protection laws applicable in the jurisdictions in which such person resides define such information as Personal Data.
"Product" means any of AltDigital's software solutions ordered by Customer as set forth in the relevant Order, the available accompanying APIs, the AltDigital Data, any Documentation and any Updates thereto that may be made available to Customer from time to time by AltDigital.
"Professional Services" means any professional services performed by AltDigital for Customer pursuant to an SOW or other Order.
"Services" means, collectively, any Managed Services and any Professional Services.
"Statement of Work" or "SOW" means a mutually agreed executed written document describing the Professional Services to be performed by AltDigital for Customer, deliverables, fees, and expenses related thereto.
"Subscription/Order Term" means the period set forth in the applicable Order during which: (i) Customer is authorized by AltDigital to access and use the Product or Managed Service, or (ii) Professional Services may be performed.
"Updates" means any correction, update, upgrade, patch, or other modification or addition made by AltDigital to any Product and provided to Customer by AltDigital from time to time on an as available basis.
2. Affiliates, Orders and Payment
2.1 Affiliates
Any Affiliate purchasing hereunder, or using or accessing any Offering hereunder, or benefitting from the Customer's use of an Offering, will be bound by and comply with all terms and conditions of this Agreement. The Customer signing these AltDigital Terms and Conditions will remain responsible for Customer's Affiliates' acts and omissions unless Customer's Affiliate has entered its own Terms and Conditions with AltDigital.
2.2 Orders
Only those transaction-specific terms stating the Offerings ordered, quantity, price, payment terms, Subscription/Order Term, and billing/provisioning contact information (and for the avoidance of doubt, specifically excluding any pre-printed terms on a Customer or reseller purchase order) will have any force or effect unless a particular Order is executed by an authorized signer of AltDigital and returned to Customer (or the applicable reseller). If any such Order is so executed and delivered, then only those specific terms on the face of such Order that expressly identify those portions of this Agreement that are to be superseded will prevail over any conflicting terms herein but only with respect to those Offerings ordered on such Order. Orders are non-cancellable. Any Order through a reseller is subject to, and AltDigital's obligations and liabilities to Customer are governed by, this Agreement.
2.3 Payment and Taxes
Customer will pay the fees for Offerings to a reseller or AltDigital as set forth in the applicable Order. Unless otherwise expressly set forth on the Order, Customer will pay the fees and amounts stated on each Order within 30 days after receipt of the applicable invoice. Except as otherwise expressly provided in this Agreement, all fees and other amounts are non-refundable. Fees are exclusive of any applicable sales, use, value added, withholding, and other taxes, however designated. Customer shall pay all such taxes levied or imposed by reason of Customer's purchase of the Offerings and the transactions hereunder, except for taxes based on AltDigital's income or with respect to AltDigital's employment of its employees.
3. Access & Use Rights
3.1 Evaluation
If AltDigital approves Customer's evaluation use of an AltDigital product ("Evaluation Product"), the terms herein applicable to Products also apply to evaluation access and use of such Evaluation Product, except for the following different or additional terms: (i) the duration of the evaluation is as mutually agreed upon by you and AltDigital, provided that either AltDigital or you can terminate the evaluation at any time upon written (including email) notice to the other party; (ii) the Evaluation Product is provided "AS-IS" without warranty of any kind, and AltDigital disclaims all warranties, support obligations, and other liabilities and obligations for the Evaluation Product; and (iii) Customer's access and use is limited to Internal Use by Customer employees only.
3.2 Access & Use Rights
Subject to the terms and conditions of this Agreement (including AltDigital's receipt of applicable fees), AltDigital grants Customer, under AltDigital's intellectual property rights in and to the applicable Product, a non-exclusive, non-transferable (except as expressly provided in the Section entitled Assignment), non-sublicensable license to access and use the Products in accordance with any applicable Documentation solely for Customer's Internal Use during the applicable Subscription/Order Term. Customer's access and use is limited to the quantity in the applicable Order. Furthermore, the following additional terms and conditions apply to specific Products (or components thereof):
(a) Products with Software Components. If Customer purchases a subscription to a Product with a downloadable object-code component ("Software Component"), Customer may, during the Subscription/Order Term install and run multiple copies of the Software Components solely for Customer's and your Affiliates' Internal Use up to the maximum quantity in the applicable Order.
(b) AltDigital Tools. If AltDigital provides AltDigital Tools to you pursuant to performing Managed Services or Professional Services, the license set forth in the Section entitled Access & Use Rights applies to such AltDigital Tools as used solely for your Internal Use during the period of time set forth in the applicable Order, or if none is specified, for the period authorized by AltDigital. Not all Managed Services or Professional Services engagements will involve the use of AltDigital Tools.
3.3 Restrictions
The access and use rights set forth in the Section entitled Access & Use Rights do not include any rights to, and you will not, with respect to any Offering (or any portion thereof): (i) employ or authorize an AltDigital Competitor to use or view the Offering or Documentation, or to provide management, hosting, or support for an Offering; (ii) alter, publicly display, translate, create derivative works of or otherwise modify an Offering; (iii) sublicense, distribute or otherwise transfer an Offering to any third party (except as expressly provided in the Section entitled Assignment); (iv) allow third parties to access or use an Offering (except for Customer Contractors as expressly permitted herein); (v) create public Internet "links" to an Offering or "frame" or "mirror" any Offering content on any other server or wireless or Internet-based device; (vi) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code (if any) for an Offering (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to an Offering or its related systems or networks; (vii) use an Offering to circumvent the security of another party's network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; (viii) remove or alter any notice of proprietary right appearing on an Offering; (ix) conduct any stress tests, competitive benchmarking or analysis on, or publish any performance data of, an Offering (provided, that this does not prevent Customer from comparing the Products to other products for Customer's Internal Use); (x) use any feature of AltDigital's APIs for any purpose other than in the performance of, and in accordance with, this Agreement; or (xi) cause, encourage or assist any third party to do any of the foregoing. Customer agrees to use an Offering in accordance with laws, rules and regulations directly applicable to Customer and acknowledges that Customer is solely responsible for determining whether a particular use of an Offering is compliant with such laws.
3.4 User Accounts
For those Products requiring user accounts, only the single individual user assigned to a user account may access or use the Product. You are liable and responsible for all actions and omissions occurring under your and your Customer Contractor's user accounts for Offerings. You shall notify AltDigital if you learn of any unauthorized access or use of your user accounts or passwords for an Offering.
3.5 Third Party Software
AltDigital uses certain third party software in its Products, including what is commonly referred to as open source software. Under some of these third party licenses, AltDigital is required to provide Customer with notice of the license terms and attribution to the third party. The licensing terms and attributions for such third party software that AltDigital uses will be provided by AltDigital.
3.6 Ownership & Feedback
Products and the AltDigital Tools are made available for use or licensed, not sold. AltDigital owns and retains all right, title and interest (including all intellectual property rights) in and to the Products and the AltDigital Tools. Any feedback or suggestions that Customer provides to AltDigital regarding its Offerings and AltDigital Tools (e.g., bug fixes and features requests) is non-confidential and may be used by AltDigital for any purpose without acknowledgement or compensation; provided, Customer will not be identified publicly as the source of the feedback or suggestion.
4. Customer Contractors
4.1 Authorization
Customer authorizes AltDigital to give Customer Contractors the rights and privileges to the Offerings necessary to enable and provide for Customer's use and receipt of the Customer Contractor Services. If at any time Customer revokes this authorization, to the extent the Offerings provide for Customer to limit the Customer Contractor's access and use of the Offerings, then Customer is responsible for taking the actions necessary to revoke such access and use.
4.2 Disclaimer
Customer Contractors are subject to the terms and conditions in the Agreement while they are using the Offerings on behalf of Customer and Customer remains responsible for their acts and omissions during such time. Any breach by a Customer Contractor of this Agreement is a breach by Customer.
5. Services
5.1 Fees
Managed Services and Professional Services will commence on a mutually agreed upon date. Estimates provided for Professional Services performed on a time-and-material basis are estimates only and not a guaranteed time of completion. Professional Services performed on a fixed fee basis are limited to the scope of services stated in the applicable Order.
5.2 Ownership of Deliverables
All software, data and related intellectual property previously developed and owned by AltDigital or any third party or licensed to AltDigital by any third party, and used in the provision of Services (collectively, the "AltDigital Materials") is and will remain the exclusive property of AltDigital or such third party. AltDigital grants to Customer, as applicable, a royalty-free, nonexclusive, unrestricted, irrevocable, world-wide license to use, duplicate, or disclose for any purpose whatsoever and to authorize others to do so, all AltDigital Materials (including but not limited to writings, recordings, pictorial reproductions, drawings, computer programs, other graphic representations and works of any similar nature) required to be furnished and/or actually furnished to Customer as applicable, on a Managed Services or Professional Services Order. Except for AltDigital's rights in the AltDigital Materials, AltDigital hereby assigns to Customer all of its right, title, and interest in and to the Deliverables and all intellectual property rights thereto, all of which will be the sole and exclusive property of Customer. If any intellectual property rights, including moral rights, in the Deliverables (except for intellectual property rights in the AltDigital Materials) cannot as a matter of law be assigned by AltDigital to Customer as provided above, then (i) AltDigital waives the enforcement of such rights, and (ii) to the extent AltDigital cannot (as a matter of law) make such waiver, AltDigital unconditionally grants to Customer an exclusive, perpetual, irrevocable, worldwide, fully-paid license to the Deliverables.
6. Data Security and Privacy
6.1 Use of Personal Data
Personal Data may be collected and used during the provisioning and use of the Offerings to deliver, support and improve the Offerings, administer the Agreement and further the business relationship between you and AltDigital, comply with law, act in accordance with your written instructions, or otherwise in accordance with this Agreement. You authorize AltDigital to collect, use, store and transfer the Personal Data that you provide to AltDigital as contemplated in this Agreement.
6.2 Privacy and Information Security
(a) Privacy Policy. AltDigital's privacy notice may be found at https://www.altdigital.ai/privacy.
(b) Safeguards. AltDigital shall maintain appropriate technical and organizational safeguards commensurate with the sensitivity of the Customer Data and Personal Data processed by it on Customer's behalf, which are designed to protect the security, confidentiality, and integrity of such Customer Data and Personal Data and protect such Customer Data and Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access which substantially conform to the ISO/IEC 27002 control framework.
6.3 Customer Obligations
Customer, along with its Affiliates, represents and warrants that: (i) it owns or has a right of use from a third party, and controls, directly or indirectly, all of the software, hardware and computer systems (collectively, "Systems") where the Products and/or AltDigital Tools will be installed or that will be the subject of the Offerings, (ii) to the extent required under any federal, state, or local U.S. or non-US laws it has authorized AltDigital to access the Systems and process and transmit data through the Offerings and AltDigital Tools in accordance with this Agreement and as necessary to provide and perform the Offerings; (iii) that it is and will at all relevant times remain duly and effectively authorized to instruct AltDigital to carry out the Offerings, and (iv) it has made all necessary disclosures, obtained all necessary consents and government authorizations required under applicable law to permit the processing and international transfer of Customer Data and Customer's Personal Data from each Customer and Customer Affiliate, to AltDigital.
7. Confidentiality
7.1 Definitions
"Confidential Information" means any information disclosed by either Party, its affiliates, or their agents (as applicable and collectively, the "Disclosing Party") to the other party, its affiliates, or their agents (as applicable and collectively, the "Receiving Party") either directly or indirectly in writing, visually, electronically or orally (including, without limitation, research, product plans, products, services, pricing, equipment, customers, markets, software, inventions, processes, designs, drawings, trade secrets, reports, analyses, technology configuration information, marketing and finance information, prototypes, and data sets), which is either identified as confidential at the time of disclosure or which a reasonable person would determine is confidential based upon the nature of the information and the circumstances of disclosure. Confidential Information may include information of a third party that is in Disclosing Party's possession and is disclosed to Receiving Party under this Agreement. Confidential Information also includes (a) any and all information transmitted to or stored by parties in connection with performance of their obligations under this Agreement, and (b) the terms of this Agreement. Confidential Information shall not include any information that Receiving Party can establish: (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure to Receiving Party by Disclosing Party; (ii) has become publicly known or made generally available without a duty of confidentiality after disclosure to Receiving Party by Disclosing Party through no action or inaction of Receiving Party; (iii) is in the rightful possession of Receiving Party without confidentiality obligations at the time of disclosure by Disclosing Party to Receiving Party, (iv) was obtained by the Receiving Party, without restriction, from sources other than the Disclosing Party who are lawfully in possession of such information, and who are not under any obligation of confidentiality to the Disclosing Party or (iv) is independently developed by the Receiving Party without breach of this Agreement.
7.2 Nonuse, Nondisclosure and Maintenance of Confidentiality
Receiving Party shall not disclose any Confidential Information or permit any Confidential Information to be disclosed, either directly or indirectly, to any third party without Disclosing Party's prior written consent. Receiving Party shall not disclose Confidential Information or permit the disclosure of Confidential Information to its employees, except that Receiving Party may disclose Confidential Information to those employees of Receiving Party who are required to have the information in order for Receiving Party to fulfill its obligations in this Agreement, provided that such employee has signed a non-use and non-disclosure agreement at least as protective as the provisions hereof, prior to any disclosure of Confidential Information to such employee. Receiving Party shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Receiving Party shall take at least those measures it employs to protect its own most highly confidential information. Receiving Party shall not make any copies of the Confidential Information unless the same are previously approved in writing by Disclosing Party. Receiving Party shall reproduce Disclosing Party's proprietary rights notices on any such authorized copies, in the same manner in which such notices were set forth in or on the original. Receiving Party shall promptly notify Disclosing Party of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Confidential Information.
7.3 Compelled Disclosure
If Receiving Party becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, Receiving Party will provide Disclosing Party prompt written notice of such disclosure and will assist Disclosing Party in seeking a protective order or another appropriate remedy. If Disclosing Party waives Receiving Party's compliance with this Agreement or fails to obtain a protective order or other appropriate remedy, Receiving Party will furnish only that portion of the Confidential Information that is legally required to be disclosed, provided that any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
7.4 Return of Materials
All documents and other tangible objects containing or representing Confidential Information and all copies or extracts thereof or notes derived therefrom that are in the possession or control of Receiving Party shall be and remain the property of Disclosing Party. Upon Disclosing Party's request, (a) all Confidential Information shall be promptly returned to Disclosing Party or destroyed (with proof of such destruction within ten (10) days of such request), and (b) Receiving Party shall cease all further use of Disclosing Party's Confidential Information, whether in tangible or intangible form. Notwithstanding the foregoing, the Receiving Party's legal counsel shall be permitted to retain one copy of the Confidential Information for evidentiary purposes only, and nothing herein shall require the alteration, deletion or destruction of back-up tapes or other back-up media made in the ordinary course of business; provided, however, in each case that the Confidential Information shall continue to be held confidential pursuant to the terms hereof.
7.5 Equitable Relief
Each party acknowledges that any violation or threatened violation of this Section 7 will cause irreparable injury to Disclosing Party, entitling Disclosing Party to seek injunctive relief in addition to all legal remedies.
8. Warranties & Disclaimer
8.1 No Warranty for Pre-Production Versions
Any pre-production feature or version of an Offering provided to Customer is experimental and provided "AS IS" without warranty of any kind and will not create any obligation for AltDigital to continue to develop, productize, support, repair, offer for sale, or in any other way continue to provide or develop any such feature or Offering. Customer agrees that its purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by AltDigital regarding future functionality or features.
8.2 Product Warranty
If Customer has purchased a Product, AltDigital warrants to Customer during the applicable Subscription/Order Term that: (i) the Product will operate without Error; and (ii) AltDigital has used industry standard techniques to prevent the Products at the time of delivery from injecting malicious software viruses where the Products are installed. You must notify AltDigital of any warranty claim during the Subscription/Order Term. Your sole and exclusive remedy and the entire liability of AltDigital for its breach of this warranty will be for AltDigital, at its own expense to do at least one of the following: (a) use commercially reasonable efforts to provide a work-around or correct such Error; or (b) terminate your license to access and use the applicable non-conforming Product and refund the prepaid fee prorated for the unused period of the Subscription/Order Term. AltDigital shall have no obligation regarding Errors reported after the applicable Subscription/Order Term.
8.3 Services Warranty
AltDigital warrants to you that it will perform all Services in a professional and workmanlike manner consistent with generally accepted industry standards. You must notify AltDigital of any warranty claim for Services during the period the Services are being performed or within 30 days after the conclusion of the Services. Your sole and exclusive remedy and the entire liability of AltDigital for its breach of this warranty will be for AltDigital, at its option and expense, to (a) use commercially reasonable efforts to re-perform the non-conforming Services, or (b) refund the portion of the fees paid attributable to the non-conforming Services.
8.4 Exclusions
The express warranties do not apply if the applicable Product or Service: (i) has been modified, except by AltDigital, (ii) has not been installed, used, or maintained in accordance with this Agreement or Documentation, or (iii) is non-conforming due to a failure to use an applicable Update. If any part of a Product or Service references websites, hypertext links, network addresses, or other third party locations, information, or activities, it is provided as a convenience only.
8.5 No Guarantee for Security Services
CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT ALTDIGITAL DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, PREVENT, DISCOVER OR REMEDIATE ALL OF CUSTOMER'S OR ITS AFFILIATES' SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, AND CUSTOMER AND ITS AFFILIATES WILL NOT HOLD ALTDIGITAL RESPONSIBLE THEREFOR.
8.6 Disclaimer
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 8, ALTDIGITAL AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALTDIGITAL AND ITS AFFILIATES AND SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE OFFERINGS AND ALTDIGITAL TOOLS. THERE IS NO WARRANTY THAT THE OFFERINGS OR ALTDIGITAL TOOLS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF CUSTOMER'S PARTICULAR PURPOSES OR NEEDS. THE OFFERINGS AND ALTDIGITAL TOOLS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. NEITHER THE OFFERINGS NOR ALTDIGITAL TOOLS ARE FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE. Customer agrees that it is Customer's responsibility to ensure safe use of an Offering and the AltDigital Tools in such applications and installations. ALTDIGITAL DOES NOT WARRANT ANY THIRD PARTY PRODUCTS OR SERVICES.
8.7 No Legal Advice
CUSTOMER AGREES AND ACKNOWLEDGES THAT ALTDIGITAL IS NOT, IN ANY MANNER, PROVIDING LEGAL SERVICES OR LEGAL ADVICE TO CUSTOMER. FURTHERMORE, CUSTOMER AGREES AND ACKNOWLEDGES THAT ALTDIGITAL IS NOT AN ADVISOR AS TO LEGAL, COMPLIANCE, REGULATORY, TAX, FINANCIAL, ACCOUNTING, OR BUSINESS MATTERS IN ANY JURISDICTION. NONE OF THE ADVICE, GUIDANCE, OR ANY SERVICES OR DELIVERABLES PROVIDED BY ALTDIGITAL WILL BE DEEMED LEGAL, COMPLIANCE, REGULATORY, TAX, FINANCIAL, ACCOUNTING, OR BUSINESS ADVICE AND ALTDIGITAL SHOULD NOT BE USED AS CUSTOMER'S SOURCE FOR MAKING ANY SUCH DECISIONS. ALTDIGITAL STRONGLY RECOMMENDS THAT CUSTOMER MAKES ALL OF ITS LEGAL, COMPLIANCE, REGULATORY, TAX, FINANCIAL, ACCOUNTING, OR BUSINESS DECISIONS ON THE BASIS OF PROFESSIONAL AND AUTHORIZED ADVICE. CUSTOMER AGREES AND ACKNOWLEDGES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR CONSULTING WITH ITS LEGAL COUNSEL TO ENSURE THAT CUSTOMER COMPLIES WITH ALL APPLICABLE LAWS.
9. Indemnification
9.1 AltDigital's Obligation
AltDigital shall at its cost and expense: (i) defend and/or settle any claim brought against Customer by an unaffiliated third party alleging that an Offering infringes or violates that third party's intellectual property rights, and (ii) pay and indemnify any settlement of such claim or any damages awarded to such third party by a court of competent jurisdiction as a result of such claim; provided, that Customer: (a) gives AltDigital prompt written notice of such claim; (b) permits AltDigital to solely control and direct the defense or settlement of such claim (however, AltDigital will not settle any claim in a manner that requires Customer to admit liability without Customer's prior written consent); and (c) provides AltDigital all reasonable assistance in connection with the defense or settlement of such claim, at AltDigital's cost and expense. In addition, Customer may, at Customer's own expense, participate in defense of any claim.
9.2 Remedies
If a claim covered under this Section occurs or in AltDigital's opinion is reasonably likely to occur, AltDigital may at its expense and sole discretion (and if Customer's access and use of an Offering is enjoined, AltDigital will, at its expense): (i) procure the right to allow Customer to continue using the applicable Offering; (ii) modify or replace the applicable Offering to become non-infringing; or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer's license or access to the affected portion of applicable Offering and refund a portion of the pre-paid, unused fees paid by Customer corresponding to the unused period of the Subscription/Order Term.
9.3 Exclusions
AltDigital shall have no obligations under this Section if the claim is based upon or arises out of: (i) any modification to the applicable Offering not made by AltDigital; (ii) any combination or use of the applicable Offering with or in any third party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use; (iii) Customer's continued use of the allegedly infringing Offering after being notified of the infringement claim or after being provided a modified version of the Offering by AltDigital at no additional cost that is intended to address such alleged infringement; (iv) Customer's failure to use the Offering in accordance with the applicable Documentation; and/or (v) Customer's use of the Offering outside the scope of the rights granted under this Agreement.
9.4 Exclusive Remedy
THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, AND ALTDIGITAL'S ENTIRE LIABILITY, WITH RESPECT TO ANY INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY FOR ANY AMOUNTS PAID OR PAYABLE TO THIRD PARTIES UNDER SECTION 9 (INDEMNIFICATION), CUSTOMER'S PAYMENT OBLIGATIONS, AND/OR ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR ANY LOST PROFITS, REVENUE, OR SAVINGS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE. ALTDIGITAL'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU OR RESELLER, IF ORDERED THROUGH A RESELLER, FOR THE OFFERINGS THAT CAUSED SUCH DAMAGE IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 10.
11. Compliance with Laws
Each party agrees to comply with all U.S. federal, state, local and non-U.S. laws directly applicable to such party in the performance of this Agreement, including but not limited to, applicable export and import, anti-corruption and employment laws. Customer acknowledges and agrees the Offerings shall not be used, transferred, or otherwise exported or re-exported to regions that the United States and/or the European Union maintains an embargo or comprehensive sanctions (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity subject to individual prohibitions (e.g., parties listed on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders) (collectively, "Designated Nationals"), without first obtaining all required authorizations from the U.S. government and any other applicable government. Customer represents and warrants that Customer is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National. AltDigital represents and warrants that AltDigital is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National.
12. Suspension and Termination
This Agreement and any Order shall remain effective until termination in accordance with this Section or as otherwise specified herein. AltDigital may immediately suspend Customer's access to, or use of, the Offerings if: (i) Customer or Customer users are in breach of Section 3.3 (Restrictions); or (ii) Customer fails to pay AltDigital when undisputed fees are due; provided, however, AltDigital will use commercially reasonable efforts under the circumstances to provide Customer with notice and, if applicable, an opportunity to remedy such violation prior to any such suspension. Either party may terminate this Agreement or any Order upon 30 days' written notice of a material breach by the other party, unless the breach is cured within the 30-day notice period. Prior to termination and subject to the terms of this Agreement, Customer shall have the right to access and download Customer Data. Upon termination of this Agreement for any reason: (a) all Customer's access and use rights granted in this Agreement will terminate; (b) Customer must promptly cease all use of Offerings and de-install all Product Software Components installed in Customer's environment; and (c) Customer Data will be deleted in accordance with Section 7 Confidentiality; Return of Materials). Sections 1, 3.3, 7, 10, 12, and 13 and all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason.
13. General
13.1 Entire Agreement
This Agreement constitutes the entire agreement between Customer and AltDigital concerning the subject matter of this Agreement and it supersedes all prior and simultaneous proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter. It is expressly agreed that the terms of this Agreement shall supersede any terms in any procurement Internet portal or other similar non-AltDigital document and no such terms included in any such portal or other non-AltDigital document shall apply to the Offerings ordered. Any Order through a reseller is subject to, and AltDigital's obligations and liabilities to Customer are governed by, this Agreement. AltDigital is not obligated under any reseller's agreement with you unless an officer of AltDigital executes the agreement. This Agreement shall not be construed for or against any party to this Agreement because that party or that party's legal representative drafted any of its provisions.
13.2 Assignment
Neither party may assign this Agreement without the prior written consent of the other party, except to an Affiliate in connection with a corporate reorganization or in connection with a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
13.3 Governing Law; Venue
This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be state and federal courts in New Castle County, Delaware, and the parties agree to service of process in accordance with the rules of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply. Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its intellectual property rights and, in AltDigital's case, to recoup any payments due.
13.4 Permission to List You as a Customer
Unless you direct otherwise by sending an email to us at [email protected], which direction may be given at any time, you agree that AltDigital may display your company name and logo (in accordance with any trademark guidelines you provide) as an AltDigital customer in a manner that does not suggest your use or endorsement of any specific AltDigital product or service.
13.5 Independent Contractors; No Third Party Rights
The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.
13.6 Waiver, Severability & Amendments
The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.
13.7 Force Majeure
Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented with reasonable care. The party experiencing a force majeure event, shall use commercially reasonable efforts to provide notice of such to the other party.
13.9 Notices
All legal notices will be given in writing to the addresses in the Order and will be effective: (i) when personally or electronically (if sent via email) delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (iii) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, Orders, POs, confirmations, invoices, and other documents relating to order processing and payment are not legal notices and may also be delivered electronically in accordance with each party's standard ordering procedures.
Contact Us
If you have any questions about these Terms and Conditions, please contact us at [email protected].