ALTYS Technologies’ SAGA Services
TERMS OF SERVICE
Last Updated: June 5, 2018
This agreement between ALTYS Technologies, a Delaware Corporation (“ALTYS”), and you (“You”, “Your” or “Customer”) consists of (a) these Terms of Service, (b) the Additional Terms (as defined below) and (c) any Order Form (as defined below), if applicable (collectively, this “Agreement”). This Agreement governs Your use of the SAGA Services (as defined below). BY EXECUTING AN ORDER FORM, CREATING AN ACCOUNT (AS DEFINED BELOW), USING SAGA SERVICES OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT, AND YOU HEREBY AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT TO ALTYS THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT OR ARE NOT AN AUTHORIZED AGENT FOR CUSTOMER, DO NOT EXECUTE AN ORDER FORM, CREATE AN ACCOUNT OR OTHERWISE USE THE SAGA SERVICES.
- b. “Applicable Law” means all applicable laws, regulations, ordinances, rules, codes and orders of governmental authorities having jurisdiction over ALTYS and Customer.
- c. “Documentation” means written, published information accessible at https://altys-tech.net/SAGA-Services, as updated from time to time.
- d. “Infringement Claim” means any third party claim that the use by Customer solely of the SAGA Services, as used as contemplated in this Agreement, infringes any patent, trademark or copyright of a third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of Customer’s actions) under the laws of the United States.
- e. “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
- f. “Login Credentials” means any user IDs, passwords, authentication keys or security credentials that enable Customer’s access to and management of the SAGA Services.
- g. “Order Form” means a written ordering document executed by an authorized representative of each of ALTYS and Customer that incorporates these Terms of Service by reference. The Order Form will specify the SAGA Services that Customer is purchasing, payment obligations related thereto and the duration of the Service Term.
- h. “ALTYS Partner” means a third party reseller or distributor authorized by ALTYS to sell SAGA Services.
- i. “SAGA Services” means ALTYS’ services, a current list of which is located at https://altys-tech.net/SAGA-Services.
- j. “SAGA Services Descriptions” means the descriptions of the SAGA Services located at https://altys-tech.net/SAGA-Services.
- k. “Service Term” means the Initial Service Term (as defined below) plus any Renewal Terms (as defined below).
- n. “Third Party Product” means any non-ALTYS-branded products and services (including hardware) and non-ALTYS-licensed software products.
- o. “Updates” means any updates, enhancements, modifications, improvements, patches and/or upgrades to any SAGA Services that ALTYS generally makes available to its customers for no additional charge.
- p. “Usage Data” means any and all information reflecting the access or use of the SAGA Services by or on behalf of Users, including, but not limited to, visit-, session-, or stream-data and any statistical or other analysis, information or data based on or derived from any of the foregoing.
- q. “User Data” means all applications, files, data, information or other content uploaded to or published, displayed or backed up through the SAGA Services by Customers, Users or ALTYS (when acting upon Customer’s instructions as part of a SAGA Service), excluding Usage Data.
- r. “Users” means any users that access Your Content or that use the SAGA Services under Customer’s Login Credentials.
2. ACCESS TO SAGA SERVICES
- a. EVALUATION. If you access the SAGA Services on an evaluation or beta basis (the “Evaluation Service”), then you may use the Evaluation Service only for evaluation purposes and for a period of thirty (30) days, beginning on the date ALTYS provides Customer with Login Credentials, unless otherwise specified in writing by ALTYS (the “Evaluation Period”). Notwithstanding any other provision of this Agreement, ALTYS provides the Evaluation Service (i) free of charge and without support and (ii) “AS IS” without indemnification or warranty of any kind but without prejudice to the statutory rights of consumers based in the EU. Certain features or services described in the SAGA Services Descriptions may not be available for the Evaluation Service. Continued use of the SAGA Services after the Evaluation Period requires that Customer (A) register for the applicable SAGA Services through Customer’s Account or by executing an Order Form and (B) submit the applicable payment. Upon expiration of the Evaluation Period, you will not have access to the Evaluation Service or to any User Data therein.
- b. ACCESS TO SAGA SERVICES. Customer may access and use the SAGA Services for which it has registered (via an Order Form or through Customer’s Account) solely for its own benefit and only in accordance with this Agreement. As a condition to using the SAGA Services, Customer must set up an authorized Account with Login Credentials. Customer will provide accurate and complete information in its Account and will update its information as necessary to keep it current. Customer may manage its Account through the SAGA portal available at https://saga.altys-tech.net. Customer is solely responsible for the security of its and its Users’ Login Credentials. Customer will ensure that its Users do not share Login Credentials with others. Customer is responsible for any use that occurs under its Login Credentials, including any activities by Users. If Customer believes an unauthorized person has gained access to Login Credentials, Customer will notify ALTYS as soon as possible by contacting Customer Support via chat, phone or by email directed at SAGAemail@example.com. Customer will ensure that Users comply with all terms and conditions of this Agreement and Customer remains responsible and liable for the acts and omissions of the Users. If Customer becomes aware of any violation by any User, Customer will immediately terminate that User’s access to User Data.
- c. SUPPORT. Subject to the terms and conditions of this Agreement, ALTYS will provide support to Customer for the SAGA Services in accordance with the then applicable Support Policy. Customer acknowledges that ALTYS is not responsible for technical issues that cannot be identified as being primarily caused by the SAGA Services.’
- a. PURCHASES. Customer may purchase the right to access and use the SAGA Services by executing an Order Form or registering for the applicable SAGA Services through Customer’s Account. Purchase of the SAGA Services includes access to any applicable Support during the Service Term.
- b. PURCHASE ORDER. Customer must issue a purchase order to ALTYS or its reseller, as applicable, within five (5) business days from the Effective Date of any ALTYS Order Form, or ALTYS shall have the option to cancel the Order Form and its terms shall be null and void. Any additional or conflicting terms contained in any Customer purchase order, proposal or other document shall be deemed to be rejected by ALTYS without need of further notice of objection, even if such document is acknowledged or accepted by ALTYS, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon ALTYS.
- c. PAYMENT TERMS. Customer agrees to purchase the right to access and use the SAGA Services for the prices set forth in the Order Form or, if an Order Form is not executed, as set forth in the SAGA Services Descriptions (“Fees”). If Customer purchases through an ALTYS Partner, all fees and other procurement and delivery terms will be agreed between Customer and the applicable ALTYS Partner. Customer will pay all invoices issued by ALTYS within thirty (30) days of the date of the invoice or as otherwise set forth in an applicable Order Form. Except as otherwise provided in this Agreement or as otherwise provided by Applicable Law, all Fees are non-cancelable and non-refundable. Unless otherwise set forth in an Order Form or in the SAGA Services Descriptions, all monthly or prepaid Fees will be due in advance and all Fees based on actual metered usage of an SAGA Service will be due in arrears. If any payment is more than fifteen (15) days late (including if payment is late due to a credit card chargeback or insufficient funds), ALTYS may, without limiting any remedies available to ALTYS: (i) terminate this Agreement and/or any applicable Order Form; or (ii) suspend performance of or access to the applicable SAGA Services, until payment is made current. Customer will pay interest on all delinquent amounts at the lesser of 1.5% per month or the maximum rate permitted by Applicable Law. All Fees are exclusive of all sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the SAGA Services will be paid by Customer. ALTYS reserves the right to increase Fees at any time, although increases in Fees for SAGA Services will not go into effect until the next renewal of the Service Term. EXCEPT AS REQUIRED BY APPLICABLE LAW OR AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALTYS IS NOT OBLIGATED TO REFUND ANY FEES OR OTHER PAYMENTS ALREADY PAID, AND ANY CANCELLATION BY CUSTOMER WILL TAKE PLACE AT THE END OF THE APPLICABLE SERVICE TERM.
- d. PAYMENT METHOD. Customer will pay ALTYS in accordance with the payment method identified in an Order Form or as established in Customer’s Account, as applicable. Payment method options may include payment (i) by credit card, (ii) through an online account through a third-party provider, such as PayPal, (iii) via wired bank transfer, or (iv) eCheck/ACH. By providing any such credit card, online account or eCheck/ACH information, Customer authorizes ALTYS to automatically charge or debit the selected payment method for the full amount due on a recurring basis (if applicable) until Customer notifies ALTYS in writing or Customer updates Customer’s Account with an alternative, authorized payment method. Customer will provide true, complete and accurate information with respect to the applicable method of payment and agrees to promptly contact ALTYS and to otherwise update Customer’s Account if any such information needs to be updated. Customer will ensure that Customer has sufficient funds or credit (as applicable) associated with the selected method of payment. Customer understands that the amounts charged or debited may vary and that this authorization will remain in effect until the expiration or termination of this Agreement. If an ACH payment is returned from the applicable bank account for insufficient or uncollected funds or for erroneous information, ALTYS may reinitiate the returned ACH debit to the applicable bank account. Any amounts owed to ALTYS that cannot be collected by ACH debit may be charged to any backup credit card on file for Customer.
- e. EU CONSUMER POLICY. If You are a consumer based in the EU, You have the right to cancel this Agreement within fourteen (14) calendar days of the date on which You requested the Services, without giving any reason. To exercise Your right to cancel, You must notify ALTYS of Your decision to cancel this Agreement by contacting Customer Support via ALTYS Manager or by email directed at firstname.lastname@example.org. Attention: Legal Department. To meet the fourteen (14) day deadline provided above, it is sufficient for You to send Your notification concerning the exercise of the right to cancel before the cancellation period has expired. If You cancel the Agreement, we will reimburse to You all payments received from You without undue delay and not later than fourteen (14) days from the day on which we are informed about Your decision to cancel the Agreement. We will make the reimbursement using the same means of payment as You used for the initial transaction, unless You have expressly agreed otherwise; in any event, You will not incur any fees as a result of the reimbursement. If You are a consumer based in the EU and You have agreed to the Services commencing immediately, You will be required to pay a pro-rated amount of the Fees applicable to the Services You have requested based on the initial Fees You have paid for the Services and the date on which You exercise Your statutory right to cancel the Agreement.
4. CONFIDENTIALITYAs used in this Agreement, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either ALTYS or Customer (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. ALTYS’s Confidential Information includes, without limitation, the SAGA Services, any information related thereto and the Login Credentials. Information will not be deemed Confidential Information if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is developed independently by the Receiving Party without use of any Confidential Information of the Disclosing Party. Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither ALTYS nor Customer will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent. Both ALTYS and Customer will use commercially reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part: (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by Applicable Law (in which case each party will, if permitted by Applicable Law, provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by Applicable Law). Both ALTYS and Customer agree to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Both ALTYS and Customer will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
5. INTELLECTUAL PROPERTY
- a. OWNERSHIP. This Agreement contains a limited right to access and use the SAGA Services during a Service Term, not a transfer of title to the SAGA Services. All Intellectual Property Rights in the SAGA Services belong exclusively to ALTYS and its licensors. Customer is granted no licenses of any kind to any Intellectual Property Rights other than as expressly granted herein. Customer will not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of ALTYS in and to the Intellectual Property Rights. Customer will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the SAGA Services as delivered to Customer. Except as expressly authorized in this Agreement, you will not make any copies or duplicates of any SAGA Services without the prior written permission of ALTYS. To the extent Customer provides any suggestions, comments or other feedback related to the SAGA Services to ALTYS or its authorized third party agent(s) (“Feedback”), Customer hereby grants ALTYS a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicenseable, transferable license to copy, display, distribute, perform, modify and otherwise use such Feedback or subject matter thereof in any way and without limitation.
- b. RESTRICTIONS. Except as otherwise expressly provided under this Agreement, Customer will have no right, and Customer specifically agrees not to: (i) transfer, assign, sublicense or resell the SAGA Services to another person or entity, and Customer acknowledges that any attempted transfer, assignment, sublicense or resale will be void; (ii) make error corrections to, or otherwise modify or adapt, the SAGA Services or create derivative works based upon the SAGA Services, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the SAGA Services to human-readable form, except to the extent otherwise expressly permitted under Applicable Law notwithstanding this restriction; (iv) disclose, provide or otherwise make available trade secrets contained within the SAGA Services in any form, to any third party without the prior written consent of ALTYS; or (vi) use or access the SAGA Services (A) to develop any software application or similar products and services, (B) to spam or distribute malware, (C) in a way that could harm the SAGA Services or impair anyone else’s use of it, (D) in a way intended to work around the SAGA Services’ technical limitations, recurring fees or usage limits, (E) to violate any rights of others, (F) to try to gain unauthorized access to, test the vulnerability of, or disrupt the SAGA Services or any other service, device, data account or network or (G) in any application or situation where failure of the SAGA Services could lead to the death or serious bodily injury of any person or to severe physical or environmental damage.
6. DATA SECURITY
- b. MONITORING. ALTYS has the right to verify Your compliance with this Agreement. If ALTYS contacts Customer to verify compliance, Customer will provide information or other materials reasonably requested to assist in the verification (For German customers only: A Customer from Germany is only obliged to provide information necessary for such verification, available to the Customer and reasonably requested for such verification). ALTYS may monitor the overall performance and stability of the infrastructure of the SAGA Services. Customer may not block or interfere with that monitoring. If ALTYS reasonably believes a problem with the SAGA Services may be attributable to User Data or Customer’s use of the SAGA Services, Customer will cooperate with ALTYS to identify the source of and resolve that problem.
- c. PROTECTED INFORMATION. You represent and warrant that You will not submit any unencrypted Protected Health Information, as defined in the Health Insurance Portability and Accountability Act (45 CFR 160.103), or any unencrypted personally identifiable information subject to regulatory protection under Applicable Law (collectively “Unencrypted Protected Information”) to ALTYS, whether as part of the SAGA Services or otherwise. You represent and warrant that You will not submit any encrypted Protected Health Information, as defined in the Health Insurance Portability and Accountability Act (45 CFR 160.103), or any encrypted personally identifiable information subject to regulatory protection under Applicable Law (collectively “Encrypted Protected Information”) to ALTYS, whether as part of the SAGA Services or otherwise, unless we have entered into a Business Associate Agreement (“BAA”). In the event You will submit encrypted Protected Information in conjunction with Your use of the SAGA Services, You must contact ALTYS at email@example.com to request a BAA. Notwithstanding anything to the contrary in this Agreement, You recognize and agree that ALTYS will have no liability whatsoever under this Agreement or otherwise for any Unencrypted Protected Information or Encrypted Protected Information You provide in violation of this Section, and You agree to fully indemnify and hold harmless ALTYS from any third party claims resulting from a violation or alleged violation of this Section.
7. USER DATA
- a. USER DATA RIGHTS. As between Customer and ALTYS, Customer retains all right, title, and interest in the User Data, except for the limited license expressly granted by Customer to ALTYS in this Section 7. Customer hereby grants to ALTYS a royalty-free, fully paid up, worldwide, sublicenseable, non-transferable (except as set forth in Section 19(j)) right and license to copy, display, distribute, modify and otherwise use the User Data, solely as necessary to provide the SAGA Services. Customer acknowledges that, when instructed by the Civil Aviation and/or Airport Authority in charge, ALTYS may collect User Data as appropriate and share with designated representatives from said authority. Customer further acknowledges that, for Air Traffic Management (ATM) and/or for Airport Collaborative Decision Making (A-CDM) purposes, ALTYS may collect User Data related to scheduled departures and share such User Data with Air Traffic Service in charge, with destination airport of said scheduled departure and/or with other third parties.
- b. CUSTOMER REPRESENTATIONS AND OBLIGATIONS. Customer will only use the SAGA Services with User Data to which it has full right, title or license. Customer represents, warrants and covenants that its use of the SAGA Services and related backup to and storage of User Data complies and will comply with all Applicable Laws, including those relate to data privacy, data security, international communication and the exportation of technical, personal or sensitive data. Customer will not, and will take commercially reasonable steps to ensure that each User does not, share content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to anyone; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is illegal, unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; or (v) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships. Customer represents and warrants that the User Data does not and will not violate any third-party rights, including any Intellectual Property Rights, and rights of publicity and privacy. If Customer becomes aware that any of the User Data or any User’s access to or use of the User Data violates this Agreement, Customer will take immediate action to remove the applicable part of User Data and suspend the User’s access. Customer will ensure that Customer’s use of the SAGA Services complies at all times with Customer’s privacy policies and all Applicable Laws, including any encryption requirements. Customer is solely responsible for User Data. Except as provided in the User Data Privacy Addendum, Customer is responsible for protecting the security of User Data, including any access to User Data that Customer provides to its employees, customers or other third parties, and when it is in transit to and from the SAGA Services. Customer must take and maintain commercially reasonable steps regarding the security, protection and backup of User Data, which might include the use of encryption technology to protect User Data from unauthorized access. Customer is responsible for providing any necessary notices to Users and for obtaining any legally-required consents from Users concerning their use of the SAGA Services. Customer is responsible for any losses or other consequences arising from Customer’s failure to encrypt or back up User Data. Customer will have and maintain appropriate policies and procedures for cybersecurity and to ensure compliance with its regulatory or legal obligations.
9. TERM AND TERMINATION
- a. TERM. This Agreement will be effective upon Customer’s execution of the Order Form or when Customer otherwise clicks a box agreeing to this Agreement (during Account creation or otherwise) and, unless earlier terminated as set forth in this Agreement, continue in effect for the initial service term identified on the Order Form or selected in the Account (the “Initial Service Term”). Unless otherwise set forth in an Order Form, this Agreement will automatically renew for additional periods of equal duration (each, a “Renewal Term”), unless either party gives notice of non-renewal at least thirty (30) days’ prior to the end of the then-current term (or less if such Service Term is monthly).
- b. TERMINATION. Either party may terminate this Agreement or any SAGA Services as set forth in the SAGA Services Description or in an Order Form. In addition to the foregoing termination rights and any other termination rights set forth in this Agreement, (a) ALTYS can terminate this Agreement immediately upon written notice to Customer if Customer breaches Section 7(b) and (b) either party can terminate this Agreement upon written notice to the other party if (i) such other party breaches this Agreement (other than breaches of Section 7(b)) and fails to cure such breach within thirty (30) days of receipt of written notice thereof or (ii) such other party (A) becomes insolvent, admits in writing its inability to pay debts as they mature or makes an assignment for the benefit of creditors; (B) becomes subject to control of a trustee, receiver or similar authority or any bankruptcy or insolvency proceeding; or (C) an equivalent or similar event or proceeding occurs in respect of the Customer in any jurisdiction (in each case of (A), (B) and (C), which, if initiated involuntarily, is not dismissed within forty-five (45) days of its institution).
- c. EFFECTS OF TERMINATION. THE TERMINATION OF THE SAGA SERVICES WILL CAUSE SUCH SAGA SERVICES TO CEASE FUNCTIONING AND RESULT IN CUSTOMER NOT BEING ABLE TO ACCESS ANY USER DATA. FOLLOWING TERMINATION OF THIS AGREEMENT, ALTYS MAY DESTROY ALL USER DATA (WITHOUT PREJUDICE TO SECTION 9(d) BELOW). The termination of this Agreement for any reason will not affect: (i) the obligations of Customer and ALTYS to account for and pay to one another any amounts for which they are obligated by virtue of transactions or events which occurred prior to the effective date of termination; or (ii) any other obligation or liability which either Customer or ALTYS has to the other under this Agreement and which, by its nature, would reasonably be expected to survive termination. The following Sections will survive any expiration or termination of this Agreement: 1, 3(b), 3(c), 4, 5, 6(c), 9(c), 9(d), 11, 12, 13, 14, 15 and 19.
- d. USER DATA POST EXPIRATION OR TERMINATION. Before expiration or termination of the applicable Service Term, ALTYS recommends that Customer ensures it places a copy of its User Data in a place that can be accessed without the SAGA Services. Provided that Customer is in compliance with all of the terms and conditions of this Agreement, ALTYS will extend Customer’s ability to access the SAGA Services for fifteen (15) calendar days following the end of the Service Term if Customer notifies ALTYS via email (directed to firstname.lastname@example.org) prior to the end of the Service Term. In such event, (i) ALTYS will enable Customer’s access to the SAGA Services for a maximum of fifteen (15) calendar days following the end of the Service Term (at no additional cost to Customer) for the sole purpose of enabling Customer’s retrieval of its User Data, and (ii) Customer’s use of the SAGA Services during such complimentary period is subject to the terms and conditions of this Agreement. ALTYS is not responsible for the availability or accessibility of User Data following the later of (A) the expiration of the complimentary period should Customer make such request or (B) the end of the Service Term.
- a. GENERALLY. ALTYS may suspend your use of the SAGA Services if ALTYS reasonably determines: (i) Customer, or Customer’s use of the SAGA Services, is in breach of this Agreement; (ii) Customer fails to address ALTYS’s request to take action as specified in Section 7(b); (iii) Customer’s use of the SAGA Services poses a security risk to the SAGA Services or other users of the SAGA Services; (iv) suspension is warranted pursuant to ALTYS’s receipt of a subpoena, court order, or a request by a law enforcement agency; or (v) as otherwise expressly set forth in this Agreement. ALTYS will give you notice before ALTYS suspends, subject to Applicable Law, and unless ALTYS reasonably determines that providing the notice presents risk of harm to the SAGA Services or any person or property. ALTYS is entitled to obtain injunctive relief if Customer’s use of the SAGA Services is in violation of any restrictions set forth in this Agreement.
- b. EFFECT OF SUSPENSION. You will remain responsible for all fees incurred before or during any suspension. You will not be entitled to any service credits under any applicable Service Level Agreement that you might have otherwise accrued during the period of suspension.
11. ALLOCATION OF RISKCustomer acknowledges and agrees that ALTYS has set its prices and entered into this Agreement and permitted Customer’s access to the SAGA Services in reliance upon the disclaimers of warranty and the limitations of liability in this Agreement, that the same reflect an allocation of risk between ALTYS and Customer (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between ALTYS and Customer. If Customer is subject to Applicable Laws that prohibit Customer from indemnifying ALTYS as set forth herein or prohibit Customer from entering into the risk allocation arrangement set forth herein, then the terms of such provisions of this Agreement will apply to Customer only to the fullest extent permitted by Applicable Law, it being understood that Customer and ALTYS each wish to enforce the provisions of this Agreement to the maximum extent permitted by Applicable Law.
12. DISCLAIMEREXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, SAGA SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY, TERMS OR CONDITIONS WHATSOEVER. ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY ALTYS AND ITS LICENSORS, TO THE EXTENT PERMITTED BY APPLICABLE LAW. NEITHER ALTYS NOR ITS LICENSORS WARRANT THAT THE SAGA SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SAGA SERVICES WILL BE COMPATIBLE WITH CUSTOMER’S DEVICES, OR THAT THE SAGA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND SAVE TO THE EXTENT SUCH ALLOCATION OF RISK IS NOT PERMITTED BY APPLICABLE LAW, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF SAGA SERVICES IS WITH CUSTOMER. IN NO EVENT WILL ALTYS OR ITS LICENSORS BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES OR CLAIMS RELATED TO ANY REGULATORY OBLIGATIONS CUSTOMER MAY HAVE RELATED TO ITS USER DATA.
13. LIMITATION OF ALTYS LIABILITY.
- a. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ALTYS BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS, LOST SAVINGS, LOST OR CORRUPTED USER DATA, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OF USER DATA, LOST REVENUE, BUSINESS INTERRUPTION, OR LOSS OF CAPITAL (IN EACH CASE, WHETHER DIRECT OR INDIRECT) OR FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SAGA SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF ALTYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT FOR LIABILITY ARISING OUT OF ALTYS’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, THE AGGREGATE LIABILITY OF ALTYS IN CONNECTION WITH ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SAGA SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO: (A) THE AMOUNT PAID TO ALTYS FOR THE SAGA SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE DATE THE DAMAGED PARTY NOTIFIES THE OTHER PARTY IN WRITING OF THE CLAIM FOR DAMAGES; OR (B) IF GREATER, SUCH AMOUNT AS IS THE MINIMUM AMOUNT FOR WHICH ALTYS WOULD BE LIABLE UNDER APPLICABLE LAW.
- b. IF CUSTOMER IS FROM GERMANY, NONE OF THE PROVISIONS OF THIS AGREEMENT SHALL EXCLUDE OR LIMIT ANY LIABILITY FOR DAMAGE FROM INJURY TO LIFE, BODY OR HEALTH OR ANY LIABILITY FOR ANY DAMAGE ARISING FROM GROSSLY NEGLIGENT OR INTENTIONAL BREACH OF DUTY OR OTHER CONDUCT.
- c. FURTHER LIMITATIONS. ALTYS’s licensors and service providers will have no liability of any kind under this Agreement. Customer may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises. For German customers only, Customer may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises and the Customer obtains knowledge of the circumstances giving rise to the claim and of the identity of the obligor, or would have obtained such knowledge if he had not shown gross negligence.
14. COPYRIGHT, PATENT, TRADE SECRET, AND TRADEMARK INDEMNITY
- a. INDEMNITY FOR SAGA SERVICES. Subject to the remainder of this Section 14, ALTYS will defend Customer against an Infringement Claim and indemnify Customer from the resulting costs and damages finally awarded against Customer to that third party by a court of competent jurisdiction or agreed to in settlement; provided that Customer: (i) promptly provides ALTYS with notice of any Infringement Claim; (ii) grants ALTYS sole control over the claim’s defense and settlement, and any related action challenging the validity of the allegedly infringed patent, trademark or copyright; and (iii) reasonably cooperates in response to ALTYS’s requests for assistance. Customer may not settle or compromise any Infringement Claim without ALTYS’s prior written consent. Notwithstanding the foregoing, ALTYS will have no obligation under this Section or otherwise with respect to any claim or award based on: (A) a combination of the SAGA Services with non-ALTYS data, products, business processes or content, including User Data; (B) use of the SAGA Services for a purpose or in a manner not specified in this Agreement or the SAGA Services Descriptions, or otherwise in a manner for which the SAGA Services were not designed; (C) any modification of the SAGA Services made without ALTYS’s express written approval; or (D) any Evaluation Service. This Section 14(a) states your exclusive remedy for any Infringement Claims save that where the Customer is a consumer based in the EU, nothing in this Section 14(a) will limit or exclude the Customer’s statutory rights except as permitted by Applicable Law.
- b. INDEMNITY FOR THIRD PARTY PRODUCTS. To the extent required or allowed, ALTYS will pass through to Customer any indemnities related to Third Party Products, if any. Notwithstanding the foregoing, Customer acknowledges that ALTYS is not responsible for the fulfillment of any Third Party Product indemnities or for problems attributable to use of Third Party Products.
- c. REMEDIES. If any component of the SAGA Services becomes, or in ALTYS’s opinion is likely to become, the subject of an Infringement Claim, ALTYS will at ALTYS’s option and expense: (i) procure the rights necessary for Customer to keep using such component; (ii) modify or replace such component to make it non-infringing; or (iii) terminate this Agreement and refund any pre-paid fees for any SAGA Services pro-rated for its remaining term.
15. INDEMNITY BY CUSTOMERCustomer will, to the fullest extent permitted by Applicable Law, indemnify ALTYS and its officers, directors, shareholders, employees and agents and their respective successors and assigns (collectively, the “ALTYS Indemnified Parties”) against and hold the ALTYS Indemnified Parties harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees in connection with investigating, defending, or settling any claim relating to or arising out of any acts or omissions on the part of Customer which give rise to claims against ALTYS Indemnified Parties by third parties (unaffiliated with ALTYS), provided any final settlement will require ALTYS’s consent (which will not be unreasonably withheld) if the final settlement or compromise does not provide for the unconditional and full release of the ALTYS Indemnified Parties or if the final settlement or compromise requires the specific performance of ALTYS Indemnified Parties. In all events, ALTYS will have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing at ALTYS’s own cost. Customer will also indemnify and hold harmless the ALTYS Indemnified Parties for any costs and expenses, including reasonable attorneys’ fees, incurred in responding to any subpoena, search warrant, or court order requiring production of information or documents related to Customer.
16. U.S. GOVERNMENT PURCHASESALTYS provides the SAGA Services, including related software and technology, as “Commercial Items,” as that term has been defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms have been used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the SAGA Services are provided to U.S. government customers (i) only as Commercial Items; and (ii) with only those rights as provided under the terms and conditions of this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with ALTYS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
17. ANTICORRUPTION LAWSCustomer and ALTYS each acknowledges that it is familiar with the U.S. Foreign Corrupt Practices Act (the “FCPA”) and agrees to comply with its terms as well as any provisions of local law related thereto. Specifically, Customer and ALTYS each are familiar with the provisions of the FCPA prohibiting the payment or giving of anything of value, including but not limited to payments, gifts, travel, entertainment and meals, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party’s influence with that government, to obtain or retain business involving the offering. Customer and ALTYS each agrees to not violate or knowingly let anyone violate the FCPA and that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA or any other applicable anticorruption or anti-bribery law.
18. YOUR OBLIGATIONSCustomer represents and warrants that (a) Customer will use the SAGA Services only for lawful purposes, and will comply with all Applicable Laws and (b) Customer’s access to and collection, use, relocation, storage, disclosure and disposition of User Data will comply with all Applicable laws, including without limitation, all privacy and data security laws.
19. GENERAL PROVISIONS
- a. PUBLICITY. ALTYS must not use a Customer logo or trademark in any way without Customer’s prior written approval; provided, however, that ALTYS may use Customer’s name and logo on ALTYS’s website and marketing materials solely to identify Customer as an ALTYS customer (without revealing any details about the parties’ relationship or this Agreement). Customer will reasonably consider serving as a reference for ALTYS. If Customer has any issues with any use by ALTYS of Customer’s name or logo, ALTYS and Customer will cooperate reasonably to resolve the issue promptly to Customer’s satisfaction.
- b. SEVERABILITY. Every provision of this Agreement will be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision will be deemed severed from this AGREEMENT, and all other provisions will remain in full force and effect.
- c. GOVERNING LAW. Except as otherwise expressly provided herein, this Agreement is governed by the laws of the Commonwealth of Virginia, United States of America (excluding its conflict of law rules). The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The courts in some countries will not apply U.S. law to some types of disputes. If You reside in one of those countries, then where U.S. law is excluded from applying, the laws of Your country of residence will apply to any dispute or difference arising out of or in connection with the Agreement.
- d. DISPUTE RESOLUTION. Subject to Section 19(e) below, the parties agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined solely and exclusively by binding arbitration before a single arbitrator (the “Arbitrator”). The parties also agree that the arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and shall be conducted in Washington, D.C., unless otherwise agreed to in writing by the parties. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND ALTYS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. NO REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THOERIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION OR OTHER PROCEEDING UNDER THIS AGREEMENT. Either party may initiate arbitration by filing and serving a written demand for arbitration, which must be served on the other party by overnight mail with delivery confirmation to the addresses set forth in this Agreement. The parties covenant and agree that the arbitration hearing shall commence within 180 days of the date on which a written demand for arbitration is filed by any party hereto (the “Filing Date”). The Arbitrator’s decision and award (the “Award”) shall be made and delivered within 240 days of the Filing Date, and shall set forth a reasoned basis for the Award. The Arbitrator shall not have the power to award damages in excess of traditional (i.e., benefit of the bargain) compensatory damages in contract and may not award special, liquidated, multiple, punitive, or other damages, and each party hereby irrevocably waives any claim to such damages. In connection with the arbitration proceeding, the Arbitrator shall have the power to allow each party to (i) propound up to five (5) requests for the production of documents, including subparts, and (ii) conduct five (5) depositions of witnesses. Interrogatories may not be propounded by any party, and all discovery must be completed within 60 days after the selection of the arbitration, and no later than 120 days after the Filing Date. The Arbitrator shall also have the power to issue a subpoena for documents or information to any third-party witness within his or her jurisdiction. The parties agree that the entirety of the arbitration proceedings, including all documents and information produced by any party or non-party, all deposition testimony, and all pleadings, motions, or correspondence exchanged in connection with the arbitration proceeding, shall be kept confidential. Each Party hereby irrevocably agrees and submits to exclusive jurisdiction and venue in the federal district courts in the Eastern District of Virginia for entry of judgment on the Award or for relief in aid of arbitration; except, however, if the federal district courts in the Eastern District of Virginia decline to exercise jurisdiction, each Party agrees and submits to exclusive jurisdiction and venue in the state courts of Fairfax County in the Commonwealth of Virginia for the entry of judgment on the Award. If each of these courts decline to exercise jurisdiction, each Party agrees and submits to jurisdiction and venue in any federal or state court located in the Commonwealth of Virginia for entry of judgment on the Award or for relief in aid of arbitration; and if each of those courts decline to exercise jurisdiction, judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking: (i) provisional remedies in aid of arbitration from a court of appropriate jurisdiction; (ii) a temporary restraining order from a court of appropriate jurisdiction related to the purposes of this Agreement; or (iii) relief from a small claims court for disputes or claims within the scope of such court’s jurisdiction. If the courts in Your country will not permit You to agree to the arbitration, jurisdiction and venue of the courts described above, then Your local jurisdiction and venue will apply to any dispute or difference arising out of or in connection with the Agreement. For EU consumers only – The European Commission’s online dispute resolution platform can be found here: http://ec.europa.eu/odr. ALTYS is not obliged to submit to any alternative dispute resolution procedure, other than the arbitration before JAMS contemplated herein.
- e. OTHER APPLICABLE LAW. If You are otherwise subject to laws that prohibit Customer from agreeing to the foregoing governing law and/or venue provisions, then (i) the terms of such provisions of this Agreement will be deemed to be modified to reflect the governing law and/or venue required by Applicable Law; and (ii) Customer must, within thirty (30) days of the commencement of its Service Term, notify ALTYS (directed to email@example.com) to identify the Applicable Laws that apply to Customer and the resulting modifications to the governing law and/or venue provisions of this Agreement, without prejudice to the statutory rights of consumers based in the EU.
- f. ENTIRE AGREEMENT. This Agreement sets forth the entire Agreement and understanding between ALTYS and Customer regarding the subject matter hereof and supersedes any previous or contemporaneous communications, representations, proposals, commitments, understandings, negotiations, discussions, understandings, or Agreements (including non-disclosure or confidentiality Agreements), whether oral of written, regarding the same subject matter. In the event of any conflict between these Terms of Service and an Order Form, the terms and conditions set forth in these Terms of Service will govern unless expressly amended in such Order Form.
- g. WAIVER. The failure by ALTYS at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by ALTYS will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed.
- h. HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
- i. NO JOINT VENTURE. This Agreement will not be construed as creating any partnership, joint venture or agency relationship between ALTYS and Customer.
- j. ASSIGNMENT. ALTYS may freely assign, transfer and/or delegate its rights and obligations under this Agreement but Customer may not assign, transfer and/or delegate its rights and obligations under this Agreement without ALTYS’s prior written consent (not to be unreasonably withheld). Any attempted assignment or transfer in violation of this Section will be void. Subject to these limits, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
- k. NO THIRD PARTY BENEFICIARIES. Other than as expressly provided in this Agreement, no third-party beneficiaries are intended or will be construed as created by this Agreement.
- l. NOTICES. Any notice delivered by ALTYS to Customer under this Agreement will be delivered by email to the email address associated with Customer’s account or by posting at ALTYS Manager, except as otherwise set forth in this Agreement. Customer will direct legal notices or other correspondence, including any complaints, under this Agreement (including under any Additional Terms) to ALTYS Technologies Inc., 6800 S.W. 40th Street #138, Miami, FL 33155-3708, United States of America, Attention: Legal Department, or by email directed at firstname.lastname@example.org.
- m. FORCE MAJEURE. ALTYS will not be liable for any delay or failure to perform any obligations under this Agreement due to any cause beyond ALTYS’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war. If such a force majeure event occurs and continues for a period of more than thirty (30) days, either party may terminate this Agreement upon written notice to the other party.
- n. EXPORT COMPLIANCE. Customer may not use or otherwise export or re-export the SAGA Services or any related software or technology except as authorized by United States law and the Applicable Laws of the jurisdiction in which the SAGA Services were obtained. In particular, but without limitation, the SAGA Services may not be exported or re-exported (i) into any U.S. embargoed country or region, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List, Entity List or Unverified List. By using the SAGA Services, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer also agrees that it will not use these products for any purposes prohibited by United States law. Customer is solely responsible for complying with all import, export, and re-export control laws, including but not limited to the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”). Customer is also solely responsible for any applicable license requirements in connection with the SAGA Services, and ALTYS makes no representations or warranties regarding the suitability of the SAGA Services for Customer’s compliance with the EAR and/or ITAR.