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Altvia Standard Terms and Conditions

These Standard Terms and Conditions (“Terms and Conditions”) apply to and govern certain services to be provided by Altvia Solutions, LLC (“Company”) to the customer (“Customer”) identified in a software order form, statement of work, or similar document (“Order”) agreed to by Company and Customer incorporating by reference these Terms and Conditions. These Terms and Conditions together with any Order(s) are collectively referred to as this “Agreement.” In the event of a conflict between the terms and conditions of these Terms and Conditions and those of an Order, the terms and conditions of the Order will prevail and control, but only with respect to that specific Order. THE PROVISION OF SERVICES (INCLUDING SOFTWARE) UNDER AN ORDER IS EXPRESSLY MADE CONDITIONAL ON CUSTOMER’S ASSENT TO THESE TERMS AND CONDITIONS, AND COMPANY AGREES TO PROVIDE THE SERVICES (INCLUDING SOFTWARE) DESCRIBED IN AN ORDER ONLY UPON THESE TERMS AND CONDITIONS.

Any different or additional terms set forth in Customer’s purchase order, invoice or similar document are specifically excluded; provided, however, IN THE EVENT THAT CUSTOMER AND COMPANY HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT GOVERNING THE SERVICES (INCLUDING SOFTWARE) (“MASTER CUSTOMER AGREEMENT”), THE TERMS OF THAT MASTER CUSTOMER AGREEMENT WILL APPLY IN PLACE OF THESE TERMS AND CONDITIONS AND THESE TERMS AND CONDITIONS WILL BE OF NO FORCE OR EFFECT WITH RESPECT TO SUCH SERVICES (INCLUDING SOFTWARE).

  1. Definitions. As used in this Agreement or any Appendix hereto:
    1.1. “Deliverable” means a deliverable delivered pursuant to a Statement of Work.
    1.2. “Documentation” means the technical documentation provided to Customer by Company in either electronic, online help files or hard copy format that describe the features, functionality or operation of the Software.
    1.3. “Fees” means, collectively, the Professional Services Fees and Subscription Fees.
    1.4. “Intellectual Property Rights” means all known or hereafter existing worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, know-how, moral rights, contract rights, and other proprietary rights.
    1.5. “Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, applications, or programs.
    1.6. “Professional Services” means those consulting, installation, configuration, customization, analysis, training, professional and other services and assistance to be provided by Company or its subcontractors to Customer as described in any applicable Statement of Work; provided, however, Professional Services does not include those services that fall within the description of “Support Services”.
    1.7. “Professional Services Fees” means the fees for the provision of Professional Services and Deliverables set forth in the applicable Statement of Work.
    1.8. “Software” means Company’s proprietary computer software program(s) described in a Software Order Form, and any modified, updated or enhanced versions of such programs that Company may provide to Customer pursuant to the Support Services.
    1.9. “Software Order Form” means an Order executed pursuant to and made a part of this Agreement from time to time that identifies the Software to be provided by Company on a software-as-a-service subscription basis under this Agreement.
    1.10. “Statement of Work” means an Order that details the general engagement plan for any Professional Services to be performed by Company under this Agreement, executed pursuant to and made a part of this Agreement from time to time.
    1.11. “Subscription Fees” means Company’s fees for access and use of the Software as listed in the applicable Software Order Form.
    1.12. “Support Services” means those support services to be provided by Company to Customer with respect to the Software pursuant to Appendix B.
    1.13. “User” means an individual authorized by Customer to access and use the Software for the benefit of Customer.
    1.14. Capitalized terms not specifically outlined in this Section shall have the respective meanings ascribed to them in this Agreement.
  2. Professional Services and Software Subscription. Company’s providing of Professional Services shall be subject to the terms contained herein as well as the terms of the applicable Statement of Work and Appendix A attached hereto. Company’s providing of a subscription for access and use of the Software shall be subject to the terms contained herein as well as the terms of the applicable Software Order Form and Appendix B attached hereto.
  3. Term and Termination.
    3.1. Term. The term of this Agreement will begin on the Effective Date and will continue until terminated as provided in Section 3.2 (the “Term”).
    3.2. Termination. Either party may terminate this Agreement, any Statement of Work and/or Software subscription then in-effect, if the other party (a) breaches any material provision of this Agreement and does not cure such breach within fifteen (15) days after receiving written notice thereof; (b) shall formally declare bankruptcy, insolvency, reorganization, liquidation, or receivership; or (c) shall have instigated against it bankruptcy, insolvency, reorganization, liquidation, or receivership proceedings, and shall fail to remove itself from such proceedings within ten (10) days from the date of institution of such proceedings. At any time, either party may terminate one or more particular Statements of Work for any reason, or for no reason, by providing thirty (30) days’ written notice to the other party.
    3.3. Effects of Termination. Upon termination or expiration of this Agreement for any reason: (a) all Statements of Works under this Agreement will immediately terminate; (b) all rights granted in this Agreement and any Software Order Form will immediately cease to exist; and (c) Customer must promptly discontinue all use of the Software and return to Company or destroy all copies of the Documentation in Customer’s possession. Upon termination or expiration of any Statement of Work for any reason, any amounts owed to Company under that Statement of Work before such termination or expiration will be immediately due and payable, including any amounts due for Professional Services performed and expenses incurred prior to such termination or expiration, without regard to whether any invoices had or had not been issued. If either party terminates a Statement of Work, such termination will have no effect upon any other Statement of Work that may be in effect unless either party terminates such other Statement of Work in accordance with this Agreement. In the event Customer terminates a Software subscription pursuant to Section 3.2, Company shall refund to Customer, on a pro rata basis, the unused portion of any Subscription Fee already paid to Company.
    3.4. Survival. Sections 3.3, 3.4, 5, 6, 7 and 8, together with any accrued payment obligations, will survive expiration or termination of this Agreement for any reason.
  4. Fees and Payment.
    4.1. Fees. Customer will timely pay Company all Professional Services Fees and Subscription Fees as specified in the Statement of Work and/or Software Order Form (as applicable).
    4.2. Payment Terms. Unless otherwise expressly provided in this Agreement or an applicable Statement of Work or Software Order Form, Customer will pay Company all amounts due under this Agreement within thirty (30) days after the date of the invoice therefore. All payments must be made in U.S. dollars. Any amounts not paid when due will accrue interest at the lesser of one and one-half percent (1½%) per month or the maximum rate permitted by applicable law from the due date until paid.
    4.3. Taxes. Fees do not include any sales, use, or other taxes, or any applicable export and import fees, customs duties or similar charges (collectively “Taxes”), all of which shall be Customer’s responsibility. To the extent any such Taxes are required to be collected and paid by Company, they will be invoiced to Customer. If Customer is exempt from any such Taxes, including without limitation, sales tax, Customer must send the applicable tax exemption certificate to accounting@altvia.com. 
  5. Confidentiality.
    5.1. Protection of Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). Any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party will be considered Confidential Information of the Disclosing Party. The Software, including without limitation any routines, subroutines, directories, tools, programs, or any other technology included therein, shall be considered Company’s Confidential Information.
    5.2. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
    5.3. Exceptions. The Receiving Party’s obligations under Section 5.2 with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
    5.4. Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party and/or upon the expiration or termination of this Agreement. Upon request from the Disclosing Party, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 5.4.
    5.5. Confidentiality of Agreement. Confidentiality of Agreement. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors except (a) as required by law or (b) pursuant to any mutually agreeable disclosures (c) in connection with a contemplated transfer of such party’s business permitted by Section 8.3 (provided that any third party to whom the terms of this Agreement is to be disclosed is bound by confidentiality restrictions consistent with this Section 5).
  6. Infringement Claims. Company will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that a Deliverable and/or the Software infringes any U.S. patents or any copyrights or misappropriates any trade secrets of a third party, and Company will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer (a) notifying Company promptly in writing of such action, (b) giving Company sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Company’s request and expense, assisting in such defense. If any Deliverable and/or the Software becomes, or in Company’s opinion is likely to become, the subject of an infringement claim, Company may, at its option and expense, either (i) procure for Customer the right to continue using the Deliverable and/or the Software, (ii) replace or modify the Deliverable and/or the Software so that it becomes non-infringing, or (iii) refund Customer the Professional Services Fees paid for such Deliverable, or the most recent annual Subscription Fee paid for the Software, upon which Customer shall have no further rights in and to the Deliverable or the Software (as the case may be). Notwithstanding the foregoing, Company will have no obligation under this Section 6 or otherwise with respect to any infringement claim based upon (a) any use of the Deliverable and/or the Software not in accordance with this Agreement or for purposes not intended by Company, (b) any use of a Deliverable and/or the Software in combination with other products, equipment, software, or data not intended by Company to be used with the Deliverable and/or the Software (as the case may be), (c) any use of any release of the Software other than the most current release made available to Customer, or (d) any modification of the Deliverable and/or the Software by any person other than Company or its authorized agents or subcontractors. THIS SECTION 6 STATES COMPANY’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
  7. Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE DELIVERABLES, ANY SERVICES PROVIDED HEREUNDER OR THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH ANY PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO COMPANY UNDER THE APPLICABLE STATEMENT OF WORK. COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE MOST RECENT ANNUAL SUBSCRIPTION FEES PAID OR PAYABLE TO COMPANY UNDER THIS AGREEMENT PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING THE FOREGOING, THE PARTIES AGREE THAT THE ABOVE LIMITATIONS OF LIABILITY SHALL NOT APPLY TO COMPANY’S OBLIGATIONS UNDER SECTION 6 (INFRINGEMENT CLAIMS), ANY PARTY’S BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR ANY PARTY’S GROSS NEGLIGENCE OR WILLFULL MISCONDUCT. EACH PARTY ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT THEY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY.
  8. General.
    8.1. Mutual Warranties. Each party represents and warrants that (i) it has the legal power and authority to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.
    8.2. Publicity. Company may, (a) use Customer’s business name and logo in digital and written materials identifying Company’s customers; (b) identify Customer in applicable case studies; and (c) identify Customer as a reference for prospective customers and the media (provided that Customer shall not be obligated to comment in any way).
    8.3. Compliance with Laws. Each party agrees to comply with all applicable laws, including all export and import control laws and regulations, in its use of all Deliverables and the Software, and, in particular, will not export or re-export any Deliverable or the Software without all required government licenses. Without limiting the generality of the foregoing, Company and Customer shall comply with any data privacy laws or regulations, including without limitation, the EU General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA) (collectively “Data Privacy Laws”) and process any Customer Personal Data (as defined in the DPA) in accordance with the Data Processing Addendum located at https://info.altvia.com/DPA (as such may be updated from time to time) (“DPA”), which is incorporated herein by reference. Customer hereby (a) acknowledges that compliance with the Data Privacy Laws in connection with Customer’s use of any Professional Services and/or Software is Customer’s sole responsibility and (b) agrees to defend, indemnify and hold harmless Company, its affiliates and each of their respective officers, directors, employees, contractors and agents, from and against all claims, suits and other proceedings, including any resulting liabilities, losses, damages, costs and expenses (including attorneys’ fees), arising from or related to any allegation of Customer’s noncompliance with any Data Privacy Laws caused or contributed to by the use of any Professional Services and/or Software.
    8.4. Assignments. Neither party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other; except that either party may assign this Agreement without consent of the other party to any successor to all or substantially all its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to the foregoing limitation, this Agreement shall inure to the benefit of and shall be binding on the successors and assigns of the parties.
    8.5. Force Majeure. Except for any payment obligations, neither party shall be liable hereunder on account of circumstances beyond its reasonable control, including without limitation, strikes, shortages, riots, civil unrest, insurrection, acts of terror, fires, flood, storm, explosions, acts of God, war, governmental action, strikes, labor conditions, earthquakes, material shortages, Internet service provider failures or delays, or any other cause which is beyond the reasonable control of such party (each a “Force Majeure Event”).
    8.6. Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address set forth above (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested) (c) sent via fax with confirmation of receipt, (d) sent by recognized air courier service, or (e) sent by email.
    8.7. Governing Law and Venue. This Agreement and all Statements of Work and Software Order Forms will be governed by and interpreted in accordance with the laws of the State of Colorado, without reference to its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement shall be brought in a federal or state court in Denver, Colorado and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
    8.8. Remedies. Except as otherwise expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
    8.9. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    8.10. Severability. If any provision of this Agreement or a Statement of Work or Software Order Form is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
    8.11. No Agency. Nothing contained herein shall be construed as creating any agency, partnership or other form of joint enterprise between the parties.
    8.12. Construction. The headings of Sections of this Agreement and any Statement of Work and Software Order Form are for convenience and are not to be used in interpretation. As used in this Agreement and all Statements of Work and Software Order Forms, the word “including” means “including but not limited to.”
    8.13. Non-Solicitation of Personnel. Customer shall not, during the term of the Agreement and for one (1) year thereafter, directly or indirectly hire or attempt to hire any Company employee or independent contractor without Company’s prior written consent; provided that the foregoing shall not prohibit Customer from issuing advertisements of a general nature not specifically directed at any such employee or independent contractor or using any recruiting agency that does not specifically target any such employee or independent contractor.
    8.14. Entire Agreement. This Agreement, together with any Statement of Work, Software Order Form, or other documents incorporated herein or therein, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement, any Statement of Work and any Software Order Form shall not be modified except by the mutual written agreement of the parties, including an Addendum to Terms and Conditions executed by the parties.
    8.15. Counterparts. This Agreement may be executed by electronic transmission (e.g., email or facsimile) and in separate counterparts, each of which shall be deemed an original and all of which shall be deemed one and the same instrument.

 

APPENDIX A | PROFESSIONAL SERVICES

  1. Scope of Services.
    1.1. Statements of Work. If the parties have executed a Statement of Work for the performance of Professional Services, then subject to the terms and conditions of this Agreement, including without limitation, payment by Customer of the Professional Services Fees in accordance with any payment schedule agreed to by the parties in the Statement of Work, Company will use commercially reasonable efforts to perform the Professional Services in accordance with such Statement of Work. In the event of a conflict between the terms and conditions of this Agreement and those of a Statement of Work, the terms and conditions of the Statement of Work will prevail and control, but only with respect to that specific Statement of Work.
    1.2. Estimated Cost and Timeframes of Projects. Customer acknowledges that costs, time frames and dates for completion of the Professional Services as set out in a Statement of Work are estimates only and the ability to meet them is influenced by a range of factors including: (a) the developing nature of the scope of work described in the Statement of Work; (b) the performance of third party contractors involved in the process; and (c) times of response by and level of co-operation of Customer. Obligations as to time are therefore on a “reasonable efforts” basis only and Company shall not be liable for failure to meet time frames or completion dates except to the extent resulting from Company’s negligence. In addition, Company shall not be liable for failure to meet time frames or completion dates for Professional Services to the extent any such failure is due to an act or omission of Customer.
    1.3. Changes. Any dates or time periods relevant to performance by Company hereunder will be appropriately and equitably extended to account for any delays resulting from changes due to Customer’s acts or omissions. If either party proposes in writing a change to the scope or timing of the Professional Services, the other party will reasonably and in good faith consider and discuss with the proposing party the proposed change and a revised estimate of the costs for such change.
    1.4. Customer Assistance. Customer shall provide Company with such resources, information and assistance as Company may reasonably request in connection with the performance of the Professional Services. Without limiting the generality of the foregoing, in the event the Services are provided on Customer’s premises, Customer shall provide safe and adequate space, power, network connections, CPU time, access to its hardware, software and other equipment, assistance from qualified personnel familiar with Customer’s hardware, software and data processing requirements and other resources as reasonably requested by Company. Customer acknowledges and agrees that Company’s ability to successfully perform the Professional Services in a timely manner is contingent upon its receipt from Customer of the information, resources and assistance requested.
  2. Fees and Expenses. In the event a Statement of Work does not reference any specific pricing, such Professional Services shall be performed at Company’s then-current consulting rates on a time and materials basis; that is, Customer shall pay Company for the time spent performing the relevant Professional Services, plus materials, taxes (if applicable) and expenses. Any monetary limit referenced in a Statement of Work shall be an estimate only for the purposes of Customer’s budgeting and Company’s resource scheduling unless expressly stated to be a definitive limit. Customer will reimburse Company for all reasonable out-of-pocket expenses (including travel and accommodation expenses) incurred by Company in providing the Professional Services. All Professional Services Fees shall be considered earned as work is performed.
  3. Ownership and License.
    3.1. Work Product. Except as provided in Section 3.2 of this Appendix (Company Property), the parties understand and agree that any and all Customer-specific work product (the “Work Product”) which is produced as a result of the Professional Services performed by Company under this Agreement shall be the property of Customer.
    3.2. Company Property. Notwithstanding the foregoing in Section 3.1 of this Appendix (Work Product), as between the parties, Company shall retain all Intellectual Property Rights in any and all tools, routines, programs, code, designs, technology, ideas, know-how, processes, formulas, techniques, improvements, inventions and works of authorship which are made, developed, conceived or reduced to practice by Company or its consultants in connection with this Agreement and which have general applicability apart from the Work Product and any derivative works thereof (collectively, the “Company Property”). Company grants Customer a non-exclusive, non-transferable license, without rights to sublicense, to use the Company Property that is incorporated into a Deliverable solely for Customer’s own internal business purposes in connection with the use of the Deliverable.
  4. Warranties.
    4.1. Limited Warranty. Subject to the terms and conditions of this Agreement, Company warrants to Customer that the Professional Services will be performed in a professional manner consistent with industry standards and in accordance with the applicable Statement of Work. Company shall, as its sole obligation and Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section 4.1 (Limited Warranty), re-perform the Professional Services which gave rise to the breach or, at Company’s option, refund the fees paid by Customer for the Services which gave rise to the breach; provided that Customer shall notify Company in writing of the breach within thirty (30) days following performance of the defective Professional Services, specifying the breach in reasonable detail.
    4.2. Disclaimer. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE OR COURSE OF DEALING.'

 

APPENDIX B | SOFTWARE SUBSCRIPTION

Pursuant to a Software Order Form, Customer is entering into a paid subscription for access and use of the Software during the Subscription Period (defined below). Company is willing to permit Customer to access the Software pursuant to the terms of this Agreement, including this Appendix.

  1. License Grant.
    1.1. Right to Access and Use the Software. Subject to the terms of this Agreement, including this Appendix, Company hereby grants to Customer, during the Subscription Period, a non-sublicensable, non-transferable, non-exclusive right to access and use the Software. Customer may use the Software solely for Customer's internal business purposes.
    1.2. Users. Customer’s access and use of the Software shall be limited based upon the criteria (e.g. maximum number of Users, usage-based, enterprise) set forth in the applicable Software Order Form. Customer shall comply with any usage limitations or restrictions set forth in the Software Order Form. In the event the Software Order Form restricts access and usage to a maximum number of Users, then (a) access to the Software cannot be shared with anyone other than a User; (b) if Customer wishes to add additional Users during the Subscription Period, Customer must submit a new executed Software Order Form which shall be subject to acceptance by Company; (c) upon Company's approval of the terms of a new Software Order Form, Company shall make the Software available to the additional Users on the terms and conditions set forth in this Agreement and the approved new Software Order Form; and (d) with respect to additional Users: (i) the subscription term will be coterminous with the preexisting Subscription Period and (ii) Customer will be responsible for any additional Subscription Fees for the additional Users in full commencing on the start of the month in which the new Software Order Form is approved by Company.
    1.3. Restrictions. Customer acknowledges that the Software and the structure, organization, and source code thereof constitute valuable trade secrets of Company. Accordingly, except as expressly permitted in this Agreement or as otherwise authorized by Company in writing, Customer will not, and will not permit any third party to (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Software to any third party, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (d) otherwise use or copy the Software except as expressly allowed under this Agreement.
  2. AIM/Salesforce.com. This Section 2 (AIM/Salesforce.com) only applies if Customer is subscribing for access and use of Company’s Software known as AIM (“AIM”), which is designed to inter-operate with Salesforce.com, Inc.’s (“SFDC”) on-line application and platform (“Salesforce.com Service”).
    2.1. Subscription to Salesforce.com Service. Customer’s access to AIM is dependent on Customer being a subscriber to the Salesforce.com Service. Such subscriber relationship may exist through Company when AIM is deployed using OEM or VAR licenses authorized for resale by SFDC. Otherwise Customer is solely responsible for entering into and maintaining a subscription to the Salesforce.com Service directly with SFDC or a non-Company authorized reseller. Regardless of whether the subscription to the Salesforce.com Service in purchased through Company, SFDC or a non-Company authorized reseller, in all cases (a) Company requires access to AIM and the Salesforce.com Service to perform configuration, support, and system administrative tasks and (b) Customer agrees to provide Company one user license in Customer’s Salesforce Org with full administrative privileges.
    2.2. Dependency on Salesforce.com Service. Use of AIM necessarily depends on the continuing availability and functionality of the Salesforce.com Service and its continuing inter-operation with the Software. If the Salesforce.com Service becomes unavailable or ceases to inter-operate with the Software through no fault of Company, Company may be required to (a) provide a lesser level of functionality for the Software or (b) cease providing the Software, in which case the Software subscription for AIM shall terminate and Company shall refund to Customer, on a pro rata basis, the unused portion of the applicable Subscription Fee already paid to Company. Customer acknowledges that SFDC does not encrypt data at rest. Optional services are available at additional cost from SFDC to encrypt data at rest.
    2.3. OEM Licenses. This Section 2.3 only applies if Company resells to Customer a subscription to the Salesforce.com Service pursuant to a Software Order Form. Company represents and warrants that it has received all required authorizations and rights from SFDC to resell such subscription to Customer. Customer’s access and use of the Salesforce.com Service shall be subject to the SFDC Terms of Use located at https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/Agreements/alliance-agreements-and-terms/Reseller-Pass-Through-Terms.pdf, which are incorporated herein by reference. Customer acknowledges that SFDC has its own terms and conditions for Disaster Recovery and Business Continuity Plan (located at https://compliance.salesforce.com/en/disaster-recovery-bcp) and System Status, Security and Compliance (located at https://trust.salesforce.com/en/). Customer acknowledges that SFDC has its own services levels for the availability of the Software.com Service which includes SFDC (a) using commercially reasonable efforts to make the Salesforce.com Service available 24 hours a day, 7 days a week, except for (i) planned downtime (for which at least 8 hours’ notice will be provided and for which SFDC shall schedule to the extent practicable during the weekend hours from 6:00 p.m. (Pacific Time) Friday to 3:00 a.m. (Pacific Time) Monday) or (ii) any unavailability caused by a Force Majeure Event, and (b) providing the Salesforce.com Service only in accordance with applicable laws and government regulations. Customer acknowledges that OEM licenses do not have access to the Salesforce Sales Cloud, Marketing Cloud, or Service Cloud functionality. Company will use commercially reasonable efforts to ensure that (1) the Salesforce.com Service performs materially in accordance with the relevant portions of the applicable user guide published by SFDC and accessible via https://help.salesforce.com, as amended from time to time by SFDC and (2) the functionality of the Salesforce.com Service will not materially decrease during the term of the applicable subscription.
    2.4. No Liability for Operation of Salesforce.com Service. Notwithstanding anything contained herein to the contrary, Company shall have no responsibility or liability for any issues related to the operation of the Salesforce.com Service.
  3. Subscription Period and Invoicing.
    3.1. Subscription Period. Unless earlier terminated pursuant to this Agreement, the subscription period shall remain in effect for an initial period as set forth in the Software Order Form (the “Initial Subscription Period”). Unless otherwise stated in the Software Order Form, and provided the Software continues to be generally available, the subscription period shall be automatically renewed for successive renewal terms of one (1) year each (a “Renewal Subscription Period”) unless either party indicates its intention not to renew the subscription period at least thirty (30) days prior to the end of the then current subscription period. The Initial Subscription Period and all Renewal Subscription Periods shall be referred to collectively as the “Subscription Period”.
    3.2. Invoicing. Unless otherwise agreed to in the Software Order Form, all Subscription Fees will be billed prior to the commencement of the upcoming year during the Subscription Period. The Subscription Fees shall be as set forth in the Software Order Form; provided, however, (a) during the Initial Subscription Period, Company shall have the right, upon written notice to Customer, to increase Subscription Fees on an annual basis based upon increases in its cost to host the Software, and (b) for any Renewal Term, Company shall have the right to increase Subscription Fees by providing Customer written notice at least forty-five (45) days prior to the commencement of the applicable Renewal Term. Except as expressly otherwise stated in this Agreement, all Subscription Fees are non-refundable.
    3.3. Suspension and Termination. If any Subscription Fees are more than thirty (30) days overdue, Company may (in addition to any other rights or remedies Company may have) suspend all User IDs (as defined below) and Customer’s access to the Software until such amounts are paid in full. Either party may terminate the Subscription Period pursuant to this Agreement.
  4. Customer’s Use of the Software.
    4.1. Access and Security Guidelines. Each User will utilize the unique identification name and password assigned to the User account (each, a “User ID”) to access and use the Software. Customer shall be responsible for ensuring the security and confidentiality of all User IDs. Each User account and User ID may be assigned to and used by only one individual User. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software, and will notify Company promptly of any such unauthorized use of which Customer becomes aware. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Software. Customer is responsible for all activities that occur under Customer's User accounts.
    4.2. Customer Data. Customer is solely responsible for any and all electronic data and information contained in any database, template or other similar document submitted by Customer in connection with its use of the Software (“Customer Data”). Company may take remedial action if Customer Data violates Company’s Acceptable Use Policy located at https://info.altvia.com/AUP (as such may be updated from time to time), however, Company is under no obligation to review Customer Data for accuracy or potential liability. Promptly following the expiration or early termination of the Subscription Period, Company will provide a thirty (30) day grace period of access and/or send to Customer a .zip file with all .csv and other materials (e.g. .doc, .pdf) that contain the full database containing Customer Data.
  5. Ownership. The Software and Documentation, and all worldwide Intellectual Property Rights therein, are the exclusive property of Company. All rights in and to the Software not expressly granted to Customer in this Agreement are reserved by Company. Customer retains all right, title and interest in and to the Customer Data, which shall be considered Customer’s Confidential Information hereunder. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Software. Customer grants to Company all necessary permissions, authorizations and licenses in and to such Customer Data solely as necessary for Company to provide the Software to Customer.
  6. Support Services. During the Subscription Period, Company will provide to Customer Support Services for the Software as described in this Section (Support Services).
    6.1. Help Desk Support. Company will provide email support during the Subscription Period during business hours from 6:00 a.m. to 6:00 p.m. (Mountain Time), Monday through Friday (excluding regular holidays), and will include the following: (a) clarification of functions and features of the Software; (b) clarification of the Documentation; (c) guidance in operation of the Software; (d) assistance in identifying and verifying the causes of suspected errors in the Software; (e) advice on bypassing identified errors in the Software, if reasonably possible; and (f) other services as agreed by Company to be provided as part of Support Services as set forth in the Software Order Form.
    6.2. Updates. Company will provide updates, upgrades and enhancements (collectively “Updates”) for the Software as and when developed for general release in Company’s sole discretion. Updates shall not include any release, option or future product which Company licenses separately from the Software for an additional fee.
    6.3. Additional Services. All Support Services provided hereunder shall be provided at Company’s principal place of business. Should Customer request that Company (a) send personnel to any Customer facility to assist Customer with its use of the Software, whether to resolve an error or otherwise, or (b) perform any additional services outside of the scope of Support Services hereunder, such additional services shall be considered Professional Services to be performed by Company in its reasonable discretion, at Company’s then-current time and material rates or such other rates set forth in the applicable Statement of Work.
  7. Warranty; Disclaimer.
    7.1. Performance. During the Subscription Period, Company warrants that (a) the Software, when used as permitted by Company and in accordance with the Documentation, will operate as described in the Documentation in all material respects and (b) subject to Section 2 of this Appendix (AIM/Salesforce.com), the functionality of the Software will not be materially decreased. Company does not warrant that Customer’s use of the Software will be error-free or uninterrupted. Company will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, correct any reproducible error in the Software reported to Company by Customer in writing during the Subscription Period.
    7.2. Disclaimer. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE OR COURSE OF DEALING. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTION 7.1 OF THIS APPENDIX (PERFORMANCE), THE SOFTWARE IS PROVIDED “AS IS” WITH ALL FAULTS.
  8. U.S. Government End Users. If Customer is a branch or agency of the United States Government, the following provision applies. The Software is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4.