All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Site is owned, controlled or licensed by or to Altametrics, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
You may use information on Altametrics products and services (such as data sheets, knowledge base articles, and similar materials) purposely made available by Altametrics for downloading from the Site, provided that you (1) not remove any proprietary notice language in all copies of such documents, (2) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media, (3) make no modifications to any such information, and (4) not make any additional representations or warranties relating to such documents.
Your Use of the Site
You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. Altametrics reserves the right to bar any such activity.
You may not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any Altametrics server, or to any of the services offered on or through the Site, by hacking, password “mining” or any other illegitimate means.
You may not probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Site, or any other customer of Altametrics, including any Altametrics account not owned by you, to its source, or exploit the Site or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Site.
You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or Altametrics’ systems or networks, or any systems or networks connected to the Site or to Altametrics.
You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use of the Site.
You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to Altametrics on or through the Site or any service offered on or through the Site. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.
Purchases; Other Terms and Conditions
Altametrics’ obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on this Site should be construed to alter such agreements.
Altametrics may make changes to any products or services offered on the Site, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Site with respect to products and services may be out of date, and Altametrics makes no commitment to update the materials on the Site with respect to such products and services.
The following terms also govern and apply to your use of the Site, and they are incorporated herein by this reference:
Each of these policies may be changed from time to time and are effective immediately upon posting such changes on the Site.
Accounts, Passwords and Security
Certain features or services offered on or through the Site may require you to open an account (including setting up an Altametrics ID and password). You are entirely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to notify Altametrics immediately of any unauthorized use of your account or password, or any other breach of security. However, you may be held liable for losses incurred by Altametrics or any other user of or visitor to the Site due to someone else using your Altametrics ID, password or account.
You may not use anyone else’s Altametrics ID, password or account at any time without the express permission and consent of the holder of that Altametrics ID, password or account. Altametrics cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
Links to Other Sites and to the Altametrics Site
This Site may contain links to other independent third-party Web sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under Altametrics’ control, and Altametrics is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
ALTAMETRICS DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. ALTAMETRICS CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. ALTAMETRICS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALTAMETRICS DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY ALTAMETRICS SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST ALTAMETRICS FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
Altametrics reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
Limitation of Liability
Except where prohibited by law, in no event will Altametrics be liable to you for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if Altametrics has been advised of the possibility of such damages.
You agree to indemnify and hold Altametrics, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Altametrics by any third party due to or arising out of or in connection with your use of the Site.
Altametrics may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Altametrics’ rights or property, or the rights or property of visitors to or users of the Site, including Altametrics’ customers. Altametrics reserves the right at all times to disclose any information that Altametrics deems necessary to comply with any applicable law, regulation, legal process or governmental request. Altametrics also may disclose your information when Altametrics determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.
You agree that Altametrics may, in its sole discretion and without prior notice, terminate your access to the Site, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of the Site or any service offered on or through the Site, or (4) unexpected technical issues or problems.
Governing Law; Dispute Resolution
Void Where Prohibited
Altametrics administers and operates the www.altametrics.com Site from its location in Los Alamitos, California USA; other Altametrics sites may be administered and operated from various locations outside the United States. Although the Site is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Site are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Altametrics reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Site is void where prohibited. If you choose to access the Site from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
You may not use or export or re-export any Content or any copy or adaptation of such Content, or any product or service offered on the Site, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.
Altametrics provides access to Altametrics international data and, therefore, may contain references or cross references to Altametrics products, programs and services that are not announced in your country. Such reference does not imply that Altametrics in your country intends to announce such products, programs or services.
Feedback and Information
Any feedback you provide at this site shall be deemed to be non-confidential. Altametrics shall be free to use such information on an unrestricted basis.
The information contained in this web site is subject to change without notice.
Copyright © 2010 Altametrics Inc. All rights reserved.
Altametrics Inc., 3191 Red Hill Ave, Costa Mesa, CA, 92690 USA.
What Information Does ALTAMETRICS Collect?
Automatic collection of information. Like many sites on the Internet, we automatically track certain information about You as You use our Sites. This information may include, for example, Your IP address and browser type. In addition, we may employ the use of “cookies” in certain areas of our Sites. A cookie is a small amount of data that is sent to Your browser from a Web server that may be stored on Your computer’s hard drive.
Information You enter. We also collect information You choose to provide us through the Sites or through email. For example, we obtain information when You complete a registration form or a feedback form, respond to a survey, enter a contest, participate in a product demonstration via the Sites, or contact a customer support representative. This information may include, for example, Your name, email address, mailing address, telephone number, company name, job title, and information about Your company including the number of employees and revenue size. If You participate in a product demonstration via the Sites we may record the session. You can choose not to provide us with certain personal and company information, but then You may not be able to fully take advantage of the features of our Sites and we may not be able to provide You with requested information about our products and services. In addition, financial information that is collected through the Sites is used for various purposes, including verification of qualification for registration and member billing.
With Whom Do We Share Your Information?
We are not in the business of collecting user information for sale to others. We will generally share Your personal or company identifying information only with Your consent or under the following circumstances:
·Service providers. We may use other companies and individuals to perform supporting functions for the various products and services offered through the Sites on our behalf. These service providers will not be permitted to use the information collected from You for any purpose other than performing the support functions for ALTAMETRICS.
In all other circumstances, when we disclose any of Your information to a third party it will generally be in the form of aggregated statistical data that doesn’t identify You individually. This non-identifying information includes, for example, the purchasing patterns, trends, preferences, and other collective characteristics of our users and serves to help us, our business partners, affiliates and others evaluate and tailor our communications, advertisements, products, services and general business practices.
Control of Your Information.
Bulletin Boards and Chat Rooms .
We may provide chat sessions, forums, message boards, bulletin boards and/or news groups for users to receive information about products and various topics. Any information disclosed in these areas may be viewed by other users of the Sites. If You post on any of these areas, please use care not to disclose any personal or company identifying information. We are not responsible or liable for the uses that others may make of the information You post on any of these areas.
We use technology designed to protect Your information and all transmissions made through our Sites. We will take reasonable precautions, consistent with prevalent industry practices, to prevent unauthorized access using unauthorized methods to Your data stored on our hosted system or accessed through our Sites. However, it is Your responsibility to restrict access as necessary through the management of Your user ID and password. ALTAMETRICS is not responsible when unauthorized access is attained through a legitimate user ID and password, unless the passwords confidentiality is breached by ALTAMETRICS’ own negligence. Please be aware, no data transmission over the Internet can be guaranteed to be 100% secure. As a result, while we strive to protect Your personal information, we cannot ensure or warrant the security of any information You transmit to us or from our Sites, and You engage in such transmissions at Your own risk.
Confidentiality of Client Data
We will take reasonable precautions, consistent with prevalent industry practices, to maintain the confidentiality of client data stored on our hosted systems. Unless You choose to make such data publicly available through the methods supplied in our software, for example, by choosing to disclose to the public Your client list through our Web store software, the content of Your data will not be subject to inspection or examination by the public or third parties unless (1) You expressly provide permission for such disclosure (with such permission being given automatically during a request for professional services or support that require the examination of Your data); (2) such disclosure is required during the ordinary course of data center operations to insure the proper completion of a standard procedure, for example, offsite data backup, or (3) such disclosure is required pursuant to a court order or similar legal authority.
Our Sites are general business audience Web sites and no Site or portion thereof is intended to be used by children under the age of 13. We do not collect personal identifying information from any person we know is a child under the age of 13.
1. General. These terms and conditions (the”Terms and Conditions”), the invoice, statement, or notice(“Invoice”), the Subscription License Terms and Conditions (“SLTC”), the Professional Services Terms and Conditions (“PSTC”) and the End User License Agreement (the “EULA”) for the Software, as defined below, constitute the entire agreement (the “Agreement”) between Altametrics, LLC. or one of its subsidiaries (“ALTAMETRICS”) and the buyer identified in the “Bill To” section of the invoice(“you” or “your”) regarding your purchase of Assurance and Support. The “Software” refers to the ALTAMETRICS software product(s) for which you have purchased Support. This Agreement supersedes all prior and contemporaneous agreements and may be amended only by a writing signed by ALTAMETRICS.
2. Support Plans and A La Carte Options. Subject to your payment of all applicable fees set forth in the Invoice (the “Fees”), you will receive the Support Plan (Software Assurance, Standard or Premier) or a La Carte option (Tech-Support OnDemand) you purchased. The upgrades, service packs, technical telephone support, and/or other benefits included with the Support Plan or a La Carte option you purchased are set forth in Appendix A. The “Support Plans and a La Carte options may be amended or modified from time to time by ALTAMETRICS, within its sole discretion, upon thirty (30) days notice via email. The Support Plans and a La Carte options may not be available in some countries.
3. Current Version; Media. To use or install any upgrades, service packs, payroll tax updates, or any other documentation data or materials available under Support (“Materials”), you must have a valid license for the then-current version of the Software; installing the Materials with older versions of the Software may cause the Materials and/or the Software to function improperly and /or the Software to cease functioning. The Materials, including but not limited to upgrades, and service packs, shall be released as determined appropriate by ALTAMETRICS, in its sole discretion, and may be provided via CD, diskette, Internet, your Solution Provider and/or other delivery method at ALTAMETRICS’s sole discretion. If available on CD or diskette, ALTAMETRICS will deliver the Materials to you (I)FOB origin; and (ii) after advance payment of an annual shipping and handling charge for all regular shipments to you under this Agreement during the applicable Initial or Renewal Term, as defined in section 6.
4. Pricing, Payment, and Acceptance. All fees are nontransferable and non-refundable (even in the event you cancel your Support coverage). You agree to pay all Fees set forth in the Invoice in the currency specified therein within 30 days of the date of the Invoice. ALTAMETRICS may raise the Fees for any renewal term upon 30 days prior notice. A $50.00 (U.S.) charge will be added to the amount of any dishonored check, charge, debit or transfer. You agree to pay all Fees, plus any applicable late fees or penalties, if any check, charge, debit or transfer is not honored by your financial institution for any reason. Unless you notify us in writing within 10 days of the date on your Invoice of any discrepancy between the Materials you ordered and those you received, you are deemed to have accepted delivery. By installing, using or accepting delivery of the Materials, you agree to be bound by the SLTC, EULA and this Agreement. Unless otherwise indicated in the Invoice, all amounts set forth therein are exclusive of taxes, insurance, and shipping and handling charges and you are responsible for payment thereof.
5. Lapse. To resume your subscription to any Support (Software Assurance, Standard or Premier) after a lapse, you must purchase a minimum of one (1) full year of service and pay a reinstatement fee of fifty percent (50%) of the then-current Fee for each month of lapsed coverage.
6. Term and Termination. Subject to your payment of all Fees, the term of the Agreement starts on the date indicated in the Invoice and shall continue in effect for a one-year period or such other period expressly set forth in the Invoice (“Initial Term”). Subject to your payment of the renewal and other Fees, this Agreement shall renew for successive one-year terms or such other period as expressly set forth in the Invoice (each a “Renewal Term”). The Agreement shall terminate upon (a) your failure to timely pay any renewal or other Fees, as specifically set forth in any Invoice; (b) your delivery of a written notice of termination to ALTAMETRICS, provided that you are not in breach of any terms of the Agreement; or (c) your breach of the Agreement and failure to cure such breach within 30 days after written notice thereof by ALTAMETRICS, provided that ALTAMETRICS hereby reserves all rights and remedies available to it as a result of such breach. Upon expiration or termination of the Agreement for any reason, you acknowledge and agree that (i) you shall not be entitled to a refund or offset of any amounts owed or paid to ALTAMETRICS; and (ii) you must cease using the Materials and any copies thereof from all computers and other devices in your control, and destroy all media in your control containing the Materials or copies thereof. Unless otherwise provided herein, remedies are cumulative and there is no obligation to exercise a particular remedy. Expiration or termination of the Agreement shall not prejudice, limit, or restrict any other rights or remedies either party may have arising prior to such expiration or termination. ALTAMETRICS has no obligation to refund any amounts paid by you.
7. Additional Services. Technical support services, other than Tech-Support OnDemand, may be provided by ALTAMETRICS, subject to a separate written agreement between the parties. Fees for such technical support services shall be at ALTAMETRICS’s then-current published rates, plus any costs and expenses, including reasonable transportation and lodging. Availability of and Fees for international technical support services shall be determined by ALTAMETRICS, in its sole discretion.
8. Audits. ALTAMETRICS or its agents may audit your records and information systems to ensure that your use of the Product complies with the end user license agreement between you and ALTAMETRICS concerning the Product (the”EULA” and the “SLTC”).
9. Client ID. You must maintain the security of your Client ID number, and you may not allow anyone other than your employees or employees of your authorized ALTAMETRICS Solution Provider of record to use your Client ID number. You may change your Solution Provider of record by completing the appropriate form provided by ALTAMETRICS.
10. Limitations. ALTAMETRICS has no obligation to support: (a) altered, damaged, or modified Software, (b) problems, issues, or errors caused by negligence, abuse, or misapplication of the Software; (c) use of the Software other than as specified in the ALTAMETRICS documentation ; or (d) hardware malfunctions, third-party software not licensed from ALTAMETRICS, or Software which is not the then-current version. At ALTAMETRICS’s request and your own expense, you will provide ALTAMETRICS with documentation of problems and test data, and cooperate with ALTAMETRICS to resolve the issue(s) submitted by you. ALTAMETRICS shall provide Support in the English language, except as otherwise agreed in writing.
11. DISCLAIMER OF WARRANTIES. THE SOFTWARE AND PRODUCT, UPGRADES AND MATERIALS RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE EULA, IF ANY. NO OTHER WARRANTIES ARE MADE BY ALTAMETRICS WITH RESPECT TO SUCH MATERIALS. SERVICES PROVIDED PURSUANT TO THE AGREEMENT ARE NOT WARRANTED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALTAMETRICS PROVIDES THE MATERIALS AND SERVICES “AS IS” AND “AS AVAILABLE” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. EXCEPT FOR THOSE WARRANTIES EXPLICITLY PROVIDED IN THE EULA, IF ANY, ALTAMETRICS HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, OR DUTIES OF EVERY NATURE WHATSOEVER (EXCEPT ANY DUTIES OF GOOD FAITH). FURTHER, THERE IS NO WARRANTY OF TITLE, ENJOYMENT, OR LACK OF INFRINGEMENT, OR THAT THE PROVISION OR OPERATION OF ANY MATERIALS WILL BE TIMELY OR UNINTERRUPTED.
12. Limitation Of Liability and Exclusion of Damages. NOTWITHSTANDING ANY DAMAGES YOU MAY INCUR FOR ANY REASON WHATSOEVER, ALTAMETRICS’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
13. Choice of Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of California without regard to the conflict of laws provisions thereof. Any dispute relating to or arising under this Agreement or the Support or other services to be provided hereunder shall be resolved by arbitration before a single arbitrator in Orange County, California pursuant to the rules of the American Arbitration Association. The arbitrator shall be an attorney experienced with software and technology disputes. The decision of the arbitrator shall be final and may be enforced by any court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Agreement will prevent Altametrics from applying to any court of competent jurisdiction for an injunction in order to prevent or limit irreparable harm or significant injury resulting from Your breach of this Agreement. If any party employs attorneys to enforce any rights arising out of or relating to this Agreement or the use of the Altametrics web site or Altametrics’ products and services, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs, and other expenses. You further agree to waive any objections to personal jurisdiction, and agree to service of process and exclusive venue in the Federal District Court for Southern California or the California Superior Court of Orange County. It is specifically agreed that the United Nations Treaty on the Sale of Goods does not apply.
Software Assurance is a maintenance plan for businesses that want to keep their systems reliably running on the latest software without paying full price for upgrades. Every time Altametrics releases a new version of the software you have licensed, you are eligible to receive the update or upgrade. You must keep your Software Assurance subscription current to qualify to receive any upgrades, updates, or new versions of the software. A Software Assurance subscription comes with:
Support provides web and/or telephone support for Altametrics products and is available for one flat annual fee. Support is designed to work in tandem with Software Assurance to provide you with maintenance and support in one comprehensive, cost-effective plan. There are three Support plans available: Web, Standard, and Premium. Support Plans includes:
Web Support Hours
Support requests received through web support are responded to during the following support hours:
Monday through Friday 7am-7pm
All times are Central time. Holidays excluded.
Standard Telephone Support Hours
Monday through Friday 7am-7pm
All times are Central time. Holidays excluded.
Premium Software Telephone Support Hours
Premium Telephone Support is Available 24 hours per day, 7 days per week. Holidays excluded.
1. Remote support software (the “Software”) has been or will be downloaded to your computer to allow a remote control session between Altametrics, LLC or one of its subsidiaries (“Altametrics”) and a computer or computers on your network. By clicking “ACCEPT”, or by communicating your Session ID to Altametrics you are authorizing Altametrics to connect to your computer and you understand that Altametrics will have partial or full unrestricted access to gain access to this computer or computers on your network as well as their contents on your network. Altametrics will then be able to transfer files with or without additional authorization from you. If you are in any way unsure about the identity, technical ability or trustworthiness of Altametrics and do not wish Altametrics to have access to your computer, click “DONOT ACCEPT” or do not communicate the Session ID to Altametrics.
2. This Agreement does not grant any rights to you in the Software and you agree not to use, copy, modify, enhance, merge, reverse engineer, reverse assemble, decompile, or in any way alter the Software or any copy, adaptation, transcription, or merged portion thereof or otherwise attempt to derive source code therefrom. You also hereby acknowledge and agree that Altametrics may verify the use of the Altametrics Software through online verification procedures, which may include support session time logging.
3. EXCEPT AS DESCRIBED UNDER SECTION 1 OF THE TERMS OF SERVICE BELOW, IN NO CIRCUMSTANCES SHALL ALTAMETRICS, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS EMPLOYEES, CONTRACTORS OR LICENSORS (THE “ALTAMETRICS PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING WITHOUT LIMITATION SYSTEM DAMAGE, OR LOSS OF DATA, PRIVACY, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, (i) THE DOWNLOADING OF THE ONTO YOUR COMPUTER, (ii) THE REMOTE CONTROL SERVICES PROVIDED BY THE OPERATOR(S), (iii) ANY INTERRUPTION TO USE OF THE REMOTE CONTROL SERVICE, OR (iv) ANY CONTENT OBTAINED FROM OR THROUGH
THE REMOTE CONTROL SERVICE, EVEN IF THE ALTAMETRICS PARTY(IES) FROM WHICH DAMAGES ARE SOUGHT HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4. Any dispute, claim, or controversy in connection with or arising under the use of the Software or this Agreement, its construction, existence, interpretation, validity, or any breach hereof which cannot be amicably settled between the parties, shall be finally and exclusively resolved by arbitration under theRules of Arbitration of the American Arbitration Association then prevailing. The parties agree that the dispute shall be resolved using one arbitrator unless the parties agree to a greater number of arbitrators. The arbitrator shall apportion the costs of the arbitration equally but may award or order reimbursement of legal fees and expenses in the manner deemed fair and equitable by the arbitrator. The arbitration proceedings shall be held in Orange County, California, U.S.A. and shall be subject to the terms of this Agreement, the intentions of the parties as stated herein, international commercial practice, and the governing law of this Agreement. The award in arbitration shall be final and binding, and judgment upon award may be entered in any court having jurisdiction or application may be made for judicial acceptance of the award and an order of enforcement. If it becomes necessary for either party to enforce an arbitral award by legal action or additional arbitration or judicial methods, the party against whom the award is ultimately enforced shall pay all reasonable costs and attorney’s fees incurred by the party in enforcing the award. The foregoing terms shall not apply to claims made against Altametrics in connection with an existing technical support agreement.
5. THE PARTIES HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OR CLASS TREATMENT OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH THEREOF, PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL PRECLUDE A PARTY FROM SEEKING TO COMPEL ARBITRATION IN A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION. THE LAWS OF THE STATE OF CALIFORNIA SHALL GOVERN THIS AGREEMENT.
IMPORTANT NOTE: The Software product includes certain software originating from third parties that is subject to their own terms and conditions. Please refer to http://www.TeamViewer.com to view the terms of the relevant licenses regarding your rights under said licenses.
Terms of Service
REMOTE ACCESS TECHNICAL ASSISTANCE FROM ALTAMETRICS LLC. OR ONE OF ITS SUBSIDIERIES (“ALTAMETRICS”) IS PROVIDED ON THE FOLLOWING BASIS:
1. ALTAMETRICS’ LIABILITY AND THE LIABILITY OF ITS SUPPLIERS SHALL BE LIMITED TO THE LESSOR OF: (A) THE TOTAL VALUE OF THE REMOTE ACCESS TECHNICAL SUPPORT, NOT TO EXCEED THE LIMITATION OF LIABILITY IN YOUR CURRENT SOFTWARE ASSURANCE AND SUPPORT PLAN AGREEMENT, OR (B) $50 PER INCIDENT.
2. ALTHOUGH ALTAMETRICS CANNOT GUARANTEE THAT THE PROVISION OF REMOTE ACCESS TECHNICAL SUPPORT WILL RESOLVE YOUR ISSUE, ALTAMETRICS WILL MAKE REASONABLE EFFORTS TO PERFORM SUPPORT SERVICES IN A PROFESSIONAL MANNER. TO THE EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTY AND REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL OR WRITTEN, STATUTORY, EXPRESS OR IMPLIED. AS PERMITTED BY APPLICABLE LAW, ALTAMETRICS SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY OR IMPLIED WARRANTIES, RELATED TO OR ARISING IN ANY WAY OUT OF THESE TERMS, INCLUDING ANY IMPLIED WARRANTY OR MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS PROVIDED ABOVE, IN NO EVENT SHALL ALTAMETRICS HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF USE OR EQUIPMENT OR FACILITIES, OR INTERRUPTION OF BUSINESS, ARISING IN ANY WAY OUT OF THESE TERMS AND CONDITIONS UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT APPLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
This policy was last updated April 7, 2009.
This Merchant Agreement (“Agreement”) is a contract between your company (the “Company”) and Altametrics POS, LLC.
(“Altametrics”) and applies to your Company’s use of the Order Bee merchant network and commerce processing system (collectively the “Service”). By activating the Service, you acknowledge that you have read and understood, and you agree, to the terms of this Agreement. You represent that you are of legal age to enter this Agreement and have the authority to represent the Company to become bound by its terms.
1. Service. Altametrics has the right at any time to change or discontinue any aspect or feature of the site, including, without limitation, its content and hours of availability. Altametrics serves as hosting and commerce processing provider for our merchant members’ product and services. We make every effort to maintain a 24/7 operation site and mobile ordering solution for our merchants and customers. However, the site and mobile ordering system may become unavailable due to scheduled maintenance and unforeseen outages due to problems such as hardware, software, and network problems. For scheduled maintenance that will cause system downtime or performance issues, we intend to provide amply notice to customers and merchants of the maintenance plans. That being said, Altametrics shall have no liability for any failure to do so. Problems with orders and other customer service issues should be reported to Altametrics using our web support portal at http://support.altametrics.com.
2. Participating on the Altametrics Network. We will do our best to monitor the site to insure that only reputable merchants are participating, and that the merchant content is accurate and clearly represented. As a Altametrics merchant you agree the Company will not:
– post content or items in an inappropriate category or areas on the site;
– violate any laws, third party rights, or our policies as stated in this Agreement;
– use the Site if you are not able to form legally binding contracts or are temporarily or indefinitely suspended from our site;
– fail to complete customer orders requested from you;
– manipulate the price of any item or interfere with other user’s listings;
– circumvent or manipulate our fee structure, the billing process, or fees owed to Altametrics;
– post false, inaccurate, misleading, defamatory, or libelous content;
– take any action that may undermine the feedback or rating systems (such as displaying, importing or exporting feedback information off of the site or for using it for purposes unrelated to Altametrics);
– copy, modify, or distribute content from the site and Altametrics’s copyrights and trademarks; or
– list any content that violates copyright or trademark laws.
We work collectively with our merchants and users to insure a properly working site. If you become aware of problems created by other Altametrics users or merchants, please inform us using our web support portal at http://support.altametrics.com. For example, if you are aware of customers who are submitting orders without picking up or taking delivery of these orders, please notify us of these problems. We will do our best to remedy the situation, without limiting other remedies, we may suspend, terminate or take legal action against offending users or merchants.
3. Agency Relationship. Altametrics acts a facilitator to help you accept orders and payments from third parties. We act as your agent based upon your direction and your request to use our Services that require us to perform tasks on your behalf. You agree that Altametrics has the authority to collect payment transactions directly from customers on your behalf. Altametrics will reimburse the Company for these transactions less any fees or payments due to Altametrics on a semi-monthly basis. You agree that you will not receive interested or other earnings on any account credits you may hold in your Altametrics account.
4.1 Pricing and Service Quality. The accuracy of information regarding price, product specifications and availability contained on this site for your company is the responsibility of the Company. The Company agrees to make their best effort to insure that prices listed on the site and those posted in the stores on the date they are viewed on the site are the same, and that out-of-stock items are clearly marked or removed from the inventory. In the event that the in-store price and the price posted on the site are different, the Altametrics site price will prevail in every case. The Company agrees to make their best effort to provide an accurate hours of operation schedule on the site.
The Company agrees to make a best effort to provide timely, accurate, reliable and high quality products and services for orders sent through the Altametrics system. Altametrics reserves the right to suspend or terminate a merchant who has a consistently poor customer rating or unusually high number of complaints. Altametrics will work with merchants in an attempt to remedy these problems prior to taking these actions.
4.2 Transaction Fees. Altametrics earns revenues from transaction fees. A merchant’s transaction fee schedule is based on the arrangement made between Altametrics and the merchant. Questions about Altametrics fees should be addressed through our web support portal at http://support.altametrics.com. By accepting orders through the Service, you agree to pay the specified transaction fee to Altametrics.
Altametrics will deduct fees from a merchant’s payments, unless otherwise specified. All transactions are made and
displayed in U.S. dollars unless otherwise specified.
4.3 Custom Integration. Altametrics has developed our system to be easily integrated with our merchant’s back-end point-of-sale (POS) systems. However, technical and business challenges for integrations can vary widely from one merchant to another. We have the expertise to assist with an integration effort. We will provide you with a quote proposal and timeline for such integration efforts. Please contact us using our web support portal at http://support.altametrics.com if you wish to explore integration options.
4.4 Telephone Charges. The Company is liable for any telephone charges and any charges made by your telephone service provider or similar or associated charges as a result of use of the Altametrics system. This may include the cost of national or international calls and sending or receiving SMS messages, data packets, accessing the web via your mobile device, or sending and receiving fax transmissions. There may be other costs or taxes imposed by third parties in connection with your access and use of Altametrics for which you will be solely liable.
4.5 Payments. Payments to merchants are made on a semi-monthly basis. We will mail you a check for the payments due to the Company. You must provide us a valid remit to address or bank account for payments. Any questions regarding payments should be addressed using our web support portal at http://support.altametrics.com. For any special marketing, advertising or integration projects, Altametrics will provide your company a payment plan (NET30, credit card, etc.) to pay Altametrics for such work and services.
4.5 Billing Disputes. From the merchant tool’s reports section on the Altametrics web-site, you will be able to view your transaction information and details. From the transaction details information, the Company will be able to create a transaction dispute.
4.6 Termination/Discontinuance of Service. Altametrics may terminate or suspend your Service at any time in its sole discretion, if a) the Company breaches this Agreement or the documents it incorporates by reference; b) the Company provides a consistently sub-standard level of quality or service even after remedy efforts; or c) we believe that your merchant service pose a significant credit or fraud risk to us.
4.7 Taxes. Altametrics will calculate and charge user’s for any applicable sales, use, excise, public utility or other taxes, fees or charges imposed on Altametrics as a result of providing the Service. Although we are acting as an agent to collect these taxes on your behalf, it does not relieve the Company from the responsibility of accurately recording, reporting, and paying any applicable taxes.
5. Acceptable Use. The Company agrees to use the Service only for lawful purposes. The Company shall comply with all applicable U.S. and international laws, statues, ordinances, regulations, contracts and applicable licenses regarding your use of our Services. The Company’s information and activities through our Service shall not contain any viruses, Trojan horses, worms, time bombs cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or other personal information. If the Company uses, or attempt to use the Service other than its intended use, to tamper, hack, modify or corrupt the security or functionality of the Service, the Company’s account will be terminated and the Company will be subject to damages and other penalties, including criminal prosecution where available.
6. Content License. When you give us content, you grant us a non-exclusive, worldwide, perpetual irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future. (We need these rights to host and display your content.)
7. Trademarks. The site contains copyrighted material, trademarks and other proprietary information, including, without limitation, text, software, photos, video, graphics, music and sound, and the contents of the site are copyrighted under the United States copyright laws. The Company may not modify, publish, transmit, display, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content of this site, in whole or in part. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express written permission of Altametrics. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. The Company acknowledges that they do not acquire any ownership rights by downloading copyrighted material.
The foregoing provisions are for the benefit of Altametrics, its subsidiaries, affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
8. Safe Use/Unauthorized Use. Altametrics may provide you with a login and password authentication process for our web-site usage. In order to minimize the risk of unauthorized use of your account, please do not share your password with anyone. If you do believe there is unauthorized use of your Altametrics account, please call notify us using our web support portal at http://support.altametrics.com immediately in order that we can research the unauthorized activity and suspend any further unauthorized usage of your account.
9.1 No Warranty. Altametrics, our subsidiaries, employees and our merchants provide our services “AS IS” and without any warranty or condition, express, implied or statutory. Altametrics, our subsidiaries, employees, and our merchants disclaim any implied warranties of title, merchantability, fitness for a particular purpose. Additionally, there are no warranties as to the results obtained from the use of this site. The Company expressly agrees that use of this site is at their sole risk. Altametrics, our subsidiaries, employees and our merchants do not warrant that the site will be uninterrupted or error free, nor do they make any warranty as to the results that may be obtained from the use of this site, or as to the accuracy or reliability of any information, service, or merchandise provided through the site.
9.2 Limit of Liability. In no event shall Altametrics, its subsidiaries, employees or our merchants be liable in contract, in tort (including for its own negligence), or under any other legal theory (including strict liability) for any damages, including, without limitation, lost profits or revenues, loss of use or similar economic loss, arising out of the use or inability to use the site, our Service, or this Agreement. The Company hereby acknowledges that the provisions of this section shall apply to all use and content on this site. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to the Company. Our liability, and the liability of our parent, subsidiaries, employees, and merchants, to the Company or any third parties in any circumstance is limited to the lesser of the actual amount of direct damages or the total revenue received from Company during the previous three (3) month period giving rise to a claim.
8.3 Changes to this Agreement. Altametrics may change the terms of this Agreement from time to time. We may give the Company notice either by posting the information to our site or by email. All amended terms shall be effective 30 days after they are initially posted to our site. Any use of the site by the Company 30 days after such notice have been posted to our site shall be deemed to constitute acceptance of such amended terms.
10. Dispute Resolution. Any dispute relating to or arising under this Agreement or the use of the Service or its accompanying documentation shall be resolved by arbitration before a single arbitrator in Orange County, California pursuant to the rules of the American Arbitration Association. The arbitrator shall be an attorney experienced with software and technology disputes. The decision of the arbitrator shall be final and may be enforced by any court of competent jurisdiction. Notwithstanding the foregoing, nothing in this EULA will prevent Altametrics from applying to any court of competent jurisdiction for an injunction in the manner contemplated under section 15. If any party employs attorneys to enforce any rights arising out of or relating to this EULA, the or the use of the Software or its accompanying documentation, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs, and other expenses. You further agree to waive any objections to personal jurisdiction, and agree to service of process and exclusive venue in the Federal District Court for Southern California or the California Superior Court of Orange County. It is specifically agreed that the United Nations Treaty on the Sale of Goods does not apply.
Should you have any questions concerning this Agreement, or if you desire to contact Altametrics for any reason, please contact us by calling (800) 676-1281 or write us at Altametrics POS, LLC. 3191 Red Hill Ave, Suite 100, Costa Mesa, CA 92626.
IMPORTANT— READ CAREFULLY BEFORE YOU INSTALL OR USE THIS SOFTWARE.
This End User License Agreement (“EULA”) is a legal agreement between You (“You” and “Your” includes a person and/or an individual entity) and Altametrics, LLC. or one of its subsidiaries. (“ALTAMETRICS”) concerning the Hula POS software product (“Software”). The Software includes all component parts, the associated media, any printed materials, any updates, and any “online” or electronic documentation, as applicable. By accessing, installing, copying or otherwise using the Software, You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, ALTAMETRICS is unwilling to license the Software to You. In such event, You may not access, use or copy the Software, and You should promptly delete all installations and copies of the Software or contact ALTAMETRICS for instructions on returning the Software. WRITTEN ASSENT IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS EULA.
a. License Grant.
(i) Subject to the payment of all applicable license fees, and the terms and conditions of this EULA, ALTAMETRICS hereby grants to You a limited, non-sublicensable, non-exclusive, non-transferable right to install and run one copy of the specified version of the Software and the accompanying documentation, solely for Your individual use. This EULA authorizes You to make one copy of the Retail Product solely for backup or archival purposes, provided that the copy You make contains all of the proprietary notices set forth in or on the original version of the Software.
(ii) Upon registration, ALTAMETRICS will provide You an electronic license key (the “Activation Code”) to enable You to use the Software pursuant to the terms of this EULA. Documentation shall include, but not be limited to, any printed materials, “online” or electronic data provided by or obtained from ALTAMETRICS with regard to this Software (“Documentation”). The Software and Documentation are licensed, not sold. Even though copies of the Software may be provided on media of different formats, copies of the Software on different media formats do not constitute multiple licenses to the Software. If the Software is licensed as a suite or bundle with more than one specified Software product, this EULA applies to all such specified Software products, subject to any restrictions or usage terms specified on the applicable product packaging or accompanying documentation that applies to any of such Software products individually.
b. Installation and Use. This Software is licensed for use in a single system within a multi-user or networked environment where the Software installed on such system (the “System”) may be made available for access by other computers, workstations, personal digital assistants, pagers, “smart phones,” or such other electronic device for which the Software was designed (“Client Devices”).
2. Term. Regardless of the location of the Software, You are responsible for strict compliance with any and all of the terms and conditions of this EULA. This EULA will terminate automatically if You fail to comply with any of the limitations or other requirements described herein, and such termination shall be in addition to and not in lieu of any criminal, civil or other remedies available to ALTAMETRICS. When this EULA terminates, You must immediately cease using the Software and destroy all copies of the Software and the Documentation. You may terminate this EULA at any point by destroying all copies of the Software and the Documentation.
3. Modification and Discontinuance. The licensed Software, and its associated modules or options, are subject to change, revision, modification or discontinuance without notice and without any obligation to You. ALTAMETRICS may, at its sole discretion, make bug fixes, updates and/or service packs available. Telephone Support services, if applicable and offered, are available at an additional cost to You, as Licensee, under a separate written agreement.
4. Ownership Rights.
a. Ownership of Software. The Software and Documentation are protected by United States patent, copyright laws and other intellectual property laws, and international treaty provisions. ALTAMETRICS and its third party licensors, if any, retain all title to and, except as expressly and unambiguously licensed herein, all rights and interest in (a) the Software, including, but not limited to, all copies, versions, customizations, compilations and derivative works thereof (by whomever produced) and all related Documentation; (b) the ALTAMETRICS trademarks, service marks, trade names, icons and logos; (c) any and all copyright rights, patent rights, trade secret rights and other intellectual property and proprietary rights throughout the world in the foregoing; and (d) all Confidential Information (as defined in Section 14 below). You acknowledge that Your possession, installation, or use of the Software does not transfer to You any ownership, title, or registrable interest of any kind to the intellectual property in the Software, and that You will not acquire any rights to the Software except as expressly set forth in this EULA. You agree that all backup, archival, or any other type of copies of the Software and Documentation will contain the same proprietary notices that appear on and in the Software and Documentation.
b. Submissions. Should You decide to submit any materials to ALTAMETRICS via electronic mail, through or to ALTAMETRICS website(s), or otherwise, whether as feedback, data, questions, comments, ideas, concepts, techniques, suggestions or the like, You agree that such submissions are unrestricted and shall be deemed non-confidential upon submission. You grant to ALTAMETRICS and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, commercialize, display and perform such submissions.
5. Restrictions. You may not rent, lease, sublicense, loan, sell, distribute, market or commercialize any portion of the Software or its components. You may only install and use the Software on hardware which is (a) under Your exclusive control and (b) in the case of hardware performing any server functions, located at premises where You normally conduct day-to-day business operations. Notwithstanding the foregoing, if the Software is hosted under the auspices of an authorized ALTAMETRICS Hosting Partner, it may be installed on server hardware located at premises under the exclusive or primary control of such Hosting Partner or its agent. You may not permit any parent, affiliate, subsidiary or any other third parties to benefit from the use or functionality of the Software, either directly or via a facility management, timesharing, service bureau or any other arrangement; provided, however, that You may use the Software, as provided herein, to process the data of an affiliate or subsidiary of which You own more than fifty percent (50%); provided, however, You may not exceed the number of datasets specified on the applicable product packaging or accompanying documentation. You may not use the Software as part of a facility management, timesharing, or service bureau arrangement. You may not transfer any or all of the rights granted to You under this EULA. To the maximum extent this restriction is permitted under applicable law, You may not rename files of, modify, translate, localize, decompile, disassemble, decrypt, reverse engineer, attempt to derive source code from, remove any proprietary notices from, or create derivative works based upon the Software, in whole or in part. You may not duplicate or copy any portion of the Software or Documentation, unless otherwise set forth herein. You may not remove any proprietary notices or labels on the Software, including, but not limited to, the ALTAMETRICS and product names wherever they may appear. All rights not expressly set forth hereunder are reserved by ALTAMETRICS. ALTAMETRICS reserves the right to periodically conduct audits upon advance written notice to verify compliance with the terms of this EULA.
6. Warranty and Disclaimer.
a. Limited Warranty. ALTAMETRICS warrants that for ninety (90) days from the date of original purchase the media on which the Software is contained will be free from defects in materials and workmanship.
b. Customer Remedies. ALTAMETRICS’s entire liability and Your exclusive remedy shall be replacement of the defective media. To receive replacement of defective media, You must receive a return authorization number from ALTAMETRICS and return the defective media to ALTAMETRICS at Your expense with a copy of Your receipt. This limited warranty is void if the defect has resulted from accident, abuse, or misapplication. Any replacement media will be warranted for the remainder of the original warranty period. This remedy is not available to the extent it is prohibited under United States export control laws and regulations.
c. Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, THE SOFTWARE (AND ACCOMPANYING DOCUMENTATION) IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING PROVISIONS, YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND SOLE RESPONSIBILITY FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, ALTAMETRICS MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS FREE, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL SATISFY YOUR SPECIFIC REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALTAMETRICS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, OF LACK OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, AND LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE SOFTWARE AND ASSOCIATED DOCUMENTATION. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE. THE ENTIRE RISK OF THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE, IF ANY, REMAINS SOLELY WITH YOU. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
d. Indemnification. You agree to defend, indemnify and hold harmless ALTAMETRICS and its directors, officers, employees, affiliates, sub-licensees, and agents from and against all claims, defense costs (including reasonable expert and attorneys’ fees), judgments and other expenses arising out of or on account of any negligent act, omission, or willful misconduct by You or on Your behalf in (i) the installation or use of the Software or (ii) your compliance or failure to comply with this EULA.
e. Data. YOU ACKNOWLEDGE THAT ANY DATA ENTRY, CONVERSION OR STORAGE IS SUBJECT TO THE LIKELIHOOD OF HUMAN AND MACHINE ERRORS, MALICIOUS MANIPULATION, OMISSIONS, DELAYS, AND LOSSES, INCLUDING, BUT NOT LIMITED TO, INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA THAT MAY RESULT IN LOSS OR DAMAGE TO YOU AND/OR YOUR PROPERTY, AND/OR YOUR DETRIMENTAL RELIANCE ON MALICIOUSLY MANIPULATED DATA. ALTAMETRICS SHALL NOT BE LIABLE FOR ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES. YOU ARE RESPONSIBLE FOR ADOPTING REASONABLE MEASURES TO LIMIT THE IMPACT OF SUCH PROBLEMS, INCLUDING BACKING UP DATA, ADOPTING PROCEDURES TO ENSURE THE ACCURACY OF INPUT DATA, EXAMINING AND CONFIRMING RESULTS PRIOR TO USE, ADOPTING PROCEDURES TO IDENTIFY AND CORRECT ERRORS AND OMISSIONS, REPLACING LOST OR DAMAGED MEDIA, AND RECONSTRUCTING DATA.YOU ARE ALSO RESPONSIBLE FOR COMPLYING WITH ALL LOCAL, STATE, AND FEDERAL LAWS PERTAINING TO THE USE AND DISCLOSURE OF ANY DATA. IF YOU LICENSED AN EVALUATION PRODUCT, YOU ACKNOWLEDGE AND UNDERSTAND (I) THAT THE EVALUATION PRODUCT MAY BE USED FOR EVALUATION PURPOSES ONLY, (II) THAT THE EVALUATION PRODUCT SHALL BE OPERABLE ONLY FOR A LIMITED TIME AND (III) THAT, UPON EXPIRATION OF THE EVALUATION PERIOD, ANY DATA OR OTHER INFORMATION USED WITH, PROCESSED BY AND/OR STORED IN CONJUNCTION WITH THE EVALUATION PRODUCT MAY BE IRRETRIEVABLE, UNRECOVERABLE AND/OR OTHERWISE UNUSABLE.
f. Authorized ALTAMETRICS Solution Providers and Certified Consultants. ANY AUTHORIZED ALTAMETRICS SOLUTION PROVIDER, CERTIFIED CONSULTANT, RESELLER, INSTALLER OR CONSULTANT IS NOT AFFILIATED WITH ALTAMETRICS IN ANY CAPACITY OTHER THAN AS A RESELLER, INSTALLER OR CONSULTANT OF ALTAMETRICS’S PRODUCTS AND HAS NO AUTHORITY TO BIND ALTAMETRICS OR MODIFY ANY LICENSE OR WARRANTY. ALTAMETRICS MAKES NO REPRESENTATIONS, WARRANTY, ENDORSEMENT OR GUARANTEE WITH RESPECT TO THE SKILLS OR QUALIFICATIONS OF ANY AUTHORIZED ALTAMETRICS SOLUTION PROVIDER, CERTIFIED CONSULTANT, RESELLER, INSTALLER OR CONSULTANT AND YOU ARE ENCOURAGED TO INDEPENDENTLY INVESTIGATE THE SKILLS AND QUALIFICATIONS OF ANY AUTHORIZED ALTAMETRICS SOLUTION PROVIDER, CERTIFIED CONSULTANT, RESELLER, INSTALLER OR CONSULTANT WITH WHOM YOU ASSOCIATE.
7. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL ALTAMETRICS BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, FOR PERSONAL INJURY, LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING A DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE (WHETHER ACTIVE OR PASSIVE), AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE, AND GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY BY ALTAMETRICS, AND EVEN IF ALTAMETRICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ALTAMETRICS BE LIABLE FOR ANY DAMAGES IN EXCESS OF ANY AMOUNTS COLLECTED FROM YOU OVER THE PREVIOUS THREE (3) MONTH PERIOD. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. Entire Agreement. This EULA expressly supersedes and completely replaces any and all prior end user license agreements. ALTAMETRICS shall not be bound by or liable to You for any pre-existing or contemporaneous written or oral representations or warranties, made by anyone, with respect to the Software Product, including any authorized Solution Provider, Certified Consultant, distributor or reseller or their respective agents, employees, or representatives, nor shall You be deemed a third party beneficiary of any obligations of ALTAMETRICS to any such Solution Provider, Certified Consultant, distributor or reseller.
9. Dispute Resolution. Any dispute relating to or arising under this EULA or the use of the Software or its accompanying documentation shall be resolved by arbitration before a single arbitrator in Orange County, California pursuant to the rules of the American Arbitration Association. The arbitrator shall be an attorney experienced with software and technology disputes. The decision of the arbitrator shall be final and may be enforced by any court of competent jurisdiction. Notwithstanding the foregoing, nothing in this EULA will prevent Altametrics from applying to any court of competent jurisdiction for an injunction in the manner contemplated under section 15. If any party employs attorneys to enforce any rights arising out of or relating to this EULA, the or the use of the Software or its accompanying documentation, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs, and other expenses. You further agree to waive any objections to personal jurisdiction, and agree to service of process and exclusive venue in the Federal District Court for Southern California or the California Superior Court of Orange County. It is specifically agreed that the United Nations Treaty on the Sale of Goods does not apply.
10. Severability. If any provision of this EULA is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby.
11. United States Government. The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this EULA and shall be prohibited except to the extent expressly permitted by the terms of this EULA.
12. Export Controls. You acknowledge that the Software may be subject to export controls imposed by U.S. laws and regulations. During the term of this EULA, You agree to comply with the U.S. Foreign Corrupt Practices Act and with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or foreign agency or authority, and not to knowingly export, re-export, download, or allow the export, re-export or downloading of the Software or Documentation and any underlying information or technology in violation of any such restrictions, laws or regulations, to Afghanistan, Cuba, Iran, Iraq, Libya, North Korea or to any Group D:1 or E:2 country (or to any national of such countries), specified in the then current Supplement No. 1 to Part 740, or in violation of the embargo provisions in Part 746 of the U.S. Export Administration Regulations (or any successor regulations or supplement), except in compliance with all licenses and approvals required under applicable export laws and regulations, including, without limitation, those of the United States Department of Commerce. By accessing, installing, downloading or using the Software You are agreeing to the foregoing and You are certifying that You are not located in, under the control of, or a national or resident of any such country or on any such list. EXPORT OF THE SOFTWARE MAY BE SUBJECT TO COMPLIANCE WITH THE RULES AND REGULATIONS PROMULGATED FROM TIME TO TIME BY THE BUREAU OF EXPORT ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCE, WHICH RESTRICT THE EXPORT AND RE-EXPORT OF CERTAIN PRODUCTS AND TECHNICAL DATA. YOU ACKNOWLEDGE AND AGREE THAT IF THE EXPORT OF THE SOFTWARE IS CONTROLLED UNDER SUCH RULES AND REGULATIONS, THEN YOU SHALL NOT CAUSE THE SOFTWARE TO BE EXPORTED OR RE-EXPORTED, DIRECTLY OR INDIRECTLY, (A) WITHOUT ALL EXPORT OR RE-EXPORT LICENSES AND UNITED STATES OR OTHER GOVERNMENTAL APPROVALS REQUIRED BY ANY APPLICABLE LAWS, OR (B) IN VIOLATION OF ANY APPLICABLE PROHIBITION AGAINST THE EXPORT OR RE-EXPORT OF ANY PART OF THE SOFTWARE. SOME COUNTRIES HAVE RESTRICTIONS ON THE USE OF ENCRYPTION WITHIN THEIR BORDERS, OR THE IMPORT OR EXPORT OF ENCRYPTION EVEN IF FOR ONLY TEMPORARY PERSONAL OR BUSINESS USE. YOU ACKNOWLEDGE THAT THE IMPLEMENTATION AND ENFORCEMENT OF THESE LAWS IS NOT ALWAYS CONSISTENT AS TO SPECIFIC COUNTRIES. YOU ACKNOWLEDGE THAT IT IS YOUR ULTIMATE RESPONSIBILITY TO COMPLY WITH ANY AND ALL GOVERNMENT EXPORT AND OTHER APPLICABLE LAWS AND THAT ALTAMETRICS HAS NO FURTHER RESPONSIBILITY AFTER THE INITIAL LICENSE TO YOU WITHIN THE ORIGINAL COUNTRY OF LICENSE.
13. High Risk Activities. The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). ALTAMETRICS expressly disclaims any express or implied warranty of fitness for High Risk Activities.
14. Confidentiality. You agree that the Software, including, but not limited to, all source and object code components, screen shots and displays, graphical user interfaces, algorithms, formulae, data structures, scripts, application programming interfaces and protocols, and the Documentation (collectively the “Confidential Information”) are trade secrets of ALTAMETRICS and are owned by ALTAMETRICS or, where applicable, its third-party licensors. You agree to retain all Confidential Information in strict confidence at least with the same amount of diligence that You exercise in preserving the secrecy of Your most-valuable information, but in no event less than reasonable diligence. You agree to: (i) only disclose Confidential Information to Your employees and agents to the extent required to use the Software under the terms of this EULA and not to disclose or disseminate the Confidential Information to any third party without the prior written consent of ALTAMETRICS, (ii) use the Confidential Information solely for Your benefit as provided for herein and not to allow any third party to benefit from the Confidential Information, and (iii) bind Your employees and agents, by terms no less restrictive than those set forth herein, to maintain the confidentiality of such Confidential Information, and not use or disclose such information except as permitted under this EULA. Notwithstanding the disclosure of any Confidential Information for any reason, such Confidential Information shall continue to be owned by ALTAMETRICS or its licensors. Nothing contained herein shall be deemed to prevent You from disclosing or disseminating Your data, in any format or any report, to whomever You so choose.
15. Miscellaneous. This EULA is exclusively governed by the laws of the United States and the State of California, without reference to conflicts of law principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This EULA sets forth all of Your rights and is the entire agreement between the parties. This EULA supersedes any other communications with respect to the Software and/or Documentation. This EULA may not be modified except by a written addendum issued by a duly authorized representative of ALTAMETRICS. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by a duly authorized representative of ALTAMETRICS. You hereby acknowledge a breach of this EULA (including without limitation sections 5, 11, 12, or 14 hereof) would cause irreparable harm and significant injury to ALTAMETRICS that may be difficult to ascertain and that a remedy at law would be inadequate. You agree that ALTAMETRICS shall have the right to seek and obtain immediate injunctive relief to enforce the obligations under this EULA in addition to any other rights and remedies it may have. If any provision of this EULA is held invalid, the remainder of this EULA shall continue in full force and effect. The controlling language of this EULA is English. If You have received a translation into another language, it has been provided for Your convenience only.
16. ALTAMETRICS Customer Contact. If You have any questions concerning these terms and conditions, or if You would like to contact ALTAMETRICS for any other reason, please call (800) 676-1281, or write to us at: Altametrics, LLC., 3191 Red Hill Ave. Costa Mesa, California 92626, USA. You may also find us on the Web at http://www.Altametrics.com.
Welcome, and thank you for your interest in Altametrics, LLC. (“Altametrics”) and eAppCloud, an internet-based marketplace owned and operated by Altametrics that enables end users to browse, purchase, and manage subscriptions to third party “software as a service” applications, and to access applications purchased in this manner through a single sign on system (the “eAppCloud Marketplace”).
THE FOLLOWING DEVELOPER TERMS OF SERVICE the “Agreement”) CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN ALTAMETRICS AND YOU, AN INDEPENDENT APPLICATION DEVELOPER (“Developer” or “You”), AND GOVERNS THE TERMS UNDER WHICH YOU MAY SUBMIT YOUR APPLICATION TO ALTAMETRICS TO BE CONSIDERED FOR INCLUSION ON THE MARKETPLACE, AND THE TERMS ON WHICH YOUR APPLICATION MAY, IF ACCEPTED, BE INCLUDED ON THE MARKETPLACE. IF YOU ARE CREATING AN ACCOUNT ON BEHALF OF A COMPANY, REFERENCES TO “YOU” AND “DEVELOPER” HEREIN REFER TO THAT ENTITY, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. BY CLICKING “I AGREE”, SUBMITTING THE APPLICATION FORM, CREATING AN ACCOUNT, OR OTHERWISE ACCESSING OR USING THIS SITE TO MAKE YOUR APPLICATION AVAILABLE THROUGH THE MARKETPLACE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS.
1.1. “API” means an application program interface, which interface exposes certain features, inputs, or outputs of a program available to external applications.
1.2. “Application” means each software as a service application owned and operated by Developer that has been submitted to Altametrics for consideration for inclusion in the Marketplace, as identified by Developer through the Developer Portal.
1.3. “Application Net Revenue” means the Developer’s share of Application Gross Revenue, after deduction of the Distribution Fee.
1.4. “Application Gross Revenue” means amounts actually paid by End Users for purchases through the Marketplace of any rights to access and use any Application (including without limitation, basic subscriptions, additional seats, plan and feature upgrades, and any other use-based charges incurred in connection with use of the Applications), less any applicable deductions for fraud, returns, charge-backs, and bad debt. Application Gross Revenue excludes amounts collected by Developer from End Users for value added services such as integration and consulting services, and amounts collected from advertisers in respect of impressions, clicks, and actions taken by End Users.
1.5. “Developer Portal” means a password protected portal that enables Developer to setup Application profiles and distribution options, manage customers and bills.
1.6. “Distribution Fee” means the amount of Application Gross Revenue retained by Altametrics and its Syndication Partners, as established in each distribution option selected by Developer through the Developer Portal.
1.7. “End User” means an individual user of the Marketplace, or any portion thereof.
1.8. “Intellectual Property Rights” means patents, copyrights, trademark rights, and analogous rights in works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, including applications and registrations for the foregoing, trade secret rights, and all other intellectual property or proprietary rights (whether registered or not) and arising under the laws of any jurisdiction.
1.9. “Single Sign On” means the ability of an End User to access third party applications purchased through the Marketplace using a single set of Marketplace access credentials.
1.10. “Usage Data” means data generated in connection with End User use of the Marketplace, including transactional and Single Sign On data generated in connection with End User access and use of Applications.
2. ACCOUNT SETUP, INTEGRATION, AND LICENSE.
1. Developer Portal Account Setup. To submit an Application for consideration, you must create an account on the Developer Portal, and choose a password. You will remain solely liable for maintaining the confidentiality of your password, and for any and all activity on the Developer Portal taking place under its password. Developer shall keep any and all required profile information accurate and up to date, including without limitation any payment information.
2. Application Integration. Following submission of your Application, You agree to work with Altametrics on an ongoing basis to enable and enhance the integration of each Application into the Marketplace for the purposes of making it available to End Users through the Marketplace, as follows:
a. Single Sign On. Developer shall be responsible for implementing and maintaining support for Single Sign On access to each Application, which Altametrics currently enables through Altametrics ID.
b. Altametrics API Set. Developer will integrate the Application with the Marketplace through the APIs documented in the eAppCloud Developer Center currently (the “Altametrics APIs”), including without limitation APIs for billing, user management, provisioning, upgrade, downgrade, import, sync, and other features for each Application, and to maintain and enhance them throughout the Term.
c. Developer APIs. Upon mutual agreement in writing, Altametrics may choose to integrate with Developer’s existing APIs to the Application.
3. Application Hosting. The Application is a “software as a service” application, and is not reproduced or distributed to End Users. Developer is solely responsible for hosting the Application and all associated network connectivity, maintenance, backup, and other hardware, software, and services required to provide the Application to End Users, and shall bear all costs and expenses associated therewith.
4. No Other Connections. Developer shall not use any robot, spider, or other automated process to scrape, crawl, or index the Marketplace, other than by integrating the Application with the Marketplace through documented APIs expressly made available by Altametrics.
5. Syndication of Applications. Upon successful completion of integration to Altametrics’ satisfaction, Applications will be eligible for inclusion in the Marketplace, at the sole discretion of Altametrics and its Syndication Partners. Notwithstanding the foregoing, Syndication Partners may have additional requirements for eligibility for inclusion in Syndicated Marketplaces, including without limitations on revenue share percentages and minimum terms for inclusion in Application Terms (as defined below).
7. Developer Content. For each Application submitted to the Marketplace, Developer shall upload and submit certain promotional and documentation content to its account on the Developer Portal (the “Developer Content”) for use by Altametrics in connection with creating a profile page for the purpose of identifying, indexing, marketing, promoting, and supporting the Applications on the Marketplace. Developer Content may include, but is not limited to marketing and promotional materials, logos, diagrams, specifications, FAQs, documentation, end user terms, descriptions of Applications and features, and support materials, and shall at all times be true, correct, complete, accurate, and not misleading.
8. No Obligation to Publish; Compliance with Program Policies. Applications and Developer Content may not contain infringing material, and must comply with the eAppCloud Program Policies, as modified from time to time at Altametrics’ sole discretion. Altametrics is under no obligation to publish any Application or Developer Content, and may, at its discretion, remove any Application or Developer Content at any time from the Marketplace or any part thereof, and for any reason, including without limitation for failure to comply with eAppCloud Program Policies.
9. Non-Solicitation. Developer may market the Applications generally, and may market and solicit sales of value added services related to an Application directly to End Users of that Application. However, Developer may not solicit eAppCloud End Users directly for the sale of applications not sold in the marketplace or related services; provided however that this restriction does not apply to general public marketing and promotion not targeted specifically at End Users.
10. Licenses. In order to facilitate the inclusion of the Application on the Marketplace, each party needs to grant the other certain rights, as follows:
a. Developer. Developer hereby grants Altametrics worldwide, nonexclusive, fully paid up, royalty free, rights and licenses to (i) market and promote in any medium, and to distribute and sell subscriptions to the Applications through the Marketplace; and (ii) reproduce, distribute, display publicly, perform publicly, transmit, modify, create derivative works of, and otherwise utilize the Developer Content and Developer’s trademarks and logos in connection with the marketing, promotion, and sale of the Applications and the Marketplace, it being understood that any and all goodwill generated through the use of Developer’s trademarks inures solely to the benefit of Developer.
b. Altametrics. Altametrics hereby grants to Developer permission during the Term to access and use the Altametrics APIs and related documentation made available by Altametrics through the Developer Center, solely for the purpose of integrating the Applications into the Marketplace for access and use by End Users;
3. END USER TERMS AND SUPPORT.
3.2. Support. As between the Parties, Altametrics shall be responsible for providing support to End Users related to such End Users’ use of the Marketplace itself, including Single Sign On, billing, and transaction processing systems. Developer or its designee shall be solely responsible for providing support, if any, to End Users related to the operation of the Application, pursuant to its own support terms and policies (which for the avoidance of doubt, may be offered for a fee).
4. BILLING AND REVENUE SHARE.
1. Pricing and Pricing Parity. Developer shall set the prices for subscriptions, upgrades, and other applicable use charges for each Application, in US Dollars. Developer shall not offer the same Application to end users directly or through any other distribution channel for prices below those offered through the Marketplace.
2. Billing and Payment. Altametrics will be responsible for processing purchase transactions and collecting subscription, upgrade, and other applicable usage fees directly from End Users. Altametrics will remit to Developer on or before the fifth day of each calendar month, Application Net Revenue in respect of purchases processed in the previous calendar month, provided that the accumulated earned balance exceeds two hundred and fifty dollars ($250.00 USD). Accumulated earned balances less than two hundred and fifty dollars ($250.00 USD) will be rolled over to the next month. Altametrics may remit payment in the manner of its choosing, including without limitation by check, wire transfer, or direct deposit to the account Developer indicates in its account on the Developer Portal.
3.3. Refunds. Altametrics does not grant refunds to Users for any fees paid by End Users for Applications. Developer is solely responsible for specifying the terms and conditions under which refunds are provided, and for providing refunds in accordance with such terms and conditions. Altametrics is not responsible for providing any refunds to End Users.
5. INTELLECTUAL PROPERTY OWNERSHIP.
5.1. Developer IP. As between the Parties, Developer shall retain exclusive right, title and interest in and to the Applications (including any modifications or enhancements made thereto during the Term), the Developer Content, and any and all Intellectual Property Rights in any of the foregoing.
5.2. Altametrics IP. As between the Parties, Altametrics shall retain exclusive right, title and interest in and to the Marketplace and all visual interfaces, text graphics and other content included on the Marketplace, and all underlying technology, software, Usage Data and other data, and other materials that implement and or operate the Marketplace (including the Altametrics APIs), including any and all modifications and enhancements made thereto during the Term, and any and all Intellectual Property Rights in any of the foregoing. For the avoidance of doubt, Altametrics shall own all Altametrics APIs and any other software or other technology (excluding the Application) that is developed or integrated with the Marketplace in connection with integration of any Application or otherwise supporting interoperation of the Applications and the Marketplace.
5.3. No Implied Licenses. All rights not granted are expressly reserved. Except as expressly stated herein, nothing in this Agreement shall confer to either Party any license or right of ownership in material owned by the other Party, whether by implication, estoppel, or otherwise.
6. TERM AND TERMINATION.
6.1. Term. This Agreement will last for a period of two (2) years, after which the Agreement will renew automatically for successive one (1) year terms (collectively, the “Term”) unless a Party gives notice of nonrenewal at least ninety (90) days prior to the end of the then-current term.
6.2. Termination for Breach. Either Party may terminate this Agreement immediately upon notice to the other Party in the event that the other Party breaches any of its material obligations under this Agreement that remains uncured for thirty (30) days after notice thereof.
6.3. Termination for Convenience. Altametrics may terminate this Agreement at any time for any reason immediately upon written notice to Developer. Developer may terminate this Agreement for any reason at all immediately upon written notice to Altametrics, any time prior to receiving confirmation that an Application has been accepted for inclusion in the Marketplace, or any time thereafter upon six (6) months advance written notice.
6.4. Effect of Expiration or Termination. Upon termination of this Agreement for any reason whatsoever, all licenses granted hereunder shall terminate immediately, all exercise of activities permitted under such licenses shall cease, except as follows: (i) Developer shall continue to provide to End Users access to and support of Applications as previously purchased by such End Users (subject to the applicable Application Terms), and (ii) except in the event of a termination by Developer under Section6.2, Altametrics shall continue to enable such End Users’ use of Applications through the Marketplace (subject to the survival of Section 4.3 with respect to such End Users payments). Two years following the effective date of termination or expiration, Developer may elect to terminate the survival of the foregoing clause (ii), and resume full control of such End Users’ use of the Applications.
6.5. Survival. Sections 1, 3, 4.2, 4.3, 5, 6.4, 6.5, and 7 through 11 will survive expiration or termination of this Agreement for any reason.
7. REPRESENTATIONS AND WARRANTIES.
7.1. Mutual Representations and Warranties. Each Party represents and warrants that:
a. it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement;
b. the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a Party; and
c. this Agreement constitutes the legal, valid and binding obligation of such Party when executed and delivered.
7.2. Developer Representations and Warranties. Developer hereby represents and warrants that:
a. Developer is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to grant and authorize Altametrics and End Users to access and use the Applications and Developer Content as necessary to exercise the rights and licenses granted in this Agreement and in the manner contemplated by Altametrics and this Agreement;
b. Developer will properly implement the Altametrics APIs and will perform in accordance with applicable descriptions and specifications (including without limitation any such descriptions and specifications provided in the Developer Content) and with the eAppCloud Program Policies (including without limitation, any applicable user interface guidelines), and Developer’s marketing and promotional materials related to the Applications (including any applicable Developer Content), are not false or misleading;
c. The Applications and Developer Content, and Altametrics’ and End Users’ interaction with, access to, or use of, the Applications and Developer Content as permitted hereunder does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any Intellectual Property Right; (b) slander, defame, libel, or invade the right of privacy, publicity or other rights of any person or entity, or contain false or misleading information; or (c) violate any law or governmental rule or regulation, including any laws related to the collection, storage, processing, use, and disclosure of personal information.
d. The Applications and Developer Content do not contain any viruses, adware, spyware, back door, time bomb, drop dead device, worms, or other malicious code or any content or file or system that provides a method to circumvent any security features of the Marketplace (including without limitation any End User privacy settings, such as settings prohibiting direct solicitation and sales contact from Developers), or obtain unauthorized access to any End User device or computer.
7.3. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS OR WARRANTIES, AND THE PARTIES EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND NEITHER MAKES ANY WARRANTS THAT ANY PARTICLUAR RESULTS WILL BE DERIVED FROM THE USE OF THE MARKETPLACE OR THE APPLICATIONS, OR ANY MATERIALS, DELIVERABLES, RECOMMENDATIONS OR SERVICES PROVIDED UNDER THIS AGREEMENT. SPECIFICALLY, EXCEPT AS EXPRESSLY STATED OTHERWISE HEREIN, THE MARKETPLACE AND THE APPLICATIONS ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY.
8. LIMITATION OF LIABILITY. IN NO EVENT SHALL ALTAMETRICS BE LIABLE TO DEVELOPER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT ALTAMETRICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT WILL ALTAMETRICS’ TOTAL AGGREGATE LIABILITY TO DEVELOPER EXCEED THE AMOUNT OF DISTRIBUTION FEE ACTUALLY COLLECTED BY ALTAMETRICS HEREUNDER IN THE THREE MONTHS PROCEEDING ANY CLAIM GIVING RISE TO LIABILITY. THE FOREGOING CAP IS AN AGGREGATE FOR ALL CLAIMS AND SHALL NOT BE INCREASED BY MULTIPLE CLAIMS SUBJECT TO THE SAME, OVERLAPPING, OR ENTIRELY SEPARATE LOOKBACK PERIODS.
9.1. By Developer. Developer shall indemnify, defend and hold harmless Altametrics and its Resellers, and its and their respective directors, officers, shareholders, agents and employees from and against any and all suits, actions, damages, costs, losses, expenses (including reasonable outside attorneys’ fees) and other liabilities (each, a “Claim”) arising from or in connection with (i) allegations that any Application or Developer Content violates or infringes any Intellectual Property Right of a third party, invades or infringes any right of privacy, or right of publicity, or any other Intellectual Property Right of any third party, or is slanderous, defamatory, or libelous of any third party or that Developer or any Application or Developer Content otherwise violates or infringes any other right of any person or entity, (ii) a breach or alleged breach of any of Developer’s representations, warranties or obligations set forth in this Agreement, and (iii) for any refunds or other amounts paid to End Users or expenses incurred in connection with providing warranty or support services for the Applications to End Users. Developer shall solely conduct the defense of any such Claim and all negotiations for its settlement or compromise; provided, however, that (a) no settlement or compromise of such a Claim shall be entered into or agreed to without Altametrics’ prior approval (not to be unreasonably withheld or delayed) and (b) Altametrics shall have the right to participate, at its own expense, in the defense and/or settlement of any such Claim to the extent necessary to protect its own interests.
9.2. By Altametrics. Altametrics shall indemnify, defend and hold harmless Developer, and its respective directors, officers, shareholders, agents and employees from and against any and all claims from End Users arising as a result of any representation, warranty, or other obligation made by Altametrics to such End User on behalf of Developer beyond the scope of the representations, warranties, and obligations Developer makes to end users generally. Altametrics shall solely conduct the defense of any such Claim and all negotiations for its settlement or compromise; provided, however, that (a) no settlement or compromise of any such Claim shall be entered into or agreed to without Developer’s prior approval (not to be unreasonably withheld or delayed) and (b) Developer shall have the right to participate, at its own expense, in the defense and/or settlement of any such Claim to the extent necessary to protect its own interests.
10. CONFIDENTIALITY. In connection with this Agreement, each of Altametrics and Developer may be exposed to and will be furnished with certain proprietary or non-public information, material or data relating to the other’s businesses, technologies, products, productions, or services, or plans therefor, which are confidential and not otherwise available or known to the public, including without limitation the terms of this Agreement and the financial interests of the Parties in the Agreement, and any unpublished APIs (“Confidential Information”). Each Party shall keep confidential and not reveal or disclose any Confidential Information, during the Term or thereafter to any third party; provided, however, that each Party may disclose Confidential Information to its employees and independent contractors with a need to know to perform such Party’s obligations under this agreement, and third party counsel, advisors and accountants so long as all such third party disclosures are made pursuant to written obligations of confidentiality no less protective than the terms of this Agreement. Confidential Information does not include information that (a) is or becomes generally available to the public other than as a result of a wrongful disclosure by or at the direction of the receiving Party, (b) is or becomes available to the receiving Party on a non-confidential basis from a source that is entitled to disclose it to such Party, (c) was known to the receiving Party prior to receipt from the disclosing Party, or (d) is developed by the receiving Party without the benefit of the Confidential Information. Notwithstanding any of the foregoing, a Party may disclose Confidential Information if and solely to the extent that such disclosure is required by law, court order, judicial process, subpoena, or similar process, or applicable rule or regulation, provided that such Party shall use commercially reasonable efforts to seek confidential treatment for any such disclosed Confidential Information, and to the extent legally permissible, promptly notify the disclosing Party of such disclosure.
11.1. Non-waiver. The failure by a Party to take action by reason of any default by the other Party, whether in a single instance or repeatedly, shall not constitute a waiver of any such default or of the performance required of the defaulting Party. The express waiver by a Party of any provision of this Agreement or a default by the other Party in any one instance shall not be construed as a waiver of the same provision or default in any subsequent instance.
11.2. Notices. Any notice required or permitted under this Agreement or by law shall be in writing by email, and shall be deemed given upon dispatch, unless the sender receives a notice of non-delivery within 4 hours of sending. In the case of Altametrics, notices should be sent to developers@Altametrics.com, and in the case of Developer, to the email address listed in Developer’s profile in the Developer Portal.
11.3. Entire Agreement. This Agreement constitutes the entire agreement among the Parties pertaining to the subject matter hereof, and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. No amendment to or waiver of any provision this Agreement shall be binding unless executed in writing by the Party to be bound thereby.
11.4. Headings and Captions. The headings and captions used in this Agreement are for convenience of reference only and are not a part of this Agreement and do not in any way limit or amplify the terms and provisions hereof.
11.5. Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of California, without regard for choice of law or conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Orange County, California, and both parties agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
11.6. Severability. If any provision of this Agreement as applied to either Party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, it shall be revised so as to effectuate the intent of the parties to the maximum extent possible, of if not capable of such revision will be deemed severed from this Agreement, and the remaining provisions of this Agreement will remain in force and unaffected.
11.7. Assignment. Neither Party may assign its rights or delegate its obligations hereunder, including by operation of law, without the express prior written approval of the other, except that prior written approval shall not be required for either Party to assign this Agreement, along with all its rights, licenses, and obligations, to an entity that succeeds to all or substantially all of such Party’s assets related to this Agreement in the event of a merger (irrespective of which party to such merger is the surviving party), change of control, acquisition, or other corporate reorganization. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
11.8. Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
11.9. Independent Contractors. Each Party’s performance of its duties and obligations under this Agreement shall be that of an independent contractor and nothing herein shall create or imply an agency relationship between the Parties, nor shall this Agreement be deemed to constitute a joint venture or partnership between the Parties.