Master Services Agreement
ALESSA INC. (“ALESSA” OR ‘WE”) IS WILLING TO PROVIDE CERTAIN SOFTWARE AND SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT ENTERS INTO A WRITTEN OR ONLINE ORDER OR SIMILAR DOCUMENT WITH ALESSA THAT REFERENCES THESE TERMS AND CONDITIONS ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THESE TERMS AND CONDITIONS (“AGREEMENT”). READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY SOFTWARE OR SERVICES FROM ALESSA. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND ALESSA. BY ENTERING INTO A WRITTEN OR ONLINE ORDER OR SIMILAR DOCUMENT WITH ALESSA THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
FOR THE SAKE OF CLARITY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A “CORPORATE ENTITY”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM “YOU” OR “CUSTOMER” REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.
1.1 Affiliates means any company, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting shares of an entity.
1.2 Alessa Data means all Data made available by Alessa to the Customer in connection with the Customer’s use of the Services. Alessa Data does not, however, include Customer Data.
1.3 Confidential Information has the meaning given to it in Section 4.1.
1.4 Customer Data means all Data made available by the Customer or its Users to Alessa or otherwise provided by the Customer or its Users in connection with the provision of the Services including all Personal Data.
1.5 Data means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.
1.6 Documentation means the documentation for the Subscription Service provided by Alessa to assist in the use of the Subscription Service by the Customer.
1.7 Effective Date is the date that the first Order is entered into between the Parties referencing this Agreement.
1.8 Feedback means any Customer provided feedback and reports about any errors, problems, or defects in, or suggestions for changes and improvement to the Subscription Service.
1.9 Order means each Alessa ordering document electronically entered into or signed by duly authorized representatives of both Parties which references this Agreement, identifies the specific Services provided to the Customer by Alessa, sets out the prices for the Services and contains any other applicable terms and conditions.
1.10 Professional Services means set-up, implementation, training, consulting and/or custom services to be provided by Alessa. All Professional Services will be set out and described in an Order.
1.11 Services means the Subscription Service and any Professional Services provided by Alessa.
1.12 Subscription Service means Alessa’s proprietary subscription-based anti-money laundering software solutions and other software solutions set out and described on the applicable Order.
1.13 Third-Party Applications means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Subscription Service, and are identified as third-party applications
1.14 Users means individuals who are authorized by Customer to use the Subscription Service on behalf of Customer. Users consist of employees, consultants, contractors and agents of Customer or its Affiliates.
1.15 Work Product means any deliverables, content, reports, analyses or documentation developed by Alessa in the performance of any Professional Services.
2.1 Services. Alessa shall provide the Customer with the specific Services specified on an Order. Any conflict between the terms and conditions set forth in this Agreement and any Order shall be resolved in favor of this Agreement unless an Order makes specific reference to the section of this Agreement that is to be amended in the Order. Any exceptions expressly agreed upon in writing by the Parties pursuant to a particular Order will apply only for purposes of that Order, and will not be deemed to in any way amend, modify, cancel, or waive the provisions of this Agreement for any other Order. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Alessa regarding future functionality or features.
2.2 License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set out on the applicable Order, Alessa hereby grants to the Customer, solely during the term of the applicable Order, a non-exclusive, non-transferable (except as set out in Section 11.2) license to access and use the Subscription Service solely for the Customer’s internal business purposes. This license is restricted to use by the Customer and its authorized Users and does not include the right to use the Subscription Service on behalf of any third party unless otherwise stated on the Order in relation to Affiliates. The Customer agrees: (a) that only Users are permitted to use the Subscription Service; (b) that it is responsible for Users’ actions or failures to act in connection with activities contemplated under this Agreement and (c) to otherwise take all commercially reasonable steps to protect the Subscription Service from unauthorized use and/or access.
2.3 Licensed Volume. The Customer acknowledges that access and use of the Subscription Service is licensed to the Customer for use up to the number of applicable Users, the number of AML rules implemented, the number of transactions, screens, territories or other metric purchased by the Customer and set out on the applicable Order (the “Volume Limitations”). In the event that the Subscription Service is used in excess of the Volume Limitations then the Customer shall be obligated to pay Alessa for the number of applicable licenses or usage, in excess of such Volume Limitations at the rates set forth in the Order.
2.4 Affiliates Not Under Direct Order. If permitted in the applicable Order, the Customer may make the Subscription Service available to its Affiliates provided that all licensing restrictions are complied with in each instance by each such Affiliate and that the Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates. Any license restrictions set out on an Order shall be deemed to apply to both the Customer and its Affiliates. By way of example, if an Order limits use of the Subscription Service to 100,000 transactions, then the use by the Customer and its Affiliates, when aggregated together, shall not exceed a total of 100,000 transactions. Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates, except where the Affiliate has signed its own Order with Alessa for the Services pursuant to Section 2.5.
2.5 Affiliates Under Direct Order. Customer’s Affiliates may also acquire Services subject to the terms and conditions of this Agreement by executing Orders hereunder directly with Alessa. Each Order executed by an Affiliate hereunder shall incorporate the terms of this Agreement by reference and be deemed to be a two party agreement between Alessa and such Affiliate. Each Affiliate executing an Order shall be solely responsible for its obligations pursuant to such Order as well as for the obligations to be performed pursuant to this Agreement and the liabilities arising out of this Agreement as if it was the named party instead of Customer. Customer shall have no obligations or liabilities as to such Order signed by its Affiliate and Alessa shall look solely to the Affiliate executing such Order.
2.6 Acquisition of Third-Party Products and Services. Alessa may offer Third-Party Applications for sale under Orders. Alessa may in its discretion replace a Third-Party Application either (a) with another Third-Party Application having substantially similar functionality or (b) by including into the Subscription Service a substantially similar functionality to the replaced Third-Party Application. Any other acquisition by Customer of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between Customer and any third-party provider, is solely between Customer and the applicable third-party provider. Alessa does not warrant or support third-party products or services, whether or not they are designated by Alessa as “certified” or otherwise, except as specified on an Order. No purchase of third-party products or services is required to use the Subscription Services. If Customer installs or enables Third-Party Applications for use with Subscription Service, Customer acknowledges and consents that Alessa may allow providers of those Third-Party Applications to access Customer Data as required for the interoperation of such Third-Party Applications with the Subscription Service. Alessa shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Application providers. The Subscription Service shall allow Customer to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Subscription Service.
- FEES; PAYMENT TERMS
3.1 Fees. Customer agrees to pay Alessa for Services provided and expenses incurred in accordance with and at the rates specified in each Order. Unless otherwise expressly set forth on an Order (i) fees will be due within thirty (30) days from the date of the invoice, and (ii) Subscription Service fees are based on annual periods that begin on the subscription start date and each annual anniversary thereof. The invoice for the first year of a subscription term will coincide with the Order Date. Invoices for subsequent years of a subscription term or for a renewal term will be sent to Customer at least thirty (30) days in advance of the anniversary of the Order Date and will be due by the start of the applicable subscription year. Unless otherwise set forth in an Order, payment shall be made in US dollars and invoices will be sent by email to the billing email listed on an Order. Customer agrees to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute, and not paid when due. In addition to paying the applicable fees, Customer shall also pay all reasonable travel and out-of-pocket expenses incurred by Alessa in connection with any Services rendered provided that Customer has pre-approved of such travel and expenses in writing in advance. During the initial term, Alessa may increase the fees for the Subscription Service by up to seven percent (7%) by providing Customer at least ninety (90) days written notice before the anniversary of the order date. After the initial term, Alessa may increase the fees each year for the Subscription Service by providing Customer at least ninety (90) days prior written notice.
3.2 Taxes. Unless otherwise stated, fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Alessa has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 3.2, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Alessa with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Alessa is responsible for taxes assessable against Alessa based on its income, property and employees.
3.3 Disputed Charges. If the Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the Parties, the Customer shall pay the amounts due under this Agreement less the disputed amount, and the Parties shall proceed in good faith to promptly resolve such disputed amount. An amount will be considered disputed in good faith if (i) the Customer delivers a written statement to Alessa on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by the Customer, and (ii) all other amounts due from the Customer that are not in dispute have been paid as and when required under this Agreement.
4.1 Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. For the avoidance of doubt the Customer Data shall be deemed the Confidential Information of Customer. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The Parties expressly agree that the terms and pricing of this Agreement are Confidential Information and the Customer further agrees that neither it or any of its Users shall not publicly post any analysis or reviews of the Services without Alessa’s prior written approval. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.
4.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
4.3 Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
5.1 Availability. Alessa reserves the right to suspend Customer’s access to the Subscription Service: (i) for scheduled or emergency maintenance (Customer will be provided notice via the Subscription Service of any scheduled maintenance at least one (1) week in advance), (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Alessa (beyond any applicable notice and cure period), (iii) if Customer’s use of the Subscription Service results in (or is reasonably likely to result in) damage to or material degradation of the Subscription Service that could interfere with Alessa’s ability to provide access to the Subscription Service to other customers, or (iv) if Alessa receives an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body, that expressly or by reasonable implication requires Alessa to suspend or terminate Customer and/or any authorized User’s access to the Subscription Service.
5.2 Subscription Service Warranty. Alessa warrants that during the term of any Order for the Subscription Service, the Subscription Service will conform, in all material respects, with the Documentation. Alessa does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free. Alessa makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, Alessa will, at no additional cost to the Customer, provide remedial services necessary to enable the Subscription Service to conform to the warranty. The Customer will provide Alessa with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. Such warranty shall only apply if the Subscription Service has been utilized by the Customer and its Users in accordance with the Order and this Agreement.
5.3 Professional Services Warranty. Alessa warrants that any Professional Services provided hereunder shall be provided in a competent manner and in accordance with any specifications set out in the Order in all material respects. Alessa further warrants that any Work Product provided pursuant to any Professional Services engagement shall comply, in all material respects, with the specifications set out in the applicable Order. If the Services are not performed as warranted or the Work Product does not so comply, then, upon the Customer’s written request, Alessa shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to the Customer. Such warranties and other obligations shall survive for thirty (30) days following the completion of the Professional Services or the delivery of each applicable portion of the Work Product, as the case may be.
5.4 Data Security. Alessa shall maintain commercially reasonable security measures that are designed to: (a) ensure the security of the Customer’s Confidential Information and Customer Data stored by or in possession of Alessa; (b) protect against any anticipated threats or hazards to the security or integrity of the Customer’s Confidential Information and Customer Data stored by or in possession of Alessa; and (c) protect against any unauthorized access to or use of the Customer’s Confidential Information and Customer Data as stored by or in possession of Alessa. Upon becoming aware of any actual security breach to its infrastructure that may result in the unauthorized access to or disclosure of unencrypted Customer Confidential Information or Customer Data, Alessa shall promptly notify the Customer. This notification will state in reasonable detail the Customer Confidential Information at risk. Alessa agrees to take all actions reasonably necessary under the circumstances to immediately prevent the continued unauthorized access of such information. Alessa further agrees that in the event of a breach of confidentiality or security, it will work in good faith and cooperate with the Customer to address the breach. Alessa shall not be responsible or liable for any security breach caused by the Customer. Upon the Customer’s written request, Alessa shall provide a copy of its most recent audit report of its security measures. The report is to be treated as Alessa’s Confidential Information under this Agreement and shall remain the property of Alessa.
5.5 No Other Warranty. ALESSA DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SUBSCRIPTION SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY ALESSA. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
- LIMITATION OF LIABILITY.
6.1 Consequential Damage Exclusion. Neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, consequential or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information and/or data) in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.
6.2 Limitation of Liability. To the fullest extent permitted by applicable law, the total cumulative liability of Alessa to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the Services fees paid by Customer to Alessa under the Order for the Services which form the subject of the claim during the twelve (12) month period immediately preceding the event giving rise to the claim. The provisions of this Agreement allocate risks between the Parties. The pricing set forth in each Order reflects this allocation of risk and the limitation of liability specified herein.
7.1 Term. This Agreement will commence on the Effective Date and will continue in effect until otherwise terminated in accordance with Section 7.2 below. The term of each Order for the Subscription Service shall be set out on the Order. Except as otherwise specified in the applicable Order, the term of the Order for the Subscription Service shall be for an initial term of three (3) years and thereafter shall automatically renew for additional periods of one year each, unless either Party gives the other written notice of non-renewal at least 90 days before the end of the relevant subscription term.
7.2 Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order (i) immediately in the event of a material breach of this Agreement or any such Order by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of an Order shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Orders. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order.
7.3 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order, Alessa shall no longer provide the applicable Services to the Customer and the Customer shall promptly cease and cause its Users to promptly cease using the Services. The Customer shall pay Alessa for all fees that had accrued prior to the termination date. Upon any termination by Customer pursuant to Section 7.2, Alessa shall refund to Customer any prepaid unused fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination by Alessa pursuant to Section 7.2, Customer shall pay any unpaid fees covering the remainder of the term of all Orders after the effective date of termination. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession.
- OWNERSHIP; USE OF DATA; OBLIGATIONS
8.1 Subscription Service. The Customer acknowledges and agrees that as between Alessa and the Customer, all right, title and interest in and to the Subscription Service (but excluding any Customer Data) and including all modifications and configurations, all Alessa Data and all of Alessa’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to the Customer by Alessa in providing the Subscription Service and all derivatives thereof are and shall remain Alessa’s or its licensors’. During the term of this Agreement, Alessa grants to the Customer a limited, worldwide, non-exclusive, non-transferable (except as set out in Section 11.2), royalty-free right to use, display, transmit, and distribute the Alessa Data solely in connection with the Customer’s permitted use of the Subscription Service.
8.2 Customer Data. The Customer retains ownership of all right, title and interest in and to all Customer Data. During the term of this Agreement, the Customer hereby grants to Alessa a limited, worldwide, non-exclusive, non-transferable (except as set out in Section 11.2), royalty-free right to use, copy, display, transmit, and distribute the Customer Data solely as necessary to provide the Subscription Service to the Customer. Alessa shall have the right to collect, use and distribute aggregated information, analysis, statistics, and other data generated by the Subscription Service (or derived from the Customer’s use of the Subscription Service) provided, however, that Alessa shall not disclose any such data unless such data is in an aggregated, anonymized form that would not permit a third party to identify the data as associated with the Customer or any of its Users.
8.3 Customer Obligations. The Customer is responsible for all activities conducted under its User logins and for its Users’ use of the Services and compliance with this Agreement. Unauthorized use, resale or commercial exploitation of the Subscription Service in any way is expressly prohibited. Without Alessa’s express prior written consent in each instance, the Customer and its Users shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Subscription Service or access the Subscription Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Service. Except as expressly permitted in this Agreement, the Customer shall not use the Subscription Service on behalf of any third-party or allow any third party to use the Subscription Services. The Customer shall be liable for the use of the Services and any breach of this Agreement by any of its Users. In addition to Alessa’s other remedies hereunder, Alessa reserves the right upon notice to the Customer to terminate any User’s right to access the Subscription Service if such User has violated any of the restrictions contained in this Agreement. The Customer is solely responsible for all Customer Data. Alessa does not guarantee the accuracy, integrity or quality of the Customer Data. Neither the Customer nor its Users shall use the Subscription Service to: (a) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation.
8.4 Work Product. The parties agree that unless otherwise expressly set forth in an Order, Customer will have a non-exclusive, non-transferable (except as set forth in Section 11.2) license to use any Work Product developed by Alessa in the performance of any Professional Services and delivered to Customer, upon Customer’s payment in full of all amounts due hereunder, solely for Customer’s internal use in connection with its use of the Subscription Service. Alessa retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all Work Product compiled or developed by Alessa in the performance of this Agreement.
8.5 Feedback. In the event Customer provides Alessa with Feedback, Customer hereby grants to Alessa an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Feedback in any medium or format, whether now known or later developed. Alessa acknowledges and agrees that Feedback is provided by Customer and its Users on an “AS IS” basis without warranty, indemnity, or liability of any kind.
9.1 Alessa Indemnification. Subject to Section 9.3 below, Alessa will defend Customer, its Affiliates and their respective officers, directors, employees and agents (collectively, the “Customer Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Services or Work Product infringe or misappropriate such third party’s intellectual property rights and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid by under a court-approved settlement of such claim. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services or Work Product in violation of this Agreement or applicable law, (b) use of the Services or Work Product after Alessa notifies the Customer to discontinue use because of an infringement claim, (c) any claim relating to any Customer Data or Third-Party Applications, (d) modifications to the Services or Work Product made other than by Alessa (where the claim would not have arisen but for such modification), (e) the combination, operation, or use of the Services or Work Product with materials, software or equipment which was not provided by Alessa, to the extent that the Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (f) compliance by Alessa with the Customer’s custom requirements or specifications if and to the extent such compliance with the Customer’s custom requirements or specifications resulted in the infringement. If the Services are held to infringe, Alessa will, at its own expense and in its sole discretion, use commercially reasonable efforts either (a) to procure a license that will protect the Customer against such claim without cost to the Customer; (b) to replace the Services with non-infringing Services; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Order and refund to the Customer any prepaid unused fees paid to Alessa for the infringing Services. The rights and remedies granted the Customer under this Section 9.1 state Alessa’s entire liability, and the Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statute, common law or otherwise.
9.2 Customer Indemnity. Subject to Section 9.3 below, Customer will defend Alessa, its Affiliates and their respective officers, directors, employees and agents (collectively, the “Alessa Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Alessa Indemnitees by a third party (i) arising out of the Customer Data or (ii) arising out of the Customer’s breach of Section 8.3 above and will indemnify the Alessa Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Alessa Indemnitees as a result of, or for amounts paid by under a court-approved settlement of such claim.
9.3 Indemnification Procedure. The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is materially prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).
- INSURANCE. Alessa shall maintain in full force and effect during the term of any Order the following insurance: (a) Workers’ compensation and employers’ liability insurance with limits to conform with amounts required by applicable law; (b) Commercial general liability insurance with limits not less than one million dollars ($1,000,000) per occurrence for bodily injury, death, and property damage, including personal injury, contractual liability, independent contractors, broad-form property damage, and products and completed operations coverage; and (c) Professional liability (Errors and Omissions) and Cyber Insurance each with limits not less than one million dollars ($1,000,000) annual aggregate for all claims each policy year. As evidence of insurance coverage, upon request Alessa shall deliver certificates of insurance issued by Alessa’s insurance carrier showing such policies in force during the term of this Agreement.
11.1 Entire Agreement. This Agreement (and all Orders) contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating to this Agreement. Only a written instrument that refers to this Agreement or the applicable Order and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Order provided, however, Alessa reserves the right to modify this Agreement by posting a new Agreement online and notifying Customer of such new agreement provided that such new Agreement will only be applicable for any Order entered into after the date such new Agreement goes into effect. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by the Customer shall be of no force or effect, even if the purchase order is accepted by Alessa.
11.2 Assignment. This Agreement shall be binding upon and for the benefit of Alessa, the Customer and their permitted successors and assigns. Neither Party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void; provided that either Party may assign this Agreement and all Orders, without consent, as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets by providing written notice to the other Party. Alessa may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that Alessa shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their fees.
11.3 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the province of Ontario. The courts sitting in the province of Ontario will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.
11.4 Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
11.5 Relationship of the Parties. Alessa and the Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
11.6 Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, recognized health threats as determined by the World Health Organization, the Centers for Disease Control, or local government authority or health agencies (including but not limited to the health threats of COVID-19, H1N1, or similar infectious diseases), curtailment of transportation facilities, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.
11.7 Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt to the address of the Party set forth on the applicable Order or (iii) by email to the email address set forth on the applicable Order provided receipt of such email is confirmed. Either Party may change its address by giving written notice of such change to the other Party.
11.8 Modifications to Subscription Service. Alessa may make modifications to the Subscription Service or particular components of the Subscription Service from time to time provided that such modifications do not materially degrade any of the material functionality of the Subscription Service.
11.9 Publicity. The Customer hereby grants Alessa a non-exclusive license solely during the term of this Agreement to list the Customer’s name and display the Customer’s logo in the customer section of Alessa’s website and to use the Customer’s name and logo in Alessa’s customer lists but only to the extent that other customers of Alessa are also listed on such list. Any other use by Alessa of the Customer’s name, logo or trademark requires the Customer’s prior written consent.
11.10 No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person. Notwithstanding the foregoing, Customer hereby agree that the licensors of third party software to Alessa and each Third-Party Application provider will be considered third party beneficiaries of this Agreement and will be entitled to bring a direct action against Customer in the event of breach of any applicable provisions of this Agreement, pursuant to the terms and conditions of this Agreement.
11.11 Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.