Unless otherwise defined in the Standard Terms and Conditions, whenever used in this Software and Solutions Addendum with initial letters capitalized, the following terms will have the following specified meanings:
“Altriva License Term” means the term of license grant to use Altriva Tools described in Section 2.
“Altriva Tools” means the proprietary software computer programs, software, analytics, software as a service offerings, tools and related technology developed by Altriva, together with any and all Enhancements that are furnished to Customer under this Agreement. Altriva Tools may include Embedded Third Party Software but do not include source code in any form or any Third Party Solutions.
“Customer Identification” means the unique user identification name and password issued or otherwise assigned to Customer for administrative access to and use of the Altriva Tools.
“Customer Personnel” means Customer's employees, independent contractors, agents and consultants who are authorized or otherwise designated or permitted by Customer to access and use the Altriva Tools.
“Enhancement” means any bug fix, correction, modification, enhancement, improvement, update, upgrade or new release of any Altriva Tools that may be provided to Customer from time-to-time, but does not include New Versions.
“New Version” means any new version of the Altriva Tools, including new functions or features or that is otherwise intended to replace the current version of the Altriva Tools.
“Subscription Period” means the Subscription Period as specified in any Order for access and use of Altriva Tools or Third Party Solutions and all renewal terms thereafter, unless the Subscription Period terminates as provided for in Section 5.
“Term” means the term of this Software and Solutions Addendum described in Section 5.1.
“Third Party Solutions Term” means the term of license grant to access use Third Party Solutions described in Section 3.
Section 2. Altriva Tools
2.1 License Grant. Subject to the terms and conditions of this Agreement, Altriva hereby grants Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable license during the Altriva License Term to do the following: (a) access (whether by download or through the Internet) use and operate the Altriva Tools solely for Customer’s internal business purposes; (b) use the Documentation as reasonably necessary in connection with the exercise of the rights granted under (a) of this paragraph; and (c) make a reasonable number of copies of the Documentation in connection with the exercise of the rights granted under (a) or (b) of this paragraph (including, without limitation, for archival or backup purposes).
2.2 Customer Identification. Altriva will issue a designated administrator of Customer a Customer Identification to facilitate Customer Personnel's access to and use of the Altriva Tools. Customer is solely responsible for ensuring the security and confidentiality of the Customer Identification. Customer acknowledges and agrees that it is fully responsible for all liabilities incurred through the use of the Customer Identification and all activities that occur through the use of the Customer Identification. Customer will immediately notify Altriva of any unauthorized use of the Customer Identification or any other breach of security known to it.
2.3 General Restrictions and Limitations. Customer may not use the Altriva Tools in any manner or for any purpose other than as expressly permitted by this Agreement. Without limitation of the foregoing, the license granted under this Section 2 does not include or authorize: (a) publicly performing or publicly displaying the Altriva Tools; (b) modifying or otherwise making any derivative works of the Altriva Tools; (c) downloading (other than page caching) of any portion of the Altriva Tools or any information contained in the Altriva Tools; (d) reverse engineering or accessing the Altriva Tools to build a competitive product or service; (e) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to Altriva Tools; or (f) using the Altriva Tools other than for its intended use. The license granted under this Section 2 is conditioned on Customer's continued compliance this Agreement (including, without limitation, its Customer Personnel's compliance with the Policies), and will immediately and automatically terminate if Customer does not comply with any material term or condition of this Agreement.
2.4 Embedded Third Party Software Restrictions and Limitations. The license in Section 2.1 as it relates to any Embedded Third Party Software is further subject to any restrictions and limitations specified in the terms and conditions and related policies displayed with or referenced in any such Embedded Third Party Software. Customer’s use of Embedded Third Party Software will be governed by the license terms presented to Customer in connection with Customer’s use of the Embedded Third Party Software, If Customer breaches any term of an Embedded Third Party Software license, such breach will be deemed an incurable material breach of this Agreement and Altriva may immediately terminate this Agreement with or without notice to Customer. Customer acknowledges and agrees that Altriva assumes no responsibility or liability for Customer’s use of any EMBEDDED Third Party Software. Altriva and its licensors reserve all other rights to the Altriva Tools.
2.4 Changes to Altriva Tools. Altriva may change any of the Altriva Tools (including the Altriva Tools as a whole) or change or remove features or functionality of the Altriva Tools from time to time. Altriva will notify Customer of any discontinuation of the Altriva Tools.
2.5 Suspension of Altriva Tools. If Customer breaches any terms and conditions of this Agreement, then, in addition to other remedies available to Altriva, Altriva will have the right, in its sole discretion, to immediately suspend, in whole or in part, access to the Altriva Tools. Any suspension under this Section shall remain in effect until the applicable breach, if curable, is cured.
2.6 Subscription Fees. If an Order identifies a free trial period (“Free Trial Period”) applicable to any Altriva Tools licensed under this Section 2, then Altriva will provide access to those Altriva Tools for free for the duration of that Free Trial Period. After the Free Trial Period, the license to the Altriva Tools will automatically continue and renew for additional Subscription Periods, unless Customer provides Altriva with written notice of non-renewal or the License Term otherwise terminates in accordance with Section 5. Upon renewal, Customer will pay to Altriva the Subscription Period fees for use and access to the Altriva Tools as set forth on the Order. Altriva reserves the right to modify its fees upon thirty (30) days’ notice which may be provided by email. All fees paid to Altriva are non-refundable.
2.7. Other Fees. Customer will pay Altriva any other fees for Customer’s use of the Altriva Tools identified on the Order. All fees paid to Altriva are non-refundable. Altriva reserves the right to modify its fees upon thirty (30) days’ notice which may be provided by email.
2.8 Invoices. Altriva will invoice Customer in arrears for applicable Subscription Period fees and other fees described in Section 2.6 and 2.7, and Customer will pay such invoices, in accordance with the Standard Terms and Conditions.
Section 3. Third Party Solutions
3.1 Third Party Solutions Access. Subject to the terms and conditions of this Agreement, Altriva will provided to Customer a license key or other access to the Third Party Solutions subject to any restrictions and limitations specified in the terms and conditions and related policies displayed with or referenced in any such Third Party Solutions, including any updated terms and conditions and related policies thereto. Customer will agree to all third party licensor terms, conditions and other license terms or agreements related to the Third Party Solutions, which terms, conditions and other license terms or agreements will govern Customer’s use of the Third Party Solutions. If Customer breaches any term of this Agreement or a Third Party Solutions license, such breach will be deemed an incurable material breach of this Agreement and Altriva may immediately terminate this Agreement with or without notice to Customer.
3.2 Subscription Fees. Customer’s subscription to the Third Party Solution will continue for the Subscription Period identified in the Order, and will automatically continue and renew for additional Subscription Periods, unless Customer provides Altriva with written notice of non-renewal or the Third Party Solutions Term otherwise terminates in accordance with Section 5. Upon renewal, Customer will pay to Altriva the Subscription Period fees for use and access to the Third Party Solution as set forth on the Order. Third party licensors of Third party Solutions reserve the right to modify its fees upon thirty (30) days’ notice which may be provided by email. All fees paid to Altriva are non-refundable.
3.3 Other Fees. Customer will pay Altriva any other fees for Customer’s use of the Third Party Solution identified on the Order. All fees paid to Altriva are non-refundable. Third party licensors may reserve the right to modify its fees for the Third Party Solutions upon thirty (30) days’ notice which may be provided by email.
3.4 Invoices. Altriva will invoice Customer in advance for the applicable Subscription Period fees and other fees described in Section 3.2 and 3.3, and Customer will pay such invoices, in accordance with the Standard Terms and Conditions.
3.5 Disclaimer of Warranties. The warranties, obligations and liabilities of third party licensors and the remedies of Customer with respect to Third Party Solutions will be limited to whatever recourse may be available against the third party licensor of such Third Party Solutions and are subject to such additional restrictions and other limitations as may be displayed in or referenced by such Third Party Solutions or the agreement governing the use of such Third Party Solutions. Altriva will have no responsibility or liability for any Third Party Solution.
3.6 Suspension of Third Party Solutions. Altriva may suspend or disable Customer’s access to and use of Third Party Solutions for legal or regulatory reasons or as otherwise permitted under this Agreement or directed by the applicable third party licensor. Third party licensors of Third Party Solutions may also directly suspend or disable Customer’s access to and use of Third Party Solutions for legal or regulatory reasons or as otherwise permitted under the terms and conditions and related policies of any third party licensor. Altriva will not be responsible for any such suspension or disablement; Customer’s recourse for such suspension or disablement will be limited to whatever recourse may be available against the third party licensor of such Third Party Solutions and are subject to such additional restrictions and other limitations as may be displayed in or referenced by such Third Party Solutions or the agreement governing the use of such Third Party Solutions.
Section 4. Support
4.1 Support. During the Subscription Period or as otherwise agreed by the Parties (“Support Term”), Altriva will provide support to Customer relating to the use and operation of the Altriva Tools and Third Party Solutions in accordance with the applicable support guidelines for any Service Offering or Third Party Solution available at www.altriva.com. Altriva and third party licensors may also push Enhancements to the Altriva Tools or Third Party Solutions remotely. While Altriva will use commercially reasonable efforts to respond to Customer inquiries, Altriva assumes no responsibility to resolve any problem or defect in Altriva Tools, Third Party Solutions and Services, except as expressly provided herein.
4.2 Altriva Tools Service Levels. Altriva reserves the right at any time and without prior notice to Customer to limit access to the Altriva Tools that are provided as a hosted offering or software as a service in order to perform repairs, make Enhancements or as a result of circumstances beyond Altriva's reasonable control. During the Support Term, Altriva will provide the Altriva Tools that are provided as a hosted offering or software as a service to Customer in accordance with the “Tools Service Level Agreement” available at www.altriva.com, as may be updated by Altriva from time to time (the “Tool SLA”). Altriva will use reasonable efforts to notify Customer promptly of any factor, occurrence or event coming to its attention that may adversely affect Altriva's ability to meet the service levels described in the Tool SLA, or that is likely to cause any material interruption in the availability of the applicable Altriva Tools. In the event Altriva fails to satisfy the terms of the Tool SLA with respect to the Altriva Tools, Customer will have the rights and remedies as are afforded to it by the Tool SLA.
4.3 Third Party Solutions Service Levels. Third party licensors of Third Party Solutions may also make certain service levels commitments to Customer in connection with the provision of the Third Party Solutions to Customer by Altriva; those service level commitments are governed by the terms and conditions and related policies of any such third party licensor and Customer’s recourse for such a breach of the third party licensor’s service level commitments will be limited to whatever recourse may be available against the third party licensor of such Third Party Solutions in the agreement governing the use of such Third Party Solutions.
Section 5. Term and Termination
5.1 Term.
(a) The term of licenses granted to access and use Altriva Tools will commence as of the date the applicable Order for each Altriva Tool is executed by each Party and will continue for automatically renewing Subscription Periods until terminated pursuant to Section 5.2 or 5.3 of this Software and Solutions Addendum (the “Altriva License Term”).
(b) The term of any access and use Third Party Solutions will commence as of the date the applicable Order for each Third Party Solution is executed by each Party and will continue for automatically renewing Subscription Periods until terminated pursuant to Section 5.2 or 5.3 of this Software and Solutions Addendum (the “Third Party Solutions Term”).
(c) The term of this Agreement will continue until the Altriva License Term and the Third Party Solutions Terms have each expired or terminated, (the “Term”).
5.2 Optional Termination. Either Party may terminate the License Term by giving the other Party written notice of termination at least thirty (30) days’ prior to the end of the then-current Subscription Period; provided, however, that no termination under this Section 5.2 will be effective prior to the expiration of thirty (30) days after receipt of the notice of termination.
5.3 Termination for Material Breach. If either Party commits a material breach of or default under this Software and Solutions Addendum, then the other Party may give notice that the breach or default has occurred (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Software and Solutions Addendum that are in breach or default, and the action required to cure the breach or default) and that the applicable Altriva License Term or Third Party Solutions Term will terminate pursuant to this Section 5.3 if the breach or default is not cured within thirty (30) days after receipt of notice (or such later date as may be specified in such notice). If the specified breach or default is not cured within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then the applicable Altriva License Term or Third Party Solutions Term will terminate.
5.4 Effect of Termination. In the event of any termination of the applicable Altriva License Term or Third Party Solutions Term:
(a) all of Customer's rights under this Software and Solutions Addendum will immediately terminate;
(b) Customer will remain responsible for all fees that Customer has incurred through the date of termination, including without limitation any fees for in-process tasks completed after the date of termination;
(c) Sections 2.4, 3.5, 5.4 and 7 of this Software and Solutions Addendum will continue to apply in accordance with their terms.
Section 6. Representations and Warranties
Customer represents and warrants to Altriva that use of the Altriva Tools and Third Party Solutions by Customer and Customer Personnel will not violate the terms of this Agreement or Applicable Laws.
Section 7. Indemnification
7.1 General. Customer will defend, indemnify, and hold harmless Altriva and the Altriva Parties from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim, actual or threatened, concerning: (a) Customer's or Customer Personnel’s' use of the Altriva Tools or Third Party Solutions; or (b) sales, use, gross receipts, value added, property, or any other taxes or fees assessed or imposed by any governmental authority on Altriva or any other person with respect to the Altriva Tools or Third Party Solutions or measured by any amount payable to Altriva under this Agreement (other than taxes imposed on or measured by Altriva’s net income). If Altriva is obligated to respond to a third party subpoena or other compulsory legal order or process described above, Customer will also reimburse Altriva for reasonable attorneys’ fees, as well as the time and materials spent by Altriva's employees and contractors responding to the third party subpoena or other compulsory legal order or process at Altriva's then-current hourly rates.
7.2 Process. Altriva will promptly notify Customer of any claim subject to Section 7.1 of this Software and Solutions Addendum, but Altriva's failure to promptly notify Customer will only affect Customer's obligations under Section 7.1 of this Software and Solutions Addendum to the extent that such failure prejudices Customer's ability to defend the claim. Customer may: (a) use counsel of its own choosing (subject to Altriva's written consent) to defend against any claim; and (b) settle the claim as Customer deems appropriate, provided that Customer obtain Altriva's prior written consent before entering into any settlement. Altriva may also assume control of the defense and settlement of the claim at any time.