These Alyne Terms and Conditions (US) (“Terms”) apply to Customers domiciled in the United States of America. For Customers domiciled outside of the United States of America, separate Terms and Conditions made available hier shall apply instead of these Terms.
PLEASE READ THE FOLLOWING TERMS, WHICH ALONG WITH THE APPLICABLE ORDER WITH ALYNE OR ONE OF OUR AUTHORIZED RESELLERS (EACH, A“RESELLER”) THAT REFERENCES THESE TERMS (EACH, AN “ORDER”), ITS EXHIBITS AND ANY RIDERS (TOGETHER THE “AGREEMENT”) CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE ENTITY IDENTIFIED AS THE CUSTOMER ON THE APPLICABLE ORDER (“YOU” OR “CUSTOMER”), AND ALYNE GMBH (“ALYNE,” “OUR,” “US,” OR“WE”) AND GOVERNS YOUR ACCESS TO AND USE OF THE SERVICE (AS DEFINED BELOW), INCLUDING ALYNE’S WEBSITE LOCATED AT ALYNE.COM (THE “SITE”). BY EXECUTING AN ORDER, OR BY ACCESSING OR USING THE SERVICE, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY AND TO COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT PERMITTED OR AUTHORIZED TO USE THE SERVICE. IF YOU ARE A DIRECT COMPETITOR TO ALYNE, YOU MAY NOT ACCESS OR USE THE SERVICE WITHOUT ALYNE’S EXPLICIT, ADVANCE, WRITTEN CONSENT, AND THEN ONLY FOR THE PURPOSES AUTHORIZED IN WRITING.
The Agreement is effective as of the effective date of the Order (the “Effective Date”).
These Terms were last updated as of the date posted above (the“Version Date”). To view previous versions of the Terms, click hier. Orders entered into by the parties prior to the Version Date shall remain unchanged for the applicable Subscription Term, unless otherwise agreed between the parties. All Orders after the Version Date shall be governed by the updated Terms.
You agree to receive electronically all communications, agreements, and notices that we provide in connection with the Service (“Communications”), including by e-mail, text, in-app notifications, or by posting them on the Site or through the Service. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such Communications be in writing.
DEFINITIONS
1. Definitions
“Affiliate” of a party means: (a) any entity that such party controls; (b) any entity that controls such party; or (c) any entity under common control with such party. To “control,” for purposes of this definition, means owning or otherwise controlling more than 50% of the voting interests of an entity.
“Approved User” means an employee or contractor of Customer who is authorized by Customer to access and use the Service, and who has been issued a Service account by Customer that is associated to a unique email address with a domain name owned or controlled by Customer.
“Customer Data” means all data, content, and information submitted by Approved Users into the Service and the Customer-specific output that is generated by Approved Users’ use of the Service.
“Documentation” means the user manuals, specifications, and policies, as may be updated from time to time, that describe the functionality, features, operation, or use of the Service and that are made available by Alyne to Customer.
“Professional Services” means any professional services related to Customer’s use of the Service, such as consulting, implementation, or training services, provided by Alyne to Customer as expressly identified in the Order.
“Service” means Alyne’s proprietary software-as-a-service platform, including Alyne’s content libraries (specifically the Alyne Control Statement Library and the Alyne Risk Library), reference material, glossary, and help text purchased by Customer and made available online by Alyne, subject to the restrictions and conditions of access stated below (excluding Customer Data and Third Party Products and Content). References to the “Service” in this Agreement include the Documentation.
“Sensitive Personal Data” means any: (a) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical or other protected health information regulated by HIPAA; (c) credit, debit or other payment card data subject to PCI DSS; (d) other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver’s license numbers or other government ID numbers; or (f) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.
“Third Party Products and Content” means any applications, products, services, or content that interoperate with the Service and that are provided by Customer or a third party.
2. Alyne Responsibilities
2.1 Provision of the Service. Subject to the terms and conditions of this Agreement and during the Subscription Term, Alyne will make the Service available to Customer for use by Approved Users solely for the internal business operations of Customer. Such right is non-exclusive, non-sublicensable and non-transferable. Alyne will use commercially reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner that minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Alyne or by third-party providers, or because of other causes beyond Alyne’s reasonable control, but Alyne will use commercially reasonable efforts to provide advance notice by email of any scheduled service disruption.
2.2 Updates and Upgrades. The terms of this Agreement will also apply to updates and upgrades of the Service subsequently made available by Alyne to Customer. Alyne may update the functionality, user interfaces, usability, and Documentation from time to time in its sole discretion as part of its ongoing mission to improve the Service.
2.3 Compliance with Laws. Alyne will comply with all laws applicable to Alyne’s provisioning of the Service to its customers generally (i.e., without regard to the specific nature of the Customer Data or Customer’s particular use of the Service).
2.4 Protection of Customer Data. Alyne will maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access to or use of Customer Data. Before providing necessary access to Customer Data to a third party service provider, Company will require such third party to maintain commercially reasonable practices for maintaining the confidentiality and security of Customer Data.
2.5 Support. As part of the Service, Alyne will provide Customer with Alyne’s standard support, Documentation, and other online resources to assist Customer in its use of the Service. Support requests may be made by emailing [email protected]. Alyne will take commercially reasonable efforts to respond within two (2) business days. Alyne reserves the right to define additional commercial arrangements for the resolution of complex support requests.
2.6 Professionelle Dienstleistungen. If Professional Services are purchased in the Order, Alyne will provide to Customer such Professional Services in accordance with the Order. Unless stated otherwise in the Order, any timelines provided in connection with Professional Services are good faith projections and not guarantees.
3. Access to and Use of the Service
3.1 Account Creation and Subscriptions. Approved User accounts cannot be shared or used by more than one Approved User. Customer is responsible for maintaining, and ensuring that all Approved Users maintain, the confidentiality of its logins, passwords, and accounts and for all activities that occur under Approved User accounts. Customer acknowledges that each Approved User is required to acknowledge Alyne’s then-current Data Privacy Notice (made available hier) prior to such Approved User’s initial access to the Service.
3.2 Customer Responsibilities. Customer will: (a) obtain any permissions and consents required for Alyne to access Customer Data in connection with the Service; (b) be responsible for Approved Users’ compliance with this Agreement and the actions and omissions of all Approved Users in connection with their use of the Service; (c) be responsible for the accuracy, appropriateness, and legality of Customer Data; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and promptly notify Alyne of any such unauthorized access or use; and (e) use the Service, and ensure Approved Users use the Service, only in accordance with this Agreement, Alyne’s policies, and applicable laws and government regulations.
3.3 Customer Data. Neither you nor any of your Approved Users shall submit to the Service (or use the Service to collect) any Sensitive Personal Data. You acknowledge and agree that we are not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA). The Service is neither HIPAA nor PCI DSS certified. Notwithstanding any other provision to the contrary, we have no liability under this Agreement for Sensitive Personal Data.
3.4 Usage Restrictions. Customer may not: (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer and the Approved Users; (b) upload, post, transmit, or otherwise make available to the Service any content that (i) is unlawful or tortious, or (ii) Customer does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; (c) sublicense, resell, time share, or similarly exploit the Service; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reproduce, modify, adapt or create derivative works of the Service; (f) reverse engineer, modify, adapt, or hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (g) remove or obscure any proprietary or other notices contained in the Service; (h) use the Service to introduce, run or spread malicious software, including but not limited to viruses, Trojan horses and worms; (i) access the Service to build a competitive product or service; or (j) encourage or assist any third party, including without limitation, any Approved Users, to do any of the foregoing.
3.5 Third Party Products and Content. If Customer enables Third Party Products and Content for use with the Service: (a) any use by Customer or its Approved Users of such Third Party Products and Content is solely the responsibility of Customer and the applicable provider; (b) Alyne does not guarantee, warrant, or offer support for any such Third Party Products and Content; (c) Customer acknowledges that the providers of those Third Party Products and Content may have access to Customer Data in connection with the interoperation of the Third Party Products and Content with the Service, and Alyne will not be responsible for any use, disclosure, modification or deletion of such Customer Data.
4. Fees
4.1 Fees, Invoicing, and Payment.Customer will pay all fees specified in the Order in accordance with the terms stated in the Order. If your use of the Service exceeds the “User Quota” set out on the Order or otherwise requires the payment of additional fees, you shall be billed for such usage and you agree to pay the additional fees at our then current rates. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are non-refundable. Subject to Section 4.5, all fees will be invoiced by Alyne, or one of its Affiliates, in accordance with the terms set forth in the Order. Full payment for invoices issued must be received within thirty (30) days from Customer’s receipt of the invoice. If any fees owed by Customer (excluding amounts disputed in reasonable and good faith) have not been paid by the applicable due date, Alyne reserves the right to apply a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all expenses of collection incurred by Alyne or its Affiliates.
4.2 Taxes. The fees are exclusive of, and Customer will be solely responsible for, all applicable taxes in connection with this Agreement, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on Alyne’s or Alyne’s Affiliates net income). Should any payment for the services provided by Alyne be subject to withholding tax by any taxing authority, Customer will reimburse Alyne or Alyne’s Affiliate for such withholding tax.
4.3 Fee Adjustments. Alyne reserves the right to change the fees or applicable charges and to institute new fees and charges for each Renewal Term by providing at least 30 days’ notice to Customer (which may be sent by email) prior to the start of the Renewal Term. If you object, you may terminate this Agreement with at least 15 days’ notice prior to the end of the Initial Term or the applicable Renewal Term.
4.4 Fee Disputes. If you believe that Alyne or its Affiliate has billed you incorrectly, you must contact Alyne no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to [email protected].
4.5 Resellers. Notwithstanding anything herein to the contrary, if you make any purchases for the Service through a Reseller:
4.5.1 Instead of paying Alyne, you shall pay the applicable amounts to the Reseller, as agreed between you and the Reseller.
4.5.2 Your order details (for example, the User Quota, the Initial Term, etc.) shall be as stated in the order placed with Alyne by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such order as communicated to Alyne.
4.5.3 If you are entitled to a refund under this Agreement, then unless Alyne otherwise specifies, it shall refund any applicable fees to the Reseller and the Reseller shall be solely responsible for refunding the appropriate amounts to you.
4.5.4 Resellers are not authorized to modify these Terms or make any promises or commitments on Alyne’s behalf, and Alyne is not bound by any obligations to you other than as set forth in these Terms.
5. Proprietary Rights
5.1 Alyne Property. Subject to the limited rights expressly granted to Customer hereunder, Alyne reserves and retains, and as between Alyne and Customer, Alyne exclusively owns, all rights, title, and interest in and to the Service, including all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. No rights are granted by Alyne hereunder other than as expressly set forth herein. If Customer or any Approved User provides Alyne any feedback or suggestions regarding the Service, then Customer grants Alyne an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer or any Approved User. Unless otherwise set forth in the Order, Alyne retains exclusive ownership of all work products created by Alyne in connection with its performance of Professional Services. Selecting a value for a variable in an Alyne Control Statement, adding a custom value to an Alyne Control Statement, creating a Custom Control Set or Funnel or Assessment or generating an Alyne Report does not affect Alyne’s intellectual property rights or provide you usage rights beyond the Subscription Term.
5.2 Customer Data. Customer, on behalf of itself and its Approved Users, grants to Alyne and its Affiliates a worldwide, non-exclusive, limited term license to (a) access, use, process, copy, transmit, distribute, perform, export, and display Customer Data; and (b) provide necessary access to third party service providers acting on Alyne’s behalf, such as Alyne’s hosting services provider, only (i) to provide, maintain, and update the Service, (ii) to prevent or address service or technical problems or at Customer’s request in connection with support matters, (iii) as compelled by law, or (iv) as expressly permitted in writing by Customer. Solely to the extent that reformatting Customer Data for display in the Service constitutes a modification or derivative work or a modification to a database contained or represented in Customer Data, the foregoing license also includes the right to make such modifications and derivative works and/or create modified databases. Subject to the limited licenses granted herein, Alyne acquires no right, title or interest under this Agreement in or to any Customer Data.
5.3 Analyses. Customer, on behalf of itself and its Approved Users, acknowledges and agrees that Alyne may, during and after the Subscription Term, (i) compile statistical and other information related to the performance, operation, and use of the Service, and (ii) collect, use, and analyze information derived from Customer Data in aggregated and de-identified form (collectively “Analyses”), to create statistical analyses, to improve and enhance the Service, and for research and development purposes in connection with the Service or any other Alyne offerings. Alyne retains all right, title, and interest, including all intellectual property rights, in and to Analyses.
6. Confidentiality
6.1 Definition. “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all copies thereof. Confidential Information of Customer includes Customer Data, Confidential Information of Alyne includes the Service (including its software and content, other than Customer Data) and the work product created from its performance of any Professional Services, and Confidential Information of each party includes the terms of this Agreement. However, Confidential Information will not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.
6.2 Protection. The Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s and its Affiliates’ employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Subscription Term, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
6.3 Compelled Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the access or disclosure.
7. Representations, Warranties, and Disclaimers
7.1 Mutual Representations. Each party represents that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (b) the execution, delivery, and performance of this Agreement are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party.
7.2 Alyne Warranties. Alyne warrants that: (a) for twelve (12) months after the Effective Date, the Service shall be free from any material defects; (b) the Service will perform materially in accordance with the applicable Documentation; (c) Alyne will not materially decrease the functionality of the Service; and (d) Alyne will perform Professional Services in a professional manner. If Alyne breaches any of the foregoing warranties in this Section, Customer’s exclusive remedy and Alyne’s entire liability will be the correction of the breach, or if Alyne cannot substantially correct the breach within a commercially reasonable amount of time, Customer may terminate the affected Service and/or this Agreement and Alyne will refund to Customer any prepaid fees covering the period remaining in the Subscription Term after the effective date of such termination.
7.3 Customer Warranty. Customer warrants that it has obtained and will maintain all rights, consents, and permissions necessary for Customer to make available the Customer Data to Alyne for its use as contemplated herein.
7.4 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 7.2, THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND ALYNE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ALYNE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETE.
8. Indemnification
8.1 Alyne Indemnification. Alyne will defend Customer and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s use of the Service as permitted hereunder infringes or misappropriates such third party’s intellectual property rights, and Alyne will indemnify Customer and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Alyne will have no liability under this Section to the extent any such lawsuit or proceeding arises from: (a) Customer Data or Third Party Products and Content; (b) Customer’s or any of its Affiliates’ or Approved Users’ negligence, misconduct, or breach of this Agreement; or (c) any modification or combination of the Service that is not performed or approved by Alyne or any use of the Service materially inconsistent with the Documentation.
8.2 If Customer is enjoined from using the Service or Alyne reasonably believes it will be enjoined, Alyne may, at its option, (a) obtain for Customer the right to continue use of the Service, (b) modify the Service so that it is no longer infringing, or (c) terminate this Agreement and return any prepaid fees unearned by Alyne.
8.3 Customer Indemnification.Customer will defend Alyne and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that: (a) any Customer Data infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party; (b) that Customer’s or any Approved User’s particular use of the Service violates applicable law; (c) any claims or disputes brought by Approved Users arising out of their use of the Service; or (d) any breach of this Agreement by you or your Approved Users, and Customer will indemnify Alyne and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding. Customer will have no liability under this Section to the extent any such lawsuit or proceeding arises from Alyne’s or any of its Affiliates’ negligence, misconduct, or breach of this Agreement.
8.4 Procedures. The indemnified party will provide the indemnifying party with: (a) prompt written notice of any matter that is subject to indemnification hereunder; (b) the right to assume the exclusive defense and control of any such matter (provided that the indemnified party may participate in the defense at its own expense); and (c) cooperation with any reasonable requests assisting the indemnifying party’s defense of such matter. The indemnifying party may not settle any such lawsuit or proceeding without the indemnified party’s prior written consent.
8.5 Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability, and the indemnifying party’s exclusive remedy, for any type of claim described in this Section 8.
9. Limitation of Liability
9.1 Exclusion of Certain Damages.IN NO EVENT WILL ALYNE HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT ALYNE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.2 Liability Cap. IN NO EVENT WILL ALYNE’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO ALYNE HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE.
9.3 Scope. For the avoidance of doubt, the exclusions and limitations set forth in Section 9.1 and Section 9.2 will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise. The parties agree that the exclusions and limitations set forth in Section 9.1 and Section 9.2 allocate the risks between the parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.
10. Term, Termination, and Suspension
10.1 Term of the Agreement. The term of this Agreement commences on the Effective Date and, unless earlier terminated in accordance with the terms of this Agreement, will continue for the “Initial Term” specified in the Order (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive additional periods of the same duration as the Initial Term (each, a “Renewal Term”) unless either Party provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term. The Initial Term and each Renewal Term, if any, are collectively referred to herein as the“Subscription Term.”
10.2 Suspension. Alyne may suspend Customer’s or any or all Approved Users’ access to the Service, in whole in part, if: (a) Customer or any Approved User is using the Service in violation of this Agreement or any applicable law; (b) Customer’s or any Approved Users’ systems or accounts have been compromised or unlawfully accessed; (c) suspension of the Service is necessary, in Alyne’s reasonable discretion, to protect the security of the Service or the infrastructure of Alyne or its Affiliates; (d) suspension is required by applicable law; or (e) any fees owed by Customer (excluding amounts disputed in reasonable and good faith) are thirty (30) days or more overdue, provided Alyne has given Customer ten (10) or more days’ prior notice to cure same.
10.3 Termination for Cause. Either party may terminate this Agreement effective after thirty (30) days’ written notice if the other party (including, in the case of Customer, any Approved Users) materially breaches this Agreement and such breach is not cured within such 30-day period. Upon any termination for cause by Customer, Alyne will promptly refund Customer any prepaid, unearned fees covering the period remaining in the Subscription Term after the effective date of such termination. Upon any termination for cause by Alyne, Customer will promptly pay Alyne any unpaid fees covering the period remaining in the Subscription Term after the effective date of such termination. In no event shall termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination.
10.4 Effects of Termination. In no event will any termination of this Agreement relieve Customer of its obligation to pay any fees payable to Alyne for the period of time prior to the effective date of such termination. Upon any termination of this Agreement, Customer and all Approved Users must immediately cease all use of the Service. For a period of thirty (30) days following any termination of this Agreement, Alyne will, upon Customer’s request, provide Customer with an export of all current Customer Data in the format agreed by the Parties. After such 30-day period, Alyne will have no obligation to maintain or provide any Customer Data and Alyne will, unless prohibited by applicable law, delete all Customer Data in its systems or otherwise in its possession or under its control in accordance with Alyne’s then-current data retention and deletion policies. Subject to this Section, upon any termination of this Agreement and the Disclosing Party’s request, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
10.5 Survival. The sections titled “Fees,” “Proprietary Rights,” “Confidentiality,” “Representations, Warranties, and Disclaimers,” “Indemnification,” “Limitation of Liability,” “Termination for Cause,” “Effects of Termination,” “Survival,” and “General Provisions” will survive any termination of this Agreement.
11. General Provisions
11.1 Attribution. Customer agrees that Alyne may use Customer’s name and logo to indicate that Customer is a customer of Alyne for the Service on Alyne’s website, marketing materials, and in communications with existing or prospective Alyne customers. Any such attribution will be consistent with Customer’s style guidelines or requirements as communicated to Alyne by Customer. We will promptly stop doing so upon your request sent to [email protected].
11.2 Force Majeure. Except for payment obligations, neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action.
11.3 Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Alyne. Notwithstanding the foregoing, Customer may assign or transfer this Agreement in its entirety, without the consent of Alyne, in connection with a merger or sale of all or substantially all of its assets. Alyne is free to assign this Agreement and any rights or obligations hereunder. Any purported assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
11.4 Governing Law; Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in New York County, New York will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.5 Notices. All notices under this Agreement will be in writing addressed to the Customer at the addresses set forth on the Order and to Alyne at the address set forth below and will be deemed to have been duly given: (a) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; and (b) the first business day after sending by email or by next day delivery by a recognized overnight delivery service.
Contact Address for Alyne:
Alyne USA Inc
43 West 23rd Street
New York, NY 10010
E-mail: [email protected]
11.6 Relationship of the Parties; Third Party Beneficiaries. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Other than Alyne’s Affiliates, there are no third party beneficiaries to this Agreement.
11.7 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.
11.9 Entire Agreement. This Agreement, including any addenda hereto and all Orders, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning Customer’s purchase and use of the Service and any Professional Services. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by each of the parties. To the extent of any conflict or inconsistency between the provisions in the body of these Terms and any addendum hereto or any Order, the terms of such addendum or Order will prevail (except to the extent in conflict with Section 4.5.4). Notwithstanding any language to the contrary therein, no terms or conditions stated in any Customer purchase order or other Customer order documentation (excluding Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. As used herein, the words “include” and “including” shall be deemed to be followed by the words “without limitation.”
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