Alyne GmbH, Ganghoferstr. 70a, 80339 Munich, Germany provides the Alyne Service as licensed by Alyne’s customer (“Customer”) with the applicable Order to enable the access to and use of the Alyne Service by the End User.

These End User Terms of Service (“Terms”) apply to Customers domiciled outside of the United States of America and their End Users. For Customers domiciled in the United States of America, these Terms do not apply.

1. General

1.1 The End User’s access to and use of the Alyne Service as licensed under the applicable Order is conditional upon the End User and the Customer, agreeing to these Terms.

1.2 As Alyne does not offer services to consumers as defined in Section 13 German Civil Code (“BGB”) or under other applicable Laws, these Terms shall apply only to Alyne’s contractual relationship with entrepreneurs as defined in Section 14 BGB or under other applicable Laws, i.e. with legal persons who use the Alyne Service primarily for their business activities. If you are located in Australia, you may have rights as a consumer under Australian Consumer Law. Please refer to the Australian Specific Terms referred to in clause 1.5.

1.3 These Terms shall become binding for you once you accept these Terms during your sign-up to use the Alyne Service. You represent to Alyne that you are authorised to accept these Terms on behalf of the Customer if you are signing up to access and use the Alyne Service on behalf of a Customer which is a legal entity such as your employer.

1.4 In these Terms, “you” oder “your” shall therefore mean the entity you represent in accepting these Terms or, if that does not apply, you individually. The Customer shall be responsible (a) for the actions and omissions of all End Users in connection with their use of the Alyne Service and their compliance with these Terms; (b) for preventing unauthorised access to or use of the Alyne Service, and promptly notify Alyne of any such unauthorised access or use; and (c) for use of the Alyne Service, and ensure End Users use the Alyne Service, only in accordance with these Terms.

1.5 Australian Specific Terms. Each party agrees that the terms set out in the Addendum at the end of these Terms will apply in addition to these Terms whenever and to the extent that the laws of Australia are applicable to it.

2. Proprietary rights

All of the Alyne Service and related documentation is copyrighted by Alyne. Unauthorised copying, distribution, modification, public display, communication to the public or public performance of copyrighted works is an infringement of Alyne’s copyrights.

3. Rights of use

3.1 Alyne grants the End User a non-exclusive, non-transferable and non-sublicensable right to access to and use of the Alyne Service, limited for the term set out in the Order, solely for the internal business operations of End User or the Customer and subject to compliance with these Terms, the Order, the Alyne Policies, as well as the Alyne Terms and Conditions.

3.2 Alyne reserves the right to make updates, enhancements and minor changes to the Alyne Service after the End User’s acceptance of these Terms, without impacting the validity of these Terms, provided that such updates, enhancements or minor changes do not lead to a decrease or deterioration in the Alyne Service.

3.3 You grant Alyne a worldwide, perpetual, irrevocable, royalty-free licence to use and incorporate any suggestion, enhancement request, recommendation, correction or other feedback provided by you into the Alyne Service.

3.4 Solely to the extent necessary to provide the Alyne Service to you, you grant Alyne a worldwide, limited term licence to access, use, process, copy, transmit, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in the Alyne Service constitutes a modification or derivative work or a modification to a database contained or represented in Your Data, the foregoing licence also includes the right to make such modifications and derivative works and/or create modified databases.

3.5 Alyne grants you no other rights in and to the Alyne Service except as expressly set out in these Terms.

4. Restrictions of the use of the Alyne Service

4.1 Alyne shall be entitled to restrict or completely suspend the use of the Alyne Service by an End User should the End User breach clause 3, 4 or 5 of these Terms.

4.2 Except as otherwise expressly permitted in these Terms or in the Order, the End User shall not:

  1. reproduce, modify, adapt or create derivative works of the Alyne Service;
  2. rent, lease, distribute, sell, sublicense (except to such affiliates, to which Alyne has explicitly granted the sub-licensing of the Alyne Service), transfer or provide access to the Alyne Service to a third party;
  3. use the Alyne Service for the benefit of any third party;
  4. incorporate any of the Alyne Service into a product or service you provide to a third party;
  5. interfere with or otherwise circumvent mechanisms in the Alyne Service intended to limit your use;
  6. reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any of the Alyne Service, except to the extent expressly permitted by applicable law, unless such action is permitted according to Section 69 e para. 1 German Copyright Act (Urhebergesetz) or other applicable copyright laws, but you shall provide advance notice to us before exercising any such rights;
  7. remove or obscure any proprietary or other notices contained in any of the Alyne Service;
  8. use the Alyne Service for competitive analysis or to build competitive products;
  9. publicly disseminate information regarding the performance of the Alyne Service;
  10. use the Alyne Service in any way that disrupts performance or integrity of the service;
  11. upload or use unlawful, discriminatory, racist, sexist, violent or otherwise inappropriate content with the Alyne Service;
  12. use any devices, equipment, software or data or intervene with the Alyne Service in any manner that may result in changes to the physical or logical structure of Alyne‘s systems or services or the networks of its suppliers;
  13. use the Alyne Service to introduce, run or spread malicious software including, but not limited to viruses, trojan horses or worms; or
  14. encourage or assist any third party to do any of the foregoing.

5. End User Responsibilities

5.1 You guarantee to have all necessary rights to submit Your Data or third party content in connection with the Alyne Service and to grant Alyne the rights set out in these Terms. You shall ensure that Your Data and its submission does not violate any Laws or third party intellectual property rights.

5.2 Alyne shall not be obliged to check Your Data for third party intellectual and industrial property rights infringements. Alyne reserves the right to delete Your Data without informing you if and to the extent Alyne has been notified of any violation of third party intellectual and industrial property rights by Your Data.

5.3 You shall not submit any Sensitive Personal Data (as defined in clause 13 below) to the Alyne Service or use the Alyne Service to collect Sensitive Personal Data and you shall inform Alyne should any of Your Data constitute Sensitive Personal Data.

5.4 You shall be responsible for all activities carried out via your account. You shall inform Alyne without undue delay of any unauthorised use of your account. Alyne is entitled to terminate your access to the Alyne Service for cause if you violate your obligations under this clause 5.

5.5 You and the Customer shall be responsible for procuring and maintaining sufficient infrastructure to enable your access to the Alyne Service including (a) a high speed internet connection; (b) network connections connecting you to the internet; (c) access to current browser software installed on devices using the Alyne Service; and (d) current devices with sufficient capability to process current browser based software. Alyne shall have no responsibility for the reliability, security, availability or performance of any of these components that are not operated by Alyne.

5.6 You shall (a) keep your account credentials confidential, (ii) not disclose the account credentials with other individuals, and (iii) sufficiently protect and only store account credentials in adequately encrypted form.

5.7 Our liability for Your Data is limited according to clause 7 (Limitation of liability).

6. Your obligation after termination

6.1 You shall cease use of the Alyne Service and delete (or at our request, return) all confidential Information and intellectual property of Alyne in your possession upon expiration of the term specified in the Order or any termination under clause 6 of the Alyne Terms and Conditions.

6.2 Upon any termination, Alyne will make Your Data available to you for electronic retrieval for a period of 30 days (in a common file format as reasonably required), but thereafter Alyne will delete Your Data according to its obligations by Law.

6.3 Alyne’s obligations to retain data and files in order to comply with administrative orders or the Laws shall remain unaffected by clause 6.2. This also applies for Alyne’s right to retain individual data and files for as long as is necessary to pursue civil law claims against the End User.

7. Liability

7.1 Subject to the provisions in clause 7.2, Alyne’s statutory liability for damages shall be limited as follows:

  1. Alyne shall be liable only up to the amount of damages as typically foreseeable at the time of entering into the contract in respect of damages caused by a slightly negligent breach of a material contractual obligation (i.e. a contractual duty the fulfilment of which is essential for the proper execution of the contract, the breach of which endangers the purpose of the contract and on the fulfilment of which a customer regularly relies); and
  2. Alyne shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation.

7.2 The aforesaid limitation of liability shall not apply to any mandatory statutory liability (in particular to liability under the German Product Liability Act and Non-excludable Australian Conditions (if they apply to you)), liability for assuming a specific guarantee or liability for damages caused by wilful misconduct or gross negligence, or any kind of wilfully or negligently caused personal injuries.

7.3 You shall take all reasonable measures to mitigate and/or to avoid damages, including, in particular, an obligation for you to make back-up copies of data on a regular basis and to carry out security checks (in particular for the purpose of defending or detecting viruses, malware and other disruptive programmes within your own IT System).

7.4 Regardless of the legal grounds giving rise to liability, Alyne shall not be liable for indirect and/or consequential damages, including, in particular, loss of profit and loss of interest, unless any such damage has been caused by Alyne’s wilful misconduct or gross negligence.

7.5 Unless otherwise specified in an Order and other than in case of wilful misconduct or gross negligence and subject to the Non-excludable Australian Conditions, Alyne’s liability shall be capped to a sum equivalent of 100% of the fees paid or payable under the Order by the Customer per year regardless of the number of incidents.

7.6 To the extent Alyne’s liability is limited or excluded, the same shall apply in respect of any personal liability of Alyne’s legal representatives, employees and vicarious agents.

8. Privacy

8.1 Alyne shall process Your Data confidentially and in compliance with the Alyne Data Privacy Notice which the End User can access hier and in compliance with the EU General Data Protection Regulation 2016/679 (“GDPR”), as well as other applicable Laws.

8.2 Providing the Alyne Service may require Alyne to subcontract domestic and international service providers. A subcontractor outside of the European Economic Area will only be selected by Alyne, if an adequate level of data privacy and protection under the GDPR or another applicable legislation is provided.

8.3 Alyne is not the controller in relation to Your Data and will only process such data on behalf and upon the Customer’s request and, if required, subject to a data processing agreement (Art. 28 GDPR).

9. Confidentiality

The receiving party shall keep the disclosing parties’ confidential information secret from unauthorised use, access or disclosure in the same manner as each protects its own confidential information, but with no less than reasonable care. Except as otherwise expressly permitted in these Terms, each party may use each other’s confidential information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such confidential information: a) solely to those of our respective employees, representatives and subcontractors who have a need to know such confidential information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such confidential information; b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or c) as reasonably necessary to comply with any Laws. The End User acknowledges that the confidential information entailed in the Alyne Service is a trade secret of Alyne.

10. Amendments of the Terms

Alyne shall provide 6 weeks’ prior notice in writing to inform the End User of any amendments of these Terms (e.g. due to purely technical or procedural changes; to the extent Alyne is obliged to bring these Terms into compliance with the Laws or to the extent that Alyne introduces additional services or service elements to the Alyne Service) coming into effect (“Amendment Notification”). The amendments shall be deemed agreed between the parties, unless the End User objects to them within 30 days as of such notification. Alyne’s Amendment Notification shall inform the End User about the consequence of the End User’s failure to object.

11. Alyne contracting entity; governing law

11.1 The Alyne entity entering into these Terms, as well as the governing law, and the courts that have jurisdiction, shall depend on where the Customer on behalf of which you are using the Alyne Service for is domiciled. The terms of the United Nations Convention on Contracts for the Sale of Goods shall not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms regardless of when or where adopted.

11.2 If the Customer is domiciled in Australien the Alyne entity entering into these Terms is Alyne Australia Pty Ltd (an Australian corporation), the governing law is the laws of the State of Victoria, Australia, and the courts of VictoriaAustralien shall have exclusive jurisdiction.

11.3 If you are domiciled outside of Australia, the Alyne entity entering into these Terms is Alyne GmbH (a German corporation), the governing law is the laws of Germany, and the courts of Munich, Germany shall have exclusive jurisdiction.

12. Miscellaneous

12.1 If any provision of these Terms is found to be unenforceable or invalid, that provision shall be eliminated, but these Terms shall otherwise remain in full force and effect and enforceable.

12.2 The End User may not transfer or assign any of its claims against Alyne except with Alyne’s prior written consent.

12.3 Any amendments or additions to these Terms shall be made in writing including this written form clause, except as otherwise provided herein.

12.4 All notices under these Terms shall be in writing.

12.5 The End User’s right to offset or retention shall be limited to undisputed claims or those declared final and absolute by a competent court.

12.6 The Alyne Service is neither HIPAA nor PCI DSS certified. You acknowledge that Alyne is not acting as your business associate or subcontractor (as defined and used in HIPAA).

12.7 The Alyne Service and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Alyne and you each represent that it is not named on any U.S. government denied-party list. You shall not permit any End User to access or use the Alyne Service in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.

13. Definitions

Certain capitalised terms used in the Terms shall have the meaning defined in this clause 13, and others are defined contextually in these Terms.

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control”means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

“Alyne Policies” means Alyne’s standard published policies, as updated from time to time.

“Alyne Service” means the Alyne Software as a Service, including Alyne’s content libraries (specifically the Alyne Control Statement Library and the Alyne Risk Library), reference material, glossary, and help text purchased by You and made available online by Alyne.

“Alyne Terms and Conditions” means the terms and conditions of Alyne that govern the Customer’s purchase, access to and use of the Alyne Service as specified in the Order and available hier.

“Australian Specific Terms” means the terms set out in the Addendum at the end of these Terms.

“End User”“you” oder “yours” means an individual end user of the Customer or an Affiliate that is permitted or invited to use the Alyne Service. For the avoidance of doubt the term End User shall also include: (a) individuals invited by the Customer’s End Users, (b) individuals under managed accounts, (c) individuals interacting with the Alyne Service as the customer of the Customer, (d) Admin & Expert Users, Expert Users and Business Users (as defined in the Customer’s instance of the Alyne Service), and (e) individuals who respond to an Assessment in the Customer’s instance of the Alyne Service.

“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.

“Initial Term” means the initial permitted subscription period for the Alyne Service, as set out in the applicable Order.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“Non-excludable Australian Conditions” has the meaning given in the Australian Specific Terms.

“Order” means Alyne’s approved ordering document or process describing the Alyne Service the Customer is ordering from Alyne, including the agreed: (a) User Quota; (b) Initial Term; (c) Professional Services (if any); and (d) fees.

“PCI DSS” means the Payment Card Industry Data Security Standards.

“Professional Services” means any professional services related to Customer’s use of the Alyne Service, such as consulting, implementation, or training services, provided by Alyne to Customer as expressly identified in the Order, which – if subject to German law – are of a service contractual nature within the meaning of Sections 611 et. seq. German Civil Code and shall in no case be interpreted in such a way that Alyne owes a certain outcome to the customer when performing the Professional Services, unless the parties have expressly specified in writing that Ayne shall provide an implementation service under a works contract (“Werkvertrag”) within the meaning of Sections 631 et. seq. German Civil Code.

“Sensitive Personal Data” means any: (a) categories of data enumerated in European Union Regulation 2016/679, Article 9 para. 1 GDPR 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 licence numbers or other government ID numbers; or (f) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.

“User Quota” means the User Quota specified in the Order.

“Your Data” means any data, content, code, video, images or other materials of any type that the Customer or the End User submits to the Alyne Service, including personal information of you or your End Users, comments, object descriptions, file attachments, and fully custom created control statements or risks. In this context,“submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Alyne Service.

Addendum

Australian Specific Terms

Each party agrees that the following Australian country specific terms set out in this Addendum apply in addition to the Terms above whenever and to the extent that the laws of Australia are applicable to it. If there is a conflict between the Terms above and these country-specific terms, these country-specific terms will prevail.

1. Definitions

Capitalised terms have the meaning given in the Terms above unless otherwise defined below:

“ACL” oder “Australian Consumer Law” means the Australian Consumer Law set out at Schedule 2 to the Competition and Consumer Act 2010 (Cth).

“Non-excludable Australian Conditions” means any statutory or implied condition, warranty or guarantee, the exclusion of which from a contract would contravene any statute or cause any part of these Terms of Use to be void and includes, without limiting the foregoing definition, statutory or implied conditions, warranties or guarantees under the ACL.

“Sensitive Personal Data” includes, without limiting the definition set out in the Terms above, sensitive information as defined in the Privacy Act 1998 (Cth) and health information, or any similar term, as defined in any applicable Australian Federal, State or Territory legislation relating to the handling of health records or health information.

2. Consumer Laws

2.1 If Alyne is liable for a failure to comply with a Non-excludable Australian Condition, including in respect of the guarantees described in paragraphs 2.5 and 2.6 below, where it would be permitted by Laws, Alyne limits its liability (at its absolute discretion and option) to:

  1. in the case of goods, either the repair or replacement of the goods, or the supply of equivalent goods or payment of the cost of having the goods repaired or replaced or of acquiring equivalent goods; and
  2. in the case of services, the supply of the services again or payment of the cost of supplying the services again.

2.2 Any warranty against defects (as defined in the ACL) set out in the Terms above are provided by the following Alyne entity:

Alyne Australia Pty Ltd
Level 1 Front Suite, 19 to 21 Toorak Rd
South Yarra VIC, Australia 3141
+49 89 4581 9940
[email protected]

2.3 Claims under a warranty against defects set out in the Terms above must be made by written notice to Alyne Australia Pty Ltd using the address above, setting out the nature of the defect. You are responsible for the costs of claiming under a warranty against defects.

2.4 The benefits of any warranties against defects provided in the Terms above are in addition to your other rights and remedies under a law in relation to the goods and services to which the warranty relates.

2.5 If you are obtaining our goods or services as a consumer under the Australian Consumer Law, our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Alyne Service, you are entitled to cancel your service contract with us and to a refund for the unused portion, or to compensation for its reduced value.

2.6 You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

3. Privacy

For the purpose of clause 8.1 in the Terms above, other applicable legislation includes, without limitation, the Privacy Act 1998 (Cth).

4. Proprietary rights

4.1 You shall own all right, title and interest in and to Your Data, in the form submitted to the Alyne Service. You shall be the sole controller and responsible for maintaining the accuracy of Your Data. Before terminating these Terms, you are responsible for extracting Your Data, if required.

4.2 Subject to these Terms, and solely to the extent necessary to provide the Alyne Service to you, you grant Alyne a worldwide, limited term licence to access, use, process, copy, transmit, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in the Alyne Service constitutes a modification or derivative work or a modification to a database contained or represented in Your Data, the foregoing licence also includes the right to make such modifications and derivative works and/or create modified databases. We may also access your accounts, End User accounts, and your instance of the Alyne Service with End User permission in order to respond to your support requests.

4.3 You grant Alyne a worldwide, perpetual, irrevocable, royalty-free licence to use and incorporate any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your End Users into the Alyne Service.

4.4 Alyne shall own and retain all right, title and interest in and to: (a) the Alyne Service and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with Professional Services or support; and (c) all intellectual property rights related to any of the foregoing. No rights or licences are granted except as expressly set out in these Terms. Nothing in these Terms shall operate to assign or transfer any intellectual property rights from Alyne to you.

4.5 All of the Alyne Service and related documentation is copyrighted by Alyne. Unauthorised copying, distribution, modification, public display, communication to the public or public performance of copyrighted works is an infringement of Alyne’s copyrights.

4.6 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. Payment of Fees

5.1 You shall pay Alyne the fees described in the Order for the Alyne Service and Professional Services in accordance with the terms stated on the Order (the “Fees”). If your use of the Alyne Service exceeds the User Quota set out on the Order or otherwise requires the payment of additional fees (per these Terms), you shall be billed for such usage and you agree to pay the additional fees at our then current rates.

5.2 Alyne reserves the right to change the Fees or applicable charges and to institute Fees and charges at the end of the Initial Term or then current renewal term, upon 30 days’ prior notice to you (which may be sent by email); in case you do not raise an objection to that increase, the change in Fees shall be deemed as accepted; in all other case, you shall have the right to terminate the Alyne Service under these Terms with 15 days’ notice prior to the applicable Initial Term. If you believe that Alyne 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].

5.3 Alyne or one of its Affiliates at Alyne’s instruction may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Alyne no later than 30 days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 9 percentage points per year above the basic interest rate published by the German Federal Bank (Section 288, 247 BGB) on any outstanding balance, plus all expenses of collection. Failure to pay may result in immediate termination of Alyne Service.

5.4 Your Fees under these Terms exclude any taxes or duties payable in respect of the Alyne Service in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Alyne, you must pay to Alyne the amount of such taxes or duties in addition to any fees owed under these Terms. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide Alyne with such exemption information, and Alyne shall use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.

5.5 Purchased subscriptions and paid Fees are not refundable; provided, however, that your warranty rights under clause 7 (Warranty and disclaimer) and the Non-excludable Australian Conditions shall remain unaffected. Without affecting your termination rights under clauses 6.2 and 6.5 and subject to the Non-excludable Australian Conditions, partial refunds of usage costs for the current term are also not refundable upon termination.

5.6 If you make any purchases through an authorised partner or reseller of Alyne (“Reseller”):

  1. instead of paying Alyne, you shall pay the applicable amounts to the Reseller, as agreed between you and the Reseller;
  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;
  3. if you are entitled to a refund under these Terms, then unless Alyne otherwise specifies and subject to Non-excludable Australian Conditions, it shall refund any applicable fees to the Reseller and the Reseller shall be solely responsible for refunding the appropriate amounts to you; and
  4. Resellers are not authorised 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.

6. Term and termination

6.1 Subject to earlier termination as provided below, these Terms are for the Initial Term as specified in the Order, and shall be automatically renewed for additional periods of the same duration as the Initial Term (collectively, the “Subscription Term”), unless either party requests termination at least 30 days prior to the end of the then-current term. For the avoidance of doubt, if you terminate before the end of the Subscription Term, subject to the Non-excludable Australian Conditions, you shall not be entitled to any refund of any prepaid amounts.

6.2 Either party may also terminate these Terms upon 30 days’ notice (or without notice in the case of non-payment), if the other party fails to remedy a material breach of any of the terms or conditions of these Terms within 30 days after notice. You shall pay in full for the Alyne Service up to and including the last day on which the Alyne Service is provided, except where you terminate these Terms due to a culpable breach of these Terms by Alyne and subject to the Non-excludable Australian Conditions.

6.3 Upon any termination, you must cease use of the Alyne Service and delete (or at our request, return) all confidential Information and intellectual property of Alyne in your possession.

6.4 Upon any termination, Alyne will make Your Data available to you for electronic retrieval for a period of 30 days (in a common file format as reasonably required), but thereafter Alyne will delete Your Data according to its obligations by law; provided that Alyne’s statutory obligations of data retention shall remain unaffected.

6.5 If you terminate these Terms in accordance with clause 6.2, we will refund you any prepaid Fees covering the remainder of the then current term after the effective date of termination. If we terminate these Terms in accordance with clause 6.2, you shall pay any unpaid Fees covering the remainder of the then-current term after the effective date of 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, subject to the Non-excludable Australian Conditions.

6.6 Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, shall be without prejudice to any other remedies it may have under these Terms, by law or otherwise.

6.7 All clauses of these Terms which by their nature should survive termination shall survive termination or expiration of these Terms, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnities and limitations of liability.

6.8 In addition to any other remedies it may have, Alyne reserves the right to suspend your access to the Alyne Service, without prior notice, if: (a) any amount you owe to Alyne is more than 30 days overdue; or (b) if Alyne believes you or your End Users have violated any of these Terms.

7. Warranty and disclaimer

7.1 Alyne will use commercially reasonable efforts consistent with prevailing industry standards to maintain the Alyne Service in a manner which minimises errors and interruptions in the Alyne Service and will perform the Professional Services in a manner which enables you to use the Alyne Service in accordance with these Terms. The Alyne 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. The Alyne Service may also be temporarily unavailable due to circumstances beyond our control, including, but not limited to, natural disasters, acts of governments, civil unrest, acts of terror, strike, cyber security incidents or service provider failures.

7.2 Alyne will provide basic support to you at no additional cost. Support requests may be raised by emailing [email protected] and Alyne will take commercially reasonable efforts to respond within 2 business days. Alyne reserves the right to define additional commercial arrangements for the resolution of complex support requests.

7.3 Subject to the Non-excludable Australian Conditions, your statutory rights in respect of defects in the Alyne Service are limited as follows:

  1. Alyne does not assume any liability for initial material defects in the Alyne Service;
  2. You are entitled to terminate the Alyne Service if Alyne has not successfully remedied a defect, despite that you have notified and set consecutively to Alyne two reasonable periods to remedy the defect;
  3. Your right to reduction of Fees is excluded. This does not affect your right of reimbursement of overpayment of Fees; and
  4. Your right to claim damages resulting from defects is limited as per clause 8 (Limitation of liability).

7.4 Subject to Non-excludable Australian Conditions, your rights against Alyne for defects shall expire 12 months after the beginning of the statutory warranty period. For clarification: the parties agree that updates or upgrades that Alyne provides for the Alyne Service during the Subscription Term shall not extend the warranty period.

7.5 The parties agree that any guarantee within the meaning of Sections 443, 444 German Civil Code shall require an express written commitment on the part of Alyne, in which the terms “guarantee” or “guaranteed” are used.

7.6 The Alyne Service (including Control Statements, Control Sets, Reports, Insights, Assessments and Funnels) are advisory in nature and do not constitute assurance, legal advice or audit results. Consequently, no opinions or conclusions intended to convey assurance are expressed through the Alyne Service. Due to the nature of the Alyne Assessment approach, it is possible that errors, unidentified risks or other irregularities may occur and remain undetected. Alyne cannot guarantee completeness of its content libraries or your usage of the Alyne Service. Relying solely on the results produced through the Alyne Service does not alleviate your Management’s responsibility to implement and maintain adequate controls over your entire operation, or to detect and prevent fraud and other violations of regulatory or legal responsibilities.

8. Limitation of liability

8.1 Subject to the provisions in clause 8.2, Alyne’s statutory liability for damages shall be limited as follows:

  1. Alyne shall be liable only up to the amount of damages as typically foreseeable at the time of entering into the contract in respect of damages caused by a slightly negligent breach of a material contractual obligation (i.e. a contractual duty the fulfilment of which is essential for the proper execution of the contract, the breach of which endangers the purpose of the contract and on the fulfilment of which a customer regularly relies); and
  2. Alyne shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation.

8.2 The aforesaid limitation of liability shall not apply to any mandatory statutory liability (in particular to liability under the German Product Liability Act), liability for assuming a specific guarantee or liability for damages caused by wilful misconduct or gross negligence, or any kind of wilfully or negligently caused personal injuries, or liability pursuant to the Non-excludable Australian Conditions.

8.3 You shall take all reasonable measures to mitigate and/or to avoid damages, including, in particular, an obligation for you to make back-up copies of data on a regular basis and to carry out security checks (in particular for the purpose of defending or detecting viruses, malware and other disruptive programmes within your own IT System).

8.4 Regardless of the legal grounds giving rise to liability, subject to Non-excludable Australian Conditions, Alyne shall not be liable for indirect and/or consequential damages, including, in particular, loss of profit and loss of interest, unless any such damage has been caused by Alyne’s wilful misconduct or gross negligence.

8.5 Unless otherwise specified in an Order and other than in case of wilful misconduct or gross negligence and subject to the Non-excludable Australian Conditions, Alyne’s liability shall be capped to a sum equivalent of 100% of the Fees paid or payable under the Agreement per year regardless of the number of incidents.

8.6 To the extent Alyne’s liability is limited or excluded, the same shall apply in respect of any personal liability of Alyne’s legal representatives, employees and vicarious agents.

9. Indemnity

9.1 You agree to indemnify and hold harmless Alyne (and its Affiliates, officers and representatives) from and against any claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees under the applicable statutory fee schemes) resulting from any claim culpably caused by you, finally awarded against Alyne by a court of competent jurisdiction once all appeal rights are exhausted or agreed to in a written settlement agreement signed by you arising out any claim or allegation by any third party and arising from or related to: (a) any claims or disputes brought by your End Users arising out of their use of the Alyne Service; (b) your culpable breach of clause 2 (Customer restrictions and responsibilities; audit right); or (c) Your Materials.

9.2 Alyne will defend and indemnify you against any and all costs, damages, and expenses (including attorneys’ fees under the applicable statutory fee schemes) finally awarded against you by a court of competent jurisdiction once all appeal rights are exhausted or agreed to in a written settlement agreement signed by Alyne arising out of any claim or allegation by a third party that the Alyne Service infringes, misappropriates or violates any intellectual property rights of any third party. In the event that the Alyne Service is held to infringe a third party’s intellectual property rights, Alyne may, at its option and expense (a) replace or modify the Alyne Service to be non-infringing, without materially adversely affecting the Alyne Service’s specified functionalities; (b) obtain for you a licence to continue using the Alyne Service; or (c) terminate this Agreement and return to you any prepaid fees unearned by Alyne. Alyne’s liability for claims of infringement for damages under this clause 9.2 shall be subject to the limitation of liability under clause 8. Alyne shall not be obligated to defend, and indemnify you for any claims to the extent based on: (i) any of your or any third party’s intellectual property or software incorporated in or combined with the Alyne Service where in the absence of such incorporated or combined item, there would not have been infringement, but excluding any third party software or intellectual property incorporated into the Alyne Service at Alyne’s discretion; or (ii) the Alyne Service that has been altered or modified by you, by any third party or by Alyne at the request of you (where Alyne had no discretion as to the implementation of modifications to the Alyne Service or Documentation directed by you), where in the absence of such alteration or modification the Alyne Service would not be infringing.

9.3 Each party’s obligations under this clause 9 are conditioned upon (a) prompt written notification by the indemnified party of any threatened or actual claim or suit; provided that a failure of prompt notification shall not relieve the indemnifying party of liability hereunder except to the extent that defences to such claim are materially impaired by such failure of prompt notification; (b) allowing the indemnifying party to have sole control of the defence or settlement of any claim or suit, except that the indemnifying party may not, without the indemnified party’s prior written consent, enter into any settlement that does not unconditionally release the indemnified party from liability; and (c) the indemnified party providing the indemnifying party, at the indemnifying party’s request and expense, with the assistance, information and authority necessary to perform the indemnifying party’s obligations under this clause 9.

10. Privacy

10.1 You acknowledge that Alyne collects, uses, stores and otherwise processes Your Data, including your or your End Users’ personal information, utilisation data and any data created, stored or uploaded through you, and your End Users using the Alyne Service and may share such data with third party service providers for the purposes of improving or providing the Alyne Service. For more information please refer to Alyne’s Data Privacy Notice, available hier.

10.2 Processed data includes your name, email address, postal address including this data from your End Users. If you have provided credit card details, our PCI-DSS compliant payment processor will store and use this data for purposes of performing authorised payment transactions.

10.3 All personal data will be treated confidentially and in compliance with the EU General Data Protection Regulation 2016/679 (“GDPR”) and other applicable legislation.

10.4 You acknowledge that Alyne may access, preserve and disclose your personal information and Your Data created, stored or uploaded to the Alyne Service if required to do so by law or to comply with a legal process.

10.5 Without prejudice to the restrictions in clause 2.3, you further agree to inform Alyne if you are using the Alyne Service to process Sensitive Personal Data.

10.6 Alyne will use domestic and international service providers to support the provision of the Alyne Service. Alyne will apply the Terms as defined in clauses 10 and 11 to the contracts with these subcontractors. A subcontractor outside of the European Economic Area will only be selected by Alyne, if an adequate level of data privacy and protection is provided.

11. Commissioned data processing

11.1 If you are operating in the European Union and intend on processing personally identifiable information (as defined in the GDPR) with the Alyne Service, the requirements from Article 28 of the GDPR apply to these Terms.

11.2 Alyne will not assume data ownership or control of Your Data and will only process this data on your behalf and upon your request.

11.3 You shall be responsible for implementing the requirements defined in the GDPR as the data controller, while Alyne shall be responsible for technical and organisational protection measures for Your Data.

11.4 If the requirements stated in clause 11.1 of these Terms are met you can request that Alyne and you agree a contractual addendum meeting the legal requirements for commissioned data processing.

12. Miscellaneous

12.1 If any provision of these Terms is found to be unenforceable or invalid, that provision shall be eliminated, but this Agreement shall otherwise remain in full force and effect and enforceable.

12.2 The claims under these Terms are not assignable or sublicensable by you except with Alyne’s prior written consent. Alyne may assign any of its claims under these Terms without consent.

12.3 These Terms is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms.

12.4 All waivers and modifications must be in writing signed by both parties including this written form clause, except as otherwise provided herein.

12.5 The Alyne Service and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Alyne and you each represent that it is not named on any U.S. government denied-party list. You shall not permit any End User to access or use the Alyne Service in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.

12.6 No joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Alyne in any respect whatsoever.

12.7 All notices under these Terms shall be in writing. There are no third-party beneficiaries under these Terms.

12.8 We may identify you as an Alyne customer in our promotional materials and on our website, without disclosing any further detail of your usage of the Alyne Service or any other commercial arrangements. We will promptly stop doing so upon your request sent to [email protected].

13. Alyne contracting entity; governing law

13.1 The Alyne entity entering into these Terms, the law that shall apply in any dispute or lawsuit arising out of or in connection with these Terms, and the courts that have jurisdiction over any such dispute or lawsuit, shall depend on where you are domiciled. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms regardless of when or where adopted. Each party agrees to the applicable governing law below without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts below.

13.2 If you are domiciled in Australien the Alyne entity entering into these Terms is Alyne Australia Pty Ltd (an Australian corporation), the governing law is the laws of the State ofVictoria, Australia, and the courts of Victoria, Australia shall have exclusive jurisdiction.

13.3 If you are domiciled outside of Australia, the Alyne entity entering into these Terms is Alyne GmbH (a German corporation), the governing law is the laws of Germany, and the courts ofMunich, Germany shall have exclusive jurisdiction.

14. Definitions

Certain capitalised terms used in the Terms are defined in this clause 14, and others are defined contextually in these Terms.

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

“Alyne Policies” means Alyne’s standard published policies, as updated from time to time.

“Alyne Service” means the Alyne Software as a Service, including Alyne’s content libraries (specifically the Alyne Control Statement Library and the Alyne Risk Library), reference material, glossary, and help text purchased by you and made available online by Alyne.

“End User” means an individual you or an Affiliate permitted or invited to use the Alyne Service. For the avoidance of doubt: (a) individuals invited by your End Users, (b) individuals under managed accounts, (c) individuals interacting with the Alyne Service as your customer, (d) Admin & Expert Users, Expert Users and Business Users (as specified in your instance of the Alyne Service), and (e) individuals who respond to an Assessment in your instance of the Alyne Service, are also considered End Users.

“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.

“Initial Term” means your initial permitted subscription period for the Alyne Service, as set out in the applicable Order.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“Non-excludable Australian Conditions” means any statutory or implied condition, warranty or guarantee under Australian law including applicable Australian Consumer Law as set out the Australian Specific Terms, the exclusion of which from a contract would contravene any statute or cause any part of these Terms to be void.

“Order” means Alyne’s approved ordering document or process describing the Alyne Service you are ordering from Alyne, including the agreed: (a) User Quota; (b) Initial Term; (c) Professional Services (if any); and (d) Fees.

“PCI DSS” means the Payment Card Industry Data Security Standards.

“Professional Services” means any professional services related to Customer’s use of the Alyne Service, such as consulting, implementation, or training services, provided by Alyne to Customer as expressly identified in the Order, which – if subject to German law – are of a service contractual nature within the meaning of Sections 611 et. seq. German Civil Code and shall in no case be interpreted in such a way that Alyne owes a certain outcome to the customer when performing the Professional Services, unless the parties have expressly specified in writing that Ayne shall provide an implementation service under a works contract (“Werkvertrag”) within the meaning of Sections 631 et. seq. German Civil Code.

“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 licence numbers or other government ID numbers; or (f) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.

“Subscription Term” has the meaning given in clause 6.1.

“User Quota” means the User Quota specified in the Order.

“Your Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to the Alyne Service, including personal information of you or your End Users, comments, object descriptions, file attachments, and fully custom created control statements or risks. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Alyne Service.

“Your Materials” means your materials, systems, personnel or other resources.

Addendum

Australian Specific Terms

Each party agrees that the following Australian Specific Terms shall apply in addition to the Terms above if the laws of Australia are applicable due to clause 13.2 and provided that Australian Consumer Law is applicable to the Customer.

If there is a conflict between the Terms above and these Australian Specific Terms, these Australian Specific Terms shall prevail.

1. Definitions

Capitalised terms have the meaning given in the Terms above unless otherwise defined below:

“ACL” or “Australian Consumer Law” means the Australian Consumer Law set out at Schedule 2 to the Competition and Consumer Act 2010 (Cth).

“Non-excludable Australian Conditions” shall have the meaning set forth in clause 14 of the Terms.

“Sensitive Personal Data” includes, without limiting the definition set out in the Terms above, sensitive information as defined in the Privacy Act 1998 (Cth) and health information, or any similar term, as defined in any applicable Australian Federal, State or Territory legislation relating to the handling of health records or health information.

2. Consumer Laws

2.1 If Alyne is liable for a failure to comply with a Non-excludable Australian Condition, including in respect of the guarantees described in paragraphs 2.5 and 2.6 below, where it would be permitted by law, Alyne limits its liability (at its absolute discretion and option) to:

  1. in the case of goods, either the repair or replacement of the goods, or the supply of equivalent goods or payment of the cost of having the goods repaired or replaced or of acquiring equivalent goods; and
  2. in the case of services, the supply of the services again or payment of the cost of supplying the services again.

2.2 Any warranty against defects (as defined in the ACL) set out in the Terms above are provided by the following Alyne entity:

Alyne Australia Pty Ltd
Level 1 Front Suite, 19 to 21 Toorak Rd
South Yarra VIC, Australia 3141
+49 89 4581 9940
[email protected]

2.3 Claims under a warranty against defects set out in the Terms above must be made by written notice to Alyne Australia Pty Ltd using the address above, setting out the nature of the defect. You are responsible for the costs of claiming under a warranty against defects.

2.4 The benefits of any warranties against defects provided in the Terms above are in addition to your other rights and remedies under a law in relation to the goods and services to which the warranty relates.

2.5 If you are obtaining our goods or services as a consumer under the Australian Consumer Law, our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Alyne Service, you are entitled to cancel your service contract with us and to a refund for the unused portion, or to compensation for its reduced value.

2.6 You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

3. Privacy

For the purpose of clause 10.3 in the Terms above, other applicable legislation includes, without limitation, the Privacy Act 1998 (Cth).