Master Services Agreement
This Master Services Agreement, in conjunction with Your fully executed Order Form, jointly govern Your purchase of a license to, and use of, the Alight Analytics platform, solutions and services. The parties agree as follows: BY ACCEPTING THIS AGREEMENT BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
1.1 "Affiliate" means, with respect to any party, any entity that, directly or indirectly, controls, is controlled by or is under common control with such party (but only for so long as such control exists), where "control" means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such party.
1.2 "Agreement" means this Master Services Agreement and any Order Forms You enter into with Us.
1.3 "Authorized User" means any individual who is (a) Your employee or contractor, (b) an employee or contractor of any of Your Affiliates, or (c) an employee or contractor of a Permitted Third Party, in each case if You allow such individual to create a unique user name and password under Your account.
1.4 "Documentation" means Our user documentation, in all forms, relating to the Service (e.g., user manuals, on-line help files, etc.).
1.5 "Permitted Third Party" means an entity that (a) is under contract with You or any of Your Affiliates. (b) needs to access the Service to perform its obligations to You or your Affiliates. (c) is not a competitor of Us or any of Our Affiliates, and (d) has been approved in writing by Us.
1.7 "Professional Services" means the professional services specified in an Order Form, including, but not limited to, implementation services, consulting, and training services.
1.8 "Service" means the service identified in the Order Form.
1.9 "Order Form" means an ordering document entered into between You and Us specifying the services to be provided thereunder, including any addenda and supplements thereto. By entering into an Order Form under this Agreement, any of Your Affiliates agree to be bound by the terms of this Agreement as if it were an original party to the Agreement.
1.10 "Subscriber Data" means any data uploaded into the Service, or otherwise provided for processing by the Service, in either case by or on behalf of You and/or any of Your Affiliates in accordance with this Agreement.
1.11 "Subscription Fees" means the fees for the Service specified in the Order Form.
1.12 "Technical Support Services" means email support and access to our online resources.
1.13 "We" or "Us" or "Our" means Alight Analytics or its designated Affiliate as specified in an Order Form or invoice.
1.14 "You" or "Your" “Named Client” “Client” or "Subscriber" means the client (including, without limitation, any of your Affiliates or Permitted Third Parties) named on the Order Form, the person indicating acceptance of this Agreement, or if the person indicating acceptance of this Agreement is acting on behalf of a company or other legal entity, such company or legal entity.
2. FULL Alight Analytics SERVICE
2.1 Full Alight Analytics Service. We offer various versions of our Service. The "Full Alight Analytics Service" is the most comprehensive version of the Service and requires payment for continued use of the Service.
2.2 Trials. From time to time, We may (but are not obligated to) offer trials of the Full Alight Analytics Service for a specified period of time without payment or at a reduced rate (each, a "Trial"). If a Subscriber subscribes via an Order Form for a Trial, We will make the Service available to such Subscriber under the Trial until the earlier of (a) the end of the Trial period for which the Subscriber registered to use the Service, as indicated on such Order Form, or (b) the start date of any Full Alight Analytics Service subscription ordered by such Subscriber for such Service, as indicated on an Order Form, or (c) termination by either party not conflicting with the terms of the Trial Order Form. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. We reserve the right, in Our sole and absolute discretion, to determine the eligibility of any Subscriber for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and without any liability, to the greatest extent permitted under law. ANY DATA A SUBSCRIBER ENTERS INTO THE SERVICE, AND ANY CONFIGURATION CHANGES MADE TO THE SERVICE BY OR FOR A SUBSCRIBER, DURING THE SUBSCRIBER’S TRIAL WILL BE PERMANENTLY LOST AT THE END OF THE TRIAL.
2.3 Inapplicable Provisions. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMER), (A) BETA VERSIONS AND TRIALS OF THE SERVICE ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY (AND ALL IMPLIED WARRANTIES ARE DISCLAIMED). AND (B) SECTION 10 (INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION) DOES NOT APPLY TO BETA VERSIONS OR TRIALS OF THE SERVICE.
3. USE OF THE SERVICE
3.1 Use of the Service. Subject to the terms and conditions of this Agreement, We grant to each Subscriber a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement) right during the term of this Agreement to use the Service solely in connection with such Subscriber’s internal business operations. Each Subscriber’s rights to use the Service are subject to any limitations on the use of the Service based on the version of the Service for which the Subscriber registers (e.g., applicable usage limits) and as set forth in the Order Form (collectively, the "Scope Limitations"). Each Subscriber’s rights to use the Service are contingent upon such Subscriber’s compliance with the Scope Limitations and this Agreement. You and the Subscribers are jointly and severally responsible for Your conduct and the conduct of Your Subscribers (including by and between all users), the content of Subscriber Data, and all communications with others while using the Service. You and each Subscriber acknowledge that We have no obligation to monitor any information on the Service, but We may remove or disable any information that any Subscriber makes publicly available on the Service at any time for any reason or for no reason at all. We are not responsible for the availability, accuracy, appropriateness, or legality of Subscriber Data or any other information any Subscriber may access using the Service.
3.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, we grant to each Subscriber a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement) license during the term of such Subscriber’s Order Form solely to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with such Subscriber’s use of the Service in accordance with this Agreement. You and each Subscriber will include all trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Documentation or any Service (or any software underlying any Service) on any such copies.
3.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, neither You nor any Subscriber will, and you and each Subscriber will not, permit or authorize any Subscriber or any third party to: (a) rent, lease, or, except as explicitly set forth in this Agreement, otherwise permit third parties to use the Service or Documentation; (b) use the Service to provide services to third parties as a service bureau or in any way that violates applicable law; (c) circumvent or disable any security or other technological features or measures of the Service, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures; (d) upload or provide for processing any information or material that is illegal, defamatory, offensive, abusive, obscene, or that violates privacy or intellectual property rights of any third party; (e) use the Service to harm, threaten, or harass another person or organization; or (f) send, store, or distribute any viruses, worms, Trojan horses, or other disabling code or malware component harmful to a network or system. Neither You nor any Subscriber will (i) copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of any Service (or any software underlying any Service, the “Software”); (ii) alter or remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Documentation or any Service (or any Software). You will ensure that each Subscriber and Authorized Users comply with this Agreement. You will be directly and fully liable to Us for their conduct and any breach of this Agreement by them. We reserve the right to deactivate, change, or require You (or any Subscriber) to change Your (or its) user ID that You (or it) may obtain through the Service for any reason or for no reason. We may exercise such right at any time, with or without prior notice.
3.4 Protection against Unauthorized Use. You will, and will ensure that each Subscriber and Authorized Users use best efforts to prevent any unauthorized use of the Service, the Software, and Documentation, and You and each Subscriber will immediately notify Us in writing of any unauthorized use that comes to Your or its attention. If there is unauthorized use by anyone who obtained access to the Service, the Software, or Documentation directly or indirectly through You, any Subscriber or an Authorized User, You and such Subscriber will take all steps necessary to terminate the unauthorized use. You and each Subscriber will cooperate and assist with any actions taken by Us to prevent or terminate unauthorized use of the Service, the Software, or Documentation. We may, at Our expense and no more than once every 12 months with reasonable notice, appoint Our own personnel or an independent third party to verify that the use of the Service, Software and Documentation by You, each Subscriber and the Authorized Users complies with the terms of this Agreement.
3.5 Beta Versions. From time to time, We may make available for You to try, at Your sole discretion, certain functionality related to the Service, which is clearly designated as beta, pilot, limited release, non-production, or by a similar description (each, a "Beta Version"). Beta Versions are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. We may discontinue Beta Versions at any time in Our sole discretion and We may never make them generally available. We have no liability whatsoever for any harm or damage arising out of or in connection with a Beta Version. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER RELATING TO BETA VERSIONS. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON- INFRINGEMENT RELATING TO BETA VERSIONS.
3.6 Reservation of Rights. We retain all right, title, and interest in and to the Service, the Software and Documentation and all related intellectual property rights, including, without limitation, any modifications, updates, customizations, integrations, apps, or other add-ons. Your license to use the Service, Documentation, and Client Software is limited to the scope expressly set forth in this Agreement. We reserve all other rights in and to the Service, the Software, and Documentation.
3.7 Service Availability. We perform and maintain regular database backups according to the retention policy appropriate for the particular system. We incorporate database and system maintenance operations and processes designed to address data consistency, indexing, and integrity requirements that also help improve query performance. We have implemented and will maintain commercially reasonable measures intended to avoid unplanned Service interruptions. We will use commercially reasonable efforts to notify You and each Subscriber in advance of planned Service interruptions. In the event of an unplanned Service interruption, You and each Subscriber may contact Us for Technical Support Services, as described in this Agreement. The Service depends on the availability of the Subscriber Data from You, Subscribers and third-party data providers. You and the Subscribers are responsible for making the Subscriber Data available that is necessary for Us to provide the Service.
4. PROFESSIONAL SERVICES AND TECHNICAL SUPPORT SERVICES
4.1 Professional Services. You may contract with us to perform Professional Services. The specific details of the Professional Services to be performed will be determined on a per-project or as-needed basis. Unless otherwise specified in the applicable Order Form, any unused portion of the Professional Services and training will expire and may not be carried over after 12 months from the Order Form effective date.
4.2Technical Support Services. We will provide you with the applicable Technical Support Services for the version of the Service to which you are subscribed so long as you are current in payment of the Subscription Fees (if applicable) and are not otherwise in breach under the terms of this Agreement. You are responsible for providing support to Permitted Third Parties.
4.3 Your Responsibilities. You and each Subscriber will provide assistance, cooperation, information, equipment, data, a suitable work environment, and capable resources reasonably necessary to enable Us to perform the Professional Services and Technical Support Services. You and each Subscriber acknowledge that Our ability to provide Professional Services as described in the Order Form and Technical Support Services may be affected if You and they do not meet Your and their responsibilities as set forth above.
4.4 Feedback and Other Content. The Service may permit You, your Affiliates, Authorized Users, and Permitted Third Parties to submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the use and operation of the Service. You (on behalf of all Subscribers and Authorized Users) grant to Us, without further documentation, a royalty-free, fully paid, exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, copy, modify, publish, perform, translate, create derivative works from, sublicense, distribute, and otherwise exploit such submitted feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the use and operation of the Service, without restriction.
5. FEES AND PAYMENT
5.1 Fees and Payment Terms. Unless otherwise specified in the Order Form, the Subscription Fees for the initial subscription term and Professional Service fees set forth in the Order Form are due upon execution of the Order Form. After the initial subscription term, Subscription Fees will be invoiced annually at the then-current rate for the Service or as otherwise specified in the Order Form, 30 days in advance of the start of each renewal period. Fees for additional Service quantities and Professional Services will be invoiced at the time of order, unless otherwise agreed in writing by both parties. The Subscriber will pay all amounts in full within 30 days after the invoice date. The charges in an invoice will be considered accepted by the Subscriber unless We are notified of a good faith dispute in writing within 5 days after the date of the invoice. Unless expressly provided otherwise in an Order Form, all amounts payable under this Agreement are denominated in United States Dollars, and the Subscriber will pay all such amounts in United States Dollars.
5.2 Credit Card. If You or a Subscriber uses a credit card to set up an account or pay for the Service, You or such Subscriber must be authorized to use the credit card information that You or such Subscriber enters when creating the billing account. You and the Subscriber authorize Us to charge You and the Subscriber for the Service using the utilized credit card and for any paid feature of the Service that You or the Subscriber choose to sign up for or use under this Agreement plus a 3% convenience fee. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for a subscription to the Service. If You or a Subscriber set up a Trial using a credit card or if You or a Subscriber paid the Subscription Fees using a credit card, You and the Subscriber agree that We may automatically charge the utilized credit card account the applicable Subscription Fee when the Trial ends or renew the subscription and charge such credit card account on the one-year anniversary of the last subscription date (the "Renewal Date"), unless the subscription is canceled before the end of the Trial or the Renewal Date (as applicable). We may charge You or the Subscriber up to the amount You or the Subscriber approve, and We will notify You or the Subscriber, as applicable, in advance of the difference for recurring Subscription Fees. You and the Subscriber may each change your payment method at any time. If You or a Subscriber tells Us to stop using a particular payment method and We no longer receive payment from You or such Subscriber for a Service that requires payment, We may terminate access to that Service.
5.3 Late Payment. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded monthly from the date due until the date paid. You and the Subscriber jointly and severally will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Us to collect any amount that is not paid when due. Amounts due from You or any Subscriber under this Agreement may not be withheld or offset by You or any Subscriber against amounts due to You or any Subscriber for any reason.
5.4 Taxes. The fees stated in an Order Form do not include local, state, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from this Agreement ("Taxes"). You and the Subscriber under the pertinent Order Form are responsible for paying all applicable Taxes. If We determine that We have the legal obligation to pay or collect Taxes, We will add such Taxes to the applicable invoice and You and the Subscriber will pay such Taxes to Us, unless You or the Subscriber provide Us with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues Us for unpaid Taxes for which You or any Subscriber are responsible under this Agreement and which You or such Subscriber did not pay to us, We may invoice You and such Subscriber and You and such Subscriber will pay such Taxes to Us or directly to the taxing authority, plus all applicable interest, penalties and fees.
5.5 Future Functionality. Purchases by You or any Subscriber are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the effective date specified in the Order Form and continues for the initial subscription term specified in the Order Form, unless this Agreement is terminated earlier in accordance with the terms of this Agreement.
6.2 Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days (10 days for payment breaches) after receiving written notice of the material breach from the non-breaching party. A breach of this Agreement by any Subscriber or Authorized User will be treated as a breach by You (as well as a breach by them). Termination in accordance with this Subsection will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day (10 days for payment breaches) cure period. If You or any Subscriber fail to timely pay any Subscription Fees or Professional Services Fees, We may, without limitation to any of Our other rights or remedies, suspend performance of the Service, Professional Services, and Technical Support Services until We receive all amounts due, or we may terminate this Agreement pursuant to this Subsection.
6.3 Post-Termination Obligations. If this Agreement is terminated for any reason: (a) We will have no obligation to provide or perform any Service, Professional Services, or Technical Support Services after the effective date of the termination; (b) You (and any relevant Subscriber) will immediately pay to Us any Subscription Fees, Professional Services Fees, and other amounts that have accrued prior to the effective date of the termination; (c) any and all liabilities of You and any Subscriber or Authorized User accrued prior to the effective date of the termination will survive; and (d) Sections and Subsections 1, 2, 3.6, 4.4, 5, 6.3, 7, 8.3, 9.4, 11, 12, and 14 will survive termination. If this Agreement is terminated by Us for an uncured material breach by You or any Subscriber or Authorized User, or by You other than as a result of a material, uncured breach by Us, You (and the applicable Subscriber, if any) will pay to Us the amounts due under the applicable Order Form for the remainder of the then-current term. If You terminate this Agreement for Our uncured material breach, as Your exclusive remedy, We will provide You a pro-rata refund of all prepaid but unused Subscription Fees for the remainder of the then-current term.
7. CONFIDENTIAL INFORMATION
7.1 Definition. "Confidential Information" means non-public business information, know- how, and trade secrets in any form, including information regarding product plans, Beta Versions, terms of this Agreement, and any other information a person would reasonably understand to be confidential, which is disclosed by or on behalf of either party or its Affiliates to the other party or its Affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the Effective Date specified on the Order Form. Confidential Information includes this Agreement and its terms. "Confidential Information" excludes information that the receiving party can demonstrate (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party through no action or inaction of the receiving party; (b) was already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records contemporaneous with such receipt; (c) was obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (d) was independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
7.2 Maintenance of Confidentiality. The party receiving the other party’s Confidential Information hereunder (the “receiving party”) shall not use the disclosing party’s Confidential Information in any manner other than as necessary to perform its contractual and legal obligations to the disclosing party, and shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to, or use by, third parties without the disclosing party’s prior written consent. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s employees or agents who reasonably need to have access to such information to perform the receiving party’s obligations under this Agreement, and who will treat such Confidential Information under the terms of this Agreement (with the receiving party being responsible for compliance with this Agreement by such employees and agents). Provided that such Permitted Third Party is bound by obligations of confidentiality and nonuse no less restrictive than the terms of this Agreement, you may disclose our Confidential Information to a Permitted Third Party solely to the extent required for such Permitted Third Party to be able to access and use the Service pursuant to this Agreement (with the receiving party being responsible for compliance with this Agreement by such Permitted Third Party). Also, We may disclose this Agreement to actual and potential investors and funding sources and their representatives, in each case who agree to hold it in confidence. The receiving party may disclose the disclosing party’s Confidential Information if required by law so long as the receiving party gives the disclosing party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the disclosing party’s expense, in limiting disclosure or obtaining an order protecting the information from public disclosure. After such legally required disclosure, such information shall again become Confidential Information of the disclosing party under this Agreement.
7.3 Return of Materials and Effect of Termination. Upon written request of the disclosing party, or in any event upon any termination or expiration of this Agreement, the receiving party will return promptly to the disclosing party or destroy, at the request of the disclosing party, all materials, in any medium, to the extent containing or reflecting any of the disclosing party’s Confidential Information. Following expiration or termination of this Agreement, We may purge Your Subscriber Data and your Service environment from Our systems. The obligations in this Section 7 survive for three years following expiration or termination of this Agreement, except that Confidential Information that constitutes a trade secret of the disclosing party will continue to be subject to the terms of this Section 7 for as long as such information remains a trade secret under applicable law, and this Section 7 shall not affect the treatment of such Confidential Treatment under applicable law.
8. DATA SECURITY
8.1 Data Security. We implement and maintain physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration, or disclosure of Subscriber Data. These measures include encryption of Subscriber Data during transmission to the Service, and encryption of backups of Subscriber Data and authentication credentials at rest. We will notify You of any unauthorized access to, or use of, Subscriber Data that comes to Our attention. If any unauthorized disclosure of Subscriber Data resulting from Your use of the Service comes to Our attention, We will work with You to investigate the cause of such unauthorized disclosure and We will work together with You in good faith to take the steps reasonably necessary to prevent any future recurrence and to comply with applicable data breach notification laws.
8.2 Data Transmission. You acknowledge that use of the Service involves transmission of Subscriber Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties. You must protect Your Authorized User login names and passwords from access or use by unauthorized parties and You are solely responsible for any failure to do so. You must promptly notify Us of any suspected security breach at support@AlightAnalytics.com.
8.3 Subscriber Data. Subscriber Data is Your property. You grant to Us a non-exclusive, worldwide, royalty-free license (a) to use, copy, transmit, sub-license, index, store, aggregate, and display Subscriber Data as required to provide or perform the Service, Technical Support Services, account management services, and Professional Services, and (b) to use, transfer, publish, display, and distribute de-identified, aggregated information derived from Subscriber Data and from Your use of the Service for purposes that include, without limitation, (i) improving Our products and services, and (ii) developing, displaying, and distributing benchmarks and similar reports, provided that any such data is not publicly identified or identifiable as originating with or associated with You or any individual person.
9. WARRANTIES AND DISCLAIMER
9.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution and delivery of the Order Form, or performance of this Agreement.
9.2 Our Warranty. Except as provided in this Agreement, we warrant that the Service as delivered to You will materially conform to the specifications set forth in the applicable Order Form, during the term of the Order Form. You must notify Us of a claim under this warranty within 30 days after the date on which the condition giving rise to the claim first appears. We further warrant that We will perform Professional Services in a professional and workmanlike manner in accordance with the Order Form. To the extent permitted by law, Your sole and exclusive remedy arising out of or in connection with a breach of the foregoing warranty is limited to correction of the non-conforming Service or re-performance of the Professional Service, as applicable, or if correction or re-performance is not commercially reasonable, termination of the applicable Order Form and a refund of any prepaid unused fees for the applicable Service or Professional Services.
9.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 9, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON- INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE, CLIENT SOFTWARE, OR DOCUMENTATION. WE DO NOT WARRANT THAT THE SERVICE, CLIENT SOFTWARE, OR DOCUMENTATION IS ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICE, CLIENT SOFTWARE, OR DOCUMENTATION WILL BE SECURE OR UNINTERRUPTED. WE EXERCISE NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF USE OF THE SERVICE, CLIENT SOFTWARE, AND DOCUMENTATION.
9.5 High-Risk Activities. The SERVICE IS not designed or licensed for use in hazardous environments requiring failsafe controls, including without limitation operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, OR life support or weapons systems, in which the failure of the SERVICE OR SOFTWARE could lead to death, personal injury, or severe physical or environmental damage. We specifically disclaim any express or implied warranty of fitness for such high-risk activities.
10. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION
10.1 Defense of Infringement Claims. Except as provided in this Agreement, We will, at Our expense, either defend You from, or settle, any claim, proceeding, or suit brought by a third party ("Claim") against You to the extent such Claim alleges that Your use of the Service infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right. You must (a) give Us prompt written notice of the Claim; (b) grant Us full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as We may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. You will not defend or settle any Claim under this Subsection 10.1 without Our prior written consent. You may participate in the defense of the Claim at Your own expense and with counsel of Your own choosing, subject to Our sole control over the defense and settlement of the Claim as provided above.
10.2 Indemnification of Infringement Claims. Except as explicitly provided in this Agreement, we will indemnify you and your Affiliates from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against You and Your Affiliates in any Claim under Subsection 10.1; (b) all out-of-pocket costs, including reasonable attorneys’ fees reasonably incurred by You in connection with the defense of a Claim under Subsection 10.1 (other than attorneys’ fees and costs incurred without Our consent after We have accepted defense of the Claim and expenses incurred pursuant to the last sentence of Subsection 10.1); and (c) all amounts that We agree to pay to any third party to settle any Claim under Subsection 10.1.
10.3 Exclusions from Obligations. We have no obligation under this Section 10 for any indemnity or defense with respect to any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Service in combination with other products or services; (b) any aspect of the Service configured specifically for You to comply with designs, requirements, or specifications required by or provided by You or on Your behalf; (c) use of the Service by You or any Affiliate, Authorized User or Permitted Third Party outside the scope of the rights granted in this Agreement; (d) failure of You or any Affiliate, Authorized User or Permitted Third Party to use the Service in accordance with instructions provided by Us; or (e) any modification of the Service not made or authorized in writing by Us.
10.4 Infringement Remedies. In the defense or settlement of any infringement Claim, We may, at Our sole option and expense: (a) procure for You a license to continue using the Service; (b) replace or modify the allegedly infringing technology to avoid the infringement; or (c) if the foregoing are not commercially or technically feasible in Our sole judgment, then terminate Your license and access to the Service and refund any prepaid, unused Service fees as of the date of termination. This Section 10 states Our sole and exclusive liability, and Your sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Service.
11.1 Defense. You will defend Us and Our Affiliates from any actual or threatened third-party Claim arising out of or based upon (a) use of the Service by You, Your Affiliates, Permitted Third Parties, or any Authorized User that is not in accordance with the terms of this Agreement; or (b) the Subscriber Data or other materials or information provided by You or on Your behalf under this Agreement. We will provide prompt written notice of the Claim and provide assistance in connection with the defense and settlement of the Claim that You reasonably request. We may participate in the defense of any Claim at Our own expense and with counsel of Our own choosing.
11.2 Indemnification. You will indemnify Us from and pay: (a) all damages, costs, and attorneys’ fees and court costs finally awarded against Us in any Claim under Subsection 11.1; (b) all out-of-pocket costs, including reasonable attorneys’ fees and court costs reasonably incurred by Us in connection with the defense of a Claim under Subsection 11.1 (other than attorneys’ fees and costs incurred without Your consent after You have accepted defense of the Claim); and (c) all amounts that You agree to pay to any third party to settle any Claim under Subsection 11.1.
12. LIMITATIONS OF LIABILITY
12.1 Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. THE FOREGOING LIMITATION SHALL NOT APPLY TO BREACHES OF SECTION 7.
12.2 Cap on Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID BY YOU UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR OBLIGATION TO PAY ANY FEES UNDER THIS AGREEMENT OR ANY Order Form. THE FOREGOING LIMITATION SHALL NOT APPLY TO BREACHES OF SECTION 7.
12.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY US TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
13. THIRD-PARTY PRODUCTS
13.1 Third-Party Products. Any third-party product that We provide as identified in an applicable Order Form or that is made available in connection with the Service (e.g., a Non-Alight Analytics App) is provided pursuant to the terms of the applicable third-party agreement, and Your use of any such third-party product constitutes Your agreement to comply with the terms of the applicable third-party agreement. We assume no responsibility for, and specifically disclaim any liability or obligation with respect to, any third-party product.
13.2 Non-Alight Analytics Apps. "Non-Alight Analytics App" means a software application developed by a third party or by You that interoperates with the Service. We do not warrant or support Non-Alight Analytics Apps, regardless of whether the Non-Alight Analytics App is certified by Us. If You install or enable a Non-Alight Analytics App for use with the Service, You grant Us permission to allow the provider of that Non-Alight Analytics App to access Subscriber Data as required for the interoperation of that Non-Alight Analytics App with the Service. We are not responsible for any disclosure, modification, or deletion of Subscriber Data by the Non-Alight Analytics provider resulting from access by a Non-Alight Analytics App. If We believe, in Our sole discretion, that a Non-Alight Analytics App violates Our policies, this Agreement, applicable law, or the rights of any third party, We may disable the Non- Alight Analytics App and suspend use of the Non-Alight Analytics App until the potential violation is resolved.
14.1 Access by Competitors. You may not access the Service if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose.
14.2 U.S. Government Use. If the Service is licensed under a United States government contract, You acknowledge that the Service is a "commercial item" as defined in 48 CFR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are defined in FAR Section 2.101 and Section 252.227-7014 of the Defense Federal Acquisition Regulation Supplement (48 CFR 252.227-7014) and used in 48 CFR 12.212 or 48 CFR 227.7202-1, as applicable. You also acknowledge that the Service is "commercial computer software" as defined in 48 CFR 252.227-7014(a)(1). United States government agencies and entities and others acquiring under a United States government contract will have only those rights, and will be subject to all restrictions, set forth in this Agreement.
14.3 Anti-Corruption. You represent and warrant that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will promptly notify Our Legal Department at support@Alight Analytics.com.
14.4 Relationship. We will be and act as an independent contractor (and not as the agent or representative of You) in the performance of this Agreement and nothing in this Agreement will be deemed to create an employment, agency, franchise, joint venture or other relationship between You and Us
14.5 Publicity. We may use Your name, trademarks, and service marks only to the extent necessary to fulfill Our obligations under this Agreement or as otherwise explicitly authorized in this Agreement or a Order Form. We reserve the right to use Your name as a reference for marketing and promotional purposes on Our website and in other communications with Our existing and prospective Clients. If You do not want to be listed as reference for the Service, You may send an email to support@Alight Analytics.com stating that You do not wish to be identified as a reference.
14.6 Assignment and Delegation. You may not assign any of Your rights or delegate any of Your obligations under this Agreement (in whole or in part) without Our prior written consent, except in connection with a change of control, merger, or by operation of law. Your assignment or delegation will not relieve You of Your obligations under this Agreement nor release You of Your liability under this Agreement. We may voluntarily, involuntarily, or by operation of law assign any of Our rights or delegate any of Our obligations under this Agreement without Your consent. Any purported assignment or delegation in violation of this Subsection will be null and void. Subject to this Subsection, this Agreement will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns.
14.7 Subcontractors. We may use subcontractors or other third parties in carrying out Our obligations under this Agreement and any Order Form. We remain responsible for all of Our obligations under this Agreement.
14.8 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, or email to the appropriate party at the address set forth in the Order Form and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Subsection. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
14.9 Force Majeure. Neither party will be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
14.10 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Missouri, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods, which shall not apply to this Agreement.
14.11 Arbitration. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any action arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, will be determined by binding arbitration in Kansas City, Missouri, U.S.A. by one arbitrator. The arbitration will be administered by the AAA pursuant to its Comprehensive Arbitration Rules and Procedure. Judgment upon the award rendered by an arbitrator may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to prepare for or conduct the arbitration hearing on the merits.
14.12 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, including, without limitation, Your Affiliates, Permitted Third Parties, and Authorized Users.
14.13 Waiver and Modifications. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce. We reserve the right, at Our discretion, to change the terms of this Agreement on a going-forward basis at any time. Please check the terms of this Agreement periodically for changes. If a change materially modifies Your rights or obligations, You will be required to accept the modified Agreement in order to continue to use the Service. Material modifications are effective upon Your acceptance of the modified Agreement or Your continued use of the Service. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
14.14 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, Your right to use the Service will immediately terminate.
14.15 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
14.16 Counterparts. The Order Form may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Order Form may also be executed and delivered by facsimile or electronically and such execution and delivery will have the same force and effect of an original document with original signatures.
14.17 Entire Agreement. Except as provided herein, this Agreement and all exhibits contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter, including any prior Nondisclosure Agreement between the parties or their Affiliates. If there is a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form will control. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Neither party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by the other party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless each party expressly agrees to such provision in writing.
14.18 Amendments. Except as expressly provided in this Agreement, this Agreement may not be altered, amended, modified or superseded without the prior written consent of both You and Us.