Platform Terms of Service
AGREEMENT TO OUR PLATFORM TERMS
This Platform Terms of Service Agreement (the “Agreement”) outlines the obligations between AltHQ, Inc. (“Company”) and users with authorized access to the Company's platform ("Clients") provided in connection with an Engagement and all applicable Order Forms thereunder (each a “Party” and collectively the “Parties”).
This Agreement constitutes a legally binding agreement made between the Company and its Clients concerning the provision of access to and use of the Company platform at: https://app.althq.com ("Platform"). You agree that by accessing the Platform and its underlying services, you have read, understood, and agreed to be bound by this Agreement and that such terms are necessary to the provision of services outlined in the applicable Engagement Letter and Order Form(s).
1. DEFINITIONS
The following capitalized terms will have the meanings indicated below unless otherwise specifically defined in any Order Forms or exhibits hereto.
1.1 “Affiliate” means any entity which is controlled by, in control of, or is under common control with a Party to this Agreement, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.
1.2 “Authorized Users” means employees and contractors of Client and its Affiliates, acting for Client’s benefit and on its behalf, and for whom access to the Platform has been purchased hereunder. Authorized Users may also include certain agents of Client and its Affiliates (such as accountants, lawyers, tax professionals, investment advisors, and any other third-party professionals acting on behalf of or at the direction of Client), when Client has directed Company to provide the same with access to the Platform for purposes of sharing documents, information, and Client Data, in the course of said agents’ provision of professional services to Client.
1.3 “Client Data” means any information, data or content, in any form or medium, that (i) is collected by the Platform on behalf of Client or (ii) that Client provides to the Platform, including Authorized Users’ account information. Client Data includes all personal data related to identifiable individuals, including individual transactions or account data and related content processed on behalf of an individual customer of Client, but does not include Company Data.
1.4 “Client Properties” means a website, application or other service owned and operated by Client or its Affiliates that uses the Platform.
1.5 “Company Data” means (i) any usage data, including personal data (as defined by applicable data protection laws), regarding how an Authorized User uses the Platform and related services and (ii) any Anonymous/Aggregate Data (as defined below). For the avoidance of doubt, Company Data does not include Client Data.
1.6 “Company Technology” means the Platform, any other Company products and services, and all related or underlying documentation, technology, code, Aggregate/Anonymous Data, logs, product usage data, know-how, logos, materials, and templates (including anything delivered as part of support or other services), and any updates, upgrades, patches, modifications or derivative works of any of the foregoing (including as may incorporate any Feedback).
1.7 “Confidential Information” means code, inventions, know-how, product plans, and technical, engineering, and financial information exchanged, disclosed, or made available under this Agreement (including third-party information), that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed, in each case in any form (including without limitation written, electronic, or oral) and whether furnished before, on, or after the Effective Date. Confidential Information shall not include any information that (a) is or becomes part of the public domain through no act or omission of the Party receiving such information (the “Receiving Party”) or any of the Receiving Party's employees, agents, advisors, attorneys, accountants, or other representatives; (b) is known to the Receiving Party at the earlier of the Effective Date or the time of disclosure by the Party disclosing such information (the “Disclosing Party”) (as evidenced by written records) without an obligation to keep it confidential; (c) was rightfully disclosed to the Receiving Party prior to the Effective Date from a source other than the Disclosing Party without any breach of confidentiality by the third-party discloser and without restriction on disclosure or use; or (d) the Receiving Party can document by written evidence that such information was independently developed without the use of or any reference to Confidential Information.
1.8 “Data Protection Laws” means any federal or state laws, rules, and regulations applicable to the processing of personal data or personal information in the United States, including, as applicable, the FTC Act, the Fair Credit Reporting Act (FCRA), Graham-Leach-Bliley Act (GLBA), and the California Consumer Privacy Act of 2019 (CCPA).
1.9 “Documentation” means the end-user technical documentation for the Platform, as may be updated from time to time, provided by Company to Client and subject to the terms set forth in this Agreement.
1.10 "Intellectual Property Rights" means any and all right, title, and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, rights of publicity, and similar rights of any type, including any applications, continuations, or other registrations with respect to any of the foregoing, under the laws or regulations of any governmental, regulatory, or judicial authority.
1.11 “Order Form” means any Company document or form that outlines statements of work or services to be provided by Company to Client in connection with this Agreement, as entered into between Company and Client, including any exhibits or addenda thereto.
1.12 “Platform” means the Company’s proprietary software-as-a-service product(s) and services specified in Client’s Order Form, excluding any Third-Party Products.
1.13 “Scope of Use” means descriptions of product features, numerical limits, and other usage limits for the Platform included in the applicable Order Form.
1.14 “Term” means the initial term specified on an Order Form, and each subsequent renewal term (if any).
1.15 “Third-Party Product” means any content, documentation, applications, integrations, software, code, online services, systems, other products not developed by Company, including without limitation any custom solutions, applications, scripts or the like, not developed by Company and functioning either inside the Platform or outside the Platform via an Application Programming Interface (“API”).
1.16 "Updates" means changes to the Platform or the Company Technology that Company at its discretion may implement without requiring the payment of additional fees. Updates do not include new product or service offerings that Company may make available for an additional charge.
2. PROVISION OF THE PLATFORM
2.1 Platform. Subject to Client’s continued and full compliance with all of the terms and conditions of this Agreement, including without limitation Client’s payment of all fees due under each Order Form, Company will (a) provide Client with access to a single instance of the Platform as specified in the applicable Order Form during the applicable Order Term solely for its internal business purposes, and only (i) to use, access, display, and run in accordance with the Documentation and (ii) for the purposes specified in the applicable Order Form; and (b) provide other Company Technology as necessary to deliver the Platform.
2.2 Company Ownership. As between the Parties, Company retains all rights, title, and interest, including all Intellectual Property Rights, in and to the Platform, Updates, Company Technology, Documentation and any other related documentation or materials provided by Company (including without limitation all Intellectual Property Rights embodied in any of the foregoing). Client shall and hereby does irrevocably transfer and assign to Company all right, title, and interest it may have in the foregoing to Company and Company hereby accepts such transfer. Except as explicitly set forth in Section 5.1, no ownership rights are being conveyed to Client under this Agreement. Except for the express rights granted herein, Company does not grant any other licenses or access, whether express or implied, to any Company software, services, technology, or Intellectual Property Rights. Client will maintain and not remove, obscure, or alter any copyright notice, trademarks, logos, and trade names and any other notices or product identifications that appear on or in the Platform, Company Technology, or Updates and any associated media.
3. ACCOUNTS
Client and its Authorized Users may need to register for a Company billing account (a “Client Account”) and individual Authorized User accounts (“Authorized User Accounts” and, individually, an “Authorized User Account”) in order to place orders or to access products and services provided through the Platform. Authorized User Accounts are granted to specific Authorized Users and must not be shared with others. Company will provide Client with the capability to provision and establish Authorized User Accounts. Client Account and Authorized User Account information must be accurate, current, and complete, and will be governed by Company’s Privacy Policy (currently available at https://althq.com/privacy-policy). Client agrees to keep Client Account and Authorized User Account information up-to-date so that Company may send notices, statements, and other information by email or through Client’s Client Account or Authorized User Account(s).
Client shall be solely responsible for (a) administering and protecting its Client Accounts and its Authorized User Accounts; (b) providing access to the Platform and Company Technology only to Authorized Users; (c) requiring that any user IDs, passwords, and other access credentials for the Platform are kept strictly confidential and not shared with any unauthorized person; (d) using industry-standard security measures to protect the Client Account and Authorized User Accounts (including, without limitation, using multi-factor authentication to access the Platform); and (e) any use of the Platform and Company Technology that occurs on Client's Account or any Authorized User Account. Client shall inform each Authorized User of its obligations under, and ensure that each Authorized User at all times abides by, the terms of this Agreement. If any Authorized User stops working for Client, Client must promptly terminate that person’s access to its Client Account, the relevant Authorized User Account, and the Platform.
Client will be responsible for any and all actions taken using its Client Account and its Authorized User Accounts, and any related user IDs, passwords or access credentials, and Client shall be responsible and liable for any breach of this Agreement by an Authorized User. Client must notify Company promptly of any breach of security or unauthorized use of its Client Account or any Authorized User Account.
4. USE RIGHTS AND RESTRICTIONS.
4.1 Use of the Platform. Subject to the terms and conditions of this Agreement, Company grants Client a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Term to access and use the Platform, solely for Client’s business purposes and in accordance with the Documentation and applicable Scope of Use.
4.2 Authorized Users. Client may permit its Authorized Users to use the Platform, provided their use is for Client’s benefit only and remains in compliance with this Agreement. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions of this Agreement. Use by all Authorized Users in aggregate will count towards applicable Scope of Use restrictions.
4.3 Restrictions. Client must not and will not (and must not and will not allow any third party to): (a) gain or attempt to gain unauthorized access to the Platform or infrastructure, or any element thereof, or circumvent or otherwise interfere with any authentication or security measures of the Platform; (b) interfere with or disrupt the integrity or performance of the Platform; (c) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs through the Platform; (d) decompile, disassemble, scan, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Platform (except to the extent that applicable law expressly prohibits such a reverse engineering restriction); (e) rent, lease, copy, transfer, resell, sublicense, time-share, distribute, or otherwise provide access to any portion of the Platform to a third party (except Authorized Users); (f) incorporate or copy the Platform (or any portion of it) with, or use it with or to provide, any site, product, application or service, other than any permitted use cases specified on Client’s Order Form; (g) copy, modify or create a derivative work of the Platform or any portion or component of it; (h) list or otherwise display or copy any code of the Platform, except for Documentation to the extent necessary for Client’s use of the Platform; (i) 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 the Platform (including Company Technology), except to the extent expressly permitted by applicable law and then only with advance notice to Company; (j) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the Platform, or configure the Platform (or any component thereof) to avoid sending events or impressions or to otherwise avoid incurring fees; (k) access the Platform for the purpose of building a competitive product or service or copying its features or user interface; (l) use the Platform for purposes of product evaluation, benchmarking, performance testing, or comparative analysis intended for publication; (m) remove or obscure any proprietary or other notices contained in the Platform, including in any reports or output obtained from the Platform; (n) allow the transfer, transmission (including without limitation making available on-line, electronically transmitting, or otherwise communicating, to the public), export, or re-export of the Platform or Company Technology (or any portion thereof) or any Company technical data; or (o) use, evaluate, or view the Platform or Company Technology for the purpose of designing, modifying, or otherwise creating any environment, software, models, algorithms, products, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Platform.
4.4 Client Obligations. Client agrees to: (i) provide all required disclosures to its Authorized Users, (ii) obtain any necessary rights, releases, and consents to allow the Platform to collect, use, or otherwise process Client Data in the manner contemplated by this Agreement; and (iii) use the Platform in compliance with all applicable laws and regulations.
4.5 Beta Releases and Free Access Subscriptions. Company may provide Client with access to Platform for free or on a trial basis (a “Free Access Subscriptions”) or with “alpha”, “beta”, or other early-stage Platform functionality, services, integrations, or features (“Beta Releases”), which are optional for Client to use. Company makes no promises that future versions of Beta Releases or Free Access Subscriptions will be released or will be made available under the same commercial or other terms. Company may terminate Client’s right to use any Free Access Subscriptions or Beta Releases at any time in Company’s sole discretion, without liability. WITH RESPECT TO BETA RELEASES, CLIENT ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH COMPANY WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CLIENT’S SOLE RISK NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN.
4.6 Affiliate Use. Client’s Affiliates may use the Platform only where expressly specified on an Order Form and where Client has authority to do so. Any such use will be subject to this Agreement and Client will be responsible and liable for its Affiliates’ usage of Platform and related Client Data, and for the Affiliates’ compliance with these terms and conditions. Company and Client’s Affiliate may also enter into a separate Order Form that references this Agreement, and in these cases: (i) the Client’s Affiliate becomes a party to this Agreement and references to Client refer to such Affiliate; (ii) neither Client nor any Affiliate has any obligations or rights under another Affiliate’s Order Form; and (iii) breach or termination of any Order Form is not a breach or termination under any other Order Form between Company and another Client entity.
4.7 Reservation of Rights. Company reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted by and under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Company Technology.
5. CLIENT DATA.
5.1 Rights in Client Data. As between the Parties, Client retains all right, title, and interest (including any Intellectual Property Rights) in and to the Client Data. Client grants Company a non-exclusive, worldwide, royalty-free right to collect, use, modify and process Client Data solely: (i) to provide the Platform and related services to Client and (ii) to generate separate aggregate and anonymous data sets about product usage that do not identify Client or Authorized Users and that are stripped of all persistent identifiers (such as name, email address, device identifiers, IP addresses, and cookie IDs) (“Aggregate/Anonymous Data”).
5.2 Client Data Disclosure. Client shall provide Company with all information, assistance, and materials as reasonably required for Company to activate and operate the Platform for Client and to provide the services pursuant to this Agreement. Company is not permitted to disclose any such information and materials or Client Data, except as necessary to maintain or provide the Platform and/or services to Client, without Client consent (including as elsewhere provided in this Agreement), unless required to do so pursuant to applicable law or regulation or requests or orders of governmental, regulatory, or judicial authorities (including, without limitation, subpoenas). If Company receives a third-party subpoena or request or order of governmental, regulatory, or judicial authorities regarding Client’s Account or Client Data, Company may provide Client notice, except where providing notice is prohibited by the legal process itself, by court order, or by applicable law or where Company has reason to believe providing notice could create a risk of injury or death to any person. If Company is obligated to respond to such third-party subpoena or other request or order of governmental, regulatory, or judicial authorities, Client will also reimburse Company for reasonable attorneys' fees, as well as for the reasonable time and materials spent by company responding to the third-party subpoena or other request or order of governmental, regulatory, or judicial authorities.
5.3 Security. Company will implement appropriate technical and organizational security measures designed to protect Client Data in the Platform against unauthorized or unlawful processing, accidental or unlawful destruction, accidental loss or alteration, and unauthorized disclosure or access. Company’s security measures will include, without limitation: (i) storing Client Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Client Data from unauthorized disclosure and modification.
5.4 Privacy.
5.4.1 General. Each party shall comply with all applicable Data Protection Laws. For the purposes of this Agreement, Company shall be considered the Controller and Business (each as defined under applicable Data Protection Law) for all Usage Data. Client shall be deemed the Controller and Business for Client Data and Company shall be deemed the Processor and Service Provider (each as defined under applicable Data Protection Law).
5.4.2. Processing. With respect to the Client Data, Company shall only process the Client Data as necessary to provide the Platform and related services under this Agreement and its respective Order Forms or as otherwise expressly instructed by Client in writing. Company shall make no use of the Client Data that will constitute a “Sale” or “Sharing” of the data as defined by applicable Data Protection Law without prior instructions by Client.
5.4.3 Subprocessors. Company may engage subprocessors as necessary in order to facilitate the provision of the Platform and related services. This provision acts as a general authorization by Client of all subprocessors existing as of the effective date of this Agreement. To the extent any new or additional subprocessor processes Client Data after the effective date of this Agreement, Company will provide notice to Client (email sufficient) of any such additional subprocessor. Upon receipt of such notice, Client may have thirty (30) calendar days to object to such subprocessor or exercise a right to terminate this Agreement without a discount.
5.4.4 Individual Rights. Client is primarily responsible for the exercise of all individual rights under applicable Data Protection Laws. In the event Company receives such a request, Company will forward such request to Client’s primary administrator to approve or deny. Company agrees to provide all assistance reasonably required to fulfill any such individual request.
5.4.5 Audit; Regulatory Assistance. Not more than one (1) time per calendar year (excluding in the event of a security incident or regulatory request), Client or its designated representatives may, at Client’s own expense, conduct an audit on Company systems in order to ensure compliance with applicable Data Protection Laws and this Section 5. Any audit will be during Company’s regularly scheduled business hours and will be conducted upon no less than fifteen (15) business days’ notice.
6. SERVICES.
Company makes available technical and general support resources provisioned by its client services team, reachable via email at clientservices@althq.com. Additional support services may be available to Client upon payment of applicable fees (if any), as specified in Client’s Order Form. Any support services are subject to this Agreement and Company’s applicable support policies. Company may also provide onboarding, deployment and other services under this Agreement. The scope, pricing, and other terms for these additional services will be specified in an Order Form, statement of work or other document referencing and entered into under the terms of this Agreement. Client may use anything delivered as part of these additional services internally during its Term to support its authorized use of the Platform, subject to the restrictions above applicable to the Platform itself. Company’s ability to deliver services will depend on Client’s reasonable and timely cooperation, the reasonable and timely cooperation of third-party stakeholders responsible for providing access to external Client data sources (including but not limited to document portals and data rooms which serve as hosts or sources of Client Data), and the accuracy and completeness of any information from Client needed to deliver the services. Company may use good faith efforts in its discretion to assist Client with Free Access Subscriptions or Beta Releases but will have no obligation to provide support or maintenance for these items. The performance of any services by Company shall not affect the ownership of the Platform, Company Technology, Updates, and any other related documentation or materials provided by Company under this Agreement.
7. FEES AND PAYMENT.
7.1 Fees. The Platform and Company Technology are deemed delivered upon the provision of access to Client or for the Client’s benefit. Upon execution of an Order Form, Company shall invoice Client for the fees set forth in the Order Form. All fees will be payable as set forth in the Order Form, and Client agrees to pay all fees in the currency and payment period specified in the applicable Order Form. Company’s fees are exclusive of all taxes, and Client must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Company, in addition to any duties, costs of compliance with export and import controls and regulations, and other governmental assessments so that after payment of such taxes the amount Company receives is not less than the fees set forth in the Order Form. Except as expressly provided in this Agreement, payments are non-refundable and non-creditable and payment obligations non-cancellable. All undisputed fees due are payable in United States dollars, unless otherwise agreed to between the Parties in writing.
7.2 Credit Card Payment Terms. If Client elects to pay via credit card, then Client is solely responsible for either (a) enabling auto-recharge on Client’s payment instrument or (b) ensuring that Client’s payment instrument has a sufficient positive balance to cover all fees due. If, for any reason, Client has a negative balance on its account(s), then Company reserves the right to suspend access to the Platform pursuant to the rights and subject to the notice requirements set forth in Section 8.3 (Suspension of Service).
7.3 Invoicing Payment Terms. If Client elects to receive invoices and pay in arrears as agreed by Company, then invoices will be sent via email in accordance with the Order Form. Except as otherwise set forth in an Order Form, Client will pay all of the undisputed fees hereunder within thirty (30) days of the date of the invoice. If Client is overdue on any payment of undisputed fees and fails to pay within ten (10) business days of a written notice, then Company may assess, and Client agrees to pay a late fee of either 1.5% per month, or the maximum amount allowable by applicable law, whichever is less.
7.4 Invoice Disputes. Client must notify Company in writing of any good-faith invoice dispute within twenty (20) calendar days of the applicable invoice date and reasonably cooperate with Company in resolving any dispute. If the Parties are unable to resolve a dispute within ten (10) days of Client’s notice, each Party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any provision in this Agreement that would limit seeking these remedies on account of a payment dispute. For clarity, any undisputed amounts must be paid in full in accordance with this Section.
8. TERM AND TERMINATION.
8.1 Term. This Agreement is effective as of the Effective Date and continues until terminated. Either Party may terminate this Agreement with thirty (30) days’ advance written notice if all Order Terms (as defined below) for the Platform(s) have expired or are terminated as expressly permitted in this Agreement. Client cannot otherwise cancel or terminate this Agreement except as expressly permitted by Section 5.4.3 (Subprocessors), Section 8.4 (Termination for Cause), Section 12.2 (Limited Warranty), and as provided for in the Service Level Agreement attached hereto as Exhibit A (in the case of certain force majeure event-related unavailability of the Platform).
8.2 Order Terms and Renewals. By executing an Order Form for purchase of Platform, Client is agreeing to pay applicable fees for the entire term of the Order Form (the “Order Term”). If no start date is specified on the applicable Order Form, the Order Term starts when Client first obtains access to the Platform. Each Order Term will automatically renew for additional successive periods unless: (i) otherwise stated on the applicable Order Form; or (ii) either Party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Order Term.
8.3 Suspension of Service. Company may suspend Client’s access to the Platform (“Service Suspension”) if Client’s account is overdue and Client fails to pay any undisputed and outstanding amounts due within twenty (20) days of notice by Company, subject to Section 7.4 (Disputes). Company shall provide at least fifteen (15) days’ advance written notice to Client before effectuating any such Service Suspension. Company may also suspend Client’s access to the Platform, without notice, if Company, in its sole discretion, determines that such Service Suspension is necessary to prevent material harm or liability to other Clients or third parties, or to preserve the security, stability, availability or integrity of the Platform.
8.4 Termination for Cause. Without limiting either Party's other rights of termination set forth in this Agreement, either Party may terminate this Agreement, including any related Order Form, if the other Party: (i) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that Party (and not dismissed within sixty (60) days thereafter).
8.5 Effect of Termination. Upon any termination or expiration of this Agreement or an Order Form, Client’s rights, access, and licenses granted hereunder and/or thereunder terminate and Client must promptly: (a) stop using the applicable Platform (including any related Company Technology); (b) delete or otherwise destroy (or, at Company’s request, return) any and all copies of any Company Technology (including documentation), passwords or access codes, and any other Company Confidential Information in Client’s possession, custody, or control. If Company terminates this Agreement for cause as provided in Section 8.4 (Termination for Cause), any payments for the remaining portion of the Term will become due and must be paid immediately by Client. If Client terminates this Agreement for cause as provided in Section 8.4 (Termination for Cause), Client will receive a refund of any fees it has pre-paid for the terminated portion of the applicable Term. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a Party. Upon any termination or expiration of this Agreement and Client’s written request, Company will provide Client access to its Client Data in a format and media reasonably accessible to Client for six (6) months and will thereafter use reasonable methods to delete or otherwise make all such Content inaccessible.
8.6 Survival. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions); 2.2 (Company Ownership); 3 (Accounts); 4.3 (Restrictions); 4.5 (Beta Releases and Free Access Subscriptions); 5.1 (Rights in Client Data); 7 (Fees and Payment); 8 (Term and Termination); 9 (Confidential Information); 10 (Company Technology); 11 (Indemnification); 12 (Warranty; Disclaimers); 13 (Limitations of Liability); 14 (Dispute Resolution); and 15 (General).
9. CONFIDENTIAL INFORMATION.
9.1 Confidentiality Obligation. The Receiving Party must: (i) hold in strict confidence and not disclose the Disclosing Party’s Confidential Information to third parties except as permitted by this Agreement; and (ii) only use the Disclosing Party’s Confidential Information to fulfill its obligations and exercise its rights under this Agreement. Each Receiving Party may share the Disclosing Party’s Confidential Information only with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for Company, includes the subprocessors referenced in Section 5.4.3 and the subcontractors referenced in Section 15.5), provided that the Receiving Party remains responsible for any recipient’s compliance with the terms of this Section 9 and that these recipients are bound to confidentiality obligations no less protective than this Section. Without limiting the foregoing, the Receiving Party shall use at least the same degree of care as it uses to prevent the disclosure or unauthorized transfer of its own confidential information of like importance, but in no event less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party of any unauthorized disclosure of Confidential Information. The Receiving Party is responsible and shall be liable for any breaches of this Section and any disclosure or misuse of any Confidential Information by its employees or agents (or any other person or entity to which the Receiving Party is permitted to disclose Confidential Information pursuant to this Section). The Receiving Party's obligations with respect to Confidential Information shall survive termination of this Agreement for a period of five (5) years; provided, that the Receiving Party's obligations hereunder shall survive and continue in perpetuity after termination with respect to any Confidential Information that is a trade secret under applicable law.
9.2 Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the Receiving Party; (ii) was known by the Receiving Party before it received the Confidential Information; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the Receiving Party without using the Disclosing Party’s Confidential Information. The Receiving Party may, without violating the obligations of this Agreement, disclose Confidential Information to the extent required by a valid order by a court or other governmental body having jurisdiction, provided that the Receiving Party: (a) provides the Disclosing Party with reasonable prior written notice of such disclosure (if permitted by law) and (b) uses diligent reasonable efforts to limit disclosure and to obtain, or to assist the Disclosing Party in obtaining, confidential treatment or a protective order preventing or limiting the disclosure, while allowing the Disclosing Party to participate in the proceeding..
9.3 Remedies. The Parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on any breach of this Section, each Party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
10. COMPANY TECHNOLOGY.
10.1 Ownership and Updates. This is a term-limited agreement for access to and use of the Platform. Client acknowledges that it is obtaining only a limited right to use the Platform and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Client under this Agreement, except as explicitly set forth in Section 5.1. Company (or its suppliers) retains all rights, title and interest (including all Intellectual Property Rights) in and to all Company Technology, which is deemed Company’s Confidential Information, and reserves any licenses not specifically granted in this Agreement. The Platform is offered as an online, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Platform, that Company may collect learnings, logs, and data regarding the performance and use of the Platform, and that Company may make Updates, bug fixes, modifications or improvements to the Platform from time-to-time.
10.2 Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Company (collectively, “Feedback”), Client hereby grants Company a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however Company will not identify Client as the source of the Feedback. Nothing in this Agreement limits Company’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
11. INDEMNIFICATION.
11.1 Indemnification by Company. Company agrees to defend Client from and against any third-party claim alleging that the Platform itself, as provided by Company and when used as authorized under this Agreement, infringes any United States patent, copyright, trademark, or trade secret. Company will indemnify and hold Client harmless from and against any damages and costs finally awarded against Client pursuant to a non-appealable order by a court of competent jurisdiction or agreed in settlement by Company (including reasonable attorney’s fees) resulting from these third-party claims. In response to any claim or potential claim of infringement, if required by settlement or injunction, or if Company determines these actions are reasonably necessary to avoid material liability, Company may at its option: (i) procure a license for the affected portion of the Platform; (ii) modify the Platform so as to avoid infringement but be materially equivalent; or, (iii) if Company reasonably determines that options (i) and (ii) are commercially impracticable, terminate the Order Form for the affected Platform and refund any fees Client has pre-paid for the terminated portion of the applicable Order Term. Notwithstanding the above, Company’s obligations under this Section do not apply to the extent infringement results from: (a) Third-Party Products or combinations with these items; (b) modification of the Platform by someone other than Company or its subcontractors; (c) use of any version of the Platform other than the current release; or (d) use of any version of the Platform in any manner contrary to or inconsistent with the Documentation. Company’s obligations under this Section also do not apply to use in breach of this Agreement, to Client Data, or to Free Access Subscriptions or Beta Releases. THIS SECTION 11.1 STATES THE SOLE AND EXCLUSIVE REMEDY OF CLIENT AND THE ENTIRE LIABILITY OF COMPANY, OR ANY OF ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS, OR REPRESENTATIVES, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
11.2 Indemnification by Client. Client agrees to defend Company from and against any third-party claim asserted against Company to the extent arising from or related to (a) a breach or alleged breach of this Agreement; (b) Client’s violation of applicable law; or (c) Client Data (i) that is obtained or used in a manner that is unauthorized or illegal, or (ii) that violates a third party's Intellectual Property Rights. Client will indemnify and hold Company harmless from and against any damages and costs awarded against Company or agreed in settlement by Client (including reasonable attorney’s fees) that result from these third-party claims.
11.3 Procedures. Each Party’s defense and indemnification obligations are subject to the indemnifying Party receiving: (i) prompt written notice of a claim (in no event to exceed five (5) business days) of any claim, suit, or demand of which it becomes aware; (ii) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (iii) all reasonable necessary cooperation of the indemnified Party at the indemnifying Party’s expense (as to reasonable out-of-pocket costs). The indemnifying Party must not settle any claim without the indemnified Party’s prior written consent if the settlement would require the indemnified Party to admit fault, pay amounts that the indemnifying Party must pay under this Section, or take or refrain from taking any action (other than with respect to the Platform or its features). The indemnified Party may participate in a claim through counsel of its own choosing at its own expense.
11.4 Exclusive Remedy. This Section sets forth each Party's sole liability and obligation and the sole and exclusive remedy with respect to any claim of Intellectual Property Rights infringement.
12. WARRANTY; DISCLAIMERS.
12.1 Company and Client each represent that it has validly entered into this Agreement and has the legal power to do so.
12.2 Limited Warranty. During the Term, Company warrants, for Client’s benefit only, that: (i) the Platform will operate in substantial conformity with the applicable Documentation; and (ii) any support and onboarding services provided by Company will be provided in a professional manner substantially in accordance with Company’s applicable service descriptions (collectively, the “Performance Warranty”). Client must notify Company in writing within sixty (60) days of discovery and include a brief reference to the applicable warranty and detailed description of any potential breach. If Company receives a warranty claim within this period, it will promptly investigate and repair the affected portion of the Platform or re-perform the services (as applicable), or if it determines this remedy is not commercially reasonable, either Party may terminate the applicable Order Form with prompt written notice. Upon termination as a result of a warranty claim under this Section, Client will receive a refund of any fees it has pre-paid for the terminated portion of the applicable Term. The remedy in this Section will be Client’s sole and exclusive remedy (and Company’s sole liability) for any breaches of the Performance Warranty, unless any such breaches are the result of gross negligence, willful misconduct, or fraudulent actions of Company. Notwithstanding the foregoing, the Performance Warranty does not cover and Company will not be responsible for: (a) errors in or resulting from Third-Party Products or Client Data; (b) Client’s misuse or failure to follow the Documentation; (c) modifications or services by anyone other than Company or its subcontractors; (d) use of any version of the Company Technology other than the current release; or (e) any Free Access Subscriptions or Beta Releases.
12.3 Service Level Availability and Support. Company shall provide the Platform to Client in accordance with its Service Level Agreement attached hereto as Exhibit A. Company will also provide technical support to Client via both telephone and email on weekdays during the hours of 9:00 am through 6:00 pm Pacific time, with the exclusion of US Federal Holidays (the “Support Hours”). In addition, Client may initiate a client services support request during Support Hours by calling [SUPPORT PHONE NUMBER] or at any time by emailing clientservices@althq.com. Company will use commercially reasonable efforts to respond to all support requests within one (1) business day.
12.4 Disclaimers. NO AMOUNTS PAID HEREUNDER ARE REFUNDABLE OR OFFSETTABLE EXCEPT AS OTHERWISE EXPLICITLY SET FORTH HEREIN. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, ALL COMPANY TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER COMPANY NOR ITS SUPPLIERS MAKE, AND THEY HEREBY DISCLAIM, ANY OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING LIMITATION AND DISCLAIMER, COMPANY MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT COMPANY TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, OR YIELD ANY RESULTS, OUTCOMES, OR CONCLUSIONS, OR THAT COMPANY TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. COMPANY’S EXPRESS SECURITY OBLIGATIONS UNDER THIS AGREEMENT ARE NOT A WARRANTY OR GUARANTEE THAT THESE MEASURES WILL PREVENT A DATA SECURITY BREACH. COMPANY WILL NOT BE RESPONSIBLE OR LIABLE FOR: (i) ANY CLIENT PROPERTIES, THIRD-PARTY PRODUCTS, OR NON-COMPANY PLATFORMS (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES OR OTHER PROBLEMS CAUSED BY THESE ITEMS); (ii) USE OF THE COMPANY TECHNOLOGY NOT AUTHORIZED BY THIS AGREEMENT; OR (iii) DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON THE PLATFORM. THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
13. LIMITATIONS OF LIABILITY.
13.1 Consequential Damages Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE UNDER ANY LEGAL THEORY OR CAUSE OF ACTION FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES.
13.2 Liability Cap. EACH PARTY’S AND ITS SUPPLIERS’ TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO COMPANY FOR THE APPLICABLE PLATFORM OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM, EXCEPT THAT THIS SECTION 13.2 DOES NOT APPLY TO: (i) DEFENSE COSTS AND DAMAGES PAYABLE BY AN INDEMNIFYING PARTY TO THIRD PARTIES UNDER SECTION 11 (INDEMNIFICATION); AND (ii) CLIENT’S PAYMENT OBLIGATIONS AS EXPRESSLY PROVIDED IN THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS SECTION 13 LIMITS CLIENT’S LIABILITY FOR UNPAID INVOICES OR AMOUNTS PAYABLE UNDER AN OPEN ORDER FORM.
13.3 Exceptions. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 13 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR INJURY TO THE EXTENT CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 13 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13.4 Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 13 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY COMPANY TECHNOLOGY, OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
13.5 No Financial Advice. Neither the Company nor the Platform is intended to provide financial, legal, tax or investment advice or recommendations. Client is solely responsible for determining whether any investment, investment strategy or related transaction is appropriate for Client. The Platform is a technology solution and Company does not make recommendations or offer investment advice of any kind. Company shall have no liability for any possible claim for damages arising from any decisions Client makes based on use of the Platform or other information made available to Client through the Platform. Past performance data on the Platform should not be construed as indicative of future results.
14. DISPUTE RESOLUTION
14.1 PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR LEGAL RIGHTS, REQUIRES YOU TO ARBITRATE DISPUTES, AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.
14.2 For purposes of this Agreement, the term “Dispute” shall mean any controversy or claim arising out of or relating to this Agreement, or the breach thereof, regardless of whether any such claim is based in contract, tort, statute or otherwise. The terms “Dispute” and “Disputes” are given the broadest possible meaning and include, without limitation, all claims, disputes, and/or controversies arising out of or relating in any way to the relationship between Client and AltHQ, any provisions of this Agreement (including the interpretation and scope of the Agreement and these Dispute Resolution provisions, and the arbitrability of any Dispute), and/or Client’s purchase or use of the Platform or any other product or service provided by AltHQ.
14.3 For any Dispute, the Parties agree to work in good faith to resolve the Dispute informally. If Client has a Dispute, Client must first give AltHQ an opportunity to resolve it by contacting AltHQ in the manner described below in Section 15.4 (Notices).
14.4 Binding Arbitration. If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except for those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The Federal Arbitration Act and federal arbitration law apply to this agreement to arbitrate.
14.5 The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the American Arbitration Association (AAA) website. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, we will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
14.6 Except as required by applicable law or court order, Client and Company agree to maintain confidentiality (and request the arbitrator to maintain confidentiality) of all aspects and outcomes of the arbitration, except a party may disclose information regarding the arbitration to (i) enforce these arbitration provisions or an arbitration award or (ii) seek provisional remedies from a court of competent jurisdiction.
14.7 Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Los Angeles, California. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
14.8 If for any reason a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Los Angeles, California, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to, venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) is expressly excluded.
14.9 In no event shall any Dispute brought by either Party be commenced more than one (1) year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
14.10 Restrictions. The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined or consolidated with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other person. Nonetheless, if any portion of this class-action waiver is deemed unenforceable or invalid as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
14.11 Exceptions to Informal Negotiations and Arbitration. The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiation and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
15. GENERAL.
15.1 Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement are the state courts located in Los Angeles, California or the United States District Court for the Central District of California, and both Parties submit to the jurisdiction of these courts.
15.2 Attorneys’ Fees. In the event of any litigation arising out of or relating to this Agreement, the prevailing Party therein shall be entitled to recover, in addition to all other relief obtained, reasonable costs, expenses and fees, including reasonable attorneys’ fees and costs.
15.3 Assignment. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign this Agreement without the other Party’s advanced written consent, except that each Party may assign this Agreement without consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be void.
15.4 Notices. Any notice or communication under this Agreement must be in writing. Client must send any notices under this Agreement (including breach notices and warranty and indemnity claims) to Company, in English, at the following address, legal@althq.com, and include “Attn. Legal Department” in the subject line. Company may send notices to the email addresses on Client’s Account and, at Company’s option, to Client’s last-known postal address. Company may also provide operational notices regarding the Platform or other business-related notices through conspicuous posting of the notice on Company’s website or the Platform. Each Party consents to receiving electronic notices. Company is not responsible for any automatic filtering Client or its network provider may apply to email notifications.
15.5 Subcontractors. Company may use subcontractors and permit them to exercise the rights granted to Company in order to provide the Platform and related services under this Agreement. These subcontractors may include, for example, Company’s hosting providers. However, subject to all terms and conditions of this Agreement, Company will remain responsible for: (i) compliance of its subcontractors with the terms of this Agreement; and (ii) the overall performance of the Platform if and as required under this Agreement.
15.6 Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither Party has the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
15.7 Force Majeure. Neither Party will be liable for any delay or failure to perform its obligation under this Agreement if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
15.8 Export Control and Sanctions. Each Party will comply with all applicable export control laws. Client represents and warrants that it, its Affiliates, and its Authorized Users are not on any government list of prohibited, restricted, or sanctioned parties or located in (or a national of) a country subject to a government embargo or that has been designated by the government as a “terrorist supporting” country, and that it is not 50% or more, directly or indirectly, owned or controlled by any individuals or entities identified on such lists. Client will immediately notify Company should Client become subject to any such restrictions. Company reserves the right to suspend or terminate performance of this agreement to the extent it reasonably concludes that performance would cause it to violate U.S. or other applicable trade laws.
15.9 Publicity. Client agrees that Company may refer to Client’s name and trademarks in Company’s marketing materials and website, including but not limited to displaying the Client’s logo, solely for the purpose of identifying Client as a client of Company upon obtaining Client’s written approval authorizing any such use or reference.
15.10 Amendments; Waivers. Any modification or amendment to this Agreement must be made in writing and executed by an authorized representative of each Party. However, during the Term, Company may update Company’s Security Standards and Privacy Policy from time-to-time to reflect process improvements or changing practices, provided Company does not diminish the security, privacy and integrity of the Platform. In the event of any conflict between this Agreement and any Order Form, this Agreement will take precedence unless otherwise expressly provided. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by an authorized representative of the waiving Party.
15.11 Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.
15.12 No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement, even if Client uses the Platform on its Affiliate’s Client Properties.
15.13 Entire Agreement. This Agreement represents the Parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Company Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. Any terms provided by Client (including as part of any purchase order or other business form used by Client) are for administrative purposes only, and have no legal effect. This Agreement may be signed in counterparts, including by electronic copy, each of which will be deemed an original, and all counterparts together constituting one and the same Agreement.