Last Updated January 30, 2018
By downloading, installing, copying, accessing, or using the software you agree to this agreement. If you are accepting this agreement on behalf of another person, company or legal entity, you represent that you have full authority to bind that person, company or legal entity to these terms. Read this agreement carefully and indicate your acceptance by selecting the "I Agree" button. If you do not agree this agreement and are not willing to be bound by this agreement, select the "I Disagree" button or discontinue the installation process.
This Subscription Agreement ("Agreement") is entered into on the date the software is first downloaded, installed, copied, accessed or used (the "Effective Date") between Alpha Software Corporation, a Delaware corporation, with a place of business at 70 Blanchard Road, Burlington, MA, 01803 ("Company"), and the person or company/legal entity whose authorized representative accepts this agreement as a user, Subscriber or Trial Version User ("Customer"). This Agreement includes and incorporates any Order Documents, as defined below, and contains, among other things, warranty disclaimers, liability limitations and use limitations.
1. SUBSCRIPTION AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, including the applicable order form, invoice, price plan or other correspondence and related order information ("Order Documents"), the Company shall make the software, support and updates ("Subscription Components") available to the Customer for the applicable period of time indicated on the Order Documents ("Subscription Term"). At the conclusion of the Subscription Term, the right to access or use the Subscription Components ends.
1.2 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Subscription Components. The Subscription Components are being licensed, not sold, to the Customer. The Company hereby grants Customer a non-exclusive, non-transferable license, without rights to sub-license, to the use of the object code version of the software during the Subscription Term. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.3 Subject to the terms hereof, Company will provide active Customers with software enhancements, modifications and upgrades if they are generally made available by the Company at its sole and exclusive discretion.
1.4 Installation and start-up support shall include phone, email and on-line assistance with access to and/or installation on one machine of the software. Installation and start-up support does not include training, development support or ongoing consulting services.
1.5 The Subscription Components are licensed per user for the development products and per CPU for the deployment products. The number of such users or CPUs that are licensed to the Customer are indicated within the Order Documents.
1.6 Upon acceptance of the Order Documents by the Company, the Customer will receive, if applicable, one or more serial numbers to activate the software ("Activation Code"). The Activation Code will control the use of the Subscription Components. Customer may not install or use the Subscription Components in a manner that circumvents or interferes with the operation of the Activation Code or any other technological measure that controls the access to the Subscription Components.
1.7 When purchased by the Customer, and subject to the terms and conditions of this Agreement, including the specifications and limitations provided in the Order Documents, the Company shall also provide to Customer access to the Alpha Cloud hosting service.
1.8 The AlphaLaunch feature may only be used in a Production environment by subscribers to the Enterprise edition of Alpha Anywhere.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Components or any software, documentation or data related to the Subscription Components ("Software"); modify, translate, or create derivative works based on the Subscription Components or any Software (except to the extent expressly permitted by Company or authorized within the Subscription Components); use the Subscription Components or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Subscription Components, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are "commercial items" and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Subscription Components only in compliance with Company’s standard published policies then in effect (the "Policy") and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Subscription Components. Although Company has no obligation to monitor Customer’s use of the Subscription Components, Company may do so and may prohibit any use of the Subscription Components it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Subscription Components, including, without limitation, routers, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Subscription Component. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Subscription Components ("Customer Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Subscription Components or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Subscription Components and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Subscription Components or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Subscription Components and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Subscription Components and for other development, diagnostic and corrective purposes in connection with the Subscription Components and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4 The Company reserves the right to collect usage data of Trial Version Users to determine the extent of which features and functions of the Alpha Anywhere IDE (Development Environment) are being used. For more information about what data are collected and for information on how to turn off usage data collection, select the Help, About Alpha Anywhere menu command in the Alpha Anywhere IDE.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Documents for the Subscription Components in accordance with the terms therein (the "Fees"). If Customer’s use of the Subscription Components exceeds the Subscription Component Capacity set forth on the Order Documents or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Subscription Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Subscription Component. Customer shall be responsible for all taxes associated with Subscription Components.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement for the Subscription Term specified in the Order Documents shall be automatically renewed for additional periods of the same duration as the initial Subscription Term (collectively, the "Term"), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Subscription Components up to and including the last day on which the Subscription Components are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. THIRD PARTY/RESELLER SOFTWARE AND SUPPORT
The use or support of any identified third party or reseller software is subject to the terms and conditions of the software license and/or support agreements governing such software. The third party or reseller software support services are not directly provided by the Company and the Customer must contact such third party directly about its software and support. The Company does not provide any warranty or assume any liability for any third party/reseller software and related services.
7. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Subscription Components in a manner which minimizes errors and interruptions in the Subscription Components. Subscription Components may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SUBSCRIPTION COMPONENTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SUBSCRIPTION COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Subscription Component of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Subscription Component (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Subscription Component is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Subscription Components are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the
Subscription Component to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Subscription Component, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Subscription Component.
9. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. The Commonwealth of Massachusetts shall have jurisdiction for any and all disputes between the parties including the Subscription Components, the Order Documents and Agreement. Alpha Software Corporation 2018.