Alpha Software TransForm Terms of Service
Last Updated January 30, 2018
You may not use the Service until you or an authorized entity or individual who has granted you access, has read and accepted all of these Terms of Service. As used in these Terms of Service, the terms "you", "your" or "user" all refer to both the person using the Service in any way, including those registered as, for, or on behalf of a corporate entity, such as a company, business, affiliated entities, corporation, government agency, or other business entity and its employees, subcontractors, affiliates, and all other persons or entities permitted to access and use the Service or any content or data made available through the Service in any way.
These Terms of Service apply to both all users, both individuals and Subscribing User(s). Subscribing User means the customer of Alpha Software that has subscribed for and is paying the fees for the Service and expressly excludes the third party end users of such Alpha Software customer.
1. Services Provided by Alpha Software
Alpha Software or third parties acting on Alpha Software's behalf will provide access to the Alpha TransForm Service, a web-based, network-based (through the Alpha TransForm Application Program Interface ("API")), and mobile-device-based service (through apps) that allows you to capture, store, retrieve, organize, and share data (the "Service"). Subject to these Terms of Service (including all policies linked to it), Alpha Software hereby grants to you a limited, non-exclusive, non-transferable, revocable license to access and use the Service solely for your own internal business purposes. All rights not expressly granted to you herein are reserved by Alpha Software and its licensors. You are authorized to access and use the Service and to otherwise freely use all tools, features, and capabilities of the Service in accordance with these Terms of Service. In order to use the Service, you are responsible at your own expense to acquire access to the World Wide Web, either directly or through devices that access web-based content and/or APIs, and to pay any service fees associated with such access. In addition, you agree to provide all equipment necessary to make such connection to the World Wide Web and required networks, including a computer and modem or other access device. You shall not attempt to access any other of Alpha Software's systems, programs, or data that are not made available for public use by Alpha Software. You are also responsible at your own expense to acquire and continue use of any devices and services needed to run the Service's APIs or mobile apps.
2. Service Fees
In order to use the Service, after the trial period has expired, you agree to purchase TransForm User Licenses. Each license you purchase has a specified expiration date and authorizes a specific number of people to use an account in the TransForm service. You can purchase multiple TransForm User Licenses for a TransForm account. The number of users authorized to use a TransForm account is the sum of the number of users authorized by each of the active licenses you have purchased and applied to a particular TransForm account. Alpha Software reserves the right to change fees for the Service at any time, at its discretion, with notice to you, which notice may be provided to your email address on file with Alpha Software or through your Alpha Software account; provided, that any increase in fees shall take effect on the renewal of your then-current subscription term.
2.2 Payment Terms.
TransForm User Licenses typically have a duration of twelve (12) months and are typically paid for in full at the time of purchase by credit card. In some cases, at the discretion of Alpha Software, TransForm User Licenses can be paid by invoice. Alpha Software reserves the right to suspend the accounts of customers who fail to make payments on their plan(s). All fees are non-refundable, in whole or in part, even if the Service is suspended, cancelled or transferred prior to the end of your subscription term.
You will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes), if any, associated with use of the Service, except for taxes based on Alpha Software's net income. In the event that Alpha Software is required to collect or pay any tax for which you are responsible, Alpha Software will invoice you and you will pay such taxes and duties directly to Alpha Software. As between you and Alpha Software, you will be responsible for collecting and remitting all taxes related to the use of the Service. You will make all payments to Alpha Software free and clear of, and without reduction for, any withholding taxes or duties; any such taxes or duties imposed on payments of fees to Alpha Software will be your sole responsibility, and you will provide Alpha Software with official receipts issued by the appropriate taxing authority, or such other evidence as Alpha Software may reasonably request, to establish that such taxes have been paid.
The Service, other Service users, or third parties may provide links to other World Wide Web websites or resources. Because Alpha Software has no control over such websites and resources, you acknowledge and agree that Alpha Software is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources even if such website or resource provides a product that may be used in connection with the Service or contains advertising associated with Alpha Software's name or brand. You further acknowledge and agree that Alpha Software shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.
5. Your Responsibilities
5.1 Your Registration Obligations.
In consideration for your use of the Service, you agree to provide, promptly update, and maintain true, accurate, current and complete information about yourself in the required fields as prompted by the Service's registration form(s) (such information being the "Registration Data"). If you provide any information that is untrue, inaccurate, not current or incomplete, or Alpha Software has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Alpha Software may suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
5.2 Acceptable Use Policy.
You agree to comply with Alpha Software's then-current Acceptable Use Policy as posted from time to time at this address: www.alphasoftware.com/transform_acceptable_use_policy. By submitting any "Content" to Alpha Software, you warrant that: (i) you are the owner of such Content, or have all the rights necessary to submit such Content to Alpha Software, and (ii) the use of such Content will not infringe or misappropriate the intellectual property rights of or otherwise violate the rights of any third party. "Content" is defined as all your information or data, any messages or files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through the service, including any trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, metatags, domain names, software and text or other communications or other information, data, text (including but not limited to names of files, databases, directories and groups/workgroups of the same), software, music, sound, photographs, graphics and video transmitted, entered, or stored by you or any of your users using the Service.
You agree not to copy, sell, rent or sublicense (including offering the Service to third parties on an application service provider or time-sharing basis), lease, loan, redistribute, or create a derivative work of any portion of the Service. Such restrictions do not apply to the Content and Form Types (defined below) you place on the Service. For the avoidance of doubt, the right to use the Service (a) may be exercised by your agents, representatives, contractors and/or customers that are not competitors of Alpha Software; provided, that (i) you require such third parties to execute a written agreement with you that is at least as protective of the Service as this Agreement and which does not grant any greater rights than those granted to you herein and includes all restrictions set forth herein and (ii) you shall be responsible for any breach of this Terms of Service by any such third party. You agree not to access the Service by any means other than through the interface that is provided by Alpha Software for use in accessing the Service. You will not, and will not allow third parties, to otherwise directly or indirectly access the Service in a manner intended to avoid incurring licensing fees or other charges including providing access to the Service through a separate system, portal or other interface unless specified in an order form.
5.4 Users; Concurrent Usage Prohibited.
Your right to access and use the Service is limited solely to use by the number of users for which you have purchased TransForm user licenses. You may increase the number of users at any time by purchasing additional TransForm User Licenses and adding these licenses to your account.
Concurrent usage is prohibited. You may only grant access to the Service to those users who have been assigned unique access credentials. A single username or password may not be used by more than one (1) user. Sharing of access credentials by more than one (1) user is prohibited. Only the identified individual associated with unique access credentials can access the Service using such access credentials. You may not provide access and revoke access to user accounts on a daily or other regular basis in order to circumvent subscription fees.
6. Proprietary Rights
6.1 Content and Form Types Submitted to the Service.
You acknowledge and agree that Alpha Software does not pre-screen Content or Form Types, but that Alpha Software and its designees, contractors or subsidiaries (i) shall have the right (but not the obligation) in their sole discretion to refuse or to remove any Content or Form Types that are available via the Service, and (ii) are not responsible for such Content. Without limiting the foregoing, and without notice to you, Alpha Software and its designees shall have the right to remove any Content and Form Types that violate the Terms of Service, is otherwise deemed objectionable by Alpha Software in its sole discretion, or to which an allegation of infringement of intellectual property rights has been made, in accordance with the procedure set forth in the Digital Millennium Copyright Act ("DMCA"). You agree that you shall evaluate, and bear all risks associated with the use of any Content or Form Types including any reliance on the accuracy, completeness, or usefulness of such Content or Form Types.
6.2 Alpha Software Proprietary Rights.
You acknowledge and agree that the Service and its related services, apps, and websites contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and you agree not to disclose such information to any third party without Alpha Software's prior permission. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through the Service, apps, websites, or advertisers is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by Alpha Software and its suppliers. Nothing in this Terms of Service will be deemed to grant to you any right to receive a copy of software underlying the Service, or any other Alpha Software technology, in either object or source code form. Further, you acknowledge and agree that Alpha Software owns all right, title and interest in and to the Aggregate Information it develops and may use Aggregate Information to provide and improve Alpha Software’s products and services and for sales, marketing and other business purposes. For purposes of the foregoing, "Aggregate Information" means and includes any information, data and/or metadata derived from your use of the Service that is not specific to a person, does not include personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person.
In the event you provide Alpha Software any ideas, thoughts, criticisms, suggestions, enhancement requests, techniques, know-how, comments, feedback or other input related to the Service (collectively "Feedback"), including in response to any product plans or roadmaps shared with you, unless otherwise agreed in writing prior to such disclosure, you hereby grant to Alpha Software a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation or other development (“Improvement”) incorporating or derived from any Feedback with no obligation to license or to make available the Improvement to you or any other person or entity.
6.3 Your Proprietary Rights.
You grant Alpha Software the right to use Content and Form Types inputted by you into the Service only to the extent that Alpha Software needs to use such Content and Form Types to provide the Service to you and your third party end users. Alpha Software does not obtain any right, title or interest in your Content or Form Types, except as specifically granted herein in order to provide the Service to you and your users.
You acknowledge that Alpha Software will collect and use certain aggregate data as part of providing, analyzing or improving the Service, or any other Alpha Software product or service, from time to time, and for purposes of statistical analysis and marketing metrics.
7. Form Type Development
As a customer of the Service, Alpha Software provides you the opportunity to define different types of form definitions ("Form Types"). These Form Types specify what is shown when an instance of a form (including a form with its data) is displayed, including the data and descriptive text, and how it operates. Form Types also specify the organization and structure of the data fields for each instance of a form.
You acknowledge and agree that (i) you are solely responsible for your Form Types, including compliance with applicable laws and regulations; (ii) you will be responsible to Alpha Software for all damages and expenses that Alpha Software incurs for claims or liability arising out of your Form Types or the use thereof; (iii) you will develop Form Types that comply with Alpha Software's then current security requirements, including the removal of security vulnerabilities and spy or malware in your Form Types; (v) you will not, and will require that your end users do not, include any confidential or sensitive information or Content in your Form Types, including any customer data, that you do not have rights to use or disclose; (vi) you will not use Alpha Software's marks or logos in connection with your Form Types, including use in any marketing material or website; and (vii) you will not make any false or inaccurate statements or claims regarding your relationship with Alpha Software or that Alpha Software endorsed or certified your Form Types. You are solely responsible for all expenses you incur in connection with your development, marketing or distribution of your Form Types.
If you do not agree with these Terms of Service, do not submit your Form Types to the Service.
Each party who accesses and uses the Service (together the "parties") shall keep in confidence all of the information maintained by the Service, as well as any trade secrets, know-how, software, product and technology-related information; customer lists, financial information, sales, marketing and business plans, personal identifiable information such as the names of a party's customers, source code, product roadmap and cost and pricing data, whether or not so marked or identified as confidential or proprietary ("Confidential Information").
All rights, title and interest in and to the Confidential Information shall remain vested in the party disclosing the Confidential Information ("Disclosing Party"). No rights are granted to the party receiving the Confidential Information ("Receiving Party") by license or otherwise, express or implied, to any trademark, trade secret, copyright, invention, discovery, or to any patent covering the invention or discovery, or any other intellectual property right, nor is the Receiving Party granted any rights in or to the Disclosing Party's Confidential information, except the limited right to review the Confidential Information solely in performance under these Terms of Service. All rights relating to the Confidential Information that are not expressly granted to the Receiving Party are reserved and retained by the Disclosing Party. ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS IS" BASIS, AND ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT, ARE DISCLAIMED.
The parties shall (a) take reasonable care to prevent unauthorized disclosure or use of the Confidential Information, but in any case not less than the care it takes to protect its own Confidential Information; prevent any unauthorized access, reproduction, disclosure, or use of any of the Confidential Information; (b) use Confidential Information solely in performance under these Terms of Service; (c) restrict access to Confidential Information to its officers, directors, agents, contractors, employees, or representatives who have a need to know such information and who are prohibited from disclosing the information by a contractual, legal or fiduciary obligation no less restrictive than these provisions, including employees of any legal entity the Receiving Party controls, or is controlled by, or under common control, directly or indirectly, by ownership of fifty percent (50%) or more of the voting shares; (d) not remove any copyright or trademark notice, or indication of confidentiality on Confidential Information; and (e) immediately notify in writing the Disclosing Party in the event of unauthorized use or disclosure of Confidential Information. Subsections (a) through (e) above impose no obligation upon Receiving Party to the extent Receiving Party can demonstrate and document that the Confidential Information was rightfully: (i) known by Receiving Party, without restriction, prior to its receipt from Disclosing Party; (ii) obtained from a third party that had no obligation of confidentiality; (iii) in the public domain through no improper conduct by Receiving Party; or (iv) independently developed by or for Receiving Party without access to the Confidential Information.
The Receiving Party is only permitted to disclose Confidential Information if required by court order, law or regulation, provided however, that Receiving Party shall: (a) give Disclosing Party written notice promptly upon receipt of such a disclosure requirement before any disclosure is made, if legally permitted, and cooperate should Disclosing Party object to such disclosure; and (b) disclose only the Confidential Information that is required by that law or regulation. The parties shall return (or delete in case of electronic copies of such information) any and all Confidential Information, and all copies thereof, upon the other party's request provided that (i) as to your active Service data and the Content contained therein, you may delete data per standard Service procedures, or only upon e-mail or other written instruction by your account administrator; and (ii) as to backed-up Service data and the Content contained therein, such Service data and/or Content will be automatically deleted over time pursuant to Alpha Software's standard back-up procedures for the Service. The parties shall immediately give notice to the other party of any unauthorized use or disclosure of the other party's Confidential Information.
The rights and obligations under this Section 8 shall survive expiration, rescission, or termination of these Terms of Service. Notwithstanding anything to the contrary herein, the Receiving Party's obligations to protect Confidential Information received shall continue for five (5) years from the date of disclosure by Disclosing Party.
Nothing in these Terms of Service shall prohibit or restrict either party's right to possess, develop, use, or market products or services, alone or with others, similar to or competitive with those disclosed in the Confidential Information, in compliance with these Terms of Service.
The parties agree that unauthorized use of Confidential Information or other breach of these Terms of Service may cause irreparable harm for which remedies at law would be inadequate, and that a party is entitled to seek equitable relief, in addition to remedies at law.
Alpha Software may disclose or report Confidential Information in limited circumstances where it believes in good faith that disclosure is required under the law. For example, Alpha Software may be required to disclose Confidential Information to cooperate with regulators or law enforcement authorities, to comply with a legal process such as a court order, subpoena, search warrant, or a law enforcement request.
Do NOT use the Alpha TransForm Service or Form Types made available through the Service to collect and store credit card numbers. Credit card numbers must be stored pursuant to PCI compliance guidelines, and Alpha TransForm Service is not PCI compliant. You shall be liable to Alpha Software for any damages, fines, penalties and other liabilities Alpha Software may incur as a result of your or your users' breach of the foregoing.
Alpha Software shall reasonably cooperate with you (at your cost) or with an applicable regulatory authority in connection with the examination of your Content or other data in your Alpha TransForm accounts by such applicable regulatory authority in connection with an audit or other formal proceeding by such regulatory authority.
10. Subscribing User
If you are a Subscribing User and permit your affiliates, subsidiaries, employees, and/or any third party access and/or use the Service and/or your Content, you shall be solely responsible for (i) their acts and/or omissions in connection with their access and/or use of the Service and (ii) ensuring that their access and/or use of the Service is in compliance with these Terms of Service, and any and all applicable local laws, rules and regulations. You agree to fully indemnify Alpha Software and its affiliates, subsidiaries, licensors, and online service providers (collectively, "Representatives") for any liability, fines, penalties, costs, claims and/or damages incurred by Alpha Software and/or the Representatives in connection with any claim related to the access and/or use of the Service and/or your Content by you, your affiliates, subsidiaries, employees or any third-party authorized by you. You agree to notify Alpha Software immediately upon discovery of any unauthorized access or use of the Service, or any password or account, or any known or suspected breach of security in connection with the Service.
11. Modifications to the Service or Agreements
Alpha Software reserves the right at any time and from time to time to modify the Service (or any part thereof), or any related service or offering with or without notice. We may assign a specific URL and/or app for your use of the Service. You understand and agree that we have the right to modify or retire that URL and/or app at any time, with reasonable notice to you. In such case, we may assign you a replacement URL and/or app. Should Alpha Software choose to permanently discontinue the Service, Alpha Software (i) will send notification to your Account Administrator via e-mail at least sixty (60) days prior to such discontinuance and (ii) will post notification of this decision on the Service website at least thirty (30) days prior to such discontinuance. In such instance, you will be responsible for retrieving your data from the Service during the sixty (60)-day period referenced in (i).
Alpha Software may establish or revise from time to time general practices and limits concerning your use of the Service consistent with its general practices and limits for its other customers that have purchased the same plan or package, including without limitation: (i) establishing the maximum amount of storage space that you are allotted within the Service at any given time; and (ii) limiting the amount of bandwidth you may use within the Service in a given period of time. Alpha Software may limit without notice the volume of email forwarding or file downloading from your database within the Service in response to unreasonable activity (such as spamming or hosting a publicly accessible exchange of large data files) as determined in Alpha Software's reasonable discretion. Alpha Software reserves the right to change these general practices and limits at its sole discretion and will make commercially reasonable efforts to provide you with as much notice of such changes as possible, except in the event of an emergency or a material performance, availability, stability, or legal issue affecting the Service.
You agree that Alpha Software shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service, any resulting loss or destruction of any content, data or information that you place on the Service, or removal of a Form Type. Alpha Software may specify from time to time the version(s) of related products required in order to use the Service (e.g., supported browser versions). Alpha Software may periodically modify these Terms of Service, or any other agreement incorporated herein by reference. In the event Alpha Software modifies any terms, Alpha Software may post it to the Service website and may, promptly thereafter, notify your Account Administrator via e-mail that such posting has been made. Your continued use of the Service after such modification shall constitute your acceptance of the Terms of Service, or any other agreements incorporated herein with the new modifications, as applicable. If you do not agree to any of such changes, you may terminate the Terms of Service as applicable and immediately cease all access and use of the Service. In addition, Alpha Software may at any time introduce separate Terms of Service for users in certain jurisdictions and require users in these jurisdictions to agree to the separate Terms of Service. In all cases, you and all users agree that termination of the Terms of Service and any separate Terms of Service, and cessation of all access and use of the Service would be the exclusive remedy if you and such users do not wish to comply with the Terms of Service or other agreements incorporated therein by reference.
12. Term and Termination
These Terms of Service shall be effective upon registration and thereafter shall continue for the duration of the period that you utilize the Service.
12.2 Termination by Alpha Software.
13. Disclaimer of Warranties; Indemnity; LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(A) YOUR USE OF THE SERVICE INCLUDING SERVICES PROVIDED IN CONNECTION THEREWITH IS AT YOUR SOLE RISK. THE SERVICE, INCLUDING SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ALPHA SOFTWARE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(B) ALPHA SOFTWARE AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS OR RESULT IN REVENUES OR PROFITS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, AND (iv) THE QUALITY OF ANY PRODUCTS, SERVICE, FORM TYPES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
(C) ALPHA SOFTWARE AND ITS SUPPLIERS FURTHER MAKE NO WARRANTY IN CONNECTION WITH UPLOAD OR DOWNLOAD OF "SENSITIVIE DATA TYPES", DEFINED AS DATA PERTAINING TO (a) THE MANUFACTURE, STORAGE, USE, TRANSPORT, OR DESTRUCTION OF NUCLEAR POWER; (b) ANY CONTROL OF SYSTEMS, PROGRAMS, FACILITIES, EQUIPMENT, OR SOFTWARE USED IN SUCH A MANNER AS TO RESULT IN LIFE OR DEATH; (c) THE DESIGN, MANUFACTURE, ACCESS OR USE OF ANY NAVIGATIONAL GUIDANCE SYSTEM; (d) THE DESIGN, MANUFACTURE, OR USE OF ANY MEDICAL SOFTWARE OR EQUIPMENT USED FOR LIFE SUPORT; (d) THE OPERATIONS OR ANY CRITICAL FACILITIES BELONGING TO YOU OR YOUR CUSTOMERS; OR (e) ANY MILITARY OR GOVERNMENTAL SECRET OR SENSITIVE INFORMATION.
(D) ALPHA SOFTWARE AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TERMS OF SERVICE, THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. ALPHA SOFTWARE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE, OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 ("HIPAA"), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THIS SERVICE, RELATED SERVICES, ANY FORM TYPES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW.
(E) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED OR OBTAINED AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(F) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ALPHA SOFTWARE OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
13.2 Representations and Warranties.
Alpha Software represents, warrants and covenants that the Service will include the functionality provided in the Service documentation. In the event of a breach of the foregoing warranty, your sole and exclusive remedy and Alpha Software's sole liability shall be to modify the Service so that it is conforming or if Alpha Software is unable or unwilling to do so, Alpha Software may terminate your user account and your subscription to the Service. Further, notwithstanding the foregoing, Alpha Software shall have no liability for any nonconformity resulting from your or your users' acts or omissions or from any Content or Form Types.
You represent and warrant the following: (i) your use of the Service and/or an Form Types and your submission of Content and/or Form Types does not directly or indirectly infringe, violate or misappropriate the legal rights of a third party, including without limitation any violation of rights of privacy or publicity; (ii) your development, marketing or distribution of your Form Types and any Content included therein does not directly or indirectly infringe, violate or misappropriate the legal rights of a third party, including without limitation any violation of rights of privacy or publicity; (iii) all information provided by you in connection with your registration is complete, accurate and reliable, and (iv) you will comply with all applicable laws, rules and regulations in connection with your use of the Service, a third party Form Type or your Form Types, including without limitation laws, rules, regulations and guidelines with respect to data privacy and security.
(A) Alpha Software will defend and indemnify the Subscribing User or individual who has accepted the Terms of Service against any action brought against such Subscribing User or individual by a third party to the extent that it is based upon a claim that the Service, as provided by Alpha Software to you under this Terms of Service and used within the scope of the Terms of Service, infringes any U.S. copyright, trademark or trade secret, and will pay any costs, damages and reasonable attorneys' fees attributable to such claim that are awarded by a U.S. court of law either by final judgment or settlement against such Subscribing User or individual. Notwithstanding the foregoing, Alpha Software shall have no liability for any claims resulting from or arising out of the use of the Service in combination with any applications, hardware, software or other materials not developed by Alpha Software or use of the Service in breach of this Terms of Service or in violation of applicable laws, rules or regulations. The foregoing indemnification obligations are conditioned on the Subscribing User: (a) notifying Alpha Software promptly in writing of such action, (b) reasonably cooperating and assisting in such defense, and (c) giving sole control of the defense and any related settlement negotiations to Alpha Software. The foregoing indemnity provided in this Section 14.3(A) is Alpha Software's sole liability to you and your exclusive remedy for claims of intellectual property infringement. Alpha Software shall have no liability or obligations to any user under this provision.
13.4 Limitation of Liability.
(A) YOU EXPRESSLY UNDERSTAND AND AGREE THAT ALPHA SOFTWARE AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ALPHA SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF CONTENT, TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; (v) LOSS OR CORRUPTION OF DATA, CONTENT OR FORM TYPES; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE, CONTENT, OR A FORM TYPE.
(B) YOU ALSO AGREE THAT ALPHA SOFTWARE WILL NOT BE LIABLE FOR ANY (i) INTERRUPTION OF BUSINESS, (ii) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS WEBSITE, THE APPS, OR THE WEBSITE(S) YOU OR THIRD PARTY USERS ACCESS THROUGH THE SERVICE; (iii) DATA OR CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (iv) UNAUTHORIZED ACCESS TO DATA OR CONTENT ENTERED IN, OR BREACH OF ANY SECURITY MECHANISMS UTILIZED IN, THE SERVICE OR A FORM TYPE; (v) COSTS TO PROCURE SUBSTITUTE GOODS OR SERVICES, OR (vi) EVENTS BEYOND ALPHA SOFTWARE'S REASONABLE CONTROL.
(C) IN NO EVENT SHALL ALPHA SOFTWARE'S MAXIMUM AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY YOU TO ALPHA SOFTWARE FOR THE SERVICE, TO A MAXIMUM AMOUNT EQUAL TO SERVICE CHARGES FOR SIX (6) MONTHS OF THE SERVICE.
(D) Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms of Service if such delay is caused by a labor dispute, strike, shortage of materials, fire, earthquake, flood, terrorism, failure of utility or telecommunications providers, denial of service attach, failure of suppliers, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
(E) Each party acknowledges that the fees set forth in this Terms of Service reflect the allocation of risk between the parties and that the other party would not enter into this Terms of Service without these limitations on its liability. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Terms of Service.
13.5 Exclusions and Limitations.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 14.1 AND 14.4 MAY NOT APPLY TO YOU.
14. General Information
(A) THE SERVICE IS NOT OFFERED OR AVAILABLE TO PERSONS UNDER THE AGE OF THIRTEEN (13). Notices to you may be made via email, regular mail, overnight courier or facsimile at your contact addresses of record for the Service. These Terms of Service are intended for the sole and exclusive benefit of the Subscribing User and Alpha Software and is not intended to benefit any third party. Only the Subscribing User and Alpha Software may enforce the Terms of Service.
(B) The Service may also provide notices of changes to the Terms of Service or other matters by displaying notices or links to notices to you generally on the Service. If you provide notice to Alpha Software, such notice shall be sent to: Alpha Software Corporation, 70 Blanchard Road, Burlington, MA 01803.
(C) The Terms of Service (and the agreements and policies linked to them) constitute the entire agreement between you and Alpha Software and governs your use of the Service, superseding any prior agreements, understandings, negotiations, and discussions, whether oral or written, between you and Alpha Software (including, but not limited to, any prior versions of the Terms of Service) with respect to the subject matter herein. Notwithstanding the content of any purchase order, sales order, sale confirmation, or any other document relating to the subject matter herein, the Terms of Service shall take precedence over any such document, and any conflicting, inconsistent, or additional terms contained therein shall be null and void. You also may be subject to additional terms and conditions that may apply when you use affiliate or other Alpha Software services, third-party content or third-party software.
(E) The Terms of Service do not limit any rights that Alpha Software may have under trade secret, copyright, patent, trademark or other laws. The failure of Alpha Software to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect. You agree that any claim or cause of action arising out of or related to use of the Service or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect.
(F) You may not assign your account or your rights under these Terms of Service to a third party without Alpha Software's prior written consent. These Terms of Service will be binding upon the parties and their respective successors and permitted assigns.
(G) Alpha Software does not represent that information on the website for the Service is appropriate or available for use in all countries. Alpha Software prohibits accessing materials from countries or states where contents are illegal. You are accessing this website on your own initiative and you are responsible for compliance with all applicable laws.
(H) Language. Any translation of these Terms of Service is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of these Terms of Service shall govern. The parties hereby confirm that they agree that these Terms of Service and all related documents be drafted in English.
(I) Export Restrictions. You acknowledge that the Service, including the mobile application(s), and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export any part of the Service, in violation of these laws and regulations, directly or indirectly.
(J) Publicity. You agree that Alpha Software may issue a press release regarding your use of the Service and that Alpha Software may publicly refer to you as a customer of Alpha Software, including on Alpha Software's website and in sales presentations, and may use your name and logo for such purposes. You may request that Alpha Software cease use of your name and logo or otherwise opt out of the foregoing by notifying Alpha Software via email email@example.com and including “Opt Out” in the subject line of your email.