Thank you for visiting ALIGNI INCORPORATED’s (“ALIGNI” or “Us” or “We” or “Our”) site which provides access to ALIGNI’s proprietary software, applications, programs and/or tools for use in cloud based software for product lifecycle, management and material requirements planning. (the foregoing described software, applications, programs and tools are hereinafter collectively referred to as the “ALIGNI Software”).
Each User hereby agrees that use of the ALIGNI Software is subject to the User’s compliance with all the terms and conditions in this Agreement. This Agreement can be changed at any time by ALIGNI upon reasonable notice. BY USING THE ALIGNI SOFTWARE, EACH USER AGREES TO BE BOUND BY THIS AGREEMENT AS IT IS PRESENTED TO YOU AS OF THE DATE OF SUCH USE (“EFFECTIVE DATE”). IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, PLEASE EXIT THE ORGANIZATION AND THE APPLICABLE ALIGNI SOFTWARE NOW. YOU SHOULD DOWNLOAD AND PRINT THIS AGREEMENT FOR YOUR RECORDS.
In consideration of User’s right to use the ALIGNI Software and the Organizations created under this Agreement, Users agree to the following:
- Definitions. In addition to other defined terms, following terms have the following meanings:
- “ALIGNI Server” means any servers, other hardware, other computer systems or other software applications which are proprietary to, or controlled by, ALIGNI which are used by ALIGNI to support the ALIGNI Software for an Organization .
- “ALIGNI Software” has the meaning set forth above.
- “Manager” has the meaning set forth in Section 2.1 below.
- “Organization” has the meaning set forth in Section 2.1.
- “Organization Content” means any content, data or other information related to an particular Organization or related to any Users of an Organization , which are contributed, posted, distributed, uploaded, stored or otherwise disseminated through an Organization .
- “Term” or “Term of this Agreement” has the meaning set forth in Section 11.
- “User(s)“, “You“, or “Your” have the meaning as set forth in Section 2.1 below.
- “Usage Rules” has the meaning set forth in Section 3.3.
- Structure of Organization’s; Organization’s Users.
- The “Manager” is the person that initially creates and/or manages one or more organizations which are established pursuant to this Agreement and are supported by certain ALIGNI Software (each an “Organization” or collectively the “Organizations”). The term “Manager” also includes any party that becomes the successor to any Manager with ALIGNI’s consent. Each Organization created by a Manager can have its own community of Users (as defined below) who, depending on the structure of the Organization, may participate in the creation of content, participate in other projects, and/or may have access to certain content through the applicable Organization. The term “User(s)” means all participants and users of a particular Organization.
- The Manager has the exclusive authority to structure a particular Organization as either a “Private Organization” or a “Public Organization” as more fully described in, and in accordance with the terms of, Section 5 herein. Unless explicitly indicated otherwise, the term “Organization(s)” includes both “Private Organizations” and “Public Organizations.”
- “User(s)”, “You”, or “Your” refer to, collectively, the Manager and all Users that have access to and use an Organization.
- Organization Set Up and Terms. The Manager must be a human that is eighteen (18) years of age or over and must provide a real name, a valid email address, and any other information required by ALIGNI in the setup of the Organizations. ALIGNI reserves the right to request additional information in order to set up and maintain any of the Organizations.
- Organization Controls. The Manager retains ultimate administrative control and responsibility over the Organizations, the Organization Content within each Organization , the admission of all Users to each Organization, and the activities of all Users that use the Organizations . Unless specifically indicated otherwise in this Agreement, the Manager will be responsible for any obligations or responsibilities of the Users as stated in this Agreement. In other words, ALIGNI considers the Manager to be responsible for the actions that are performed on or through each Organization by any and all of the other Users.
- Structure of Organization’s; Organization’s Users.
- Access Right; Conditions of Use.
- Access Right. Subject to the terms and conditions of this Agreement and any Usage Rules, ALIGNI hereby grants to the Manager, during only the Term of this Agreement, a non-exclusive, revocable, and limited right to provide the Users of each Organization access to and the right to use ALIGNI Software for only the purposes of the particular Organization, provided, however, any such use must be within the scope and functionality of the ALIGNI Software and not otherwise in violation of this Agreement (“Access Right”). Notwithstanding the foregoing Access Right, and upon notice by ALIGNI to the Manager, ALIGNI has the right to change, suspend, or discontinue any (or all) access to, or components of, the ALIGNI Software at any time, and from time to time (either temporarily or permanently), including the availability of content or features provided therein. The Access Right granted pursuant to this Agreement will immediately terminate upon the expiration, cancellation or termination of this Agreement for any reason
- Additional Conditions of Use. All Users agree that the Access Right is subject to the following additional terms and conditions:
- Users are solely responsible for obtaining and maintaining any equipment or ancillary services needed to access the ALIGNI Software that support the Organization.
- Users are permitted to use the ALIGNI Software and their Organization as supported by the ALIGNI Software only in accordance with this Agreement, and any Usage Rules but for no other purpose. Users are explicitly prohibited from using the ALIGNI Software and any Organization : (i) for any unlawful purpose; (ii) for any purpose that is prohibited by this Agreement, or any Usage Rules; (iii) in any manner that could damage, disable, overburden, or impair the ALIGNI Software or any ALIGNI Server; or (iv) in any way that would interfere with any other party’s use of the ALIGNI Software or any Organization.
- In addition to any other right given to ALIGNI in this Agreement, ALIGNI has the right to immediately suspend or terminate this Agreement, shut down any one or more Organizations, and/or terminate or suspend the rights of any particular User, if ALIGNI makes the determination that the Manager or any User has violated any provision of this Agreement, or any Usage Rules.
- Usage Rules. ALIGNI can, from time to time, create additional procedures or rules, or amendments thereto, which govern the Users’ use of the ALIGNI Software or how any Organization otherwise uses any ALIGNI Software (“Usage Rules”). Usage Rules may include, but are not limited to: (i) sign up requirements for establishing the Organizations; and (ii) rules regarding how ALIGNI Software may be used by the Organizations, including without limitation any differences between the structure or access rights related to Private Organizations and Public Organizations.
- Additional Responsibilities of Manager.
- The Manager is responsible and liable for: (a) controlling and monitoring use of the ALIGNI Software and the activities undertaken in an Organization by all Users to ensure such use is in compliance with this Agreement and all Usage Rules; (b) maintaining the confidentiality and security of the Organization and all Organization Content therein; (c) all uses of the Organization Content regardless of whether the actual uses are authorized by the Manager or an authorized User; provided, however, Manager will promptly notify ALIGNI of any unauthorized use, access or disclosure of any of its Organization Content; and/or (d) any damages arising out of any Organization Content that is posted, distributed, uploaded, stored or otherwise disseminated by any Users through the Organization or by otherwise using any ALIGNI Software if it violates any laws or any rights of another party. Each User will look solely and exclusively to the Manager for any damages suffered by such User as a result of any breach of this Agreement by the Manager or by other Users.
- In addition to any other provision in this Agreement, the Manager hereby agrees to indemnify, defend and otherwise hold ALIGNI and its officers, directors, employees, agents, representatives, licensors, shareholders, or any of its boards or associations harmless for, from and against any and all damages, losses, liabilities, costs and expenses of any kind or nature (including costs and reasonable fees of attorneys and other professionals) arising from or related to: (a) Manager’s or any other User’s breach of this Agreement or any Usage Rules; (b) any use of the ALIGNI Software, any Organization, or any Organization Content by any User that violates any laws or regulations; or (c) any other misuse, or any other unpermitted use of the ALIGNI Software, any Organization or any Organization Content by any User. The provisions of Section 10 shall govern this indemnification.
- Manager Responsible for Fees Paid To ALIGNI for each Organization. The Manager is solely responsible for paying ALIGNI all of the fees associated with each Organization in accordance with the fee schedule, and any of the other terms and conditions, set forth in the ALIGNI’s website, which fees may be amended from time to time by ALIGNI by notice given on ALIGNI’s website or as otherwise provided to Manager. If the Manager wants to have a legal entity responsible for making payments to ALIGNI to maintain an Organization , the Manager may be required to provide assurances that it has the authority to bind that legal entity to those payment terms. The Manager agrees to comply with all of the terms and conditions regarding the payment of all such fees as set forth in ALIGNI’s website. Manager’s failure to pay any of these fees may result in termination of an Organization or of this entire Agreement as set forth in Section 11.2 of this Agreement.
- Organization Content and other issues governing Organizations.
- User Generated Organization Content. The copyright in any Organization Content uploaded or posted in any Organization shall be owned by the User or Users that created that particular Organization Content.
- Restrictions Related to Organization Content. In addition to any other provisions in this Agreement which govern Organization Content, all Users agree as follows:
(a) Users shall not: (i) attempt to obtain or obtain any data or other content through any means not intentionally made available or provided for by the ALIGNI Software; or (ii) violate or attempt to violate any security features or protocols associated with the ALIGNI Software or any ALIGNI Servers or set forth in the Usage Rules, including, without limitation, (i) accessing data not intended for the User or logging into a server or Organization which User is not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (iii) attempting to interfere with service to any other users, host, or network.
(b) Users are prohibited from posting, distributing, uploading, storing or otherwise disseminating any Organization Content if it is not owned by the User or if User does not have the absolute right to engage in such act or action.
(c) Without limiting the generality of the foregoing, Users will not provide any Organization Content for distribution or other use through or via the Organization or any ALIGNI Software if the distribution or use of such Organization Content (i) would be libelous, defamatory, an invasive of privacy or publicity rights, or otherwise violate the rights of any party; (ii) without limiting the foregoing, would infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party anywhere; (iii) would otherwise violate any local, state, federal or international law; or (iv) would otherwise create any liability for ALIGNI.
- Users Must Respect IP Rights of Others; Right to Terminate or Remove Organization Content. ALIGNI’s policy is to respect the copyright and intellectual property rights of others. ALIGNI has the absolute right to immediately: (i) terminate this Agreement or shut down a particular Organization if ALIGNI makes the determination that any User has infringed upon the copyright or intellectual property rights of any third party, and/or (ii) remove any Organization Content from any Organization and/or prevent access to that Organization Content via the ALIGNI Software which, in ALIGNI’s determination, infringes the copyright or other intellectual property rights of any third party or otherwise violates any provision of this Agreement or any Usage Rules.
- Limited Permitted Uses of and Treatment of Organization Content by ALIGNI
- General Protection of Organization Content. Except to the extent necessary for ALIGNI to carry out the Permitted Uses of the Organization Content as contemplated by Section 5.4.2, ALIGNI agrees as follows with regard to its treatment and use of any Organization Content: (i) ALIGNI will not use the Organization Content for any purpose other than the Permitted Uses; (ii) ALIGNI will treat any Organization Content that is not publicly available with the same degree of care (but not less than a reasonable degree of care) as ALIGNI accords its own confidential information; (iii) ALIGNI may disclose Organization Content only to those employees or other representatives of ALIGNI who need to know such information and ALIGNI will take reasonable steps to bind such employees and representatives to terms and conditions substantially similar to (and no less restrictive than) those in this Section 5.4.1 with regard to the treatment and use of such Organization Content. ALIGNI will also immediately give notice to the Manager of any unauthorized use or disclosure of Organization Content by ALIGNI or any of its employees or representatives that is not consistent with the terms of this Section 5.4.1 and will use commercially reasonable efforts to assist the Manager in remedying any such unauthorized use or disclosure of the applicable Organization Content.
- Permitted Uses of Organization Content by ALIGNI for Limited Purposes. The Manager and all Users agree that ALIGNI has the right to use the Organization Content for the following permitted purposes: (i) in order to allow ALIGNI to provide the ALIGNI Software for use by , and to otherwise perform any of ALIGNI’s services to, the Manager and the other Users as contemplated by this Agreement; (ii) to analyze and otherwise use Organization Content in order to assist ALIGNI in generally enhancing or improving the overall operability or functionality of its ALIGNI Software or any other services that ALIGNI provides under this Agreement; and (iii) to allow ALIGNI to copy any Organization Content to its databases, make backups, share Organization Content with other Users or with any of ALIGNI’s commercial partners, parse the Organization Content into a search index or otherwise analyze it for the purposes described in Sections 5.4.2 (i) and (ii) above(collectively, the “Permitted Uses”).
- Permitted Release of Organization Content By ALIGNI Upon Court Order, etc. If ALIGNI receives a court order, subpoena, a civil, criminal, or administrative demand, or any other legal process or order (hereinafter collectively referred to as an “Disclosure Order”) seeking or otherwise requiring production of, or access to, any Organization Content or any other information in any Organization (including, but not limited to, any personal identifiable information of a User), then ALIGNI has the right to respond to, and otherwise comply with, such Disclosure Order and such response and compliance by ALIGNI shall not be deemed a violation of any provision in this Agreement. Upon receipt of any such Disclosure Order, ALIGNI’s sole and exclusive obligation to the Users is to provide notice to the Manager (within a commercially reasonable time after ALIGNI’s receipt of such Disclosure Order) containing only the following information: (i) the name of the entity issuing the Disclosure Order; and (ii) a reasonable description of the User information that ALIGNI disclosed under the Disclosure Order.
- Manager’s Instructions to ALIGNI Govern Treatment of Organization Content. All Users hereby agree that: (i) the Manager has the right to give ALIGNI instructions regarding the removal, replacement, copying, distribution, processing or other treatment of the Organizational Consent, including any personal data of a User that may be included therein; and (ii) ALIGNI has the right to rely solely on the instructions of the Manager with regard to the removal, replacement, copying, distribution, processing or other treatment of the Organizational Consent, including any personal data of any User included therein.
- Manager Selection of Public Organization or Private Organization; Manager’s Instructions to ALIGNI Govern Selection of Public or Private Organization.
- Users agree that the Manager has the exclusive authority to determine whether an Organization will be structured and governed as either a “Private Organization” or a “Public Organization”. The following sets forth the key differences governing “Private Organizations” and “Public Organizations”:(a) “Private Organization(s)” are structured to be more private in nature in that the Manager will have the ability to allow only certain Users to access the Private Organization or to review, contribute and/or use the Organization Content contained therein.(b) “Public Organization(s)” are more open in nature in that the Manager can give access to the Public Organization to, and give rights to review, contribute and/or use the Organization Content contained therein to, a broader pool of Users as determined by the Manager. In addition, access to the Public Organization and the right to review, contribute and/or use the Organization Content contained therein may be open to any subscribers of any ALIGNI Software, not just the particular Users of the Public Organization identified by the Manager.
- Additional terms and conditions governing access to both Private Organizations and Public Organizations and the use of Organizational Content contained therein may be set forth in the online process used by the Manager to set up, or change, a Private Organization or a Public Organization, and all Users agree that these additional terms and conditions govern each User’s use of the Private Organization or the Public Organization and all Organization Content contained therein, including without limitation any Organization Content contributed by a User thereto.
- Users agree that once a Manager establishes either a Private Organization or a Public Organization, the Manager has the exclusive authority to change that Organization to the other type of Organization at any time, and from time to time, by giving notice to, and following any procedures for such change required by, ALIGNI (the “Organization Change”). Users agree that the Manger has the sole responsibility of informing the Users of the Organization Change and, as between ALIGNI and each User, each User hereby agrees to the structural and governance changes resulting from any such Organization Change.
- ALIGNI’s Intellectual Property Rights; Reservation of Rights.
- Reservation of Rights by ALIGNI.
- ALIGNI or its licensors, solely and exclusively own all rights, title and interest in and to all inventions, patents, trademarks/service marks, logos, images, graphics, content, processes, techniques, software, other copyrights, and all other intellectual property rights contained in the underlying ALIGNI Software or which is otherwise provided by ALIGNI in furtherance of this Agreement (collectively “ALIGNI IP Assets”). For purposes of clarity, the ALIGNI IP Assets do not include “Organization Content” as such term is defined herein. Except for the limited Access Right set forth in Section 3.1 herein, this Agreement shall not be interpreted to grant any right to any User(by implication, estoppel or otherwise) in any ALIGNI IP Assets. ALIGNI reserves, without prejudice, all rights, title and interest in and to all ALIGNI IP Assets.
- In addition to all other conditions in this Agreement, each User agrees that: (i) User shall not modify, disassemble, decompile or reverse translate or create derivative works from any of ALIGNI IP Assets or otherwise attempt to derive any source code of the same or let any third party do the same; (ii) no copyrighted material, content, or any other ALIGNI IP Assets may be modified, copied, displayed, transferred, distributed, sold, published, broadcast or otherwise used except as expressly stated herein, in such material or in this notice without the express prior written permission of ALIGNI (which ALIGNI may or may not grant in its sole discretion); (iii) Users shall not remove, alter, cover or obscure any copyright notices or other proprietary rights notices of ALIGNI or any other party placed on or embedded in any ALIGNI IP Assets and shall otherwise retain all such notices on all copies of the same; and (iv) use of the ALIGNI IP Assets is expressly prohibited by anyone who is not an authorized User under this Agreement. Unauthorized use is a violation of copyright and other intellectual property rights and is actionable under law.
- Survival. Users agree that the terms and conditions of this provision survive the cancellation, expiration or termination of this Agreement for any reason.
- Reservation of Rights by ALIGNI.
- Confidentiality of ALIGNI’s Confidential Information.
- Definition of “Confidential Information”. “Confidential Information” means all nonpublic business, commercial or technical information of ALIGNI relating to its business, intellectual property, or any other aspects of its operations, including, but not limited to any processes for developing ALIGNI Software , its customers, its pricing and its financial status.
- Confidentiality and Non-Use of ALIGNI’s Confidential Information. Each User acknowledges that as a result of the relationship established by this Agreement, the Users may have access to or may become aware of Confidential Information of ALIGNI, and that such Confidential Information is a valuable and unique asset of ALIGNI. Each User agrees to protect the confidentiality of any ALIGNI Confidential Information that comes into the possession of that User with at least the same degree of care with which it treats its own confidential information of similar importance (but in no event using less than commercially reasonable efforts). To the degree any User obtains access to any of ALIGNI’s Confidential Information, then such User hereby agrees to keep such Confidential Information strictly confidential and such User will not disclose or share such Confidential Information with any third party without the prior written consent of ALIGNI. ALIGNI shall be notified immediately by the Manager upon the discovery or notification of any unauthorized use or disclosure of ALIGNI’s Confidential Information or any breach of this Agreement, and the Manager and all Users shall cooperate with ALIGNI in every reasonable way to remedy any such use or disclosure and to prevent further unauthorized use or disclosure. At the request of ALIGNI at any time, the Manager and/or any User shall either destroy or return ALIGNI’s Confidential Information in its possession, custody or control. Each User acknowledges and agrees that the terms and conditions of this provision shall survive for a period of ten (10) years after (the first to occur) the cancellation, expiration or termination of this Agreement for any reason.
- User’s Duty to Maintain Its Security.
- Users shall be solely responsible for and shall provide for the physical and electronic security for all of its computer systems in its possession or control that User utilizes to access the ALIGNI Software and the Organizations , and shall ensure that only authorized personnel are allowed to access and use the ALIGNI Software and the Organizations. The security measures employed by each User shall be not less than those employed in the industry to protect information of a similar kind or nature.
- Notwithstanding any provision to the contrary, in the event of a security breach to the servers or network components used by an User which provide access to the ALIGNI Software such that unauthorized access to the ALIGNI Software might become available, then the Manager and/or such User will take measures to prevent any such unauthorized access to the ALIGNI Software within twenty-four (24) hours of the Manager or User becoming aware of the security breach. If the security breach relating to the servers or network components is not remedied within twenty-four (24) hours after such breach, ALIGNI may terminate this Agreement or a particular Organization on written notice to the Manager and/or User at any time unless such security breach has been actually cured prior to termination by ALIGNI.
- System Security Breach. If there is any security breach, for any reason, of the ALIGNI Software which results in the disclosure of any Organization Content of an Organization (hereinafter collectively referred to as a “System Security Breach”), then the following shall govern Users’ sole rights and remedies arising out of such System Security Breach:
- ALIGNI’s sole and exclusive obligation to Users arising out of such System Security Breach is to provide notice to the Manager (or a particular User if feasible) within a commercially reasonable time after ALIGNI learns of such System Security Breach, with such notice containing only the following information: (a) notification of the occurrence of the System Security Breach; and (b) the name(s) of any Users whose personal identifiable information may have been disclosed as a result of such System Security Breach; and
- Users agree that ALIGNI’s sole liability resulting from or arising out of any such System Security Breach is specifically limited as set forth in Section 9 of this Agreement.
- Users agree that ALIGNI is not responsible for any security breach of any type, including without limitation any System Security Breach, caused by the Manager or by any other User.
- User’s Duty to Maintain Its Security.
- Service Levels; Disclaimers; Limitations of Liability.
- Service Levels. ALIGNI will use reasonable efforts to provide Users their Access Right to the ALIGNI Software at all times; provided, however, the ALIGNI Software or individual functions within the ALIGNI Software, may be temporarily disrupted to allow for necessary maintenance, updates or emergency repairs, or as a result of outages in the telecommunication lines and/or equipment outside ALIGNI’s control (hereinafter, the “Service Level Commitments”).
- Additional Disclaimers and Notices; Limitation of Liability.
ALIGNI PROVIDES THE ALIGNI SOFTWARE AND THE ORGANIZATIONS TO ALL USERS ON AN “AS-IS,” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, OR NON-INFRINGEMENT.
IN NO EVENT SHALL ALIGNI, ITS SUCCESSORS, OR ASSIGNS, OR AFFILIATES, OR ANY OF THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO ANY USER OR TO ANY OTHER PARTY FOR ANY DAMAGES (WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, AND INCLUDING, WITHOUT, ANY LOSS OF PROFITS OR LOSS OF DATA) ARISING OUT OF ANY USE OF A THIRD PARTY API/SOFTWARE PROGRAMS OR ANY OTHER THIRD PARTY PRODUCTS/SERVICES THAT CONNECT WITH ANY COMPONENT OF THE ALIGNI SOFTWARE. IN NO EVENT SHALL ALIGNI, ITS SUCCESSORS, OR ASSIGNS, OR AFFILIATES, OR ANY OF THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO ANY USER OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS OR LOSS OF DATA), HOWEVER AND WHEREVER ARISING, INCLUDING, WITHOUT LIMITATION, ARISING OUT OF (A) USE OF THE ALIGNI SOFTWARE OR ANY ORGANIZATIONS BY ANY USER; (B) DELAYS OR FAILURES OF THE ALIGNI SOFTWARE; OR (C) ALIGNI’S PERFORMANCE UNDER THIS AGREEMENT, INCLUDING ANY BREACHES BY ALIGNI UNDER THIS AGREEMENT, EVEN IF ALIGNI HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
IN THE EVENT, HOWEVER, THAT ANY LIABILITY IS IMPOSED ON ALIGNI, IN NO EVENT SHALL THE TOTAL LIABILITY OF ALIGNI ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE ALIGNI SOFTWARE OR ANY ORGANIZATIONS THEREIN BY ANY USER EXCEED THE TOTAL AMOUNT PAID TO THE ALIGNI UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. Users agree that the foregoing limitations are an essential element of the Agreement between the parties and that in the absence of such limitations the pricing and other terms set forth in this Agreement would be substantially different.
- Indemnification. Each User hereby agrees to indemnify, defend, and hold harmless ALIGNI and its successors, or assigns, or its parents, subsidiaries, or affiliates, or any of their officers, directors, shareholders, employees, or agents for, from, and against any claim or demand, losses, or liabilities (including attorneys’ fees) made by any third party due to or arising out of your conduct, each User’s use (or use by anyone on User’s behalf, whether authorized or not by User) of the ALIGNI Software or any Organizations, any alleged violation of this Agreement by User, breach of any representations or warranties by User, or any alleged violation by User of any applicable law or regulation. ALIGNI reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, but doing so shall not excuse the Client’s indemnity obligations. If User assumes the defense of any such claim, any indemnified party shall have the right to participate in the defense and settlement of any action under this Section using its own counsel and at its own cost. User shall not settle or compromise any action under this Section that imposes any obligations or restrictions on an indemnified party, or which does not result in a complete unconditional release of all liability and claims, without first securing the prior written consent of the indemnified party (which shall not be withheld or delayed unreasonably).
- Term; Termination; Survival.
- Term of this Agreement. The term of this Agreement will begin on the date the first Organization is established by the Manager and shall terminate on the date the last Organization is shut down, subject to earlier termination as contemplated by Section 11.2 of this Agreement (the “Term” or the “Term of this Agreement”).
- In the event the Manager has not paid the monthly fee or any other fees applicable to a particular Organization, then the following shall apply: (i) if such fee is not paid within 15 days of the due date, ALIGNI has the right to deny the Manager and all Users access to that Organization; (ii) ) if such fee is not paid within 60 days of the due date, ALIGNI has the right to permanently shut down and terminate the Organization and the Manager hereby authorizes ALIGNI to remove all Organizational Content from such Organization and ALIGNI will have no liability to Manager or any User for such removal (such permanent shut down and termination of such Organization is hereinafter referred to as an “Organization Termination”). ALIGNI has the right, at its option, to terminate this entire Agreement under this Section 11.2 (thus terminating all Organizations) in the event of an Organization Termination of any one Organization. For the avoidance of doubt, if ALIGNI does not elect to terminate this entire Agreement upon an Organization Termination of one particular Organization, then this Agreement shall continue to govern all of the remaining Organizations.
- In addition to any other right of termination by ALIGNI set forth in this Agreement, ALIGNI has the right to terminate this Agreement: (i) for convenience, upon 30 days’ notice to the Manager; or (ii) if, in ALIGNI’s reasonable determination, the Manager or any other User has violated any provision of this Agreement or any Usage Rules; or (iii) at the election of ALIGNI upon any Organization Termination as contemplated by Section 11.2.1.
- Effect of Termination. Upon the cancellation, expiration or termination of this Agreement for any reason, the following shall apply: (i) Users will no longer be granted access to an Organization (or its Organization Content) if that Organization has undergone an Organization Termination as contemplated by Section 11.2 above; ; and (ii) ALIGNI reserves the right to delete from its ALIGNI Servers any and all Organization Content from all Organizations and any other information contained in any Organization.
- Survival. In the event of the termination, cancellation or expiration of this Agreement for any reason, the terms and conditions of Sections 3.4, 4, 5.4, 6, 7, 9,2, 10, this 11,and 12 (and any other provisions that by their nature should survive, shall survive the termination, cancellation or expiration of this Agreement for any reason.
- Additional Provisions.
- Notices. Except as otherwise expressly provided in this Agreement, any notices to be given hereunder will be given in writing by personal delivery, express courier, facsimile, email, or United States Postal Service (postage prepaid), to either User or ALIGNI at the address or number or email address set forth in signup process for an Organization , or to such other addresses or numbers or email addresses as either Party may hereafter indicate pursuant to this Section. Unless otherwise provided in this Agreement, any communication or notice so addressed and mailed will be deemed to be given five (5) days after mailing. Unless otherwise provided in this Agreement, any communication or notice delivered by facsimile or email will be deemed to be given when the transmitting machine generates a receipt of a successful transmission of the notice or when the email is sent. Unless otherwise provided in this Agreement, any communication or notice given by personal delivery will be deemed to be given immediately upon such delivery, provided such delivery is made to the person indicated below.
- Remedies. If any User breaches any provision of this Agreement, ALIGNI may exercise any remedies available at law, equity or contract, including without limitation those set forth elsewhere in this Agreement. Without limiting the foregoing, User hereby acknowledges that monetary damages may not be a sufficient remedy for unauthorized use of the ALIGNI Software or any other ALIGNI IP Assets, and therefore each User agrees ALIGNI shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court or arbitration panel of competent jurisdiction without necessity of posting a bond and without having to plead and prove lack of an adequate remedy at law.
- Attorney Fees. If any suit or action is filed by any party to enforce this Agreement or otherwise with respect to the subject matter of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees incurred in preparation or in prosecution or defense of such suit or action as fixed by the trial court and, if any appeal is taken from the decision of the trial court, reasonable attorney fees as fixed by the appellate court.
- Governing Law/Choice of Venue. This Agreement will be governed by the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit, or proceeding between User and ALIGNI (including any affiliate of the same) that arises from or relates to this Agreement, will be brought and conducted solely and exclusively within the state and federal courts located in Multnomah County, Oregon. By execution of this Agreement, each party hereby waives any claim that such courts constitute a forum non conveniens, and further consents to the in personam jurisdiction of such courts.
- Assignments. This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, however, that Users may not assign this Agreement, in whole or in part, without the prior written consent of ALIGNI. Any purported assignment in violation of this Section shall be void. ALIGNI has the right to assign this Agreement to any third party.
- Enforceability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
- Entire Agreement; Modification; Waiver. This Agreement, along with the financial terms referenced in Section 4, constitutes the entire agreement between the parties with respect to the subject matter hereof. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of ALIGNI, User, their agents, or employees, but only by an instrument in writing signed by an authorized employee of ALIGNI and User. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.
If any User has any questions about this Agreement, then the User can contact ALIGNI at [email protected]