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Here are the terms and conditions of our platform.
THE FOLLOWING TERMS (THE “TERMS”) APPLIES TO CLIENT’S TRIAL LICENSE, EARLY ADOPTER LICENSE, AND/OR COMMERCIAL LICENSE TO THE SERVICES (AS DEFINED BELOW) MADE AVAILABLE BY MILIEU TECHNOLOGIES, INC. (“ALTIS”). FOR PURPOSES OF THIS AGREEMENT, “CLIENT” MEANS THE INDIVIDUAL OR ENTITY IDENTIFIED AS THE “CLIENT” DURING THE ORDER PROCESS. EACH OF CLIENT AND ALTIS MAY BE REFERRED TO HEREIN AS A “PARTY”, AND TOGETHER, AS THE “PARTIES.” THESE TERMS AND THE TERMS OF THE APPLICABLE ORDER CONSTITUTE THE COMPLETE UNDERSTANDING BETWEEN THE PARTIES ON THE SUBJECT MATTER (THE “AGREEMENT”) AND ARE EFFECTIVE COMMENCING UPON THE EARLIER OF (A) THE DATE THAT CLIENT HAS PLACED AN ORDER OR (B) CLIENT’S INITIAL ACCESS TO AND USE OF THE SERVICES (“EFFECTIVE DATE”).
BY PLACING AN ORDER AND/OR ACCESSING THE SERVICES, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY, OR IF YOU HAVE NAMED A COMPANY AS CLIENT, ON BEHALF OF THAT COMPANY, AND TO BIND THE COMPANY YOU HAVE IDENTIFIED TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD NOT PLACE AN ORDER AND NOT USE OR ACCESS THE SERVICES.
The following terms have the following meanings:
1.1 “Altis’s Trademarks” means Altis’s trademarks, trade names, logos, and designations.
1.2 “Analytics Data” means the insights, usage, and analytics data generated by the Services in connection with Client’s and its Authorized Users’ use of the Services.
1.3 “Authorized User” means any employees, independent contractors, agents or representatives of Client, subject to any limitations or restrictions set forth on an Order.
1.4 “Client Content” means any information, data, text, logos, pictures, interview content, transcripts, or other materials or content provided by Client in connection with Client’s use of the Services, including but not limited to employee data or other data of Authorized Users provided directly by Client.
1.5 “Confidential Information” means all information disclosed by one Party to the other in connection with this Agreement or otherwise obtained by the Receiving Party, which the receiving Party knew or reasonably should have known was the confidential information of the disclosing Party. Confidential Information shall not include information that (i) is publicly available through no fault of the Receiving Party, (ii) is independently developed by the Receiving Party, or (iii) is rightfully obtained by the Receiving Party from independent sources free from any duty of confidentiality. Confidential Information shall include the terms and pricing in this Agreement, but not the fact that this Agreement has been signed, the identity of the Parties or the specific services purchased by Client.
1.7 “Feedback” means feedback, suggestions, improvements, and recommendations regarding the Proprietary Items.
1.8 “Non-Subscription Offerings” means à-la-carte offerings provided by Altis on a non-subscription basis, including through the Platform, pursuant to one (1) or more Orders.
1.9 “Order” means Altis’s standard order form executed by both Parties that references this Agreement, or an order placed through Altis’s platform.
1.10 “Professional Services” means the non-software professional services provided by Altis pursuant to one (1) or more Orders.
1.11 “Proprietary Items” means, collectively, the Services and Documentation, the visual expressions, screen formats, report formats and other design features of the Services and Documentation, all ideas, methods, Models, algorithms, formulae and concepts used in developing and/or incorporated into the Services or Documentation, all future modifications, revisions, updates, refinements, improvements and enhancements of the Services or Documentation, all derivative works based upon any of the foregoing, and all copies of all of the foregoing. For the avoidance of doubt, Proprietary Items do not include Reports.
1.12 “Reports” means the assessment and insights reports and recommendations generated through the use of the Services, including all Analytics Data and other data, information, or content therein.
1.13 “Platform” means Altis’s proprietary, cloud-based platform that is designed to provide artificial intelligence insights by recording, transcribing, and analyzing conversation audio and video calls and text data.
1.14 “Platform Services” means the limited subscription (except with respect to any Trial License period or Early Adopter Period) access and use rights to the Platform and access and use rights to any Non-Subscription Offerings ordered under one (1) or more Orders.
1.15 “Services” means the limited access and use rights to the Platform and any Non-Subscription Offerings, as well as Altis’ provision of Professional Services, ordered pursuant to one (1) or more Orders.
2.1 General. During the period when Client is receiving the access to the Platform Services under an early adopter license (“Early Adopter License”) or a trial license ("Trial License"), the Terms of this Section 2 shall apply and those in Sections 3.1 (Subscription Rights), 3.4 (Altis Obligations), and 10.1 (Indemnification by Altis) (collectively, the “Inapplicable Provisions”) do not apply. Reference Section 3.1 (Subscription Rights) for the terms applicable to a commercial subscription to the Services.
2.3 Conversion into Commercial License. When the Early Adopter Period or Trial License Period concludes, the Early Adopter License or Trial License, as applicable, will automatically be converted into a commercial license as set forth in Section 3.1 (Subscription Rights), unless (a) with respect to an Early Adopter License, Client provides Altis written notice of its intention not to purchase a commercial license fifteen (15) days prior to the end of the Early Adopter Period or (b) with respect to a Trial License, Client opts out of purchasing a commercial license by e-mail or within Client’s account.
2.4 Termination of Early Adopter License or Trial License. The license in Section 2.2, all of Client’s rights to use the Platform Services, and this Agreement will terminate immediately in the event that Client provides written notice to Altis of Client’s intention not to purchase the commercial subscription. Upon termination of the Early Adopter License or Trial License, Client shall promptly cease use of the Platform Services. All confidential information shall be returned or destroyed pursuant to Section 10.3.
2.5 Feedback. During the Early Adopter Period, Client shall be obligated to give Altis Feedback at least one (1) time every other month.
2.6 Disclaimer. ANY DATA THAT CLIENT OR ANY OF ITS AUTHORIZED USERS ENTERS INTO THE PLATFORM DURING THE EARLY ADOPTER PERIOD OR TRIAL LICENSE PERIOD MAY BE PERMANENTLY LOST IF CLIENT ELECTS NOT TO PURCHASE THE SERVICES UNLESS CLIENT EXPORTS SUCH DATA BEFORE THE END OF THE EARLY ADOPTER PERIOD OR TRIAL LICENSE PERIOD, AS APPLICABLE.
3.1 Subscription Rights. If Client purchases a commercial license to the Platform Services or if the Early Adopter License or Trial License has converted into a commercial license pursuant to Section 2.3, subject to the terms of this Agreement including full payment of all applicable Fees, Altis hereby grants to Client and its Authorized Users a non-exclusive, non-transferable (except in connection with a permitted assignment) license during the applicable Order term, to access and use the Platform Services in accordance with the Documentation and subject to the limitations set forth on the applicable Order.
3.2 Client Content and Report License. Client hereby grants Altis a fully paid, royalty-free, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to (a) during the Term, use, distribute, reproduce, modify, adapt, perform, and display Client Content for the purposes of operating, providing, supporting, and maintaining the Services for Client, (b) in perpetuity, use and otherwise exploit any Reports, solely for the purpose of operating, improving, and enhancing the Services and any new services Altis creates. If Client subscribes to the “Data Contributor” subscription or if Client opts in to the following rights under a standard subscription, Client grants to Altis, and Altis shall have, the right to run any Client Content through Altis’s machine learning and artificial intelligence tools in order to train and improve Altis’s models and algorithms (“Models”), which Models may be used with other clients and generally to provide Altis’s products and services. For the avoidance of doubt, all “Data Contributor” subscribers automatically opt in to the foregoing use when subscribing to such subscription and no further consents are needed by any such “Data Contributor” subscriber for Altis to use Client Content for purposes of training and improving Altis’s Models.
3.4 Altis Obligations. Altis shall host, operate, maintain, and support the Platform Services, including any Client Content uploaded, posted, or otherwise transmitted to the Platform Services by Client or its Authorized Users. Altis shall provide to Client standard support for the Platform Services at no additional charge in accordance with Altis’s standard support policies. Altis will use reasonable commercial efforts to make the Platform Services available not less than 99.9% of the time in any given month, subject to scheduled downtime and other parameters imposed by Altis’s web service provider. Altis shall have no obligation to provide any additional services to Client, including, training, implementation, or any support or maintenance in excess of Altis’s standard support policy, unless Client purchases such services as set forth in an Order. From time to time in accordance with Altis’s generally applicable procedures, Altis may make available to Client updates, upgrades, enhancements, and error corrections to the Platform Services that Client has purchased at no additional charge when such updates, upgrades, enhancements and error corrections are generally made available to its other clients at no additional charge.
3.5 Usernames and Passwords. Subject to any user limitations set forth in the applicable Order, Client may register Authorized Users on the Platform with e-mail addresses and passwords to enable Authorized Users to access the Platform Services pursuant to this Agreement. Each e-mail address and password may only be used to access the Platform Services during one (1) concurrent login session. Client will ensure that each e-mail address and password issued to an Authorized User will be used only by that Authorized User. Client is responsible for maintaining the confidentiality of all Authorized Users’ passwords, and is solely responsible for all activities that occur under these accounts. Client agrees: (a) not to allow a third party to use Client’s accounts at any time; and (b) to notify Altis promptly of any actual or suspected unauthorized use of an account or any other breach or suspected breach of this Agreement. Altis reserves the right to terminate any accounts that Altis reasonably determines may have been used by an unauthorized third party. Authorized User accounts and their associated e-mail addresses and passwords cannot be shared or used by more than one individual Authorized User, but an account may be reassigned from time to time to a new Authorized User who is replacing a former Authorized User who has terminated employment or otherwise changed job status or function and no longer uses the Services. Client is solely responsible for all access to and use of the Platform Services by its Authorized Users and all access to and use of the Platform Services through any Authorized User’s account.
3.6 Restrictions. Client shall not (and shall not permit any Authorized User to) (a) make the Services available to any third party other than Authorized Users, (b) resell, lease, distribute, transfer or otherwise make available the Services on a time-sharing or service bureau basis, (c) provide Client Content that is infringing, libelous, disparaging, or is otherwise unlawful or tortious material, or store or transmit material in violation of any third-party’s proprietary or privacy rights, (d) use the Services to promote any unlicensed, unfair, or illegal activities or for deceptive or illegal purposes, (e) use the Services to store or transmit malicious code, (f) use or access the Services in any way that potentially harms, harms, or otherwise threatens the reputation, integrity, performance, or availability of Altis, any Altis client, the Services or any data therein, (g) attempt to gain unauthorized access to the Services, other client content, or any data stored or processed therein, (h) decompile, disassemble, or reverse engineer the Services, in whole or in part, except as permitted by applicable law, or (i) use or access any Proprietary Items to create (or have created) a competing or similar service. Altis may restrict or prohibit use or access to the Proprietary Items if Altis suspects such use or access is a breach of this Agreement, does not comply with the Documentation or the limitations set forth in an Order, or is otherwise objectionable or threatens the reputation of Altis, any Altis client, or the Services or any data therein.
5.1 Fees. In consideration of the access rights to the Platform granted under this Agreement, Client agrees to pay Altis the fees specified in the applicable Order Form (“Subscription Fees”). Subscription Fees are based on usage volume and are billed annually in advance, as set out in the Order Form. If the Client attempts to exceed their purchased usage volume, they will be automatically blocked from doing so or immediately invoiced for the overage (“Additional Fees”). To continue using the Services, the Client can purchase additional credits. By default, purchasing additional credits will result in a higher subscription rate upon renewal, applying any early adopter discount or volume-based discount applicable to the new package. Alternatively, the Client can opt to purchase a one-off booster pack at a rate higher than the subscription rate, without any discounts. Client agrees to automatic charging of Subscription Fees and Additional Fees to the payment method specified in the Order Form (“Payment Method”). Fees for Professional Services (“Professional Services Fees”) and Non-Subscription Services (“Non-Subscription Services Fees”) are billed at the end of the month in arrears and payable within thirty (30) days of the invoice date. All fees, including Subscription Fees, Additional Fees, Professional Services Fees, and Non-Subscription Services Fees, are collectively referred to as “Fees”. Altis will be reimbursed only for expenses explicitly provided in an Order Form or approved in advance in writing by Client, given that Altis provides documentation for authorized expenses as reasonably requested by Client. If Altis cannot process any payment due to the Payment Method, or if Client has not paid outstanding Fees for over thirty (30) days from the due date, Altis reserves the right to discontinue the Platform and Services and suspend all access until payment is made in full. Client shall maintain accurate and up-to-date billing and contact information. Altis may increase Fees in an Order Form no more than once per consecutive twelve (12) month period during the Order Term.
5.3 Late Payments. Payments by Client that are past due will be subject to interest at the rate of one and one-half percent (1½%) per month (or, if less, the maximum allowed by applicable law) on that overdue balance. Client will be responsible for any costs resulting from collection by Altis of any such overdue balance, including, without limitation, reasonable attorneys’ fees and court costs.
5.4 Taxes. The Fees do not include taxes, duties or charges of any kind. If Altis is required to pay or collect any local, value added, goods and services taxes or any other similar taxes or duties arising out of or related to this Agreement (not including taxes based on Altis’s income), then such taxes and/or duties shall be billed to and paid by Client.
5.5 Withholding Payments. If any applicable law requires Client to withhold amounts from any payments to Altis hereunder, then Client will perform such obligations consistent with the provisions of this section. Client will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Altis with tax receipts evidencing the payments of such amounts. The sum payable by Client upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Altis receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Altis would have received and retained in the absence of such required deduction or withholding.
5.6 Suspension. In the event that Client’s account is more than thirty (30) days overdue on any payment for any reason, Altis shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Client’s use of the Proprietary Items, without further notice to Client, until Client has paid the full balance owed, plus any interest due.
6.1 Warranty. The Services shall be performed in a professional and workmanlike manner in accordance with industry standards.
6.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, ALL SERVICES, PROPRIETARY ITEMS, AND REPORTS ARE PROVIDED “AS IS” AND ALTIS MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALTIS DOES NOT REPRESENT OR WARRANT THAT: (A) THE PROPRIETARY ITEMS OR REPORTS WILL MEET ANY FORECASTS, EXPECTATIONS OR SPECIFICATIONS OF CLIENT; (B) THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (C) THE USE OF THE SERVICES WILL NOT RESULT IN A LOSS OF CLIENT CONTENT OR OTHER CLIENT DATA; OR (D) THE USE OF THE SERVICES WILL NOT EXPOSE THE CLIENT’S HARDWARE OR NETWORKS TO ADDITIONAL SECURITY RISK. ALTIS DOES NOT MAKE ANY GUARANTEES ABOUT THE ACCURACY, CURRENCY, SUITABILITY, OR QUALITY OF THE REPORTS, AND DOES NOT ASSUME RESPONSIBILITY FOR INACCURATE OR MISLEADING REPORTS. CLIENT IS SOLELY RESPONSIBLE FOR ARCHIVING AND RETAINING ANY AND ALL CLIENT CONTENT OR DATA UPLOADED TO, DOWNLOADED FROM, OR PROCESSED IN OR THROUGH, THE SERVICES.
9.1 Client Content.
a) Client acknowledges that all Client Content is the sole responsibility of the Client. Client, and not Altis, is entirely responsible for all Client Content that Client uploads, posts, transmits or otherwise makes available through the Services.
b) Client represents that Client owns and/or has all license rights necessary to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, communicate, perform and display Client Content in the manner Client will use such Client Content on or through the Services.
c) Altis has no obligation to pre-screen Client Content, although Altis reserves the right in its sole discretion to pre-screen, refuse, or remove any Client Content. Client hereby provides its irrevocable consent to such monitoring.
9.2 Title and Ownership.
a) All right, title, and interest in and to the Client Content (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) and will remain the sole and exclusive property of Client.
b) All right, title, and interest in and to the Proprietary Items and Altis’s Trademarks (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will remain the sole and exclusive property of Altis and Altis reserves all rights not expressly granted by this Agreement. Any derivative works, modifications, or enhancements relating to the Proprietary Items (whether created alone by either Party or jointly by or on behalf of both Parties), the results of any professional services performed, and any Feedback relating thereto will be solely and exclusively owned by Altis. Client hereby assigns to Altis any rights, title and interest, including all intellectual property rights in any Feedback, derivative works, modifications, enhancements, or improvements related to the Proprietary Items that Client or any of its Authorized Users or representatives provide, propose, create, conceive, author or develop relating to this Agreement or their use of the Proprietary Items. Client will execute and deliver (or cause its representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Altis’s rights described above and the intent of this Section.
c) Altis hereby assigns all right, title, and interest in and to the Reports (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) to Client; provided that Client grants Altis the licenses set forth in Section 3.2.
10.1 By Altis. Altis shall defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a claim that the Services infringe any U.S. copyrights or misappropriates any trade secrets recognized as such under the Uniform Trade Secrets Act, and Altis will pay those costs and damages finally awarded against Client in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Client agrees to give Altis: (a) prompt written notice of such claim (except that delayed notification will not negate Altis’s obligations if such delay did not materially prejudice Altis’s ability to defend the claim); (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Altis may reasonably request, at Altis’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Altis shall have no obligation or liability to the extent that the alleged infringement or misappropriation arises from (1) Client Content or the combination, operation, or use of the Services with products, services, deliverables, materials, technologies, business methods or processes not furnished by Altis; (2) modifications which were not made by Altis; or (3) Client’s breach of this Agreement or use of the Services other than in accordance with this Agreement (collectively, “IP Exclusions”). Upon the occurrence of any claim for which indemnification is or may be due under this Section, or in the event that Altis believes that such a claim is likely, Altis may, at its option (i) modify or replace the Services so that they become non-infringing; (ii) obtain a license to the applicable third-party intellectual property; or (iii) terminate this Agreement (or the applicable Orders) on written notice to Client and refund to Client any pre-paid fees for Services not provided based on the remainder of the then current Term. The obligations set forth in this Section shall constitute Altis’s entire liability and Client’s sole remedy for any infringement or misappropriation.
10.2 By Client. Client shall indemnify, hold harmless, and, at Altis’s option, defend Altis from and against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, losses, and liabilities for any actions arising out of any (a) IP Exclusions, or (b) Client Content (including without limitation any third party claim that any Client Content is false, misleading, disparaging, infringing or a misappropriation, as applicable, of any intellectual property rights of a third party). Altis agrees to give Client: (i) prompt written notice of such claim (except that delayed notification will not negate Client’s obligations if such delay did not materially prejudice Client’s ability to defend the claim); (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as Client may reasonably request, at Client’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Client shall not settle any third-party claim, unless such settlement completely and forever releases Altis with respect thereto or unless Altis provides its prior written consent to such settlement. In any action for which Client provides defense on behalf of Altis, Altis may participate in such defense at its own expense by counsel of its choice.
11.1 This Agreement shall commence on the Effective Date and shall continue for one (1) year from the earlier of (i) the date Client elects to commence the commercial subscription or (ii) the date the Early Adopter Period or Trial License Period expires (“Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for subsequent one (1) year terms (each a “Renewal Term”, together with the Initial Term, the “Term”), unless one Party provides the other Party at least thirty (30) days written notice prior to the end of the then current Term of its intent to not renew the then current term (“Non-Renewal Notice Deadline”).
11.2 Either Party may terminate this Agreement immediately on giving notice in writing to the other Party if the other Party:
a) commits a material breach (including any non-payment of fees due) and, in the case of a material breach capable of being cured, failed to cure that breach within thirty (30) days after the receipt of a request in writing to cure such breach; or
b) (i) files for bankruptcy; (ii) becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; (iii) makes an assignment for the benefit of all or substantially all of its creditors; or (iv) enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations; provided, however, if the non-terminating party provides adequate assurances regarding its ability to continue performing the other Party may not terminate.
11.3 If an Order is terminated, Client shall immediately discontinue use of the Services for the applicable Order. Subject to Sections 3.2 (Client Content and Report License), upon any termination or expiration of this Agreement, whether under this Section or otherwise, all Orders shall immediately terminate and Client shall discontinue all access and use of all Proprietary Items, and each Party shall promptly return or destroy (at the election of the other Party) any Confidential Information of the other Party then in such Party’s possession or control.
11.4 Client shall remain liable for all unpaid payments due to Altis with respect to the period ending on the date of termination or expiration of the Agreement or any applicable Orders. In the event this Agreement is terminated by Client in accordance with Section 10.2(a) for Altis’s material breach, Altis shall refund to Client any pre-paid fees for Services not provided for any applicable Orders based on the remainder of the then current Term. The provisions of Sections 1, 2.6, the perpetual terms of Section 3.2, and Sections 7, 8, 9, 10, 11.4, and 12 shall survive any termination or expiration of this Agreement.
12.1 Publicity. Client authorizes Altis to use Client’s name in any routine list of Altis clients and as a reference. Each Party, with prior written consent of the other Party, may publicize the Services to be offered under this Agreement in its marketing and advertising material, and may reproduce the company name, logo, trademark, trade name, service mark, or other commercial or product designations of the other Party in connection therewith; provided, however, that such prior written consent shall not be required for either Party to give the other’s name and disclose this Agreement in connection with any filings or press releases which it deems in its good faith discretion to be necessary under federal or state securities laws.
12.2 Notice. All notices, consents and other communications under or regarding this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the first business day after being sent by a reputable overnight delivery service. Either Party may change its address for notices by giving written notice of the new address to the other Party.
12.3 Assignment. Client may not, without Altis's prior written consent, assign, delegate, pledge, or otherwise transfer this Agreement, any Order, or any of its rights or obligations under this Agreement or any Order to any third party, whether voluntarily or by operation of law. A sale of assets, merger, or consolidation will be deemed an assignment for the purposes of this Agreement. Any attempted assignment in violation of the foregoing will be null and void.
12.4 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the state of Delaware excluding choice of law; provided, however, that the terms of any applicable law now or hereafter enacted that is based on or similar to the uniform computer information transactions act drafted by the national conference of commissioners on uniform state laws shall not apply. Each Party irrevocably agrees that any legal action, suit or proceeding brought by it that in any way arises out of the Agreement must be litigated exclusively in state or federal courts located in Delaware.
12.5 Force Majeure. Except with respect to Client’s payment obligations, neither Party shall be liable for, nor shall either Party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of supplies or any other cause which could not have been prevented by the non-performing Party with reasonable care.
12.6 Export Laws and Use Outside of the United States. Client shall comply with all applicable export related laws and regulations. Client shall not export or re-export directly or indirectly (including via remote access) any Proprietary Items (or parts thereof) to any applicable jurisdiction or entity prohibited by law or to which a license is required without first obtaining a license from the applicable regulatory authority. Client will defend, indemnify and hold harmless Altis from and against any violation of such laws or regulations by Client or any of its agents, officers, directors, or employees.
12.7 Relationship. The relationship between the Parties under this Agreement is that of independent contractors and not partners, joint venturers or agents.
12.8 Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by an authorized representative of both Parties. This Agreement may not be modified or amended without written agreement of the Parties. No waiver of any breach of this Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of this Agreement.
12.9 Order of Precedence. In the event of a conflict between the provisions of the Terms and the terms of any Order, the Terms shall control. Any pre-printed terms in an order document or written purchase authorization that add to, or conflict with or contradict, any provisions in the Terms will have no legal effect.
12.10 Interpretation. The Section headings of this Agreement are for convenience and will not be used to interpret this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
12.11 Severability. If any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, (a) such unenforceable portion of the provision will be deemed severed from this Agreement, (b) the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and (c) this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision.
12.12 Entire Understanding. This Agreement, which includes and incorporates Orders, states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement.
12.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.