AlertOps is offered and available to users who are 18 years of age or older. By using AlertOps, you represent and warrant that you are of legal age to form a binding contract with us. If you are using AlertOps on behalf of a corporation or other business entity (“Customer”), you represent that you are an authorized representative of such Customer who is able to enter into a binding contract on behalf of the Customer. In such a case the terms “you” and “your” refers to the Customer. If you do not meet these requirements, you must not access or use AlertOps.
1. PRODUCT DESCRIPTION
AlertOps is a proprietary software-as-a-service (SAAS) product AlertOps as described in this Section, our website, proposal (“Proposal”), and the order or registration Form (“Order Form”) including any end user technical documentation or other features made available to Customer. AlertOps is a web-based message routing system. AlertOps supports customized message distribution over multiple channels such as voice calls, emails, SMS and Instant Messaging. The messages can be prioritized by channel, by routes and by operations personnel, and distributed based on geographic regions. AlertOps supports receipt confirmation and acknowledgement from user responses. AlertOps provides reporting capabilities on the interactions from control centers and operations team.
2. ACCESS TO ALERTOPS
2.1. Access to Products.
We will provide access to AlertOps 24 hours a day, 7 days a week, except for: (a) planned downtime (AlertOps will give at least 8 hours’ notice via email and will schedule to the extent practicable from 6:00 p.m. Central Time Friday to 3:00 a.m. Central Time Monday), or (b) any unavailability caused by a force majeure as set forth in Section 13.8. Customer may access and use AlertOps during the applicable Subscription Term solely for Customer’s internal business purposes. Use of AlertOps is limited to Customer’s employees and agents acting on Customer’s behalf (the “Permitted Users”) up to the number of licensed Permitted Users specified in the Order Form. Customer is responsible for compliance by all Permitted Users with the terms and conditions of this Agreement. All use of AlertOps must be in accordance with (i) the terms and conditions of this Agreement, (ii) the documentation (https://help.alertops.com) and (iii) any limits on Permitted Users or other usage restrictions specified on the Order Form. If Customer is given any passwords to access AlertOps, Customer shall require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Accounts are granted to specific Customers and may not be shared with others. Customer is solely responsible for any and all actions taken using Customer’s accounts and passwords and will immediately notify AlertOps if any Permitted User who has access to AlertOps no longer works for Customer.
2.2. General Restrictions.
Customer will not (and will not allow any third party to): (a) rent, lease, copy, provide access to or sublicense AlertOps to a third party; (b) use AlertOps other than as permitted herein; (c) incorporate AlertOps (or any part thereof) into another product or service or otherwise use AlertOps (or any part thereof) to provide any product or service to a third party in any manner except as expressly permitted herein; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to AlertOps, except to the extent expressly permitted by applicable law and then only upon advance notice to AlertOps; (e) modify or create a derivative work of AlertOps (or any portion thereof); (f) remove or obscure any proprietary or other notices contained in AlertOps including any reports or data obtained from AlertOps; (g) attempt to interfere with the proper working of AlertOps, compromise AlertOps’ integrity or security, circumvent any access or copy restrictions of AlertOps or decipher any transmissions to or from the servers running AlertOps; (h) access AlertOps or any content or data therein through any technology or means other than those provided or authorized by AlertOps; or (i) publicly disseminate information regarding the performance of AlertOps.
2.3. Acceptable Use Policy.
Customer agrees not to engage in any of the following prohibited activities in connection with AlertOps: (i) transmitting spam, junk texts, or other unsolicited communications; (ii) uploading invalid data, viruses, worms, or other software agents through AlertOps; (iii) collecting or harvesting any personally identifiable information, including account names, from other user’s accounts for AlertOps; or (iv) impersonating another person, misrepresenting Customer’s affiliation with a person or entity, conducting fraud or hiding or attempting to hide Customer’s identity.
2.4. Reasonable Use.
AlertOps’ unlimited phone and SMS notification plans are for commercial use. Usage is limited to your organization’s employees, contractors and direct customers. AlertOps is meant to be used as an IT incident alerting and IT on-call management system only.We reserve the right to review your account and take further action if account usage is beyond normal standards, outside of permitted usage or adversely affects our operations. If we determine that you are engaging in abnormal or impermissible usage, we will use commercially reasonable efforts to inform you and provide you with the opportunity to correct the improper usage. If you fail to correct usage activity to conform to normal use, we may exercise our right to transfer your service to a more appropriate plan, charge applicable rates or suspend or terminate your service with or without notice. If we believe that our service has been used for an unlawful purpose, we may immediately terminate your service with or without notice and/or forward the relevant communication and other information to the appropriate authorities for investigation and prosecution. We reserve all of our legal rights.
AlertOps reserves the right to change this Policy at any time. Changes will be posted clearly on AlertOps’ website and shall become effective when posted online, or as on the date indicated.
3. CUSTOMER DATA.
“Customer Data” means: profile information, operational data, phone numbers, email addresses, and other internal business information submitted by or on behalf of Customer to AlertOps.
3.2. Ownership of Customer Data.
As between the parties, Customer retains all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to AlertOps.
3.3. AlertOps’ Use of Customer Data.
Subject to the terms of this Agreement, Customer hereby grants to AlertOps a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of the Customer Data solely to the extent necessary to provide AlertOps to Customer.
AlertOps agrees to use commercially reasonable technical and organizational measures designed to secure its systems from unauthorized access, use, alteration or disclosure. However, AlertOps shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond AlertOps’ control.
3.5. Storage of Customer Data.
AlertOps should not be used to store, archive or back up critical data. During the Subscription Term, AlertOps will not intentionally delete Customer Data from AlertOps. AlertOps expressly disclaims all other obligations with respect to storage of Customer Data.
3.6. Customer Obligations.
Customer will ensure that Customer’s use of AlertOps and all Customer Data is at all times compliant with all applicable local, state, federal and international laws and regulations, including, without limitation, all laws relating to telecommunications and electronic communications (“Laws”). Without limiting the foregoing Customer represents and warrants that: (a) Customer has obtained all necessary rights and permissions to provide all Customer Data to AlertOps and to grant the rights granted to AlertOps in this Agreement and (b) the Customer Data and the collection, use and disclosure of information in connection with AlertOps do not violate any Laws (including without limitation those relating to export control and telephonic or electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 3.4 Security, AlertOps takes no responsibility and assumes no liability for any Customer Data, and Customer is solely responsible for its Customer Data and the consequences of using, disclosing, or transmitting such Customer Data. Customer agrees that AlertOps is only acting as a passive conduit for Customer’s communications.
3.7. US-Based Service.
AlertOps is based in the state of Illinois in the United States. We make no claims that AlertOps or any of its content is accessible or appropriate outside of the United States. Access to the AlertOps may not be legal by certain persons or in certain countries. If you access the AlertOps from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
3.8. Indemnification by Customer.
Customer will indemnify, defend and hold harmless AlertOps from and against any and all claims, costs, damages, fines, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Data (including without limitation any breach of Customer’s obligations and warranties in Section 3.6 Customer Obligations) or (b) any communications by Customer using the Customer Data. This indemnification obligation is subject to Customer receiving from AlertOps: (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of AlertOps at Customer’s expense.
4.1. AlertOps Technology.
This is a subscription agreement for access to and use of AlertOps. Customer acknowledges that it is obtaining only subscription for a limited right to use AlertOps and that no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that AlertOps or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to AlertOps, any and all related and underlying technology and documentation, and any modifications or derivative works thereof (collectively, “AlertOps Technology”). Further, Customer acknowledges that AlertOps is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of AlertOps itself.
If Customer elects to provide any suggestions, comments, improvements, ideas or other feedback or materials to AlertOps (collectively, “Feedback”), Customer hereby grants AlertOps the right to freely use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
5. SUBSCRIPTION TERM, FEES & PAYMENT.
5.1. Subscription Term and Renewals.
Each Subscription Term will automatically renew for each additional month unless a party gives the other party written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term. A Subscription Term cannot be cancelled prior to the end of the then-current Subscription Term and no refunds will be given. If no subscription start date is specified on the applicable Proposal or Order Form, the start date will be the date when Customer first obtains access to AlertOps.
5.2. Fees and Payment.
All fees are as set forth in the applicable Proposal or Order Form. Use of AlertOps is charged based on a subscription fee, with an additional overage fee charged if Customer exceeds specified number communications via text or phone calls as specified on the Proposal or Order Form (“Overage Fee”). Subscription fees are payable monthly in advance upon commencement of each month of the term. Customer will pay any Overage Fees monthly in arrears. Customer’s credit card will automatically be charged on the same day each month and in accordance with the number of licensed Permitted Users in Customer’s Proposal or Order Form. Further, Customer grants permission to AlertOps to charge Customer’s credit card in arrears for Overage Fee.
Upon request by Customer and approval by AlertOps in advance, AlertOps will invoice Customer on a monthly basis and Customer will pay fees in U.S. dollars within thirty (30) days of the invoice date. AlertOps’ fees are exclusive of all taxes and Customer is required to pay any sales, use, GST, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of AlertOps. Any late payments are subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
5.3. Suspension of Service.
If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), AlertOps reserves the right to suspend Customer’s access to the applicable AlertOps (and any related services) without liability to Customer until such amounts are paid in full. AlertOps may also suspend Customer’s access if, in its reasonable discretion, AlertOps deems such suspension necessary as a result of Customer’s breach of the express obligations under Sections 2.2 General Restrictions or Section 2.3 Acceptable Use Policy, to prevent harm to other customers or to preserve the security or integrity of AlertOps. Unless this Agreement has been terminated, AlertOps will cooperate with Customer to restore access to AlertOps once the condition requiring suspension has been resolved by Customer.
6. TERM AND TERMINATION.
This Agreement is effective as of the Effective Date on the Proposal or Order Form and expires on the date of expiration or termination of the Subscription Term of all Proposals or Order Forms hereunder.
6.2. Termination for Cause.
Either party may terminate this Agreement (including all related Proposals or Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
6.3. Effect of Termination.
Upon any expiration or termination of this Agreement: (a) Customer will immediately cease any and all use of and access to AlertOps (including any and all related AlertOps Technology) and delete (or, at AlertOps’ request, return) any and all copies of the documentation, any AlertOps passwords or access codes and any other AlertOps Confidential Information in its possession and (b) Customer will have no further access to any Customer Data in AlertOps and AlertOps may delete any such data in its possession at any time. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
The following Sections shall survive any expiration or termination of this Agreement:
Section 2.2 General Restrictions, Section 3.2 Ownership of Customer Data, Section 3.7 Indemnification by Customer, Section 4 Ownership, Section 5.2 Fees and Payment, Section 6 Term and Termination, Section 7 Warranty Disclaimer, Section 9 Limitation of Remedies and Damages, Section 10 IP Indemnification, Section 11 Confidential Information, Section 12 Publicity, and Section 13 General Provisions.
7. WARRANTY DISCLAIMER.
ALERTOPS AND ALL SERVICES ARE PROVIDED “AS IS”. NEITHER ALERTOPS NOR ITS SUPPLIERS MAKES ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST POSSIBLE PERIOD. ALERTOPS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ALERTOPS. ALERTOPS DOES NOT WARRANT THAT ALERTOPS WILL MEET CUSTOMER’S EXPECTATIONS AND IS NOT RESPONSIBLE FOR ANY DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON USE OF ALERTOPS.
8. SUPPORT; MAINTENANCE.
Monthly subscription fee includes standard support for telephone and email during the hours set forth in the applicable Proposal or Order Form. All support services are subject to AlertOps current support policies. AlertOps will provide updates, bug fixes or new releases to AlertOps from time to time. All such updates, bug fixes or new releases are included in the subscription fees, unless said otherwise on the Proposal or Order Form.
9. LIMITATION OF REMEDIES AND DAMAGES.
9.1. Consequential Damages Waiver and Liability Cap.
NEITHER PARTY NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. ALERTOPS’ AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO ALERTOPS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
9.2. Failure of Essential Purpose.
The parties agree that the limitations specified in this Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. Each party acknowledges that the foregoing limitations are an essential element of the Agreement and a reasonable allocation of risk 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.
10. IP INDEMNIFICATION.
AlertOps will defend Customer from and against any claim by a third party alleging that AlertOps when used as authorized under this Agreement (but excluding any Customer Data) infringes a U.S. patent, U.S. copyright, U.S. trademark or U.S. trade secret and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by AlertOps (including reasonable attorneys’ fees) resulting from such claim, provided that AlertOps receives from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for AlertOps to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If any portion of AlertOps becomes, or in AlertOps’ opinion is likely to become, the subject of a claim of infringement or misappropriation or if AlertOps determines such actions are reasonably necessary to avoid material liability, AlertOps may, at AlertOps’ option: (a) procure for Customer the right to continue using the affected portion of AlertOps; (b) replace AlertOps or affected portion thereof with substantially functionally similar products or services; (c) modify AlertOps so that it becomes non-infringing; or if such options are commercially unreasonable, (d) terminate this Agreement and refund the unused portion of any subscription fees prepaid by Customer for the then-current Subscription Term, and upon such termination, Customer will immediately cease all use of AlertOps. Notwithstanding anything to the contrary, AlertOps has no obligation under this Section or otherwise with respect to any infringement or misappropriation claim if Customer settles or makes any admissions regarding a claim without AlertOps’ prior written consent or for claims arising as a result of: (w) any use of AlertOps not in accordance with this Agreement; (x) any use of AlertOps in combination with other services, products, processes, equipment, software or data not supplied by AlertOps; (y) any modification of AlertOps by any person other than AlertOps; or (z) any Customer Data contained therein.
THIS SECTION 10 STATES THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER AND THE ENTIRE LIABILITY OF ALERTOPS, OR ANY OF ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS OR REPRESENTATIVES OF THE FORGOING, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
11. CONFIDENTIAL INFORMATION.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (as “Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any AlertOps Technology and the performance information relating to AlertOps are Confidential Information of AlertOps without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation does not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may disclose Confidential Information if so required pursuant to a regulation, law or court order, but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy and, therefore, upon any such disclosure by the Receiving Party the Disclosing Party is entitled to appropriate equitable relief in addition to any other remedies it might have at law.
AlertOps may use Customer’s name, logo and marks to identify Customer as a customer of AlertOps on AlertOps’ website and other marketing materials. At AlertOps’ request, Customer also agrees to participate in a case study about Customer’s use of AlertOps.
13. GENERAL PROVISIONS.
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 is null and void.
If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
13.3. Governing Law; Jurisdiction and Venue.
This Agreement shall be governed by the laws of the State of Illinois and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state courts located in Cook County, Illinois or the United States District Court for the Northern District of Illinois, and both parties hereby submit to the personal jurisdiction of such courts.
13.4. Attorneys’ Fees and Costs.
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
13.5. Amendments; Waivers.
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
13.6. Entire Agreement.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that AlertOps is an on-line, subscription (SAAS) based product, and that in order to provide improved customer experience AlertOps may make changes to AlertOps.
13.7. Force Majeure.
Neither party is liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
Any notice or communication required or permitted under this Agreement will be in writing to AlertOps at the addresses set forth below and to Customer at the address set forth in the Order Form, or at such other address as may be given in writing by either party to the other in accordance with this Section. A notice or communication shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail or (iv) if given by email, with return/read receipt, upon transmission. In addition, AlertOps may provide Customer with operational notices regarding AlertOps or other business-related notices via email or through conspicuous posting of such notice on its website, as determined by AlertOps in its sole discretion.
Contact Information for Notices:
AlertOps: 125 Fairfield Way, STE #330, Bloomingdale, IL 60108
Phone: (844) 292-8255
In order to ensure that Customer receives uninterrupted service, Customer must promptly inform AlertOps of any changes in the following: i) email address; ii) expiration date of any credit card used in connection with the service; and iii) billing address. Service may be interrupted unless AlertOps is notified by e-mail at email@example.com of a change in any of the above items.
AlertOps may use the services of subcontractors for performance of services under this Agreement, provided that AlertOps remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of AlertOps as required under this Agreement.
13.10. Independent Contractors.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.