Aldelo Terms and Conditions
INTRODUCTION
By clicking the Submit or equivalent button on the SaaS order form, Merchant Account application form, or any other Aldelo order form that I or my agent desire to acquire Aldelo products and services, or by continuing the use of Aldelo products and services, I agree to the following terms of services defined herein:
I validly possess all legal right(s), power(s), and authority required to submit this information to Aldelo on my behalf or on behalf of my company.
I am responsible for the accuracy of all information provided. I shall not at any time provide Aldelo with information which is false, inaccurate, misleading, obsolete or deceptive. If Aldelo has reasonable grounds to believe that I have provided inaccurate information, Aldelo may choose not to proceed with the processing of the request.
It is my and my company’s responsibility to ensure all required and provided information is up to date. Any changes are to be provided by a re-submission to this form, including all required information.
I authorize Aldelo to initiate entries to my (our) account for the One Time Fees and Periodic Recurring Fees. This authority is to remain in full force and effect until Aldelo has received written notification from me of its termination in such time and manner as to afford Aldelo a reasonable opportunity to act on it.
I agree that Hardware is not included in my SaaS order nor Merchant Account application, unless otherwise stated in the purchase contract.
I agree that Menu Programming, Training Services, Software Upgrades and Other Technical Services are available as an add-on option, which may incur a fee or be waived depending not the purchase contract.
I agree that all Hardware and Software licenses purchased by me is final and nonrefundable nor returnable for any reason.
I agree that all Hardware warranties are covered by the standard manufacturer's warranty and repairs (including shipping and RMA process) are dealt directly with the manufacturer or its designated repair shops directly.
I agree that any SaaS order cancelations to avoid subsequent month's recurring charge must be submitted to Aldelo in writing no later than the 15th day of its prior month. Any cancelations accepted by Aldelo is effective the subsequent month.
I agree that the Aldelo Pay's Merchant Processing Services Account (where applicable) is also subject to the MPA agreement with the Merchant Processor. In addition to the terms and conditions herein, I also agree to the terms and conditions of the Merchant Processor's MPA agreement that I have separately executed.
I agree that if I cancel the Aldelo Pay's Merchant Processing Services Account (where applicable) prior to the 36 month contract term, I may be assessed an early termination fee for the breach of contract, if such is under contract in the Merchant Processor's MPA agreement.
I agree that if I was provided free software, hardware, and/or services, under the Aldelo Pay's Merchant Processing Services (where applicable), it is a requirement that I process all my business' credit card, debit card, and gift card transactions with Aldelo Pay. I understand that during periodic audits by Aldelo (whether manual or automated), failure to process a minimum of 35% of volume of overall business revenue in the same period with Aldelo Pay or knowingly using a third party processor even when the 35% rule is met, may result in the immediate suspension of such free software, hardware, and/or services at the sole discretion of Aldelo without prior notice. Aldelo is not responsible for any direct or indirect losses as a result of inability to access the suspended products and services.
I agree that if I was provided free software, hardware, and/or services, I must be actively using Aldelo Pay Merchant Processing Services (where applicable) within 30 calendar days of the merchant account being created or may have such suspended until the point I resume processing with Aldelo Pay Merchant Processing for Credit, Debit and Gift Card Transactions again. I understand that during periodic audits by Aldelo (whether manual or automated), failure to process a minimum of 30 days will result in my account being suspended until the point I resume processing with Aldelo Pay Merchant Services.
I agree that all merchant processing require that the merchant follow standard processing practices including, daily closing, batching and reconciliation and that any discrepancies in merchant processing be reported within 30 days of the transaction being authorized or I may loose the ability to reprocess these transactions.
I agree that all payments to Aldelo is in US Dollars. Any dishonored payment will levy a $65 Reject Fee.
I agree to the terms and conditions outlined in Aldelo Software End User License Agreement (EULA) as it relates to the software products I intend to use. I acknowledge that I had the opportunity to request such EULA for review prior to executing agreeing to this terms and conditions.
I agree to the terms and conditions outlined in the Aldelo Software as a Service Agreement (SAAS) as included in the next section.
I further acknowledge the receipt of Aldelo Privacy Policy (Privacy) as included in the third section of this page
ALDELO SOFTWARE AS A SERVICE AGREEMENT
IMPORTANT- READ THIS ALDELO SOFTWARE AS A SERVICE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION.
BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS AGREEMENT (THE “ORDERING DOCUMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICES.
1) Definitions.
“You” and “your” refers to the individual or entity that has ordered software as a service from Aldelo, L.P.(“ALDELO”) or an authorized distributor or authorized reseller by executing the ordering document that accompanies and incorporates this ALDELO software as a service agreement (collectively, the “agreement”). Software as a service consists of system administration, system management, and system monitoring activities that ALDELO performs for ALDELO programs, and includes your right to use the ALDELO programs, and receive support services (if any) for such ALDELO programs, as well as any other services provided by ALDELO, as defined and set forth in the ALDELO ordering document (collectively, the “services”). The term “program documentation” refers to the program user manual as well as any other materials provided by ALDELO as part of the services. The term “ALDELO programs” refers to the software products owned or distributed by ALDELO to which ALDELO grants you access as part of the services, including program documentation, and any program updates provided as part of the services. The term “users” shall mean those individuals authorized by you or on your behalf to use the services, subject to the limitations and as defined in the ordering document. The term “your data” refers to the data provided by you that resides in your services environment. The term “ordering document” refers to any ALDELO ordering document or form signed by (or “accepted by” in the case of online or electronic ordering platforms) the parties that accompanies and incorporates this software as a service agreement, including the services policies and any other document referenced or incorporated into the ordering document.
2) Applicability of Agreement.
This software as a service agreement is meant to accompany and provide the applicable terms and conditions of the ordering document which this agreement accompanies.
3) Rights Granted.
Upon ALDELO’s acceptance of your order and your payment of the applicable fees for the duration of the services term defined in the ordering document or as set forth in this agreement, you have the nonexclusive, non-assignable, worldwide limited right to use the services and ALDELO programs solely for your internal business operations and subject to the terms of the agreement and the ordering document, including your payment and/or subscription obligations. You may allow your users to use the services for this purpose and you are responsible for your users’ compliance with the agreement. The services are provided as described in, and subject to, the services policies referenced in the ordering document.
You acknowledge that ALDELO has no delivery obligation and will not ship copies of the ALDELO programs to you as part of the services. You agree that you do not acquire under the agreement any license to use the ALDELO programs specified in the ordering document in excess of the scope and/or duration of the services. Unless otherwise extended or renewed in accordance with ALDELO’s services ordering procedures (which are subject to change from time to time), upon the end of the term specified in the ordering document or the earlier termination of this agreement as set forth below, your right to accessor use the ALDELO programs specified in the ordering document and the services shall terminate.
ALDELO reserves the right, as determined in its sole discretion, to (i) create new functions and modify existing functions within the services; and (ii) restrict or reduce your access to certain functionality, pursuant to applicable law or based on your eligibility.
4) Ownership and Restrictions.
ALDELO or its licensors retain all ownership and intellectual property rights to the services and ALDELO programs. ALDELO, or its licensees or assignees as applicable, retains all ownership and intellectual property rights to anything developed and delivered under the agreement, including without limitation, all copyrights, trademarks, trade names, logos, know-how, concepts, logic and specifications.
Third party technology, images, data, methods, and procedures (“third party content”) that may be appropriate or necessary for use with some ALDELO programs is specified in the program documentation or ordering document as applicable. Your right to use such third party content is governed by the terms of third party content agreements between such third party and ALDELO and this agreement shall not alter the terms of such agreements and shall not be deemed to grant you any rights in or license to such third party content, except as expressly provided by this agreement or ALDELO in connection with the provision of the services.
You hereby agree not to:
remove or modify any program markings or any notice of ALDELO’s or its licensors’ proprietary rights;
make the programs or materials resulting from the services available in any manner to any third party for use in the third party’s business operations;
modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services or the ALDELO programs (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to the ALDELO programs; and
license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, ALDELO programs or materials available, to any third party other than as expressly permitted under the terms of this agreement.
The rights granted to you under the agreement are also conditioned on the following:
the rights of any user approved to use the services pursuant to the ordering document (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such right is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the ALDELO program or the services);
except as expressly provided herein, no part of the services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means;
you agree not to remove any product identification or notices of proprietary restrictions; and
you agree to make every reasonable effort to prevent unauthorized third parties from accessing the services, the ALDELO programs and the third party content.
You agree to use hardware that is capable of running supported versions of the third party operating system required to run ALDELO programs and services, and to promptly install any updates for the operating system, ALDELO programs, or services as recommended by ALDELO.
5) Warranties, Disclaimers and Exclusive Remedies.
ALDELO warrants that the services will perform in all material respects in accordance with the services policies referenced in the ordering document for the duration of the services term. If the services provided to you for any given month during the services term were not performed as warranted, you must provide written notice to ALDELO as specified in the ordering document no later than ten (10) days after the last day of that particular month or within such other period stated in the ordering document.
YOU ASSUME FULL RESPONSIBILITY FOR THE SELECTION OF THE PARTICULAR ALDELO SERVICE AND ACCESS TO THE PARTICULAR ALDELO PROGRAM TO ACHIEVE YOUR INTENDED PURPOSES, FOR THE PROPER USE OF THE PROGRAM/SERVICE AND FOR VERIFYING THE RESULTS OBTAINED FROM THE PROGRAM/SERVICE. ALDELO HEREBY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, AND NONINFRINGEMENT, AND DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE ALDELO PROGRAMS OR THAT THE OPERATIONS OF THE ALDELO PROGRAMS OR SERVICES ARE FIT FOR ANY PARTICULAR PURPOSE.
ALDELO DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED, OR THAT THE PROGRAMS WILL OPERATE, ERROR-FREE OR UNINTERRUPTED, THAT ALDELO WILL, OR WILL BE ABLE TO, CORRECTALL SERVICE ERRORS, OR THAT THE SERVICES OR PROGRAMS WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT ALDELO DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ALDELO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOU FURTHER ACKNOWLEDGE THAT ALDELO DOES NOT CONTROL THE THIRD PARTY OPERATING SYSTEMS OF ANY HARDWARE, AND ANY UPDATES OR UPGRADES TO SUCH OPERATING SYSTEMS MAY AFFECT THE FUNCTIONALITY OF THE ALDELO SERVICES/PROGRAMS AND YOUR ABILITY TO USE THE ALDELO SERVICES/PROGRAMS. ALDELO HAS NO OBLIGATION TO ENSURE COMPATIBILITY WITH UPDATES OR UPGRADES TO SUCH THIRD PARTY OPERATING SYSTEMS AND WILL NOT BE RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, OR PROBLEMS CAUSED THEREBY.
YOU AGREE AND ACKNOWLEDGE THAT ALDELO DOES NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE OR MISUSE OF PERSONAL INFORMATION OR OTHER INFORMATION TRANSMITTED, UPLOADED, OR STORED USING THE ALDELO PROGRAMS OR THE SERVICES AND SHALL NOT BE HELD LIABLE FOR ANY DAMAGES RESULTING FROM YOUR USE OR MISUSE OF THIS INFORMATION. FURTHERMORE, YOU AGREE TO INDEMNIFY ALDELO FROM ANY CLAIM, ACTION, OR CAUSE, TORT OR OTHERWISE, THAT MAY BE BROUGHT AGAINST YOU AND/OR ALDELO IN THE EVENT THAT ANY PERSONALLY-IDENTIFIABLE INFORMATION IS COMPROMISED DUE TO YOUR NEGLIGENCE OR FAILURE TO USE OR CONTROL SECURE ID’S AND PASSWORDS.
FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH ABOVE, ALDELO WILL REMIT A SERVICES FEE CREDIT TO YOU EQUAL TO THE NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO ALDELO, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND ALDELO’S SOLE LIABILITY, FOR ANY AND ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS.
6) Trial Use.
ALDELO may offer free trials of the service from time to time on a limited basis. Any such free trial is provided “AS IS” during the free trial period and any warranties in the agreement or the ordering document do not apply to such free trial services. Before your free trial period expires, we may contact you and invite you to purchase the service via one of our appointed distributors, resellers or direct sales personnel. By subscribing to the free trial, you expressly acknowledge and agree that we may pass the contact details that you have provided to such distributor, reseller or sales personnel. If you wish to continue to receive the service, please contact ALDELO, distributor or reseller to arrange payment. If you do not purchase the service, upon expiration of the free trial period your right to access or use the ALDELO programs specified in the ordering document and the services shall terminate.
7) Indemnification.
If a third party makes a claim against either you or ALDELO (“recipient” which may refer to you or ALDELO depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or ALDELO (“provider” which may refer to you or ALDELO depending on which party provided the Material), and used by the recipient infringes its intellectual property rights, the provider, at its sole cost and expense, will defend the recipient against the claim and indemnify the recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the provider, if the recipient does the following:
notifies the provider promptly in writing, not later than 30 days after the recipient receives notice of the claim (or sooner if required by applicable law);
gives the provider sole control of the defense and any settlement negotiations; and
gives the provider the information, authority, and assistance the provider needs to defend against or settle the claim.
If the provider believes or it is determined that any of the Material may have violated a third party’s intellectual propertyrights, the provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees therecipient may have paid to the other party for such Material. If such return materially affects ALDELO’s ability to meet its obligations under the relevant order, then ALDELO may, at its option and upon 30 days prior written notice, terminate theorder or agreement. The provider will not indemnify the recipient if the recipient alters the Material or uses it outside the scope of use identified in the provider’s user documentation or services policies or if the recipient uses a version of theMaterials which has been superseded, if the infringement claim could have been avoided by using an unaltered currentversion of the Material which was provided to the recipient. The provider will not indemnify the recipient to the extent thatan infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material notfurnished by the provider, or (ii) any Material from a third party portal or other external source that is accessible to you withinor from the service (e.g., a third party Web page accessed via a hyperlink). ALDELO will not indemnify you to the extentthat an infringement claim is based upon the combination of any Material with any products or services not provided by ALDELO. ALDELO will not indemnify you for infringement caused by your actions against any third party if the servicesas delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third partyintellectual property rights. ALDELO will not indemnify you for any infringement claim that is based on: (1) intellectual property rights that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
8) Support Services.
Support services provided under the agreement are specified in the services policies referenced in the ordering document.
9) Term and Termination.
Services provided under this agreement shall be provided for the period defined in the ordering document unless earlier terminated in accordance with the agreement. The term of the services and any renewal terms are collectively defined as the “services term.” At the end of the services term, all rights to access or use the services, including the ALDELO programs listed in the ordering document, shall end. Unless otherwise agreed by the parties, the initial term for services shall be month-to-month, payable monthly, and shall automatically renew each month unless you provide ALDELO notice of your intent to not renew the agreement before the 15th day of the current month for termination effective on the 1st day of the subsequent month.
If either of us breaches a material term of the agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable services term under which the breach occurred. If ALDELO ends the services term as specified in the preceding sentence, you must pay within 10 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under the agreement plus related taxes and expenses. If ALDELO ends the services under the Indemnification section (Section 7 above), you must pay within 10 days all amounts remaining unpaid for servicesplus related taxes and expenses. The nonbreaching party may agree in its sole discretion to extend the 10 day period for solong as the breaching party continues reasonable efforts to cure the breach. You understand and agree that if this agreement is terminated for any reason, you may not use the services ordered or the ALDELO programs and except for the provisions which shall survive termination, ALDELO shall have no continuing obligations to you under this agreement.
In addition, ALDELO may immediately suspend your password, account, and access to or use of the services or programs, and terminate this agreement upon the expiration of the cure period (if any is provided) or immediately, whichever occurs last: (i) if you fail to pay ALDELO as required under the agreement (including without limitation ACH rejections) and do not cure within the 10 day cure period, or (ii) if you violate any provision of this agreement; or (iii) if you are receiving discounted or free services, equipment, products, or programs as part of Aldelo Pay Merchant Services and you terminate, use another processor, or otherwise violate the terms of the Aldelo Pay Merchant Services agreement (which will also require the return of any free equipment and/or products); or (iv) if you are using ALDELO services in connection with the sale of any goods or activities prohibited by state or federal law. Any suspension or termination by ALDELO of the services under this paragraph shall not excuse you from your obligation to make payment(s) under the agreement.
ALDELO may also terminate this agreement if it no longer offers or supports the ALDELO services or programs after giving 30 days’ prior written notice to you.
You agree and acknowledge that except as may otherwise be required by law, ALDELO has no obligation to retain your data and that your data may be irretrievably deleted after 10 days following the termination of the ordering document or this agreement.
You agree and acknowledge that Sections 4, 5, 7, 9-13, 15, 17, and 19-23 (as well as others which by their nature are intended to survive) shall survive termination or expiration of the agreement indefinitely.
10) Fees and Taxes.
You agree to pay for all services ordered as set forth in the applicable ordering document. All fees dueunder the agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added orother similar taxes imposed by applicable law that ALDELO must pay based on the services you ordered, except for taxes based on ALDELO’s income. You will reimburse ALDELO for reasonable expenses related to providing any on-site portion of the services, if any, as set forth in the ordering document. Fees for services listed in an ordering document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable on the date of the invoice. Each and every late payment is subject to a $65 late fee which must be remitted with any overdue amounts pursuant to payment instructions determined by ALDELO. You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the ordering document; however, subject to the disclaimers and limitations set forth in this agreement, the preceding does not relieve ALDELO of its obligation to deliver services that you have ordered.
11) Nondisclosure.
By virtue of the agreement, the parties may have access to information that is confidential to one another(“confidential information”). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.
A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; (d) is independently developed by the other party; or (e) is used by ALDELO for the purpose of data aggregation, trend analysis, and market analysis conducted anonymously without having you or your company name identified as the source of such analytics.
We each agree to hold each other’s confidential information in confidence indefinitely. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. ALDELO will protect the confidentiality of your data residing in the services environment in accordance with the ALDELO security practices specified in the services policies referenced in the ordering document. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.
By virtue of this agreement, your data may include consumers’ personal information (as such terms are defined under the California Civil Code section 1798.100 et seq. (the California Consumer Privacy Act (“CCPA”)) which is provided to ALDELO to perform services on behalf of you as a service provider. In addition to the confidentiality obligations set forth in this agreement, ALDELO further agrees that it shall not: (i) sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate orally, in writing or by electronic or other means, the personal information of consumers disclosed to it by you to another business or third party for monetary or other valuable consideration; (ii) retain, use, or disclose such personal information of consumers for any purpose (including for a commercial purpose) other than for the specific purpose of performing the services specified in this agreement; or (3) retain, use, or disclose such personal information outside of the direct business relationship with you. For purposes of this provision, the following terms shall have the meanings set forth in section 1798.140 of the CCPA: business, business purpose, consumer, personal information, sell, service provider, and third party. The parties acknowledge that federal and state laws regarding data security and privacy are rapidly changing and therefore agree to take any necessary action, including amendment of this agreement if required, to ensure continued compliance with applicable law(s).
12) Entire Agreement.
You agree that the agreement (including the information which is incorporated into the agreement by written reference and including reference to information contained in a URL or referenced policy), is the complete agreement for the services ordered by you, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of the agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and, if possible, such term shall be replaced with a term consistent with the purpose and intent of the agreement. It is expressly agreed that the terms of the agreement, including any ordering document, shall supersede the terms in any purchase order or other documents. The agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online by authorized representatives of you and of ALDELO. ALDELO reserves the right to update this Agreement from time to time upon prior written notice to you. Reference to any statute in this agreement means such statute in effect as of the effective date of the agreement and as may be amended, in whole or in part, by successor legislation including any rules and regulations promulgated thereunder.
13) Limitation of Liability.
YOU AGREE THAT YOU USE THE SERVICE AND ALDELO PROGRAMS AT YOUR OWN RISK. NEITHER YOU, ALDELO OR ANY AFFILIATE OF ALDELO SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. ALDELO’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO ALDELO FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST ALDELO SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY. NOTWITHSTANDING THE FOREGOING, ALDELO DOES NOT LIMIT ITS LIABILITY IN RELATION TO FRAUD, DEATH, OR PERSONAL INJURY.
14) Export.
Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the services. You agree that such export control laws govern your use of the services (including technical data) and any services deliverables provided under this agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws.
15) Miscellaneous.
ALDELO is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us.
You shall obtain at your sole expense any rights and consents from third parties necessary for ALDELO and its subcontractors to perform the services under the agreement.
The agreement is governed by the substantive and procedural laws of California and you and ALDELO agree to submit to the exclusive jurisdiction of, and venue in, the courts in Alameda county in California in any dispute arising out of or relating to the agreement.
If you have a dispute with ALDELO or if you wish to provide a notice under the Indemnification section of this software as a service agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send certified written notice to: Aldelo, L.P., 6701 Koll Center Parkway, Suite 150, Pleasanton, CA 94566, Attention: Legal Department. ALDELO may give notice applicable to ALDELO’s software as a service customer base by means of a general notice on the ALDELO portal for the services, and notices specific to you by electronic mail to your e-mail address on record in ALDELO’s account information or by written communication sent by first class mail or pre-paid post to your address on record in ALDELO’s account information.
You may not assign the agreement or give or transfer the services or an interest in them to another individual or entity.
ALDELO may audit your use of the services. You agree to cooperate with ALDELO’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 10 days of written notification any fees applicable to your use of the services in excess of your rights. If you do not pay, ALDELO may, in addition to other legal remedies available to it, end your services and/or the agreement.
16) Force Majeure.
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse your obligation to pay for the services.
17) Your Data.
You agree to comply with all applicable laws and regulations, provide any notices and obtain any consents related to your use of the services and ALDELO’s provision of the services, including those related to the collection, use, processing, transfer and disclosure of any individual’s personal information. You further shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data. You agree to defend and indemnify ALDELO against any claim arising out of a violation of your obligations under this section.
Upon termination of this agreement, any of your data hosted by ALDELO in its data centers may be irrevocably deleted 10 days after the termination date. If you wish to continue to gain access to your data hosted by ALDELO in its data centers, you must reinstate the services under this agreement and be accepted by ALDELO prior to the 10 day period before the irrevocable data deletion. You agree that ALDELO is not obligated and will not provide any of the services’ software and you data hosted in its data centers to you for download, backup, or offsite retrieval (except as allowed within the services’ described features while this agreement is valid, such as report exports) during and after the term of this agreement expires or is terminated.
Your information provided to ALDELO under this agreement related to your account, excluding customer data, is subject to the provisions of ALDELO’s Privacy Policy which is incorporated herein by this reference.
18) Restrictions on Use of the Services.
You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f)otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to ALDELO under the agreement, ALDELO reserves the right to remove or disable access to any material that violates the foregoing restrictions. ALDELO shall have no liability to you in the event that ALDELO takes such action. You agree to defend and indemnify ALDELO against any claim arising out of a violation of your obligations under this section.
19) Services Tools.
ALDELO may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the services and to help resolve your ALDELO service requests. The tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the tools (excluding production data) may also be used to assist in managing ALDELO’s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any tape backup at any time following termination of the agreement.
20) Statistical Information.
ALDELO may compile de-identified statistical information related to the analytics and performance of the services, and may make such information publicly available, provided that such information does not include your company’s name or any personally identifiable information. ALDELO retains all intellectual property rights in such information.
21) Third Party Web Sites, Content, Products and Services.
The services may enable you to add links to websites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. ALDELO is not responsible for any third party websites or third party content provided on or through the services and you bear all risks associated with the access and use of such websites and third party content, products and services.
22) Customer Reference.
You agree (i) that ALDELO may identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by ALDELO on ALDELO’s websites for promotional purposes.
23) Testimonials.
Testimonial Terms and Conditions
The following terms and conditions (“Testimonial/Survey Terms and Conditions”) apply to the submission of written, picture or video testimonials or surveys (“Testimonials”) for use on the ALDELO Website (the “Website”) and elsewhere by ALDELO. By submitting a Testimonial, you agree to these Testimonial Terms and Conditions. The Testimonial Terms and Conditions are supplemental to and made a part of User Agreement for the Website (the “Site User Terms”); in the case of a conflict between these Testimonial Terms and Conditions and the ALDELO Terms of Service, these Testimonial Terms and Conditions will take precedence.
Ownership of Testimonials.
Upon submitting your Testimonial, you hereby assign to ALDELO all of your right, title and interest in and to your Testimonial, including all copyrights and other intellectual property rights therein, with full authority to copyright, reproduce, publish, make derivative works of, or otherwise use, in any manner and via any form of media ALDELO deems advisable, for any purpose, throughout the world, all or any part of your Testimonial.
Testimonial Release.
By submitting a Testimonial, you agree that ALDELO may use and publish your name, voice, photograph, drawing or other likeness of you and any descriptive, biographical or other written materials you provide, and all associated rights of personality or publicity, in any manner ALDELO may deem advisable in connection with its use of your Testimonial. You agree that you are not entitled to any financial compensation for ALDELO’s use of your Testimonial. You agree that ALDELO may use your Testimonial with or without your name or with a fictitious name, and may make reasonable edits or alterations to your Testimonial, provided that the meaning of your comments and statements is not substantially changed. You hereby waive any right of approval with respect to use of your Testimonial and any materials created by ALDELO in connection with your Testimonial, and you hereby release and agree to hold harmless ALDELO, its agents, employees and assigns, and anyone authorized by any of them, from any and all claims, rights, demands, damages, actions or liability which you, your heirs, executors, administrators or assigns, may have in connection with such use, the resulting advertising, or these Testimonial Terms and Conditions. You understand that ALDELO has no obligation to use your Testimonial, and may elect to use or not to use your Testimonial (or any derivative work created from your Testimonial) in ALDELO sole discretion.
Representations and Warranties.
You represent and affirm that: (i) you, and only you, made your Testimonial voluntarily; (ii) it contains your own opinion; (iii) it is based on your own experience(s) with ALDELO or one of its partners, clients and/or its services; (iv) and it is true and correct to the best of your knowledge. You represent and affirm that you will contact ALDELO in writing addressed to ALDELO if at any time your opinion about ALDELO or its services, as expressed in your Testimonial, should change and you wish to retract your Testimonial. You represent and affirm that your beliefs were not influenced in any manner and that, other than as expressed in these Testimonial Terms and Conditions, you have not received nor have been promised anything of value in exchange for making your Testimonial. You further represent and affirm that the facts stated about you in your Testimonial are substantially true and accurate, and that neither you nor any member of your family is an employee of ALDELO. You represent and warrant that you are the original creator of your Testimonial, and that your Testimonial does not: (i) infringe any copyright or other intellectual property right of any other person or company; (ii) contain defamatory, vulgar, obscene, libelous, hateful, or racially, ethnically or otherwise objectionable material; (iii) violate the privacy of any individual; (iv) disparage or otherwise refer to any other company, product, or service; or (v) contain any malicious code or other technical means of impairing, damaging, or obtaining unauthorized access to any computer or computer system. You further represent and warrant that these Testimonial Terms and Conditions, and your compliance with them, do not in any way conflict with any existing commitments on your part; and that you have the full right to enter into this agreement without violating the legal or equitable rights of any third party.
Indemnity.
You agree to indemnity and defend ALDELO against any and all claims by third parties arising out of or in connection with your Testimonial, except to the extent such claims arise from ALDELO’s editing or alteration of your Testimonial. The foregoing indemnification obligation is in addition to your indemnification obligations under this agreement.
Privacy.
Information you provide in connection with your Testimonial will be stored and used in accordance with ALDELO’s Privacy Policy.
24) Reporting Claims of Copyright Infringement.
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Services (including the Website) infringe your copyright, you may request removal of those materials (or access to them) from the Services by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C section 512) (“DMCA”), the written notice (“DMCA Notice”) must include substantially the following:
Your physical or electronic signature.
Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website or Services, a representative list of such works.
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address).
A statement that you have a good faith believe that use of the copyrighted material is not authorized by the copyright owners, its agent or the law.
A statement that the information in the DMCA notice is accurate.
A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated Copyright Agent to receive DMCA Notices is:
Jeff Moore
6701 Koll Center Parkway, Suite 150
Pleasanton, CA 94566
925-398-8929
masa-dmca@aldelo.com
If you fail to comply with all of the requirements under Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.