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Allma, Inc. Terms of Service

Last Updated: December 15, 2020

THE TERMS OF SERVICE BELOW AND THE TERMS OF THE ALLMA’S PRIVACY POLICY, TOGETHER CONSTITUTE THE “AGREEMENT” BETWEEN ALLMA, INC. (“ALLMA”) AND YOU (TOGETHER WITH THE ENTITY FOR WHICH YOU REGISTER, ACCESS OR USE THE SERVICES, “CUSTOMER”) (EACH A “Party, TOGETHER THE “PARTIES”). CUSTOMER’S ACCESS TO, AND LICENSED USE OF, ALLMA’S APPLICATIONS AND TECHNOLOGY SERVICES AND SOLUTIONS (“SERVICES”) ARE SUBJECT TO THE TERMS OF THE AGREEMENT. FOR THE PURPOSES OF THE TERMS BELOW AND CONDITIONS IN THIS AGREEMENT, THE “ORDER FORM” SHALL MEAN ANY ORDER FORM MUTUALLY AGREED TO BETWEEN THE PARTIES TO WHICH THE SERVICES RELATES.

As required by applicable laws and regulations including the EU General Data Protection Regulation, for residents of the EU, the Allma’s Data Processing Addendum describes the process for transfers of personal data.

TERMS OF SERVICE

1. ALLMA SERVICES AND SUPPORT.

The Services are hereby licensed to Customer under the terms of this Agreement and for the exclusive purpose to route, resolve, and root cause incidents across the Customer’s organization. Subject to the terms and conditions of the Agreement, including all payment obligations as set forth on the applicable Order Form, Customer may access and use the Services solely for internal Company business purposes during the defined period of time. Additional limitations, if any, will be documented in the applicable Order Form. Customer assumes liability for any misuse of the Services and/or breach of this Agreement. Customer shall not (i) sublicense, rent, lease, resell, transfer, assign, time share, or otherwise commercially exploit or make the Services available to any third-party; (ii) access or use the Services in any unlawful manner, including in violation of any data, privacy or export control laws, or in any manner which impedes or disrupts the integrity or performance of the Services or its components; or (iii) alter, adapt or hack the Services to, or otherwise attempt to, obtain unauthorized access to the Services or its related systems and/or networks. Other than the limited rights and licenses expressly granted hereunder, no other right, license or option is granted and no other use of the Services is allowed. Allma owns and retains all rights, title and interests in and to the Services. No work for hire shall be performed hereunder.

2. THIRD-PARTY SOFTWARE AND SYSTEMS.

The Services interface with other application programming interfaces (APIs), software products, applications, and/or other services which must be licensed from such third parties by Customer. Customer is solely responsible for Customer’s licensed rights to use the third-party APIs, software, applications, and/or services with which the Services interact. Allma does not guarantee the availability of any third-party APIs, software products, systems, applications, or services. Allma shall have no liability to Customer for Customer’s failure or inability to do any of the foregoing. Customer agrees to indemnify, defend and hold Allma harmless from any claims by such third-parties which result from Customer’s use of third-party APIs, software, applications, systems, and/or services.

3. TERMINATION AND SURVIVAL.

Either party may terminate this Agreement (including the applicable Order Forms and Service Terms) if the other party (i) fails to cure any material breach of this Agreement (inclusive of a failure to pay fees) within 30 days subsequent to a written notice; (ii) discontinues operation without a successor; and/or (iii) 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 60 days thereafter). In the event Customer terminates for cause hereunder, Customer shall be entitled to a refund of any prepaid fees applicable to the period after the termination date. All sections of the Agreement which given their nature should survive termination will survive termination, inclusive of, and without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.

4. FEES.

Currently, the Services are offered as part of Allma’s free beta program. In the future, Allma plans to offer paid programming for all and/or part of the Services to the Customer. The Fees of any paid program the Customer participates in shall be set forth on the applicable Order Form. The Customer will pay Allma the Fees in accordance with the applicable Order Form. All fees are in US dollars and payable as documented on the Order Form. Except as expressly provided herein or on the applicable Order Form, payment obligations are non-cancelable and fees paid are non-refundable. Unpaid Fees not otherwise subject to a good faith dispute are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, as well as all expenses of collection, inclusive of reasonable attorneys’ fees. Allma may suspend Customer’s access to the Services during any period in which payment of fees is overdue. A suspension will not terminate the Agreement or relieve the Customer of any obligations or liabilities. Customer agrees and acknowledges that, from time to time, Allma may engineer additional features and/or functionalities to the Services for which Allma may offer to Customer for an added fee. Customer shall reimburse Allma for any sales or use taxes that Allma is required to collect in connection with Customer’s use of the Services and the provision of services under this Agreement; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Allma’ income, revenues personnel or other assets.

Allma uses Stripe as the third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services). By buying Allma Services, Customer agrees to be bound by Stripe’s Privacy Policy: https://stripe.com/us/privacy/ and hereby consent and authorize Allma and Stripe to share any information and payment instructions Customer provides with third parties to the minimum extent required to complete Customer's transactions. See Allma’s Privacy Policy for additional detail on payment data.

5. CONTROLS.

Customer shall implement reasonable controls to ensure compliance with the authorized use of the Service. Customer agrees and Allma reserves the right to monitor Customer’s access to and usage of the Services to improve the quality of the Services and to validate Customer’s compliance with this Agreement.

Customer acknowledges that as a part of the Services, Allma collects and aggregates information concerning incident discussion, activity, and other interactive information. Customer agrees that both during and following the term of the Agreement, Allma may retain and use all such aggregated or anonymous data to improve Allma’s products and services. The Allma Privacy Policy governs the treatment of aggregated data.

6. CONFIDENTIALITY.

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).

The Receiving Party agrees: (i) not to disclose to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information exclusively on a “need to know basis” to employees, consultants, affiliates, agents or subcontractors who are bound by nondisclosure agreements at a minimum as stringent as this Agreement, and (iii) to take the same security precautions that the Party takes with its own proprietary information to protect against disclosure or unauthorized use of such Proprietary Information, but in no event will a party apply less than reasonable precautions to protect the Proprietary Information. Any Proprietary Information disclosed by either Party shall remain confidential for a period of five (5) years from the date of last disclosure or shall remain confidential in perpetuity if the Proprietary Information constitutes a trade secret under applicable law. The foregoing obligations do not apply with respect to any information that the Receiving Party can document (i) is rightfully in the possession of, or was known by, the Receiving Party prior to its receipt from the Disclosing Party and free of any restriction or obligation of confidence, or (ii) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (iii) is rightfully disclosed to the Receiving Party by a third party and free of any restriction or obligation of confidence, or (iv) is independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior written notice of such disclosure to contest such order. In the event of any breach or threatened breach of Confidentiality by the Receiving Party, the Receiving Party acknowledges and agrees that the Disclosing Party may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, in addition to any other remedy, the Disclosing Party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond

7. DISCLAIMER.

From time to time, the Services may be temporarily unavailable due to scheduled maintenance or due to unscheduled emergency maintenance, either by Allma or by third-party providers, or due to other causes beyond Allma’s reasonable control. THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. NEITHER ALLMA NOR ITS SUPPLIERS WARRANT THAT THE SERVICES WILL FUNCTION IN ANY ENVIRONMENT OR BE COMPATIBLE WITH ANY THIRD PARTY APPLICATION OR THAT ALLMA SERVICES WILL BE ERROR-FREE, BUG FREE, UNINTERRUPTED OR OTHERWISE MEET CUSTOMER’S BUSINESS REQUIREMENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, ALLMA HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, REGARDING THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF ACCURACY, CORRECTNESS, RELIABILITY, INTEGRATION, INTEROPERABILITY, TITLE, NON-INFRINGEMENT, ENJOYMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. CUSTOMER AGREES THAT CUSTOMER’S USE OF THE SERVICES ARE AT CUSTOMER’S OWN RISK. Note, some jurisdictions do not permit the exclusion of certain warranties in certain circumstances. Accordingly, some of the limitations set forth above may not apply.

8. LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE ACCESS TO OR USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO ACCESS OR USE THE SERVICE OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOST BUSINESS, LOST SALES, LOSS OF REVENUE OR LOSS OF ANTICIPATED PROFITS, WHETHER BASED IN CONTRACT, TORT (INCLUSIVE OF NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF EITHER PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES (AS SET FORTH IN THE APPLICABLE ORDER FORM) PAID TO ALLMA HEREUNDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. CUSTOMER ACKNOWLEDGES THAT IF NO FEES ARE PAID TO ALLMA FOR THE SERVICES, CUSTOMER SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM ALLMA, REGARDLESS OF THE CAUSE OF ACTION. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, BUT WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAWS. Note, some states do not allow the types of limitations in this paragraph, so such may not apply. IN THESE STATES, ALLMA’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

9. INDEMNITY.

Allma agrees to and shall defend, indemnify and if applicable, hold harmless, Customer and Customer’s respective officers, agents, partners, employees, contractors or other representatives from and against any and all damages finally awarded or paid in settlement of any third party claim, action, suit, or proceeding (“Claim”) asserted against Customer by an unrelated third party claim or action arising from an alleged infringement by the Services of any United States patent, trademark, trade secret, copyright, or other intellectual property right but only to the extent that Customer’s access and/or use of the Service was in accordance with the terms of this Agreement. The foregoing indemnification obligations are conditioned upon Customer: (i) providing Allma with written notice promptly related to any Claim for which Customer is seeking indemnity hereunder, provided, however, that any delay in providing such notice shall not relieve the Allma of its obligations except to the extent Allma is impacted due to such delay; (ii) Allma has sole control of the Claim’s defense and will not settle a Claim without consent of the Customer, if such settlement involves an admission of guilt or any financial or performance obligations; and (ii) Customer provides to Allma, at Allma’s request and expense, Customer’s aid, information and authority needed to perform Allma’s obligations. If the Services become or, in Allma’ opinion, is likely to become the subject of an injunction, Allma may, at Allma’s option, (i) obtain for Customer the right to continue using such Service, (ii) change such Services so that they become non-infringing without substantially compromising its functionality, or if (i) and (ii) are not reasonably available to Allma, then (iii) terminate this Agreement, in which case Allma will provide Customer with a pro-rated refund equal to the unused portion of the Fees as set forth on the applicable Order Form. The foregoing are Customer’s sole remedies for any infringement of intellectual property rights.

Upon demand by Allma, Customer agrees to and shall defend, indemnify and if applicable, hold harmless Allma and Allma subsidiaries, affiliates, and licensors and its’ respective officers, agents, partners and employees, contractors or other representatives from and against any loss, liability, costs (inclusive of reasonable attorneys’ fees), damages, expenses, claims, or demands, made by any third party due to or arising out of Customer’s use of the Services in breach of the licensed right, Customer’s content and/or from Customer’s breach of this Agreement.

10. FORCE MAJEURE

Neither Party shall be responsible for any delay or failure to perform its obligations under the Agreement (excluding obligations to pay fees) caused by an event beyond the reasonable control of either Party, including but not limited to a strike, blockade, riot, war, natural disaster, epidemic, pandemic, failure or diminishment of power or telecommunications or data networks or services, or any law, regulation, ordinance or other act or order by a government agency. The Services are hosted on Amazon Web Services (“AWS”). Thus, Allma service obligations hereunder are necessarily dependent on the continued availability of AWS. Allma will not be responsible to Customer for failures of AWS. Any delays resulting from Customer’s failure to perform or fulfill its responsibilities (such as not having systems ready or failing to provide necessary data) will not change fees due to Allma.

11. GENERAL LEGAL.

(i) Excluding conflict of law rules, this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA. Exclusive jurisdiction and venue for any action arising under this Agreement is in the federal and state courts located in Suffolk County, Massachusetts, and both Parties hereby consent to such jurisdiction and venue for this purpose. (ii) The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply. (iii) This Agreement creates no third-party beneficiary rights to the Services or to any third-party product made available through the Services. (iv) Allma's failure to enforce a provision is not a waiver of its right to do so later. (v) If a provision of this Agreement is found unenforceable then the remaining provisions will remain in full force and an enforceable term will be substituted which reflects the Party’s intent as closely as possible. (vi) Customer may not assign any of Customer’s rights hereunder without the prior written authorization of Allma which shall not be commercially unreasonably withheld and any such attempt is void. Allma may freely assign its rights to any successor in interest. (vii) The parties to this Agreement are independent contractors. Allma and Customer are not legal partners nor agents and neither party shall have the power or authority to bind the other. (viii) All content on the Allma application, the Allma website, the Services, the trademarks, service marks, and logos contained on the site and in the Services are owned by or licensed to Allma subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. (ix) Each party shall comply with all applicable local, state, national and foreign laws, rules and regulations (inclusive of applicable export laws and regulations) while performing under the Agreement and using the Services. Without limiting the foregoing: Each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and Customer shall not permit Customers to access or use the Services in violation of any U.S. export embargo, prohibition or restriction.

12. CUSTOMER FEEDBACK.

From time to time, Customer, may make a submittal of feedback, suggestions, questions, data, ideas, descriptions of processes, or other information to Allma relating to the Service (“Feedback”). Allma may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise, provided Customer shall not be identified in connection with any such Feedback without Customer’s consent in its sole discretion.

13. ALLMA CUSTOMERS

Allma may disclose Customer as a customer of Allma and use Customer’s name and logo on Allma’s website and in Allma’s marketing materials.

14. NOTICES

Notice(s)’ shall be in writing (i) delivered by hand; (ii) sent by overnight courier; (iii) sent by first-class registered or certified mail, return receipt requested, postage prepaid; or (iv) by email (followed by first-class mail, postage prepaid), and are deemed received upon delivery. Customer may give notice to Allma at the following address:

Allma, Inc,

1102 A Street

Suite 300 #14

Tacoma, WA 98402

15. ENTIRE AGREEMENT

This Agreement – which includes each Order Form, as well as any other mutually agreed upon exhibits or attachments – 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. This Agreement may only be modified by a fully executed written amendment signed by the Parties which references this Agreement or by the terms on the Allma Order Form. Terms on the Customer’s purchase orders or other ordering documentation or email which purports to modify or supplement this Agreement shall not add to or vary the terms and conditions of this Agreement and are of no force and affect even when signed by Allma. The Agreement may be executed electronically or in counterparts, each of which will be considered an original, but all counterparts together will constitute one agreement.

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