Terms of Service

Updated August 23, 2024

TERMS OF SERVICE

SOFTWARE SUBSCRIPTION AGREEMENT

These Terms of Service, Software Subscription Agreement and the “Order” constitute the “Agreement”. The Agreement and these Terms are effective between Customer and Alta Voice (“Alta”)as of the “Subscription Start Date” or other effective date identified in the Order (the “Effective Date”). 

The person accepting the Order and these Terms on behalf of Customer represents that they are Authorized Customer Personnel and has the authority to bind Customer to these Terms.

 

THESE TERMS GOVERN THE LICENSE AND USE OF THE SOFTWARE AND SUBSCRIPTION SERVICE OFFERED BY ALTA VOICE, INC. 

BY ACCEPTING THE ORDER AND THESE TERMS, YOU ARE ENTERING INTO A BINDING AGREEMENT AND ACCEPT THESE TERMS IN THEIR ENTIRETY. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT ACCEPT THE ORDER.

 

RECITALS:

1. Alta Voice, Inc specializes in Voice AI solutions for dental applications, focusing on helping to create more efficiency and patient care in the practice. The Alta Voice Software is available for download on Alta’s Website as a subscription service, together with other content and materials provided by Alta Voice on the Website or otherwise.
2. Customer desires to subscribe to access the Software, and Alta desires to provide such access to Customer, subject to the terms and conditions of this Agreement.

In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Alta Voice and Customer agree as follows:

 

AGREEMENTS:

1. Definitions. 

(a) “Confidential Information” means the Software, Customer Data, either party’s non-public business and technology information, trade secrets, Alta’s pricing, any written materials marked as confidential and any other information which is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party reasonably should understand to be confidential. Confidential Information excludes information that the receiving party can document: (i) is or becomes generally available to the public without fault of the receiving party; (ii) was rightfully in the receiving party’s possession prior to its disclosure by the other party; (iii) is independently developed without the use of any Confidential Information of the disclosing party; or (iv) is obtained without obligation of confidentiality from a third party who has the right to disclose it. The receiving party also may disclose Confidential Information to the extent required under a judicial or legislative order or proceeding or as necessary to comply with open records acts or other freedom of information laws or regulations; provided that it gives the disclosing party, if legally permissible, reasonable prior notice and an opportunity to respond or object to the disclosure.

(b) “Customer Data” means all electronic data or information input by Customer and Users into the Software, including Customer’s data contained in Software reports, financial data, and Personal Data. Customer Data does not include Usage Data, Feedback or template forms for reports provided to Customer through the Software.

(c) “Documentation” means Alta’s user instructions, help materials, and/or user manual (if applicable) for the Software, whether in electronic, printed or other form, as updated by Alta from time to time.

(d) “Feedback” means any suggestions, enhancement requests, improvements, complaints, or other feedback from Customer or Users relating to the Software or Alta’s Services.

(e) “Malicious Code” means any virus, worm, trap door, back door, snoopware, spyware, malicious logic, Trojan horse, time bomb or other malicious software functionality that would intentionally erase or render the Software unusable or intentionally interfere with the use of the Software or a User’s computer system or software. 

(f) “Personal Data” means information that identifies a particular individual, such as name, birthdate, address, telephone number, e-mail address, government-issued identification numbers; passwords, credit and debit card numbers,  financial account numbers and security codes; biometric data, and personal health information. However, if applicable law in the jurisdiction where a person resides defines personal information or data, that definition shall apply.

(g) “Services” means technical support, Software maintenance, consulting, training, professional services, and other services offered by Alta to its customers as part of or in connection with the Software, including services for which Alta may charge a separate fee.

(h) “Software” means Alta’s software provided as a subscription service and any associated online or downloadable software or components, as may be more specifically described in the Order, including Documentation and Updates. Except as otherwise provided in this Agreement, “Software” includes Third-Party Software provided by Alta as part of the Software.

(i) “Term” means the Initial Term of this Agreement together with any and all Renewal Terms, as those terms are defined in Section 6(a).

(j) “Third-Party Software” means any third-party applications and software, whether open source or proprietary, that are owned by entities or individuals other than Alta and that may be incorporated into or interoperate with the Software.

(k) “Updates” means updates, upgrades, patches, improvements, enhancements, bug fixes, additional features, and other modifications to the Software.

(l) “Users” means individuals who subscribe to the software and/or individual employees and personnel of Customer who are authorized by Customer to use the Software. Users may also include consultants or contractors of Customer who are using the Software solely for Customer’s internal business purposes, but shall not include competitors of Alta.

(m) “Website” means the applicable Alta website or web portal for Customer, where the Software will be accessed or downloaded by Customer and its Users via a Customer login, and/or other web pages designated by Alta where resources and Services related to the Software are provided by Alta (excluding third-party websites).

2. Grant of Rights. Alta grants Customer a non-exclusive, non-transferable right to access and use the Software during the Term, and solely for use by Customer’s authorized Users. Alta will provide Customer and its Users with access to the Software and any related products and Services offered by Alta that are made available online as part of the standard Software on the Website, or that have been ordered by Customer. The Software will be hosted and/or downloaded from Alta’s servers or the servers of a third party that is in the business of hosting web- or cloud-based software applications. Use of the Software is subject to the following terms and limitations:

(a) Use of Software. Use of the Software is limited to Customer’s own internal business. Customer is granted the right to authorize Users, according to the number of subscribed licenses ordered, to access and use the Software and related materials that Alta makes available as part of the Software and Website. Customer and Users are authorized to use the Software only as part of the Software, except as otherwise specifically set forth in this Agreement.

(b) Updates. Customer acknowledges and agrees that the Software, Website, and other materials that may be made available by Alta may be updated and changed from time to time with Updates, in Alta’s sole [and reasonable] discretion. 

(c) Proprietary Rights Notices. Customer shall not remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded by Alta on or in the Software, Website, or related Documentation.

(d) Restrictions. Customer will not reverse engineer, disassemble, decompile or otherwise attempt to derive source code, trade secrets, algorithms, programming methods or Confidential Information from the Software. Customer will not modify or create derivative works of the Software or use it in order to build a competitive product or service, or copy any features, functions or graphics of the Software or Website. Customer and its Users will use the Software only as permitted by applicable laws and regulations. If any affiliates of Customer are using the Software pursuant to this Agreement, Customer is responsible for ensuring its affiliates’ compliance with the terms of this Agreement.

(e) Users. Users will be required to accept Alta’s end user software subscription Terms of Service (the “End User TOS”) prior to accessing the Software. Alta reserves the right to modify and update the End User TOS in its business discretion from time to time. Customer is responsible for ensuring that its Users comply with the End User TOS and the applicable terms and limitations in this Agreement.

(f) Third-Party Software. Any open source components of the Software are subject to the applicable third-party license or subscription terms. Other Third-Party Software that is embedded in the Software, or is provided by Alta as an integrated part of the Software, is provided by Alta to Customer pursuant to the applicable terms of this Agreement, unless a separate third-party license or subscription agreement for such Third-Party Software is provided to Customer in advance. Third-Party Software is authorized only for use in connection with the Software, unless otherwise permitted under an open source license.

(g) Geographic Scope of License. Customer’s use of the Software and Services is limited to the United States, and Customer and its Users will not input or allow to be added any Personal Data of non-U.S. residents into the Software, unless and until otherwise expressly agreed in writing by Alta. Customer acknowledges that use of the Software for any business operations outside of the U.S. requires additional due diligence to ensure that that the parties are able to comply with data security, privacy, and other applicable laws and regulations.

(h) Other Services. 

(i) Technical Support and Maintenance. Alta will provide Customer with email-, telephone- and/or web-based technical support and maintenance Services to assist Customer in utilizing the Software. Support Services will be available during Alta’s regular business hours. Alta technicians will use reasonable, good faith efforts to resolve Customer’s problems. Alta will respond to support requests based on: (a) the order that such requests are received; and (b) the relative importance of such requests as reasonably determined by Alta. Alta may update its support and maintenance policies from time to time, upon notice to Customer.

(ii) Professional Services. Upon Customer’s request and subject to a separate written Statement of Work (“SOW”) or Agreement addendum between the parties, Customer may purchase training, consulting services, or other professional Services from Alta. All such Services are subject to the terms and conditions set forth in such SOW or addendum as well as the terms and limitations of this Agreement, to the extent not conflicting with such SOW or addendum.

3. Customer Responsibilities. 

(a) Account Security and Limitations. Customer acknowledges and agrees that it is responsible for managing its organization’s security environment and security profile, including without limitation security configurations, system access, and security privileges. Customer will maintain commercially reasonable administrative, physical, and technical safeguards and standards for its Users’ use of the Software and the security of the Software and Users’ passwords. Customer is responsible for proper firewall maintenance allowing data to move from Customer’s on-premises data-contributing system to the Software. Customer will promptly notify Alta if it becomes aware of any unauthorized access or use of the Software or any unauthorized use or disclosure of Users’ passwords or accounts. A single username and password may not be used by more than one User. Users may log in and use the Software only from a single location at any given time.

(b) Customer Administrator. If requested by Alta or specified in a SOW, Customer will designate one or more system administrators (the “Customer Administrator”) to manage the Software system for Customer, provide first-line support to Users, and act as Customer’s primary technical contact and liaison with Alta. The Customer Administrator must attend training and be certified as reasonably required by Alta, and be qualified to operate the Software on Customer’s equipment. Customer may replace its Customer Administrators upon written notice to Alta, provided that the new Customer Administrator must receive the required Alta training. Customer will be charged additional fees for any training for Customer’s Users beyond the initial training provided as part of Alta’s implementation Services.

(c) Hardware and Additional System Components. Customer will provide hardware, including noise canceling microphone and/or headset, an operating system, browser software and other system components for use with the Software that meet Alta’s technical specifications, as set forth in an SOW or other technical requirements documentation provided to Customer, except where the parties have agreed in a purchase order that Alta will provide such components. Customer will also maintain a stable, high-speed Internet connection and remote connectivity. 

(d) Customer Data. Customer is solely responsible for the accuracy, completeness, and integrity of all Customer Data input into the Software or otherwise provided to Alta, and for obtaining any necessary consents or authorizations for use of such Customer Data as contemplated by this Agreement. It is Customer’s sole responsibility to add further input and modifications to the Customer Data in Customer’s database in the Software. Customer is also solely responsible for the accuracy of any and all reports, displays and/or uses of Customer Data, whether or not Alta assisted Customer with the development or construction of such reports and displays and other uses of the Customer Data.

4. Ownership. 

(a) Alta Ownership. Alta owns and retains all right, title and interest in and to the Software, including the Software and Documentation, text, graphics, logos and images, Alta’s trademarks and service marks, the Website and its contents, any custom developments, Updates, training and other written or electronic documents and materials produced by Alta that relate to the Software, and all intellectual property rights in the foregoing. The Software and all other materials made available to Customer by Alta may be used by Customer and Users only for the purposes described in this Agreement. Any rights not expressly granted herein are reserved to Alta. Neither this Agreement nor any other agreement between the parties changes ownership of any pre-existing software or other materials. 

(b) Customer Ownership. As between the parties, Customer owns and shall retain all right, title and interest in and to all Customer Data, as well as the contents of any reports or forms generated by the Software that are specific to Customer. Alta has the right to use, process and disclose Customer Data as necessary to provide the Services to Customer, to comply with legal obligations, and exercise its legal rights.

(c) Usage Data. The Software tracks metadata and other statistical and usage data related to Customer’s and Users’ use of the Software (“Usage Data”) and provides such data to Alta. Alta shall own such Usage Data, provided that any Customer Data used in creating the Usage Data is in aggregated and/or anonymized form so that it is not identifiable as to Customer or any individual person. Alta may collect, aggregate, use, distribute and sell such Usage Data for any legal purpose, including without limitation for the purposes of providing services and improving the Software and Alta’s products and services generally. 

(d) Feedback. Alta shall have a royalty-free, worldwide, irrevocable, perpetual license to use Feedback and incorporate it into Alta’s software, products and services. Alta shall exclusively own all right, title and interest in and to any software and intellectual property developed or delivered to Customer in the performance of this Agreement, regardless of whether it is based on or incorporates any Feedback, subject to the rights granted herein to Customer.

5. Fees. 

(a) Fees. Customer’s fees for access to the Software and for other services are set forth in the Order (collectively, the “Fees”). 

(b) Past Due Amounts. If any amounts owed by Customer are thirty (30) or more days overdue, Alta may, without limiting its other rights and remedies: (i) charge interest at the rate of 1.5% per month or the highest rate permitted by law, whichever is less, on the past due amounts; (ii) terminate this Agreement under Section 6(b) and accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable, and/or (iii) suspend Customer’s and its Users’ access to the Software until such amounts are paid in full, as set forth in Section 6(d). Customer shall also be liable for all costs of collection, including reasonable attorney’s fees, whether or not a suit is instituted.

(c) Disputed Amounts. Customer will not withhold any undisputed portion of any amounts payable hereunder but may withhold disputed amounts upon written notice of a reasonable dispute. Customer shall deliver such notice, including the basis for such dispute, to Alta within sixty (60) days after the date of the initial invoice on which the disputed amounts appear; otherwise the right to dispute the amounts invoiced will be deemed waived.

(d) Taxes. Customer is responsible for any applicable sales, use or other taxes or duties associated with this Agreement, other than taxes on Alta’s net income. If Customer is a tax-exempt entity, Customer must provide a tax-exemption certificate to Alta. 

(e) Other. All amounts paid under this Agreement are payable in U.S. dollars. All payments are non-refundable, other than as expressly set forth in this Agreement.

6. Term and Termination; Suspension.

(a) Term. This Agreement will commence on the Effective Date and will continue for the initial term of 12 months from the Effective Date (the “Initial Term”), subject to prior termination as set forth below. At the end of the Initial Term, this Agreement will automatically renew for additional twelve (12) month renewal terms (each a “Renewal Term”) at Alta’s then-current rates or as otherwise agreed in writing by the parties, subject to termination as set forth below. Either party may give the other party written notice of non-renewal of this Agreement at least ninety (90) days prior to the expiration of the then-current Initial Term or Renewal Term.

(b) Termination for Cause. Either party will have the right to terminate this Agreement for cause at any time, upon written notice, in the event of (i) any material breach of this Agreement by the other party, subject to thirty (30) days prior written notice and opportunity to cure such breach; or (ii) the other party’s dissolution, distribution of a substantial portion of its assets, or cessation of all or substantially all of its normal business affairs. 

(c) Effect of Termination. Upon final termination of this Agreement, Customer will no longer have access to the Software. Customer will promptly pay all outstanding amounts owed to Alta. Each party will promptly return to the other party all Confidential Information of the other party and delete any copies of such information or materials from its systems and files. Notwithstanding the foregoing, the receiving party may retain Confidential Information on its back-up servers that are not generally accessible, in the ordinary course of business, as well as one copy in a secure location for archival purposes, provided that such Confidential Information shall remain subject to the provisions of this Agreement. Sections 4, 7, and 8 will survive termination of this Agreement, together with such other terms as by their intent or meaning should so survive.

(d) Transition Assistance. Unless this Agreement is terminated by Alta due to a [material breach/payment default] by Customer, upon request by Customer, Alta agrees to provide Customer with termination assistance to assist Customer to transition to a replacement system in order to minimize disruption to Customer’ business, including providing the full Software and Services to Customer during such transition period. Customer shall continue to pay all fees provided for in this Agreement as though it had not been terminated, adjusted pro rata as applicable for the period such Services and System are provided. This transition period shall continue for such period as Customer may reasonably request, subject to a maximum duration of 6 months. The terms and conditions of this Agreement shall continue to apply during this transition period. Any additional termination assistance services shall be provided by Alta at its standard time and materials rates.

(e) Suspension of Software Access. Alta may suspend Customer’s and its Users’ access to the Software if Customer is in material breach of this Agreement, including any non-payment of fees, subject to fifteen (15) days’ prior written notice and opportunity to cure such breach. Alta may also immediately suspend Customer’s or a User’s access to the Software, without prior notice, if continued use creates a substantial risk to the security or integrity of the Software system or may result in material harm to the Software, Alta, or other customers of Alta. Alta will promptly notify Customer of the suspension. Alta will limit the suspension in time and scope as reasonably necessary under the circumstances. Alta shall have the right to monitor use of the Software to verify compliance with the Agreement.

7. Confidential Information. The receiving party of Confidential Information (i) shall not disclose Confidential Information or any information derived therefrom to any person, other than employees and independent contractors with a need to know such information and who are obligated to keep such information confidential; or (ii) use the Confidential Information for any purpose, except as expressly permitted by this Agreement. The receiving party shall give Confidential Information at least the same level of protection as it gives its own information of similar sensitivity, but not less than a reasonable level of protection. Confidentiality obligations shall survive any termination of this Agreement.
8. Personal Data and PHI.

(a) Reasonable Safeguards. Each party will collect and maintain all Personal Data and protected health information (“PHI”) of individuals contained in the Customer Data in compliance with applicable data privacy and protection laws, statutes, and regulations. Alta agrees to maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including Personal Data. Customer will also maintain commercially reasonable administrative, physical, and technical safeguards and standards for its Users’ use of the Software and the security of the Software and Users’ passwords. Please refer to Alta’s privacy policy, which informs users of Alta’s policies and practices related to collection, storage, processing, destruction, and other use of Personal Data.

(b) Payment Information Security. All payment card information and other payment information of Users (“Payment Data”) will be processed by an independent third-party payment processor. Alta and its employees will not have access to Payment Data or store such data on its servers, other than minimal information such as the last four digits of a credit card or bank account. Alta engages to use a qualified third-party payment processing vendor that offers a token method or similarly secure method for payment and that has committed to comply with PCI DSS standards.

(c) Business Associate Agreement. Alta will protect PHI in accordance with the terms of the Business Associate Agreement (the “BAA”) accepted by Customer. The BAA shall supersede the terms of this Section 8 with respect to any issues related to PHI.

9. Customer’s Warranties. Customer represents and warrants to Alta that: 

(a) Customer has full power and authority to enter into this Agreement and make the agreements specified herein.

 

(b) Customer Data will not violate any person’s right of privacy or copyright, trademark, or other intellectual property rights, and Customer and its Users will not transmit any such materials to Alta. Customer warrants that it has all necessary rights and consents required to upload all Customer Data, including Personal Data and PHI, into the Software or otherwise provide such Customer Data to Alta.

 

10. Alta Warranties and Disclaimers. 

(a) Alta Warranties. Alta warrants to Customer as follows:

(i) Alta has full power and authority to enter into this Agreement and make the agreements specified herein.

(ii) Alta warrants, during the Term, that the Software, when used properly and in accordance with its Documentation and this Agreement, will comply in all material respects with its Documentation. 

(iii) Alta will use commercially reasonable, industry-standard efforts and means to keep Malicious Code out of the Software.

(b) Exclusions. Alta’s warranties exclude non-performance issues that result from (i) modification of the Software by Customer or any person or entity other than Alta; (ii) defects or problems that are outside the reasonable control of Alta, including defects or damage resulting from use of the Software in other than its normal and authorized manner; or (iii) Customer’s or its Users’ failure to comply with due standards of care. Customer will reimburse Alta for its reasonable time and expenses for any services provided at Customer’s request to remedy excluded non-performance issues.

(c) Remedies. In the event of a breach of any of the above warranties, Customer shall contact Alta’s designated support personnel within thirty (30) days of Customer’s discovery of the breach or defect in the Software. Customer’s sole and exclusive remedies and Alta’s entire liability for breach of this warranty will be: (i) at Alta’s option, to repair any material, reproducible deficient functionality of the Software, or to replace such defective functionality with reasonably equivalent functionality; or (b) if Alta is unable or fails to cure the warranty breach within a reasonable time, Alta or Customer may terminate this Agreement upon fifteen (15) days’ prior written notice. Any such termination by Customer must occur within three months of the initial occurrence of the warranty breach.

(d) Limitation of Warranties. Except as expressly set forth in this Section 10, the Software, Documentation, Website and all Services are provided “AS IS”. Open source copyright holders have no liability to Customer for any reason. Alta MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, whether arising by law, by reason of custom or usage of trade, or by course of dealing. Alta does not warrant that the Software or its Services are error-free. Alta is not responsible or liable for any problems or interruptions in the Software due to issues with third-party hosting services or Internet service providers. Hardware, Third-Party Software, and hosting services are covered only by the manufacturer’s or third-party software or service provider’s warranty or service level agreement (SLA). Warranties are not transferable to a third party, other than in connection with assignment of this entire Agreement under Section 14.

11. Indemnification. 

(a) Mutual Indemnity. Each party (as the “Indemnifying Party”) shall defend or settle at its expense any third-party claim or action (a “Claim”) brought against the other party (the “Indemnified Party”) arising out of: (i) the Indemnifying Party’s breach of this Agreement; or (ii) any grossly negligent acts or willful misconduct of the Indemnifying Party or its personnel. If both parties are at fault, each party will pay its proportional share of the resulting expenses or damages.

(b) Alta Indemnity. Alta shall defend or settle at its option and expense any Claim brought against Customer alleging that the Software infringes a U.S. registered patent, copyright, or trademark or misappropriates a trade secret. Alta shall have no liability for any infringement Claim to the extent such Claim is based on: (1) modification of the Software other than by Alta; (2) any open source or other third-party software or component; or (3) the combination, operation or use of the Software with any software, hardware or other materials not furnished by Alta. In the event of an infringement Claim, Alta may at its option and expense: (a) replace or modify the Software so that it becomes non-infringing; or (b) procure for Customer the right to continue using the Software. If neither of these alternatives is reasonably available, Alta may terminate this Agreement and refund to Customer any prepaid fees for the period after termination. This Section 11(b) states the entire extent of the liability and obligations of Alta with respect to any alleged infringement or misappropriation of intellectual property rights.

(c) Customer Indemnity. Customer shall defend or settle at its option and expense any Claim brought against Alta arising out of (i) any infringement claims or privacy breaches based upon the Customer Data, other than a security breach for which Alta is responsible; (ii) Customer’s use of incorrect or fraudulent Customer Data; or (iii) Customer’s use of the Software in a manner that violates this Agreement or applicable law.

(d) Indemnification Procedure. When an indemnifiable Claim is made by a User or other third party, the Indemnified Party shall promptly notify the Indemnifying Party of such Claim, grant the Indemnifying Party sole control of the defense and all related settlement negotiations, and provide the Indemnifying Party with the assistance, information and authority reasonably necessary to defend the Claim, at the Indemnifying Party’s expense. The Indemnifying Party will pay any costs or damages finally awarded against the Indemnified Party that are attributable to an indemnifiable Claim, or any amounts agreed by the Indemnifying Party in settlement of the Claim. The Indemnified Party may not settle a Claim without prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnified Party may, at its option and expense, be represented by separate counsel in any such Claim.

12. Limitations of Liability. IN NO EVENT SHALL ALTA BE LIABLE FOR LOST PROFITS, LOSS OF DATA (EXCEPT AS PROVIDED IN THE BAA), INTERRUPTIONS OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR USE OF THE SOFTWARE, INCLUDING WHERE SUCH TYPES OF DAMAGES RELATE TO THE ACCIDENTAL OR UNLAWFUL DESTRUCTION, LOSS, ALTERATION, UNAUTHORIZED DISCLOSURE OF, OR ACCESS TO PERSONAL DATA TRANSMITTED, STORED OR OTHERWISE PROCESSED, REGARDLESS OF WHETHER SUCH PARTY HAS NOTICE OF THE POTENTIAL FOR SUCH LOSS OR DAMAGE, AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE AND STRICT LIABILITY). ALTA’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIM OR DAMAGE ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO ALTA DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. The fees for the Software reflect this allocation of risk and limitations of liability. These limitations form an essential basis of the bargain between the parties, and shall apply notwithstanding the failure of the essential purpose of any limited remedy. The above limitations may be superseded by law in some jurisdictions. 
13. Publicity. Any press releases or other public statement regarding this Agreement may be made only with the other party’s consent, which shall not be unreasonably withheld, except that a party may make public disclosures to the extent required by law, and Alta is permitted to include Customer’s name on customer lists that may be posted on Alta’s Website or provided to potential customers and other third parties.
14. Assignment. Neither party may assign or transfer this Agreement or any of its rights or duties hereunder to any third party without prior written consent of the other party, which may not be unreasonably withheld. Notwithstanding the foregoing, a party may, upon written notice to the other party, assign this Agreement to a third party in connection with a merger with such third party or acquisition of all or substantially all of the assigning party’s ownership interests or assets to which this Agreement relates. Alta may subcontract its obligations under this Agreement, provided that Alta shall remain primarily liable for the performance of all of its subcontracted obligations.
15. General. 

(a) Entire Agreement; Amendment. This Agreement, including the Order and BAA attached exhibits and any related purchase orders, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or oral agreements or understandings with respect thereto. Any preprinted terms in a purchase order submitted by Customer to Alta are expressly agreed to be of no force or effect. This Agreement may not be amended except by a writing signed by authorized representatives of both parties.

(b) No Waiver. Any waiver by either party of a default or obligation under this Agreement will be effective only if in writing. Such a waiver does not constitute a waiver of any subsequent breach or default. No failure to exercise any right or power under this Agreement or to insist on strict compliance by the other party will constitute a waiver of the right in the future to exercise such right or power or to insist on strict compliance.

(c) Choice of Law and Jurisdiction. This Agreement shall be construed in accordance with the laws of the State of Utah, excluding conflicts of laws provisions. If any dispute arises concerning this Agreement and/or Alta’s products or services, venue shall be laid in Utah County, Utah. Utah state and federal courts shall have exclusive jurisdiction over any such dispute, and the parties hereby consent to the jurisdiction and venue of such courts. 

(d) Attorneys’ Fees.  In the event of any breach with respect to this Agreement, the breaching party, in addition to all other obligations and liabilities hereunder, shall pay all attorneys’ fees, expert witness fees, court costs, investigation expenses, and all other costs and expenses incurred by the non-defaulting party in connection with such breach and enforcement of this Agreement.

(e) Severability. If any provision of this Agreement is deemed invalid or unenforceable by a court or governmental authority, that provision shall be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remainder of this Agreement shall remain in full force and effect. 

(f) Export Compliance. Customer may not use, export or re-export any of the Software’s data, software code, content or materials in any form in connection with this Agreement in violation of U.S. export laws and regulations, or without first obtaining the appropriate United States and foreign government authorizations. 

(g) Notices. All notices required under this Agreement will be in writing and will be delivered personally, mailed by registered or certified mail with a return receipt requested, sent by commercial overnight delivery service with provisions for a receipt, or sent by e-mail, to the address of the receiving party first set forth above or such other address a party may specify by written notice. Notices shall be presumed to have been received by the other party (i) upon receipt if sent by hand delivery, registered or certified mail, or delivery service; or (ii) if sent by email, upon confirmation of receipt by non-automated means.

(h) Independent Contractors. The parties are independent contractors. Customer is not an agent of Alta and will not represent to any third party that it is an employee or agent of Alta. Customer shall have no authority to enter into any contract on behalf of Alta. 

(i) Injunctive Relief. Each party acknowledges that the other party’s intellectual property and Confidential Information is highly valuable to the other party, that any breach of such party’s obligations with respect to confidentiality and/or use of the other party’s intellectual property, including any breach by Customer of any restrictions on use of the Software or the scope of the rights granted by Alta herein, may severely damage the other party, the extent of which damage would be difficult to ascertain and, therefore, that the other party is entitled to seek, among other remedies, temporary and permanent injunctive relief and other equitable relief for any such breach, without the necessity of posting bond or other security, to the extent permitted by law.

(j) Force Majeure. A party shall be excused from delays or failure to perform its duties (other than payment obligations) to the extent such delays or failures result from acts of nature, riots, war, acts of public enemies, fires, epidemics, labor disputes, or any other causes beyond its reasonable control. The parties will promptly inform and consult with each other as to any of the above causes that in their judgment may or could be the cause of a substantial delay in the performance of this Agreement. The affected party shall resume performance as soon as is reasonably feasible.

(k) Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months after the termination of this Agreement, unless Alta gives its prior written consent, neither Customer nor any of its affiliates shall directly or indirectly solicit for employment or offer employment to any individual who is then employed or engaged by Alta or was so employed or engaged by Alta within the prior six (6) months. However, this Section shall not prohibit the use of any public and open job postings or advertisements not specifically directed to an employee of Alta.

(l) Electronic Signatures and Delivery; Signature Authority. This Agreement and any other documents to be delivered in connection herewith may be electronically signed and delivered. Any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. The person accepting this Agreement and any related purchase orders on behalf of Customer represents that he or she has the authority to bind Customer to this Agreement.