Alpine IQ Services Agreement
This Services Agreement is between Alpine IQ Inc., a Delaware corporation ("Alpine IQ") and the subscriber set forth on the applicable Service Order ("Subscriber"). Alpine IQ and Subscriber may be referred to herein, individually, as a "party" or, collectively, as the "parties".
The parties agree as follows:
- Term and Termination.
1.1 Term. The Agreement begins on the Effective Date and will continue for the period identified in the Service Order as the Initial Term, or if no such period is identified in the Service Order, for a period of 1-year (such period, the "Initial Term"), and thereafter shall automatically renew for consecutive (1) year periods (each a "Renewal Term", and each Renewal Term and the Initial Term, the "Term"), unless either party provides written notice to the other party at least thirty (30) days prior to the end of the then-current Term that it has elected not to renew the Agreement.
1.2 Additional Orders. The parties may execute additional or amended Service Orders and/or Supplemental Terms for additional Services, upgraded tiers, service levels, or packages, and/or Supplemental Services during the Term (collectively, "Additional Orders"). Except as expressly set forth in such Additional Orders, the initial term of any Additional Order shall begin on the date of execution of Additional Order and end upon the expiration of the then in effect Term, and the Additional Order shall thereafter renew for subsequent Renewal Terms until terminated in accordance with the terms of the Agreement and such Additional Order.
1.3 Termination During Trial Period. Subscriber may terminate the Agreement at any time during the first ninety (90) days following the Effective Date (the "Trial Period") with immediate effect. For the avoidance of doubt, Subscriber's right to terminate pursuant to this Section 1.3 applies only during the Trial Period (i.e., the first ninety (90) days of the first Initial Term), and not during any other term or period of the Agreement, or any extension, additional purchase of services or software, or any renewal, automatic or otherwise, even if such extension, additional purchase, or renewal is for materially different services or terms and conditions.
1.4 Termination For Cause. Either party may terminate the Agreement before the end of the then current Term if the other party materially breaches the Agreement and fails to cure such breach within thirty (30) days after the non-breaching party provides written notice to the breaching party of such material breach and the actions required to cure such breach.
1.5 Effect of Termination. Upon termination of the Agreement: (a) any amounts owed by Subscriber to Alpine IQ will be immediately due and payable, (b) all rights granted to Subscriber and its Authorized Users by Alpine IQ will immediately terminate, and (c) Subscriber shall immediately cease using the Services. Except when terminated by Subscriber pursuant to and in strict compliance with Section 1.3, Section 1.4, or Section 15, all Fees that would otherwise be due and payable by Subscriber under this Agreement for the remainder of the Term shall become immediately due and payable to Alpine IQ. Such payment obligation shall be in addition to and not in lieu of any other rights and remedies available to Alpine IQ. This Section 1.5 and Sections 7, 8, 9, and 11 - 16 shall survive the termination or expiration of the Agreement.
2.1 Provision of Services. Subject to the terms and conditions of the Agreement and solely to extent such services are selected in the applicable Service Order, during the Term or until the earlier expiration of Subscriber's subscription to the same, Alpine IQ will provide to Subscriber: (a) the Hosted Services through a Supported Web Browser, (b) to the extent provided by and subject to the execution of an addendum or amendment to the Agreement (each such addendum or amendment concerning the Supplemental Services, "Supplemental Terms"), the Supplemental Services described in such Supplemental Terms, and (c) the Support Services during Business Hours (such Hosted Services, Supplemental Services, and Support Services so selected, the "Services").
2.2 Messaging Credit Plans. Subscriber shall be required to purchase Credit Fees in the amounts and at the times and frequency as are set forth in the applicable Service Order. Subscriber shall be entitled to exchange the purchased Credit Fees for the type and amount of credits for the Messaging Services ("Messaging Credits") in the amounts and at the rate per credit initially set forth in the Service Order, or if not so set forth in the Service Order, than as set forth in the Documentation. Messaging Credits shall expire one (1) month from the date Subscriber is required to purchase such Messaging Credits. If Subscriber uses Messaging Services in excess of its Credit Fees, Subscriber shall be obligated to purchase additional Messaging Credits for such Messaging Services at the rate or rates specified for Overage Fees in the Service Order, or if not so set forth in the Service Order, in the amount(s) of Overage Fees set forth in the Documentation. Alpine IQ may modify the Messaging Services and the rates at which the Credit Fees are exchangeable for a given number of Messaging Credits in its sole discretion with thirty (30) days' notice to Subscriber. Credit Fees are fully earned and payable to Alpine IQ in the amounts and at the times and frequency set forth in the Service Order, regardless of any expiration or failure by Subscriber to use the Messaging Credits.
2.3 Product Roadmap. Notwithstanding anything else herein, Alpine IQ reserves the right to make changes, updates, and modifications to the Services as it determines necessary or appropriate in its reasonable discretion. Alpine IQ may make improvements, revisions and additional features in the Services available to Subscriber in its sole discretion; such improvements, revisions and additional features shall be subject to the Agreement, but Alpine IQ shall have no obligation to continue to provide or make available such improvements, revisions, and additional features except as expressly set out in a written agreement between the parties. Notwithstanding anything else herein, Alpine IQ shall have no obligation to provide or make available any Services, features, application, or functionality of the Services, including the Hosted Services, and shall have sole discretion to remove, sunset, or discontinue any Services, features, application, or functionality (a "Sunset Feature") during the Term upon the earlier of: (i) the conclusion of the then in effect Term, provided, however, that Alpine IQ shall have given Subscriber written notice of such Sunset Feature no less than forty-five (45) days prior to the conclusion of the then in effect Term, or (ii) one (1) year following the disclosure of such Sunset Feature on Alpine IQ's product roadmap made available to Subscriber through Services or publicly online, and currently available at: https://support.alpineiq.com/sunset-features.
3. Obligations of the Parties.
3.1 Hosted Services. Subject to the terms and conditions of the Agreement, Alpine IQ grants to Subscriber and each of its authorized employees and agents that are identified as named users on the settings page for Subscriber's account in the Hosted Services (each such user, an "Authorized User") a nonexclusive, nontransferable, limited right to use and access the Hosted Services. Subscriber may change, add, or remove an Authorized User in accordance with the procedure set out in the user Documentation. Subscriber shall ensure that only authorized employees and agents of Subscriber are added as Authorized Users and shall remain responsible for all actions, omissions, or breaches of the Agreement of or by any Authorized User. Subscriber is responsible for maintaining the confidentiality of any accounts made available to Authorized Users and for any unauthorized use or disclosure of the Hosted Services.
3.2. Support Services. In accordance with the Support Services selected in the applicable Service Order, Alpine IQ shall make available one or more support emails, phone-numbers, or email-based help-desks for Subscriber to request and receive Support Services. Alpine IQ shall respond in a commercially reasonable time and manner to all such requests properly received for any Support Services, but Alpine IQ makes no representation or guarantees of any specific timing or availability of the Support Services or any specific resolution.
3.3 Supplemental Services. Any Supplemental Services shall be governed by the Supplemental Terms in addition to the terms and conditions of the Agreement. In the event of a conflict between the Supplemental Terms and the Agreement, the Supplemental Terms shall control.
4. Usage Restrictions; Federal Cannabis Law.
4.1 Subscriber Restrictions. Except to the extent expressly permitted by the Agreement or as otherwise required by law, Subscriber shall not:
a) Sublicense its right to access and use of the Services; b) Fail to take commercially reasonable steps to prevent any unauthorized access or use of the Services; c) Republish or redistribute any content or material from the Services without the prior written consent of Alpine IQ; d) Use the Services in any way that causes, or would reasonably be expected to cause, damage to the Services or impairs the availability or accessibility of the Services; e) Use the Services in any way that violates the rights of any third party, that is unlawful, illegal, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity; f) Conduct or request that any other person conduct any load testing or penetration testing on the Hosted Services; g) Use the Services to send hostile communications or any communication intended to insult any particular person or group of people, including but not limited to any Alpine IQ personnel; h) Use the Services to send spam or any unlawful marketing communications; i) Use the Services in a way that is likely to result in the blacklisting of Alpine IQ's IP addresses or websites; j) Conduct any automated data scraping, data mining, data extraction, data harvesting, or similar activity through or on the Services; and k) Reverse engineer the Services and/or any Hosted Services Technology.
4.2 Federal Cannabis Law. Notwithstanding anything else herein, the violation of Federal Cannabis Laws shall not be, on its own and without connection to a violation of any other applicable law or term of the Agreement, considered a breach of the Agreement, or any party's obligations hereunder, including references to applicable law and/or illegal conduct, where such party is otherwise in material compliance with all state, local, and/or Canadian provincial laws pertaining to the sale, manufacturing, licensing, production, and possession of cannabis and marijuana.
5. Service Level Requirements.
5.1 Uptime and Reliability. Subject to any limits described in the Documentation, Alpine IQ will use commercially reasonable efforts to make the Hosted Services available and operational to Subscriber with an uptime of 99.99%, calculated on a Quarterly, per-minute basis ("Required Uptime" and the actual amount of uptime as calculated in accordance with the Agreement, the "Calculated Uptime"). "Quarter" means each of the three (3) month periods beginning on February 1, May 1, August 1, and November 1 and ending on the day preceding the beginning of the next Quarter, and "Quarterly" shall have a corresponding meaning.
5.2 Exclusions. Any determination of whether Alpine IQ has met the Required Uptime shall not include any unavailability or disruption to the Hosted Services due to: (i) Subscriber’s use of the Services in a manner not authorized in the Agreement or the Documentation, (ii) problems affecting internet connectivity or internet infrastructure not solely provided by and under the direct control of Alpine IQ, or any force majeure event or other factor outside of the reasonable control of Alpine IQ (including but not limited to, denial of service attacks or third-party service outages), (iii) Subscriber’s (or one of its agents’ or venders’) equipment, software, network connections, utilities or other infrastructure, (iv) third party systems, acts or omissions or (v) Scheduled Maintenance (as defined below) or reasonable emergency maintenance. "Scheduled Maintenance" means maintenance that may affect the availability of the Hosted Services the scheduled time of which has been disclosed or made available to Subscriber through the Documentation or otherwise in writing at least 72 hours in advance thereof. Scheduled Maintenance will not exceed six (6) hours per month in the aggregate and, to the extent practicable, will be scheduled during the evening hours between 11:00pm and 4:00am Central Time the following day. In the event of any unavailability described above, Alpine IQ will use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Hosted Services in connection with outages, whether scheduled or not.
5.3 Service Level Credits. If Alpine IQ does not meet the Required Uptime specified above for any full Quarter during the Term, Subscriber will be eligible for a service level credit ("Service Level Credit") to be calculated, as follows: (i) if the Calculated Uptime is 99.75% to 99.99% (inclusive) of the Quarter's minutes, Subscriber will be eligible for a credit in an amount equal to 5% of Subscriber’s Average Monthly Subscription Fees for each month of the following Quarter; or (ii) if the Calculated Uptime is 99.50% to 99.74% (inclusive) of the Quarter's minutes, Subscriber will be eligible for a credit in an amount equal to 7.5% of Subscriber’s Average Monthly Subscription Fees for each month of the following Quarter; or (iii) if the Calculated Uptime is less than 99.50% of the Quarter's minutes, Subscriber will be eligible for a credit in an amount equal to 10.0% of Subscriber’s Average Monthly Subscription Fees for each month of the following Quarter. Subscriber's "Average Monthly Subscription Fees" will be equal to the aggregate Subscription Fees actually paid by Subscriber to Alpine IQ during the twelve (12) months preceding the calculation divided by twelve; provided, that if Subscriber has not paid Subscription Fees for a period of twelve months prior to the date of calculation then Alpine IQ shall calculate the Average Monthly Subscription Fees on any reasonable basis, including the average of Subscription Fees actually paid over the number of months preceding the calculation during which Subscriber paid Subscription Fees. Subscriber shall only be eligible to receive Service Level Credits with respect to any Quarter if Subscriber notifies Alpine IQ in writing within thirty (30) days after the end of the Quarter for which the Service Level Credits are claimed. In the event after such notification Alpine IQ determines that Service Level Credits are not due, or that different Service Level Credits are due, Alpine IQ shall notify Subscriber in writing of that finding. Service Level Credits will be applied to the next invoice following Subscriber’s written request therefor and Alpine IQ’s confirmation of available credits.
6. Subscriber Data.
6.1 License. Subscriber hereby grants Alpine IQ a limited, non-revocable, non-transferable right and license to receive, store, process, and transfer the Subscriber Data solely for the Permitted Uses. The “Permitted Uses” shall include the processing, storage, and use of the Subscriber Data by Alpine IQ and its authorized agents, employees, and subprocessors acting under the authority of Alpine IQ, including Subscriber Personal Information: (i) for the purpose of providing the Services and as otherwise permitted under the Agreement, (ii) as specifically instructed by Subscriber in writing or by Subscriber creating a digital request to transfer or send data via the Services to any outside party or connected integration service provider, (iii) in accordance with any Service Order or Supplemental Services that specifically contemplate or require additional processing or sharing, (iv) for the purposes of ensuring the security, integrity and lawful operation of the Services, (v) to troubleshoot, repair, and develop or improve the Services and any additions thereto, (vi) for the development, operation, and training of large language models and similar artificial intelligence, machine learning, and neural network applications, (vii) for the development and use of Analytics Data more particularly described in Section 6.4, and (viii) as required by applicable law, including Data Protection Laws, to which Alpine IQ is subject.
6.2 Subscriber Data Representations and Warranties. Subscriber represents and warrants to Alpine IQ that the Subscriber Data will not: (i) infringe the intellectual property rights, privacy rights, or other legal rights of any person, (ii) be libelous, obscene, indecent, or maliciously false, (iii) depict excessive graphic or gratuitous violence, (iv) contain pornographic or sexually explicit content, (v) be deliberately or recklessly false, inaccurate, or misleading, (vi) contain any legal, financial, investment, tax, accounting, medical or other professional advice, (vii) contain advice, instructions, or information that could cause death, illness, or personal injury, (viii) promote any pyramid schemes, multi-level marketing schemes, or similar letters, schemes, or programs, or (ix) breach any applicable law, statute, or regulation.
6.3 Partner Data. Alpine IQ may make available information concerning product and store level sales information (for example, price and volume) of third-party branded products sold by Subscriber to the owners and manufacturers of such third-party brands ("Partner Data") Subscriber may elect to opt-out of the distribution of any Partner Data identifiable to Subscriber and/or its stores to such third-party brand owners and manufacturers by delivering written notice of such election to Alpine IQ.
6.4 Analytics Data. Notwithstanding anything to the contrary herein, Alpine IQ may process the Subscriber Data and Subscriber Personal Information for the development of anonymous analytics, statistics and log data that may be published, sold, or otherwise shared (such data, “Analytics Data”), but for the avoidance of doubt Alpine IQ may not sell any Subscriber Personal Information. Subscriber hereby grants Alpine IQ an unlimited, non-revocable, transferable license in and to any and all the Analytics Data for use by Alpine IQ for any and all purposes.
6.5 Data Retention. Alpine IQ shall have no obligation to store or make available any Subscriber Data more than ninety (90) days from the termination or expiration of the Agreement or any applicable Service Order, whichever occurs earliest.
6.6 Public Data. For the avoidance of doubt, none of the representations or restrictions herein shall prevent Alpine IQ from processing, selling, or otherwise using in any manner in its sole discretion any publicly available data, including publicly available data that may pertain to Subscriber and its sales.
7. Fees, Taxes, and Payment Terms
7.1 Fees. Subscription Fees, Credit Fees, Overage Fees, Service Charges, taxes, and any other amounts owed by Subscriber to Alpine IQ (collectively, “Fees”) shall initially be as stated in the applicable Service Order. Fees (and any applicable taxes) paid are non-refundable and are fully earned by and payable to Alpine IQ upon execution of any Service Order or renewal of any Term. Alpine IQ may assess interest on unpaid Fees and taxes from the due date until the date paid at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. Except as set forth the Service Order, Subscription Fees and Credit fees are due and payable on the monthly anniversary of the Effective Date. All other Fees are due upon invoice by Alpine IQ. If payment of any Fee or tax is overdue, Alpine IQ may suspend provision of the Services, until the overdue amounts have been paid in full. Subscriber agrees to pay all costs incurred by Alpine IQ in collecting overdue Fees, taxes, and interest, including reasonable attorneys’ fees. Alpine IQ may modify Subscription Fees, Credit Fees, Overage Fees, and any other fees (other than Service Charges, taxes, and similar fees subject to Section 7.3) in its sole discretion, with such modifications taking effect after the conclusion of the then in-effect Term, or thirty (30) days following notice by Alpine IQ of such Fee changes, whichever is later. Alpine IQ may charge a 5% processing fee, in its sole discretion, on any Fees or other amounts paid to Alpine IQ by Subscriber via credit card.
7.2 Taxes. Subscriber shall pay all taxes and similar charges applicable to the Services, including all sales, use, excise, value-added, services, consumption, withholding and other taxes and duties assessed on the provision of Services (other than taxes on Alpine IQ’s income).
7.3 Passthrough Fees. Alpine IQ shall pass through for payment by Subscriber certain Service Charges, taxes, and similar Fees not set by Alpine IQ. Such amounts passed through by Alpine IQ to Subscriber may be adjusted by Alpine IQ at any time to reflect the actual Fees paid by Alpine IQ with respect to such Service Charges, taxes, and similar Fees. Nothing in this Section 7.3 shall restrict Alpine IQ’s right to charge a processing fee or surcharge on such Fees in accordance with the Agreement.
7.4 Service Charges Processing Surcharge. Alpine IQ may charge Subscriber a processing surcharge on any Service Charges owed by Subscriber of up to 10% of the amount of such Service Charges.
7.5 Notwithstanding anything to the contrary herein, until such time as Subscriber transitions to the pricing model described in this Services Agreement, unless otherwise agreed by Subscriber and Alpine IQ, Alpine IQ shall continue to invoice Subscriber under the pricing terms currently in effect for Subscriber, and Subscriber shall pay such invoices in accordance with such terms.
8. Telephone Consumer Protection Act
8.1 RESPONSIBILITY FOR MESSAGING AND RECORDING. THE PARTIES AGREE THAT SUBSCRIBER IS THE SOLE RESPONSIBLE INITIATOR OF ALL MESSAGING CAMPAIGNS (INCLUDING ALL TEXT, SMS, MMS, PUSH, BROWSER, EMAIL AND OR OTHER MESSAGING CHANNEL CAMPAIGNS) IN ALL CIRCUMSTANCES AND IS AND SHALL BE SOLELY RESPONSIBLE FOR ALL SUCH MESSAGING CAMPAIGNS, INCLUDING OBTAINING ALL REQUIRED CONSENTS AND FOLLOWING ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING THE “TELEPHONE CONSUMER PROTECTION ACT” (“TCPA”), REGARDLESS OF WHETHER ALPINE IQ IS TASKED WITH CREATING AND/OR MANAGING ANY SUCH CAMPAIGNS FOR SUBSCRIBER. SUBSCRIBER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS ALPINE IQ FROM AND AGAINST ANY AND ALL THIRD-PARTY CLAIMS ARISING OUT OF OR IN CONNECTION WITH ANY MESSAGING CAMPAIGNS AND ANY AND ALL COSTS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) SUFFERED OR INCURRED BY ALPINE IQ IN CONNECTION WITH ANY SUCH THIRD-PARTY CLAIM.
SUBSCRIBER SHALL NOT USE THE SERVICES FOR SMS, MMS, OR EMAIL MARKETING MESSAGES IF SUBSCRIBER IS ALSO USING ANOTHER SIMILAR SERVICE AT THE SAME TIME. CONSUMER OPT OUT REQUESTS THAT HAPPEN ON ALTERNATIVE THIRD PARTY SERVICE OFFERINGS MAY NOT BE ACCURATELY COMMUNICATED TO ALPINE IQ.
If Subscriber records or monitors telephone calls, SMS/ MMS messages, or other communications using the Services, Subscriber will do so in compliance with all applicable laws and will secure all required consents to record or monitor communications using the Services prior to engaging in such activities. Alpine IQ makes no representations or warranties with respect to recording or monitoring of telephone calls, SMS/ MMS messages, emails, push notifications, chat, or other communications. Subscriber acknowledges that these representations, warranties, and obligations are essential to Alpine IQ’s ability to provide Subscriber with access to recording and monitoring features that are part of the Services. Subscriber shall indemnify and hold harmless Alpine IQ and its affiliates for any claims, damages, liabilities, or actions arising out of or related to Subscriber’s acts or omissions with respect to or in connection with providing notice and obtaining consents regarding such recording or monitoring of telephone calls, SMS/ MMS messages, or other communications using the Services.
8.2 Messaging Functionality. Alpine IQ shall provide a mechanism for Subscriber’s users accessing the Hosted Services to opt-out of Subscriber communications sent through the Hosted Services that is intended to allow Subscriber to comply with the TCPA. However, Subscriber is solely responsible for ensuring that such mechanism of the Hosted Services is suitable for Subscriber’s TCPA compliance obligations as determined independently by Subscriber and its counsel with respect to all of Subscriber’s operations that may be subject to the TCPA, including but not limited to Subscriber’s use of the Services. Subscriber shall comply with all requirements of the TCPA and similar laws and regulations in the use of the Services.
9. Confidentiality. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Except as otherwise permitted in writing by the Disclosing Party, (x) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, and (y) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the above, the Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or any governmental authority to do so. In the event of any such compelled disclosure, the Receiving Party shall, to the extent reasonably practicable and not prohibited by law or such governmental authority, give the Disclosing Party prior notice of such compelled disclosure and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
10.1 Subscriber Privacy Obligations. Subscriber hereby represents and warrants that: (i) it has taken all steps necessary (including but not limited to, providing or obtaining proper notices and consents) to comply with all applicable laws in connection with the collection and transfer of the Subscriber Data transferred to Alpine IQ hereunder, (ii) the transfer and use of such Subscriber Data as contemplated by the Agreement will not violate any Data Protection Laws or cause Alpine IQ to violate any Data Protection Laws, and (iii) Subscriber shall not use the Services to collect, store, process, or transmit any Sensitive Personal Information, except as specifically agreed to in writing by the parties. Notwithstanding anything else in the Agreement, Alpine IQ shall have no liability under the Agreement or otherwise for any Sensitive Personal Information, except to the extent agreed in writing by the parties in a separate agreement or amendment expressly related to Sensitive Personal Information.
10.2 Alpine IQ Privacy Obligations. Alpine IQ shall: a) Comply with applicable Data Protection Laws with respect to the processing of any Personal Information in the Subscriber Data provided to Alpine IQ. b) Maintain compliance with industry standard information security practices, such as SOC 2 Type 2, and shall perform or have performed, at least annually, audits of Alpine IQ’s compliance with such industry standard information security practices. c) Process, store, transmit, or otherwise use any Personal Information provided in the Subscriber Data solely pursuant to the Agreement and for the limited and specific purposes of the Permitted Uses as set forth in Section 6.1; d) Comply with all requirements of the CCPA applicable to the processing of any Personal Information in the Subscriber Data, including providing a level of privacy protection and implementing reasonable security procedures and practices no less than what would be required for a business processing Personal Information under the CCPA; e) Implement and maintain commercially reasonable administrative, technical, and physical safeguards, including procedures and practices, with regard to Subscriber Data in Alpine IQ’s possession and control designed to (i) ensure the security, confidentiality, and integrity of the Subscriber Data, (ii) protect against any anticipated threats or hazards to the security or integrity of the Subscriber Data, and (iii) protect against unauthorized access to, or unauthorized use or disclosure of, the Subscriber Data; f) Provide Subscriber the opportunity to make commercially reasonable and appropriate requests for documentation, and to the extent necessary audit the relevant records upon Subscriber’s reasonable request, to ensure the Personal Information in any Subscriber Data provided to Alpine IQ is processed in compliance with the CCPA. Nothing in this section shall require Alpine IQ to breach any confidentiality obligations it has under applicable laws or any agreement with third parties; g) Not sell or share Personal Information in the Subscriber Data except as expressly directed by Subscriber; h) Not combine Personal Information in the Subscriber Data with Personal Information received from or on behalf of another person or collected directly from Alpine IQ’s own interaction with a consumer, other than for the Permitted Uses or any “business purpose” as defined by the CCPA; i) Promptly notify Subscriber about any consumer privacy rights request or similar request under applicable Data Protection Laws (“Privacy Requests”) that Alpine IQ receives directly concerning any Personal Information in the Subscriber Data; j) Provide reasonable assistance to Subscriber to the extent necessary for Subscriber to respond to any Privacy Requests received by Subscriber involving or relating to Personal Information in the Subscriber Data processed by Alpine IQ; k) Delete all Personal Information contained in the Subscriber Data upon Subscriber’s written request and upon termination of the Agreement; l) Ensure that any service providers or subprocessors of Alpine IQ processing any Personal Information contained in the Subscriber Data on behalf of Alpine IQ only due so pursuant to contractual requirements materially the same as those in this Section 10; and m) Notify Subscriber no later than 5 business days after it makes a determination that it can no longer meet its obligation under the CCPA with respect to any Subscriber Data.
10.3 Data Breaches. Alpine IQ shall report any Data Breach to Subscriber within three (3) days following Alpine IQ’s actual knowledge of such Data Breach. “Data Breach” means any event that materially compromises the confidentiality, security, integrity, or availability of Subscriber Personal Information including any (i) unauthorized access, use, disclosure, modification, or destruction of Subscriber Personal Information or (ii) loss or misuse (by any means) of any Subscriber Personal Information.
11.1 Mutual Indemnity. Each party shall indemnify, defend, and hold harmless the other party from and against any and all third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any gross negligence or willful misconduct of such indemnifying party.
11.2 Subscriber Special Indemnity. Subscriber shall indemnify, defend, and hold harmless Alpine IQ from and against any and all third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any Subscriber Data or breach or alleged breach by Subscriber of Section 4.1(Subscriber Restrictions), Section 8.1 (Responsibility For Messaging and Recording), or Section 10.1 (Privacy; Subscriber).
11.3 Alpine IQ Special Indemnity. Alpine IQ shall defend (or at its option settle) any third-party claim, suit or action against Subscriber alleging that the Services infringe any Intellectual Property Rights of such third party (each, an “Infringement Claim”) and indemnify Subscriber from the resulting costs and damages finally awarded against Subscriber to that third party by a court of competent jurisdiction or agreed to in settlement by Alpine IQ. Subscriber shall (a) promptly provide Alpine IQ with notice of any Infringement Claim within a reasonable period of time after learning of it; (b) allow Alpine IQ sole control over the claim’s defense and settlement; and (c) reasonably cooperate in response to Alpine IQ’s requests for assistance. Subscriber may not settle or compromise any Infringement Claim without Alpine IQ’s prior written consent. If the Services are, or in Alpine IQ’s opinion likely to become, the subject of an Infringement Claim, then Alpine IQ may (i) procure for Subscriber, at no cost to Subscriber, the right to continue using the Services, (ii) replace or modify the infringing the Services, at no cost to Subscriber, or (iii) if the right to continue using the infringing the Services cannot be procured for Subscriber for a reasonable cost, or cannot reasonably be modified to make it non-infringing, terminate the Agreement, and refund to Subscriber any prepaid Fees. Notwithstanding the foregoing, Alpine IQ will have no obligation under this Section 11.3 or otherwise with respect to any Infringement Claim based upon: (1) any use of the Services in a manner not in accordance with the Agreement or the applicable Documentation; (2) any use of the Services combination with products, equipment, or software not supplied by Alpine IQ if such infringement would have been avoided without the combination with such other products, equipment, or software; (3) any modification of the Services by any person other than Alpine IQ or its authorized agents or subcontractors; or (4) any Services provided on a no charge, beta, trial or evaluation basis. Alpine IQ’s obligations under this Section 11.3 are Alpine IQ’s sole obligations and Subscriber’s exclusive remedy for any Infringement Claim.
11.4 Indemnification Procedure. Any indemnified party seeking indemnification under the Agreement must promptly notify the indemnifying party in writing of the claim and cooperate with the other party in defending the claim. To the extent permitted by applicable law, the indemnifying party will have full control and authority over the defense provided, however, that: (i) any settlement requiring the indemnified party to admit liability, be subject to injunctive or other equitable penalties, or to pay any money damages will require that party’s prior written consent; and (ii) the indemnified party may join in the defense with its own counsel at its own expense.
12. Disclaimer and Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN THE WARRANTIES EXPRESSLY PROVIDED IN SECTION 10.2, ALPINE IQ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, THE PLATFORM, THE SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ALPINE IQ WILL NOT BE LIABLE TO SUBSCRIBER FOR DAMAGES RESULTING FROM THE SERVICES, ANY SUBSCRIBER DATA, OR THE FAILURE OF THE HOSTED SERVICES. SUBSCRIBER HEREBY ACKNOWLEDGES THAT SOFTWARE IS NEVER WHOLLY FREE FROM DEFECTS, ERRORS, BUG, OR SECURITY VULNERABILITIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR REQUIRED BY APPLICABLE LAW, ALPINE IQ MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE FOREGOING. SUBSCRIBER ACKNOWLEDGES THAT ALPINE IQ DOES NOT PROVIDE ANY LEGAL, FINANCIAL, ACCOUNTANCY OR TAXATION ADVICE; AND ALPINE IQ DOES NOT WARRANT OR REPRESENT THAT THE SERVICES OR THE USE OF THE SERVICES BY SUBSCRIBER WILL PREVENT ANY LEGAL LIABILITY ON THE PART OF SUBSCRIBER OR ANY OTHER PERSON.
SUBSCRIBER ACKNOWLEDGES THAT THE SERVICES ARE DESIGNED TO BE COMPATIBLE ONLY WITH THAT SOFTWARE AND THOSE SYSTEMS SPECIFIED AS COMPATIBLE BY ALPINE IQ; AND ALPINE IQ DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE COMPATIBLE WITH ANY SOFTWARE OR SYSTEMS.
EXCEPT FOR ALPINE IQ’S OBLIGATIONS UNDER SECTION 9 (CONFIDENTIALITY), ALPINE IQ WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR INDIRECT, WILLFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF ALPINE IQ HAS BEEN MADE AWARE OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. NOTWITHSTANDING ANYTHING ELSE HEREIN, ALPINE IQ’S MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE THE LESSER OF: (A) THE AMOUNT OF FEES EARNED BY ALPINE IQ DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT THAT GAVE RISE TO SUCH LIABILITY, OR (B) $1,000,000. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
13. Dispute Resolution. The parties agree that all claims or disputes arising out of the Agreement will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which are available at www.adr.org. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys’ fees, except that the successful or prevailing party to any claim shall be entitled to recover reasonable attorneys’ fees, subject to the limitations on liability set forth herein. The arbitration proceeding will take place in Denver, CO, unless otherwise agreed. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action.
"Agreement" means this Services Agreement and all Service Orders and Supplemental Terms between Alpine IQ and Subscriber. "Business Hours" means the hours of 09:00 to 17:00 CST on any weekday other than a bank or public holiday in The United States of America. "Credit Fees" means the prepaid fees for any messaging or similar notifications including MMS, SMS, email, push notifications and direct mail (collectively, “Messaging Services”) as set forth in the applicable Service Order or other written notice from Alpine IQ. "Data Protection Laws" means all applicable laws relating to the processing and/or protection of Personal Information, including but not limited to, the California Consumer Privacy Act (“CCPA”), as amended. "Documentation" means the specifications, standards, pricing information, and help documentation for the Services made available by Alpine IQ on its website or otherwise delivered by Alpine IQ to Subscriber. "Effective Date" means the effective date set forth in the initial Service Order, or if no such date is specified therein, the date upon which the initial Service Order is executed. "Federal Cannabis Law" means federal laws of the United States of America regulating marijuana or cannabis as included on Schedule 1 under the United States Controlled Substances Act, including any such federal laws of the United States pertaining to manufacturing, distributing, dispensing or possession of marijuana or cannabis. "Hosted Services" means the primary subscription services provided by Alpine IQ through its web-based portal (for example, the “marketing”, “loyalty”, “analytics”, and “data ops” services) at the levels (for example “starter”, “pro” and “enterprise”) and/or in the bundles, as more particularly described on the applicable Service Order. Hosted Services also includes any Messaging Services. "Mobile App" means the Supplemental Services which comprise the mobile application known as the Alpine IQ Native App Extension if or when such application is made available by Alpine IQ through mobile app stores. "Overage Fees" means the fees for any additional Messaging Services in excess of those already paid for by Subscriber pursuant to any prepaid Credit Fees. "Personal Information" means any information relating to, capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person or household, including, without limitation, any inferences drawn therefrom or derivatives thereof, or any other information that is regulated as “personal data” or “personal information” under applicable law. "Sensitive Personal Information" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards, or other financial account numbers or credentials (except for Subscriber’s own payment information for the payment of Fees); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act; (iii) social security numbers, driver’s license numbers or other government ID numbers; (iv) any information deemed to be “special categories of data” of an United Kingdom or European Union data subject (as deﬁned in the United Kingdom and/or European Union’s General Data Protection Regulation); or (v) other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or similar foreign or domestic Data Protection Laws. "Service Charges" means communications industry "carrier fees" charged by telecommunications providers and their affiliates. "Service Order" means any written order for Services placed by Subscriber and accepted in writing by Alpine IQ and any order for Services placed by Subscriber via a self-service signup form located at alpineiq.com and accepted by Alpine IQ as evidenced by the order confirmation sent by Alpine IQ to Subscriber. "Subscriber Data" means all data, information, or content, including any Personal Information: uploaded to or stored on the Services by Subscriber; transmitted by the Services at the instigation of or on behalf of Subscriber (not including any communications through the service specifically on behalf of Alpine IQ); supplied by Subscriber to Alpine IQ for uploading to, transmission by or storage on the Services; or collected by or generated by the Services as a result of the use of the Services by Subscriber (but excluding anonymized data that does not contain Personal Information, analytics data relating to the use of the Services, or server log files). "Subscription Fees" means the fees for the Services, including but not limited to the Hosted Services, the Mobile App, Support Services, any Supplemental Services, and as otherwise set forth on the applicable Service Order or written notice from Alpine IQ, but excluding any Credit Fees, Overage Fees, or Service Charges. "Supplemental Services" means additional or supplemental Services to Customer provided in addition to the Hosted Services and subject to additional terms and conditions pursuant to one or more Supplemental Terms, including, for example, the Mobile App. "Support Services" means those support services made available by Alpine IQ in relation to the use of, and the identification and resolution of errors in, the Hosted Services or Supplemental Services, in the form and manner set forth in the applicable support plan purchased by Subscriber pursuant to the Service Order. "Supported Web Browser" means the current release from time to time of Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that Alpine IQ agrees in writing shall be supported.
15. Miscellaneous Terms. Alpine IQ and Subscriber are independent contractors, and nothing herein may be construed to create any agency, partnership, or joint venture between them. Notwithstanding anything to the contrary, neither party has any authority of any kind to bind the other party in any respect whatsoever. The Agreement is not intended to benefit, nor will it be deemed to give rise to, any rights in any third party. No ambiguity will be construed against any party based upon a claim that such party drafted the ambiguous language. The Agreement and any Service Order and Supplemental Terms will be governed by Colorado law, without regard to conflict of law principles. The Agreement, the Service Order(s), and any Supplemental Terms constitute the entire agreement between the parties and supersedes any prior understanding (written or oral) on the subject matter hereof. In the event of any conflict between the terms of the Service Order and the Agreement, the Service Order will control. Alpine IQ may make changes to the Agreement from time to time by providing Subscriber with at least twenty (20) days written notice of any such changes (“Change Notice”). Such Change Notice shall specify the effective date of such changes (which must be at least twenty (20) days after delivery of the notice) and Subscriber’s continued access or use of the Services on or after the effective date of any such changes constitutes Subscriber’s acceptance of and consent to any such changes. If Subscriber opposes any such changes to the Agreement, Subscriber may terminate the Agreement effective immediately upon written notice to Alpine IQ delivered prior to the effective date of any such changes. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then that provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. In the event of a breach, in addition to any remedies at law or in equity, the non-breaching party will be entitled to seek specific performance and immediate injunctive relief. Failure by either party to require performance or claim breach will not be construed as a waiver. A party will not be liable for any failure of or delay in the performance of the Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. Subscriber may not assign the Agreement without the prior written consent of Alpine IQ, and if permission is secured, the assignor will provide Alpine IQ with advance written notice so that payment can be directed appropriately. Any assignment by Subscriber in violation of this provision will be null and void. The Agreement will be binding on the parties’ permitted heirs, successors, and assigns. For the avoidance of doubt, following any merger, consolidation, or change of control of Subscriber resulting in multiple Subscribers or customers of Alpine IQ consolidating into a single entity or subsidiary or other affiliates, and regardless of whether the foregoing would constitute an assignment prohibited by this Section 15, all such obligations and Fees owed by Subscriber shall continue separately and remain in full force and effect for the remainder of the then in effect Term. Subscriber hereby grants to Alpine IQ a limited, revocable license to use Subscriber’s name, logo and identifying marks in advertising Alpine IQ’s services, subject to Subscriber’s reasonable objection.
16. Notices. All notices from one party to the other party with respect to the Agreement must be given by email to the relevant email address specified through the Hosted Services, in which case the notice shall be deemed to be received upon receipt of the email by the recipient's email server.