Software Services Agreement

BY ACCEPTING THIS AGREEMENT, BY BY ACCEPTING THIS AGREEMENT BY (1) USING THE ALO SERVICE, (2) CLICKING A BOX INDICATING ACCEPTANCE, OR (3) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

The terms and conditions in this Software Services Agreement govern each ALO.ai, Inc. Order Form (collectively with these terms and conditions, this “Agreement”) entered into between ALO.ai, Inc. (“Company”) and Customer, effective as of the Effective Date indicated on the initial Order Form or the date when Customer starts using free services. The Customer does not include any of Customer’s affiliates unless otherwise expressly agreed in the Order Form. 

This Agreement was last updated on April 1, 2022. It is effective between Customer and Company as of the date of Customer’s accepting this Agreement (the “Effective Date”).

In consideration of the mutual covenants and conditions contained in this Agreement, the parties agree as follows:

SERVICES AND SUPPORT

Company will (a) make the Services available to Customer subject to the terms of this Agreement, and the applicable Order Form(s), (b) provide applicable ALO standard support for the Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Company shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Company’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Company employees), Internet service provider failure or delay, Non-Company Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Company’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement and the applicable Order Form.

RESTRICTIONS AND RESPONSIBILITIES

Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services, both in writing); use the Services or any Software for timesharing or service bureau purposes, and/or personnel associated therewith may use, the Services, and the same shall not be a violation of this clause); or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services. 

Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

Customer represents, covenants, and warrants that Customer will use the Services in compliance with all applicable laws and regulations, these Terms and Conditions, and any additional provisions stated on any Order Form. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and Customer agrees to engage in good faith dialogue and to reasonably cooperate with Company if Company notifies Customer that Company believes Customer is in violation of the foregoing.

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, mobile phones, tablets, desktop hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

CONFIDENTIALITY; PROPRIETARY RIGHTS

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose (in any manner, including but not limited to by passive observation by Receiving Party) business, technical, financial, or other information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services.  Proprietary Information of Customer includes (i) any and all information about the Locations and/or the tenants therein; and (ii) non-public data provided by Customer to Company to enable the provision of the Services (collectively “Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.  

Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.  Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing.     

Notwithstanding anything contained herein to the contrary, Company shall have the right collect and analyze data and other information in, and only in, an anonymized and aggregated form, relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  Company will be free (during and after the Term) to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings. No rights or licenses are granted except as expressly set forth herein.   

PAYMENT OF FEES

Customer will pay Company the Services and Implementation Fee in accordance with the terms in each Order Form (the “Fees”).  For usage-based billing, Customer will pay for the usage during each billing period specified by the billing frequency in the Order Form at the end of each billing period. If Customer’s use of the Services exceeds the quantity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional.  If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 90 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Company’s customer support department.

Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services. Customer shall be solely responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.  

TERM AND TERMINATION

The Agreement commences on the date Customer first accepts it and remains in effect so long as any Order Form remains in effect and shall be coterminous with the last-to-expire/terminate Order Form outstanding.

Unless otherwise indicated in the Order Form, each Order Form will renew automatically at the end of the then-current Term for a Renewal Term equal to the length of the current Term, unless terminated by Customer by written notice at least 10 days prior to the expiration of the then-current term. 

In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days prior written notice if the other party materially breaches any of the terms or conditions of this Agreement and such breach is not cured within said thirty-day period.  

Termination of one Order Form shall not affect any other Order Form. Upon expiration or termination of an Order Form for any reason, Customer will (a) pay in full for the Services up to and including the last day on which the Services are provided, (b) immediately discontinue use of the Service, which will immediately cease; and (c) each party shall return or destroy the other party’s Confidential Information in its possession relating to the terminated Order Form. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. 

All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, indemnity, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 

WARRANTY AND DISCLAIMER

Company shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  Notwithstanding anything contained herein to the contrary, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

INDEMNITY 

Company shall defend, indemnify, and hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Services (i) supplied by Customer, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified by Customer after delivery by Company, (iv) combined by Customer with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of (vii) the Implementation Fee; and any prepaid, unused fees for the Service. Customer shall defend, indemnify, and hold Company together with each of its respective employees, officers, directors, members, shareholders, governors, representatives, successor and assigns (collectively, the “Company Indemnitees”) harmless from liability to third parties resulting from (i) Customer’s use of the Services in violation of this Agreement; (ii) violations of applicable law; or (iii) any allegation that Customer Data as used by Company in accordance with this Agreement infringes any patent, copyright, trademark or any other intellectual property right of any third party, or misappropriation of any trade secret; provided Customer is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Customer will not be responsible for any settlement it does not approve in writing. 

LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR (I) COMPANY’S INDEMNIFICATIONS HEREUNDER, AND (II) BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.  Each party hereby consents and agrees that any and all disputes, claims, or controversies arising out of or related to this Agreement, or any breach or alleged breach thereof, shall be settled by arbitration.  Arbitration shall (i) be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules; (ii) be held before a single, neutral arbitrator; and (iii) take place in Mountain View, California.  Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction thereof.  The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.