These terms for Datonis Subscription (“Agreement”) are entered into and between Altizon entity identified on the Altizon Quotation (“Altizon”) and the customer identified on the Altizon Quotation (“You” including its grammatical variations or “Customer”). Altizon Quotation is governed by this Agreement and the Quotation supplements this Agreement. By agreeing to or accepting the Quotation, you enter into this Agreement. This Agreement and the Quotation constitute the entire terms governing the relationship between the parties related to the Datonis Services. No additional terms are binding unless agreed in writing and signed. Certain terms are used with a defined meaning. You will find the definitions in Section 14 of this Agreement.
Subject to Your payment of fees and compliance with this Agreement, You may during the Coverage Period access the Datonis Service for your non-exclusive, non-transferable and revocable personal internal business use, by transferring the Device Information collected by Aliot Appliance to the Datonis Service. This license is limited to the number of Devices and Requests Per Second as authorized in the Quotation. The Device that You use to collect the Device Information from must be either owned or leased by You for your internal business purposes.
Provision of Datonis Services
Pursuant to Your aforesaid subscription, Altizon will (a) make the Datonis Service available to You pursuant to this Agreement and the applicable Quotation, (b) provide to You Altizon standard support for the Datonis Services at no additional charge as part of Subscription Coverage, and/or Updates if Updates Coverage is purchased by the Customer, and (c) use commercially reasonable efforts to make the online Datonis Services available to You, except for: (i) planned downtime (of which Altizon will endeavor to provide a prior intimation if the circumstances permit; for example, in case of any emergency potentially affecting security of the system, Altizon may have to act without prior notice), (ii) any unavailability caused by circumstances beyond 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 Altizon employees), Internet service provider failure or delay, or denial of service attack, misuse, abuse or excess use by other users, or any down-time / unavailability of the public cloud on which Datonis is hosted.
Altizon shall maintain commercially reasonable endeavors to implement technical safeguards in accordance with the Documentation to protect security and integrity of Your data. Customer acknowledges that Datonis Service is hosted on a public cloud which is accessed by the customers over the public internet, which limits the manner in which these technical safeguards may be implemented. Further, the Service may not retain data without any capacity limitations and prior data files may be overwritten by the newly created data files. You must download and/or backup the data at regular intervals to avoid data loss.
2. Your Obligations
You will (a) be responsible for the accuracy, quality and legality of Your data and the means by which You acquired Your data, (b) use commercially reasonable efforts to prevent unauthorized access to or use of Datonis Services, and You must notify Us promptly of any such unauthorized access or use, (c) use Datonis Services only in accordance with the Documentation and applicable laws and government regulations, (d) implement technical safeguards on Your systems and Devices to avoid any security risks to Datonis Service and other user’s data. You agree that Your procurement of services are not contingent on the delivery of any future functionality, features, or enhancements, or dependent on any commitments regarding such delivery.
You may not directly or indirectly: (i) dissemble, copy, modify or reverse engineer the Datonis Service or any contents thereof, (ii) rent, sublicense, loan, lease, share, transfer, or commercially use the Datonis Service, include Datonis in service bureau or outsourcing offering, or allow any third party to access the Datonis Services, (iii) use the Datonis Service for product compare or benchmarking purposes, (iv) remove or alter any branding or notices on the Datonis Service, (v) copy the Software except as permitted in writing, (vi) create license keys to enable the Datonis Services or any software component thereof, (vii) use the Datonis Services for High Risk Activities, (viii) use the Datonis Services to build, conceive or develop any competing product offering, (ix) exceed the permitted number of Devices or the Requests Per Second if any, (x) use a Datonis Service to store or transmit infringing, libelous, or otherwise unlawful, infringing or tortious material, or to store or transmit material in violation of third-party rights, (xi) use a Datonis Service to store or transmit malicious code, Trojan, or virus (xii) interfere with or disrupt the integrity or performance of Datonis Service or third-party data contained therein, (xiii) attempt to gain unauthorized access to any Datonis Service or its content or its related systems or networks, (xiv) permit direct or indirect access to or use of any Datonis Service in a way that circumvents a contractual usage limit, (xv) copy a Datonis Service or any part, feature, function or user interface thereof, (xvi) copy any content from the Datonis Service or the Documentation, or (xvii) frame or mirror any part of any Datonis Service or its content.
During the Coverage Period, Altizon shall, as per its support offering that You procure and pay for, make commercially reasonable efforts to work diligently with You to provide you solutions to address (i) service unavailability of Datonis Services pursuant to Clause c of Section 1 (Provision of Datonis Services); or (ii) Non-compliances with Section 8 (Warranty Coverage). Altizon’s support offering terms that You have procured will be provided to You separately; If not, You must make sure that You ask for them.
The Datonis Services, its contents, software, and branding thereof may constitute the intellectual property of Altizon and is protected by various intellectual property laws. This Agreement does not grant You any rights, title and interest in and to Datonis Services, its contents, software, and branding including Altizon’s intellectual property rights except where expressly and unequivocally granted herein. Any rights not expressly and unequivocally granted are reserved. If You require Altizon to develop any customizations, modifications or configurations to the Service, Altizon owns all right, title and interest including the intellectual property rights in such developments and You will have the permission to use as per Section 1 of this Agreement.
You grant Altizon, our affiliates and contractors a worldwide, limited-term license to host, copy, transmit and display Your data, as necessary to provide the Services in accordance with this Agreement.
From time to time, You may provide us feedback, suggestions or recommendations (“Feedback”) regarding the Datonis Services. You assign us all right, title and interest to such Feedback and an exclusive right to create any developments based on such Feedback.
Applicable fees will be stated in the Quotation. Fees will be due in advance promptly upon receipt of the invoice. In such case, the Quotation will mention that payments are due in advance. In some cases where Altizon specifically agrees, fees may be due thirty days from the invoice date unless Quotation specifies otherwise. You may issue a purchase order. However, parties acknowledge that Your purchase order is merely for Your internal accounting document, and Altizon may invoice on Your acceptance of the Quotation. If parties agree that Altizon may not invoice without a purchase order, Altizon will not be obliged to deliver any products, services or license keys unless it receives the purchase order.
All fees are exclusive of applicable taxes except on Altizon’s income. Taxes chargeable to the Customer shall include but not be limited to sales, use, service, value added, or excise taxes. All known taxes will be indicated on the Quotation and/or our invoice. If any additional applicable taxes are discovered, those will be invoiced to the Customer, and Customer agrees to immediately pay such taxes. If Customer is mandated by law withhold or deduct any taxes from its payments to Altizon, Customer must provide Altizon with an official tax receipt or other appropriate official documentation to support such withholding or deduction.
All rights granted to You are subject to Your payment of applicable fees. Timely payment of fees is the essence of this Agreement. These rights terminate if You don’t pay on time. Altizon may charge a late fee interest at 1.5% per month (or the maximum rate permitted by applicable law if lower) on overdue payments. You agree to reimburse Altizon all expenses incurred by Altizon in recovering any overdue amounts. In case of nonpayment, Altizon shall be entitled to exercise its rights as an unpaid seller.
6. Publicity and Confidentiality
Customer agrees that Altizon may include Customer’s name, trademarks, logos, or other distinctive brand features in a list of Altizon customers. Customer also agrees that Altizon may verbally reference Customer as a customer of Altizon products or services that are the subject of this Agreement.
Customer shall: (a) protect the Confidential Information with the same standard of care it uses to protect its own confidential information of similar nature, but with no less than a reasonable standard of care; and (b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Customer (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Customer is responsible for any actions of its affiliates, employees and agents in violation of this Section.
In situations where You wish to disclose your confidential information to Altizon, You may request a non-disclosure agreement to be signed in advance, and Altizon shall consider such request in good faith. Except for execution of such non-disclosure agreement but subject to Altizon’s obligation under Section 1 (Your Data), Altizon may treat all your information as non-confidential.
Your user’s password may not be shared with any third party. You must maintain confidentiality of the password. Customer is responsible for any user logging-in to the service using Your password.
Altizon warrants that during the Coverage Period Altizon agrees to correct at its own cost failure of the Datonis Service to substantially achieve the functionality described in Documentation.
The limited warranty set forth above will not apply to defects or errors in the Datonis Services’ functionality that are caused by: (i) Customer’s failure to follow installation, operation or maintenance instructions or procedures in the Documentation; (ii) Customer’s mishandling, abuse, misuse, negligence, or improper storage, servicing, or operation of the Service (including without limitation use with incompatible equipment) or exceeding the usage limitations; (iii) modifications, repairs or improper installation not performed by Altizon; (iv) any causes beyond reasonable control of Altizon; (iv) public internet or public cloud infrastructure including unavailability thereof; or (v) malicious code, virus or Trojans not introduced by Altizon.
Altizon’s entire liability and Customer’s sole and exclusive remedy with respect to breach of the above warranty will be at Altizon’s option: (a) correct the failure pursuant to Section 3 (Support); or (b) terminate the Agreement and refund of the purchase price paid for the Service subscription that pertains to period post termination date. Customer waives any other rights and remedies.
The aforesaid limited warranty does not apply specifically to any issues pertaining functioning of the public cloud. Altizon’s written agreement with public cloud providers may come with its own warranty terms. Altizon does not take any other responsibility for the functioning of the public cloud.
Other warranties disclaimed
EXCEPT FOR THE LIMITED WARRANTY ABOVE, THE SERVICE IS PROVIDED ON AN AS-IS BASIS. PARTIES SPECIFICALLY DISCLAIM AND EXCLUDE ANY OTHER WARRANTIES, GUARANTEES, CONDITIONS, REPRESENTATIONS, BEING IMPLIED, STATUTORY, CUSTOMERY BY USAGE OF TRADE OR OTHERWISE, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR PURPOSE, QUIET POSSESSION, TITLE, OR NON-INFRINGEMENT. ALTIZON DOES NOT WARRANT THAT THE SERVICE SHALL WORK ERROR FREE OR UNINTERRUPTED OR WITH ANY AND ALL DEVICES. THE SERVICE IS NOT INTENDED TO BE USED FOR HIGH RISK ACTIVITIES. CUSTOMER HAS NOT RELIED ON ALTIZON’S SKILL OR JUDGEMENT IN DECIDING THE PURPOSE FOR WHICH IT IS PROCURING THE SERVICE.
9. Term and Termination
This subscription commences on the Coverage Period start date and shall expire on the expiry of the Coverage Period mentioned on the Quotation, unless terminated pursuant to the terms of this Agreement.
Either party may terminate this Agreement if other party fails to cure a breach of this Agreement within 30 days of a notice to cure such breach. Either party may terminate this Agreement with immediate effect in case the other party’s breaches this Agreement second time whether such breach is cured or not.
If Agreement is terminated for Altizon’s breach: At Customer’s option, the subscription under this Agreement may continue for the Coverage Period provided Customer continues to comply with rest of the Agreement.
If Agreement is terminated for Customers breach: The subscription terminates immediately and the Customer must immediately cease using the Service. The Service may cease to be available to the Customer. All payments owed to Altizon by Customer shall immediately fall due.
Expiry of Agreement: The subscription terminates immediately and the Customer must immediately cease using the Service. The Service may cease to be available to the Customer.
Altizon may not retain post termination or expiry of this Agreement Your data in its system or otherwise in its possession or control, unless You request to Altizon in advance within 15 days before the effective date of termination or expiration of this Agreement and Altizon agrees in writing for agreed upon fees. If Altizon agrees, Altizon will make the Your Data available to You for export or download as provided in the Documentation. Altizon will have no obligation to maintain or provide Your data on or after termination / expiry or any extended period agreed pursuant to this Section, and will thereafter delete or destroy all copies of Your data in its systems or otherwise in its possession or control.
Following clauses survive any termination of expiry: Sections 2, 4, 5 (to the extent of unpaid amounts), 6, 9 (Survival), 10, 12, and 13.
10. Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR UNDER THIS AGREEMENT FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR EXPENSES, LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF REVENUE (TOGETHER “INDIRECT DAMAGES”), EVEN IF THE OTHER PARTY KNEW OR SHOULD HAVE KNOWN POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES. PARTIES SHALL BE LIABLE TO THE OTHER SOLELY FOR DIRECT DAMAGES EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALTIZON’S MAXIMUM LIABILITY UNDER THIS AGREEMENT IN AGGREGATE SHALL NOT EXCEED THE AMOUNTS RECEIVED BY IT FROM THE CUSTOMER DURING THE TWELEVE MONTHS PRECEEDING THE EVENT GIVING RISE TO THE CLAIM.
This clause does not limit liability for breaches of confidentiality, or violations of a party’s intellectual property rights by other party.
Altizon agrees to defend You at its own cost against any claims made by a third party (expressly excluding any of Your affiliates) that the Datonis Service used in accordance with this Agreement and the Documentation infringes such third party’s patent or copyright or misappropriates its trade secret, and reimburse to You any damages payable by You under resulting adverse final judgment or settlement negotiated by Altizon.
Actions in case of Infringement
If the Datonis Service is subject to any claim of infringement as defined above and especially when its use is enjoined or when Altizon believes it could be, Altizon may at its option and expense either: (i) procure for You, right to continue use of the Datonis Service in accordance with this Agreement; or (ii) modify or replace the Service so that it becomes non-infringing while giving substantially equivalent performance or provide an enhancement or fix that makes the Datonis Service non-infringing, and You shall be obligated to accept such replacement products, enhancements or fixes; or if (i) or (ii) are not available at a reasonable discretion of Altizon, Altizon shall terminate the Agreement and refund to You all amounts paid to Altizon by You in the six (6) months prior to the date of termination.
Exclusions to Altizon’s Indemnification
The obligations set forth above do not apply if the third party claim is caused by, or results from: (a) Customer’s combination or use of the Datonis Service with software, services, or products developed by Customer or third parties; (b) modification of the Datonis Service by anyone other than Altizon; (c) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (d) Customer’s use of the Datonis Service in a manner not in accordance with this Agreement or the Documentation; or (e) use of other than Altizon’s most current release of the Service if the third party claim would have been avoided by use of the most current release or revision. THIS INDEMNITY IS THE ONLY REMEDY OF THE CUSTOMER UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Customer will indemnify, defend, and hold harmless Altizon from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of: (a) a third party claim made against Altizon for infringement or misappropriation based on conduct by Customer as described in Section titled “Exclusions to Altizon’s Indemnification”; (b) Customer’s non-compliance with Section 2 (Your Obligations); or (b) Customer’s breach of Section 12 (Compliance with Laws).
The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense.
12. Compliance with Laws
Customer shall comply with all applicable laws including laws related to controls related to export or import and shall obtain all permissions, authorizations and permits, in each case related to its procurement and use of the Service or Customer data.
13. Other Terms
Neither party will be in default or will be liable for any delay or failure to comply with this Agreement (other than any payment of money) due to any act beyond the control of the affected party, provided such party immediately notifies the other.
Entire Agreement and Waiver
This Agreement shall constitute the complete agreement between the parties respecting the subject matter and may not be extended, amended, terminated, or superseded except by agreement in writing between the parties. This Agreement supersedes all previous agreements between the Altizon and the Customer, whether oral or written, regarding subject matter hereof. An effective waiver under this Agreement must be in writing signed by the party waiving its right. Failure or delay to exercise any right or remedy shall not be deemed a waiver in absence of such writing.
If any provision of this Agreement is found by a competent court to be unenforceable in any respect, the validity of the remainder of this Agreement will be unaffected, and such provision shall be interpreted to extend only to such a scope as to which it may be enforceable.
Assignment and Delegation
The Customer may not assign this Agreement. Altizon may assign this Agreement in conjunction with the sale of substantial assets, divestiture, merger or amalgamation: or to its affiliate, and may delegate or subcontract its duties. Any unauthorized assignment of this Agreement is void.
The Agreement shall be subject to the laws of India. Any action taken relating to this Agreement must be commenced in the courts at Pune, Maharashtra.
There are no intended third party beneficiaries of this Agreement except for any suppliers of Altizon. The Parties are independent contractors and this Agreement is not intended to create any agency or partnership. Notices may be sent by mail or by courier with return receipt requested or by email.
a. “Aliot Appliance” shall mean the Hardware and the Software, where such Appliance that is procured and paid for by the Customer.
b. “Altizon Service” shall mean software as service offerings by Altizon that Customer has subscribed to and paid for. Current Altizon Service offerings include Datonis.
c. “Datonis Service” shall mean software as service offerings by Altizon that Customer has subscribed to and paid for.
d. “Confidential Information” shall mean the information disclosed by Altizon to the Customer that is either marked as confidential or should be considered confidential considering the nature of information or manner of disclosure. Confidential Information includes Altizon product concept, ideas, architecture, design and other technology.
e. “Direct Damages” shall mean damages, losses or expenses other than Indirect Damages.
f. “Device” shall mean any authorized device that the Aliot Appliance is enabled to connect to collect Device Information.
g. “Device Information” shall mean any information like sensor data collected by Aliot Appliance from any authorized Device.
h. “Documentation” shall mean Altizon’s proprietary product documentation provided to Customer from time to time for use with Aliot Appliance.
i. “Hardware” shall mean the Aliot Appliance computing, electronic and other hardware which includes Altizon’s proprietary hardware.
j. “High Risk Activities” are activities where the failure of the Aliot Appliance could lead to death, personal injury, or environmental damage.
k. “Quotation” shall mean a quotation or order document containing product details, quantity, pricing and coverage period details provided by Altizon under its signature and branding.
l. “Requests Per Second” shall mean the number of requests made by the Customer to the Altizon Service through its webserver.
m. “Software” shall mean Altizon’s proprietary computer software in an executable form as installed on the Hardware and the Aliot Appliance Documentation.
n. “Updates” shall mean and include (i) any minor enhancements to the current functionality of the Datonis Service that Altizon decides to make generally available to all its customers under Updates Coverage, and (ii) the major enhancement to the current functionality of the Datonis Service first issued after the start of Your then current Upgrade Period that Altizon decides to make generally available to all its customers under Updates Coverage. “Updates” do not include any major enhancements apart from the first major enhancement included as Updates, any new modules, new versions, any entirely new functionality developed, or Services other than Datonis.