By subscribing to and using the Platform, you agree to be bound by these terms of service between you and Alyte (these “Terms of Service”). If you do not agree to these Terms of Service you must not use the Platform. “You” means you individually or the entity that you represent (and, as applicable, your Users).
If you are agreeing to these Terms of Service for an entity, you represent that you have the authority to bind that entity. “Alyte”, “we”, or “us” means Alyte, Inc., a Delaware corporation. Capitalized terms used in these Terms of Service are defined throughout these Terms of Service and in Section 13 (“Definitions”). Section references in this document are to the provisions of these Terms of Service.
If you have entered into a separate subscription agreement with us for specific services, then the terms of that agreement controls if it conflicts with these Terms of Service.
These Terms of Service take effect when you click “I accept” or similar button or check box presented to you as part of the sign-up process or when you first use the Platform, whichever is earlier, and will remain in effect during the Term or until terminated as specified in these Terms of Service.
1.3.1 You may use the Platform only (a) during the Term, (b) for your own benefit, and (c) in accordance with these Terms of Service. To use the Platform you must register and set up an authorized account with Login Credentials. You must keep your registration information accurate and complete during the Term.
1.3.2. You are responsible for (i) any use of the Platform that occurs under your Login Credentials, and (ii) your Users’ compliance with these Terms of Service and with any terms of service or similar agreements related to Sales Databases. If you become aware of any User’s violation of these Terms of Service you must promptly suspend that User’s access to the Platform. If you believe your account has been compromised, including any unauthorized access to or use or disclosure of any account information, passwords, user names, or Login Credentials, you must notify us as soon as possible.
1.3.3 If we reasonably believe a problem with the Platform may be attributable to your use of the Platform, you must cooperate with us to identify the source of the problem and to resolve the problem.
If you use the Trial Service, the terms of this Section 1.5 govern that use, and control over any conflicting provision of these Terms of Service. The term “Platform” includes the Trial Service in all provisions of these Terms of Service that are not in conflict with the provisions of this Section 1.5.
1.5.1 You may use the Trial Service only (a) for internal testing and evaluation or trial purposes, and (b) for a period of [14 days]1 (unless we specify otherwise) beginning on the date we provide you Login Credentials for access to the Trial Service (the “Trial Period”). If you choose to cancel your Subscription prior to the end of the Trial Period, you will not have access to the Trial Service or to any data or Content in the Trial Service after the Trial Period ends.
1.5.2 As a condition to enrolling in the Trial Service, you must provide us with credit card or other payment information. Unless you elect to cancel prior to the end of the Trial Period, you will be automatically enrolled in a full Subscription commencing on the day following the end of the Trial Period, and you will be automatically billed for Subscription Fees in accordance with Section 5.
1.5.3 Use of the Trial Service may be subject to additional terms from a third-party service provider.
1.5.4 We will provide the Trial Service: (a) free of charge; (b) without support; (c) “AS IS”; and (d) without indemnification, warranty, or condition of any kind.
1.5.5 Certain features or functionality of the Platform may not be available in the Trial Service. We may modify or terminate the Trial Service at any time, and any modification or termination will not be deemed a material, detrimental change.
1.5.6 The aggregate liability (excluding indirect damages, for which we expressly disclaim all liability) of Alyte, and its affiliates and suppliers, for any claim arising from your use of the Trial Service will not exceed $1,000 USD (or the equivalent in local currency).
1.7.1 We may from time to time: (a) modify the Platform, our price lists, and/or these Terms of Service, or (b) cease providing access to the Platform. Any changes will become effective on the date published or as we may notify you, but in no case less than 30 days after the date we publish notice of those changes or modifications (except for new features or functionality, which may take effect immediately). Your continued use of the Platform after the effective date of any change will be deemed acceptance of the modified Platform or terms. It is your responsibility to check the Alyte website, [http://alyte.net/terms], periodically, for modifications to these Terms of Service.
1.7.2 If we make a material, detrimental change to the Platform or these Terms of Service, we will notify you prior to the effective date of that change. If you elect to terminate your Subscription because of that change, you must notify us not later than 30 days after the date of our notice. If you terminate your Subscription pursuant to this Section 1.7.2, the termination will be effective as of: (a) the date we receive your notice of termination; or (b) any later date specified in your notice, provided that the effective termination date must not be more than 90 days after the date on which we receive your notice, unless you and we agree to some longer period. You will be responsible for all fees incurred prior to the effective date of any termination pursuant to this Section 1.7.2. If you terminate your Subscription pursuant to this Section 1.7.2, we will refund any prepaid fees prorated as of the effective date of the termination. Termination and refund, as provided in this Section 1.7.2, is your sole and exclusive remedy if we make a material, detrimental change to the Platform or to these Terms of Service.
If we are required by a subpoena, court order, agency action, or any other legal or regulatory requirement to disclose any of Your Data we will provide you with notice and a copy of the demand as soon as practicable, unless we are prohibited from doing so pursuant to applicable Law. If you request, we will, at your expense, take reasonable steps to contest any required disclosure. We will limit the scope of any disclosure to only the information we are required to disclose.
2.1 You are solely responsible for ensuring that the Platform and its security is appropriate for your intended use.
2.2 You are responsible for taking and maintaining appropriate steps to protect the confidentiality, integrity, and security of Your Data. Those steps include (a) controlling access you provide to your Users, (b) configuring the Platform appropriately, (c) ensuring the security of Your Data while it is in transit to and from the Platform, (d) using encryption technology to protect Your Data, and (e) backing up Your Data.
2.3 You are responsible for providing any necessary notices to Users and obtaining any legally required consents from Users regarding their use of the Platform.
5.1 All Subscription Fees are due prior to the commencement of the period for which such Subscription Fees are assessed. Unless you and we agree otherwise, charges you incur for using the Platform (excluding Subscription Fees) will be governed by the applicable price list at the time of invoicing.
5.2 You must pay all charges you incur for your use of the Platform. Charges may consist of both a committed amount as well as additional amounts, including but not limited to charges for add-on features that you order or enable, as well as charges you incur based on actual usage of the Platform (metered charges, or “overages”). You must establish a method of payment to cover charges. We may bill you directly for any additional charges. We may not require a purchase order to invoice you for charges.
5.3 All Orders are subject to these Terms of Service and are not binding until we accept them. An Order will be deemed accepted when we deliver your Login Credentials to the email address associated with the account. We are not required to provide the Platform to you until you provide to us all information we require for processing your Order and provisioning the Platform for you. All Orders are non-refundable and non-cancellable except as expressly provided in these Terms of Service.
5.4 If you pay for the Platform through a credit card, you will be subject to any additional terms presented to you by our third-party credit card payment processor, which will be the merchant of record for that transaction.
5.5 Subscription Fees are exclusive of Taxes. You must pay or reimburse us for all Taxes arising out of the transactions contemplated by these Terms of Service and your Subscription. If you are required to pay or withhold any Tax for payments due in connection with your Subscription, you must gross up your payments to us so that we receive all sums due in full and free of any deductions. If you are required to pay any Taxes to a taxing authority, you must also provide documentation to us showing that you paid those Taxes. You confirm that we can rely on the name and address you provide to us when you register for the Platform or in connection with your payment method as being the place of supply for sales tax and income tax purposes, or as being the place of supply for VAT purposes where you have established your business.
5.51 Your Subscription Term will automatically renew, and your payment account will be automatically charged at the commencement of the renewed subscription period, unless you give Alyte notice of non-renewal in accordance with Section 7.2. The Subscription Fees for any such renewal term shall be the same as that during the prior term unless Alyte has given you notice of a fee increase prior to the commencement of such renewal term, in which case the fee increase shall be effective upon renewal and thereafter. Any such fee increase pursuant to this Section 5.6 shall not exceed more than a ten (10%) percent increase from the fees for the immediately prior subscription period, unless the fees in such prior period were designated in the relevant Order as discount, multi-year, one-time or promotional pricing.
7.3.1 We may, at our option, terminate your Subscription effective immediately upon written notice to you (i) if we have the right to suspend under Section 6.1 or (ii) to comply with applicable Law.
7.3.2 Subject to Section 7.3.1, either you or we may terminate your Subscription effective immediately upon written notice to the other party if that party (a) commits a breach of these Terms of Service and fails to cure such breach within 30 days of notice of the breach, or (b) commits a material breach of these Terms of Service that cannot be cured, or (c) terminates or suspends its business.
7.3.3 If you terminate your Subscription pursuant to Section 7.3.2, we will refund any prepaid Subscription Fees prorated as of the effective date of the termination.
7.5.1 Upon termination of your Subscription for any reason: (a) you must stop using the Platform, and (b) you must return or, if we request, destroy, any Confidential Information of Alyte or our suppliers in your possession or under your control (other than information that must be retained pursuant to Law). As between you and us, you are responsible for ensuring that you have necessary copies of Your Data prior to the effective date of any termination.
7.5.2 Any provision that, by its nature and context is intended to survive termination or expiration of these Terms of Service, will survive.
7.5.3 Except to the extent you or we are permitted to terminate your Subscription pursuant to Sections 1.7 (“Modifications”), 7.3 (“Termination for Cause”), or 9.2 (“Indemnification by Alyte”), any termination of your Subscription will not entitle you to any refunds, and you will be liable for all fees incurred as of the effective termination date. If we terminate your Subscription prior to expiration of the Subscription Term for cause pursuant to Section 7.3, you will be liable for all unpaid fees due with respect to the Platform for the remainder of the then-current Subscription Term.
9.2.1 Subject to the remainder of this Section 9.2, we will: (a) defend you against any Infringement Claim; and (b) indemnify you from all fines, damages, and costs finally awarded against you by a court of competent jurisdiction or a government agency, or agreed to in settlement with regard to any Infringement Claim. The foregoing obligations are applicable only if you: (i) provide us with notice of any Infringement Claim within a reasonable period after learning of the claim (provided that any delay in providing the notice will relieve us of our indemnification obligations only to the extent that the delay prejudices us); (ii) allow us sole control over the defense of the Infringement Claim; and (iii) reasonably cooperate in response to our requests for assistance with regard to the Infringement Claim. We will not, without your prior written consent, which will not be unreasonably withheld, conditioned, or delayed, enter into any settlement of any Infringement Claim that obligates you to admit any liability or to pay any unreimbursed amounts to the claimant.
9.2.2 If the Platform becomes or in our opinion is likely to become the subject of an Infringement Claim, we will at our option and expense: (a) procure the rights necessary for you to keep using the Platform; or (b) modify or replace the Platform to make it non-infringing without materially reducing its functionality; or (c) terminate your Subscription and refund any prepaid fees, prorated for the remaining portion of the then-current Subscription Term.
9.2.3 We will have no obligation under this Section 9.2 or otherwise with respect to any Infringement Claim based on: (a) combination of the Platform with non-Alyte products or content, including any of Your Data; (b) use of the Platform for a purpose or in a manner not permitted by these Terms of Service; (c) any modification to the Platform made without our express written approval; (d) any claim that relates to open source software or freeware technology or any derivative or other adaptation thereof that is not embedded by Alyte into the Platform; or (e) your use of the Trial Service.
9.2.4 This Section 9.2 states your sole and exclusive remedy and our entire liability for any Infringement Claims.
10.3.1 Our vendors and service providers have no liability of any kind under these Terms of Service. You may not bring a claim directly against any of them under these Terms of Service.
10.3.2 You may not bring a claim under these Terms of Service more than eighteen (18) months after the cause of action arises.
Either party (the “recipient”) may use Confidential Information of the other party (the “discloser”) disclosed to it in connection with your Subscription solely to exercise its rights and perform its obligations under these Terms of Service or as otherwise permitted by these Terms of Service. You and we will each use reasonable care to protect that Confidential Information in the same manner as we each protect our own Confidential Information of a similar nature, but in any event with not less than reasonable care. The recipient may disclose the discloser’s Confidential Information only to the recipient’s employees, or to third parties, who have a need to know the Confidential Information for purposes of the these Terms of Service, and who are under a duty of confidentiality no less restrictive than as specified in this Section 11. The recipient may also disclose the discloser’s Confidential Information in accordance with the procedures set forth in Section 1.8 (“Required Disclosures”).
13.1 “Alyte Software” means the Platform and any associated software programs that [______________].
13.2 “Confidential Information” means your Login Credentials, and any non-public technical, business, or other information or materials disclosed or otherwise made available by either you or us to the other party regarding these Terms of Service, the Platform, or your Subscription, that are in tangible form and labeled “confidential” or the like, or are provided under circumstances reasonably indicating confidentiality. Your Confidential Information does not, for purposes of these Terms of Service, include Your Data. If you disclose Your Data to us or if we access Your Data as permitted by these Terms of Service, including for purposes of providing support to you, we will use the same standard of care with respect to that data as we use to protect our own Confidential Information.
13.3 “Content” means any data, including all text, sound, video, or image files, and software (including machine images), or other information.
13.4 “Infringement Claim” means any claim by a third party that the Platform infringes any patent, trademark, or copyright of that third party, or misappropriates a trade secret of that third party (but only to the extent that the misappropriation is not a result of your actions), under applicable Law.
13.5 “Intellectual Property Rights” means all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, and all other proprietary rights, whether registered or unregistered.
13.6 “Law” includes any statute, ordinance, regulation, or governmental requirement, order, or decree.
13.7 “Login Credentials” means any passwords, authentication keys, or security credentials that enable your access to and management of the Platform.
13.8 “Order” means the internet order page, or other ordering document, that evidences your subscription to the Platform.
13.9 “Platform” means the Alyte eCommerce Dashboard, in such form as may be made available by Alyte to its customers from time to time.
13.10 “Resultant Data” means information, data and other content that is derived by or through the Platform and is sufficiently different from Your Data that Your Data and your identity cannot be reverse engineered or otherwise determined from the inspection, analysis or processing of such information, data or content.
13.11 “Sales Database” means any sales database made available by you to Alyte via Amazon Seller Central or similar third party platforms to which your Subscription relates.
13.12 “Subscription” means your right to use the Platform during the Subscription Term.
13.13 “Subscription Fees” means the periodic subscription fees charged by Alyte for your use of the Platform.
13.14 “Subscription Term” means the initial [one-month] term of your authorized use of the Platform, as set forth in the applicable Order, together with any renewal terms (if applicable). The initial term begins on the earlier of: (i) the date on which you start using the Platform or (ii) the date you complete the registration process.
13.15 “Taxes” means any sales, VAT (value-added tax), GST (goods and services tax), use, gross receipts, business and occupation, and other taxes (other than taxes on our income), export and import fees, customs duties, and similar charges imposed by any government or other authority.
13.16 “Term” means, collectively, the Trial Period (if any) and the Subscription Term.
13.17 “Third-Party Claim” means any third-party claim or demand arising from or relating to Your Data, or your use of the Platform, including the Trial Service, in violation of these Terms of Service.
13.18 “Trial Service” means the Platform, or a feature or functionality of the Platform, that we offer on an evaluation or trial basis.
13.19 “User” means any person who is authorized to access or use the Platform or Your Data directly under your Login Credentials, and may include your employees, contractors, service providers, and other third parties.
13.20 “Your Data” means the information or data communicated or made available by you or your Users to, or collected from you or your Users by, the Platform in the course of the provision of the SaaS Services, including without limitation product information, sales data, and advertising data; provided that the term “Your Data” expressly excludes (i) Resultant Data and (ii) data lawfully obtained by Alyte from third parties.