TERMS AND CONDITIONS

Last Updated: October 10th, 2023

These Terms and Conditions, along with the schedules attached hereto (collectively, the “Terms and Conditions”) shall, except as otherwise stated, supplement, apply to, and be incorporated into: (i) the Alterian License Agreements relating to the license of Alterian’s products and services by a Client (individually a “License Agreement”); (ii) the Alterian Partner Agreements relating to authorizing a Partner to market and sublicense Alterian’s products and services (individually a “Partner Agreement”), (iii) the License Declaration Form relating to the license of Alterian’s products and services by a Partner (individually a “License Declaration Form”), and (iv) Statement of Work relating to project scope of any project (individually a “Statement of Work”),

Conflicts or Inconsistencies
In the event of a conflict or inconsistency between the provisions in these Terms and Conditions and the applicable License Agreement, Partner Agreement, License Declaration Form or Statement of Work to which these Terms and Conditions are incorporated, the terms of the applicable License Agreement, Partner Agreement, License Declaration Form or Statement of Work shall govern and control.

Defined Terms
In these Terms and Conditions, the following terms shall have the following meanings unless the context otherwise requires:

Agreement	“Agreement” means, the applicable License Agreement, Partner Agreement, License Declaration Form or Statement of Work to which these Terms and Conditions are incorporated as part of such agreement.
Alterian	“Alterian” means for United States Clients: Alterian Software LLC 1550 Larimer St., Suite 105 Denver, CO 80202, USA. For Australia Clients: Alterian Software Pty LTD Level 14, 275 Alfred Street, North Sydney, NSW 2060, Australia. For Clients outside of the United States and Australia: Alterian Software LTD Runway East, 1 Victoria St, Bristol BS1 6AA, UK.
Anonymised Aggregated Data	“Anonymised Aggregated Data” means data, which is based on or derived from Client data and which has been aggregated and anonymised in a manner that cannot designate or identify Client, its Permitted Users and client customers, as the source of the data as per “Anonymisation: Managing data protection risk – Code of practice” from ICO.
Client	“Client” means (i) the Client referenced in the applicable Agreement.
Fees	“Fees” means such fees as are set out in the Agreement or which are otherwise due under the terms of the Agreement.
Go Live Date	“Go Live date” means up to 90 days from the Provisioning of the System or when data is sent to a production rule end point, whichever event occurs first.
New Business Form	“New Business Form” means informational form which may be requested by Alterian to support resource planning and to successfully support upcoming projects.
Permitted End Users	“Permitted End Users” means the Permitted End Users set forth in the Agreement.
Principal Contact	“Principal Contact” means the person designated as such in the Agreement, which designation may be amended from time to time by notice from either party or, in the case where no such person is nominated, the senior executive officer of each party.
Products and Services	“Products and Services” means the products and services described in the applicable Agreement to which these Terms and Conditions are incorporated as part of such Agreement.
Provisioning of the System	“Provisioning of the System” is the event of logins and passwords being issued to the Client.

Term
The term of the Agreement, except for Statement of Work, will automatically renew for additional one-year periods (each, a ““Renewal Term”), unless either party provides written notice of non-renewal at least 90 days prior to the end of the then-current Term. Alterian may change pricing or other terms for any Renewal Term by providing notice of such change at least 90 days prior to commencement of such Renewal Term.
License and Use Rights (applicable only to a License Agreement and a License Declaration Form)
1. License
  Alterian hereby grants to Client a non-exclusive, non-transferable license to use the Products and Services for its internal business purposes during the term of the applicable Agreement. Client shall not sell, lease, assign, sublicense or otherwise transfer or disclose the Products and Services in whole or in part, to any third party. Client shall not copy the Products and Services in whole or in part and shall use the Products and Services only as permitted under the Agreement. Alterian reserves the right to make updates (provided that the functionality and performance of the Products and Services will not as a result be materially reduced). Any update that includes any significant additional or enhanced functionality or performance may be subject to additional fees. Updates will be implemented directly by Alterian (or its hosting provider).
2. Restrictions
  Client will not and will not permit others to (a) make any Products and Services available to, or use any Products and Services for the benefit of, anyone other than Client or Permitted End Users, unless expressly stated otherwise, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Products and Services, or include any Products and Services in a service bureau or outsourcing offering, (except to the extent otherwise expressly set forth in the Agreement), (c) use the Products or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights, (d) use the Products and Services to store or transmit any virus or other malicious code, (e) modify or alter, or interfere with or disrupt the integrity or performance of, any Products and Services (or third party data contained therein), (f) attempt to gain unauthorized access to any Products and Services or Alterian’s related systems, networks or data, (g) permit direct or indirect access to or use of any Products and Services in a way that circumvents a contractual usage limit, or to any of Alterian’s (or Alterian’s licensors’) intellectual property except as expressly permitted under the Agreement, (h) copy a Products and Services or any part, feature, function or user interface thereof, (i) copy any content except as expressly permitted under the License Agreement, (j) frame or mirror any part of any Products and Services, other than as expressly permitted in the Agreement , or (k) reverse engineer any Products and Service or Alterian software (to the extent such restriction is permitted by applicable law). Any use of the Products and Services or Alterian Software in breach of this Agreement by or on behalf of Client or Permitted End Users, which in Alterian’s judgment threatens the security, integrity or availability of Alterian’s products or services or is reasonably likely to expose Alterian to liability, may result in Alterian’s immediate suspension of Client’s access to the Products and Services and/or Alterian’s software. Alterian will use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat at Client’s cost.
3. Passwords
  Client is responsible for maintaining the confidentiality of any passwords or other login credentials related to the Products and Services. Client shall notify Alterian immediately of any unauthorized use of such passwords or other credentials. Alterian reserves the right to change the passwords or other credentials if Alterian become aware, or reasonably suspects, that any unauthorized person has obtained or has attempted to obtain access to the Products and Services or any password or other credentials. If Alterian changes any applicable passwords or other credentials, Alterian will notify Client of such change. Client shall notify Alterian if Client becomes aware, or suspects, that any unauthorized person has obtained or has attempted to obtain access to the Products and Services. Alterian may decline to provide or suspend the provision of any Products or Services to Client which Alterian reasonably believes is not complying or has not complied with the Agreement or with any other agreement or terms between Client and Alterian (or any of Alterian’s affiliates).
4. Reservation of Rights
  Except for the limited rights expressly granted to Client under the Agreement, Alterian reserves all right, title and interest in and to the Products and Services, including all related intellectual property rights. Client hereby grants to Alterian a perpetual, irrevocable, worldwide, royalty-free, sublicensable, non-exclusive license to create, process, manipulate and otherwise use Anonymised Aggregated Data in connection with developing, providing, maintaining, supporting or improving Alterian’s current and future products and services, as they may be provided to Client or other customers of Alterian, or for any other lawful purpose.
Fees
1. Client shall pay Alterian the Fees set forth in, and in accordance with, the applicable Agreement. Fees are non-cancelable and non-refundable. All Fees do not include any applicable taxes, and Client shall be responsible for paying any and all applicable sales, software license, use, value added, excise, property, withholding tax or any other taxes due in connection with the performance of the Agreement whether imposed on Client or Alterian; provided, however, that Client shall not be required to pay any taxes applicable to Alterian’s net income. Unless otherwise set forth on the applicable Agreement, all Fees shall be due and payable within 30 days after their respective invoice date.
2. All amounts due under this Agreement to be paid by Client to Alterian shall be paid in full and Client shall not be entitled to assert any credit, set-off or counterclaim against Alterian in order to justify withholding payment of any such amount in whole or in part. If any Fees are not paid by Client by the due date, Alterian may, without prejudice to any other right or remedy, charge interest at a rate equal to the lesser of 1.5% per month or the maximum amount permitted by applicable law, from the due date for payment to the date of actual payment. For the avoidance of doubt, Fees assessed on a periodic basis shall be payable by Client throughout the applicable Term, in accordance with the Agreement, regardless of whether Client has used the Products and Services.
Client Obligations
1. At the discretion of Alterian, Client may be asked to submit to Alterian a New Business form describing Client’s sales of Alterian software, and Client agrees to provide the form within fourteen (14) days of such request. Each form will include the name of the customers and the anticipated Go Live dates. A Client’s representative will sign each form.
Support
1. Subject to the terms and conditions of the Agreement, Alterian will provide applicable support to Client and Permitted End Users during the applicable Term.
2. Alterian will, subject to the timely and full payment of all Fees, provide support directly to Client.
3. The provision of unlimited users is subject to Client ensuring due diligence and training of all users to ensure proficiency in the system. It is the responsibility of Client to ensure training is delivered by either internal superusers and or via Alterian training channels. Where internal training is delivered by Client, Client will take responsibility for first line training and help questions.
Professional Services (applicable only to Statement of Work)
1. Except to the extent otherwise expressly set forth in Statement of Work, all time, materials and other resources to be provided or expended by us, which are described in Statement of Work, are estimates as of the date of the Statement of Work. Upon completion of each phase of the project, the estimates for subsequent phases will be reviewed and, as applicable, updated.
2. We are not responsible for verifying that any Products and Services or deliverables conform to any regulatory or industry requirements or standards. We are not responsible for the actions or directions of any of Client’s third-party suppliers or service providers that may be involved in relation to the project.
3. Any Products and Services, deliverables or other obligations not expressly set forth in Statement of Work are out of scope and would require a change to Statement of Work. Either party may request a change to the project scope in accordance with the following. The requesting party will submit a written request, including information regarding the change and the likely impact thereof, to the other party’s Principal Contact. Such Principal Contact will either approve or reject such request in writing. Any such rejection will include the reason therefore. Once agreed to by the parties in writing, a change shall be incorporated into and become part of Statement of Work.
4. Throughout the project as defined in Statement of Work, Client will be responsible for properly and timely performing the following obligations:
  1. providing current, complete and accurate requirements and information regarding the business case and the project, and promptly update the foregoing;
  2. conducting and documenting user acceptance testing with respect to all applicable requirements, and providing acceptance or detailed rejection of each applicable Product and Services deliverable in writing within five business days after completion of such acceptance testing, provided that Products and Services and deliverables will be deemed accepted by Client in the event of any failure or delay of the foregoing;
    1. testing and approval of all deliverables before Client utilization thereof in connection with a production environment;
    2. making available all information and resources, as necessary, appropriate or reasonably requested by us, in connection with our provision of any deliverables or performance of any of our other obligations under this Statement of Work;
    3. providing a suitable working environment for any onsite work;
    4. procurement of all applicable software licenses;
    5. installing and distributing any of our applicable applications onto appropriate devices or shared environments;
    6. extracting, cleansing, inspecting and migrating data from Client’s existing devices and systems;
    7. providing to us formal approval, as necessary or reasonably requested by us, of documentation, deliverables and other project matters;
    8. adherence to our supported architectures and pre-requisites, as applicable;
    9. resolution of any conflicting functional requirements; and
    10. ensuring that all pertinent infrastructure has appropriate access for Permitted End Users and any integrated systems
5. In addition to any termination rights otherwise set forth in the Agreement, Alterian may terminate Statement of Work at any time upon 30 days’ notice to the Client without cause, or immediately upon notice to the Client if any third party restricts, prevents or ceases to authorize the access or use of the Products and Services. Third-party restrictions refer to situations where external entities or individuals impose limitations, obstacles, or conditions that affect the access or use of certain products or services. These restrictions can come from entities that are not directly involved in the contractual relationship between Client and Alterian. Instead, they exert influence due to legal, regulatory, contractual, or other reasons. In the context of the clause it means that if a situation arises where a third party (not Alterian or the Client) enforces limitations on the use or availability of the offered Products and Services, Alterian has the right to terminate the Statement of Work.
  
  In the event of a regulatory authority, a licensing body or any 3rd party suddenly revokes the required permits for using software or services included in the Statement of Work, this would be considered a third-party restriction. Similarly, if a third-party vendor essential to the functioning of the Products and Services restricts access or discontinues support to Client, it might impact Alterian’s ability to fulfill the agreed-upon services. In addition, the Statement of Work shall terminate immediately and automatically upon any termination or expiration of the Terms and Conditions. Upon any such termination or expiration, the Client shall no longer be permitted to use the Products and Services and shall delete or destroy all copies of the Products and Services in its possession. Termination of the Statement of Work shall not entitle the Client to any refund, credit, or other compensation from Alterian under this Agreement or any other agreement or from any third party.
6. Alterian shall exclusively own all intellectual property rights related to any inventions, developments, software, materials or technology developed or obtained by or on behalf of us (i) prior to the Statement of Work; or (ii) except for any intellectual property rights expressly granted to Client in the project scope, at any other time regardless of whether related or unrelated to the Statement of Work.
7. Where applicable, an Alterian professional services person will be the lead project manager on the project.
8. Client will identify a lead contact person to be responsible for ensuring tasks assigned to Client‘s staff are executed based upon the agreed project plan.
9. Client is responsible for the actions of, and all communications with, its third party suppliers that may be involved with the Statement of Work.
Warranty; Disclaimer
1. Warranty
  Alterian warrants the Products and Services will perform substantially in accordance with the applicable documentation when used in accordance with the Agreement. For any breach of this Section, Client’s exclusive remedy is that Alterian will, at Alterian’s sole option, (i) use commercially reasonable efforts to remedy such breach, or (ii) refund any amounts paid by Client to Alterian under the Agreement for the specific Products and Services that fail to comply with this warranty.
2. Disclaimer
  EXCEPT FOR THE WARRANTIES SPECIFICALLY STATED IN THIS SECTION, ALL PRODUCTS AND SERVICES ARE PROVIDED “AS-IS,” AND ALTERIAN HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALTERIAN MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCT OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS AND SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS AND SERVICES WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS AND SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CLIENT THROUGH THE AGREEMENT) WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS AND SERVICES (OR ANY SERVER(S) THAT MAKE THE PRODUCTS AND SERVICES AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Data Security
Alterian will maintain appropriate technical and organizational measures intended to comply with industry standard practices and all applicable laws and regulations, including without limitation all applicable laws and regulations relating to privacy, security, and with respect to the use, processing, handling, security, storage, and disclosure of Personal Data under the Agreement. In addition, Alterian shall provide the Products and Services in accordance with generally recognized information security practices, guidelines, or requirements.
Confidentiality
1. Except as otherwise provided herein, the terms of the Agreement shall be maintained as confidential by the parties. Client agrees that the Products and Services, and any other confidential or proprietary information or materials provided or made available by Alterian or its affiliates (collectively, “Confidential Information”) shall be kept strictly confidential. Client agrees to (i) not disclose the Confidential Information to any third party for any purpose; (ii) use at least the same security measures as Client uses to protect Client’s own confidential information but no less than commercially reasonable measures; and (iii) cease all use of the Confidential Information upon the expiration or termination of the Agreement. Client agrees that any breach of the provisions regarding ownership or confidentiality contained in the Agreement may cause Alterian irreparable harm, and Alterian may obtain injunctive relief as well as seek all other remedies available to Alterian under the Agreement, at law and in equity in the event of any breach or threatened breach of such provisions.
2. Alterian may make reference to the existence of the Agreement for the purposes of Alterian’s published financial reports or Alterian’s own promotional and advertising activities (such as including Client on Alterian’s customer lists). Subject to first receiving Client’s approval in writing (not to be unreasonably withheld or delayed), Alterian may issue a press release announcing the Agreement between the parties, publish case studies describing Client’s experience as an Alterian client, and publish or post such other information as approved by both parties.
Indemnification
1. Indemnification by Alterian.
  Alterian will defend Client against any claim, demand, suit or proceeding made or brought against Client by a third party alleging that any Products or Services infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Client”), and will indemnify Client from any damages, attorney fees and costs finally awarded against Client as a result of, or for amounts paid by Client under a settlement approved by Alterian in writing of, a Claim Against Client, provided Client (a) promptly gives Alterian written notice of the Claim Against Client, (b) gives Alterian sole control of the defense and settlement of the Claim Against Client (except that Alterian may not settle any Claim Against Client unless such settlement unconditionally releases Client of all liability), and (c) gives Alterian all reasonable assistance, at Alterian’s expense. If Alterian receives information about an infringement or misappropriation claim related to the Products and Services, Alterian may in its discretion and at no cost to Client (i) modify or replace the Products and Services so that it is no longer claimed to infringe or misappropriate, without breaching Alterian’s warranties expressly set forth in the Agreement, (ii) obtain a license for Client’s continued use of such Products and Services in accordance with the Agreement, or (iii) terminate Client’s rights to use such Products and Services upon 30 days’ written notice and refund Client any prepaid fees covering the remainder of the Agreement Term with respect to such Products and Services. The above defense and indemnification obligations do not apply to the extent a Claim Against Client arises from third party software or Client’s use of the Products and Services in violation of the Agreement or applicable laws.
2. Indemnification by Client.
  Client will defend Alterian against any claim, demand, suit or proceeding made or brought against Alterian by a third party alleging that any Client data (or any use thereof permitted under the Agreement) infringes or violates any third party rights, or arising from Client’s use of the Products and Services in violation of the Agreement or applicable laws (each a “Claim Against Alterian”), and Client will indemnify Alterian from any damages, attorney fees and costs finally awarded against Alterian as a result of, or for any amounts paid by Alterian under a settlement approved by Client in writing of, a Claim Against Alterian, provided Alterian (a) promptly gives Client written notice of the Claim Against Alterian, (b) gives Client sole control of the defense and settlement of the Claim Against Alterian (except that Client may not settle any Claim Against Alterian unless such settlement unconditionally releases Alterian of all liability), and (c) gives Client all reasonable assistance, at Client’s expense.
Limitation of Liability
1. Limitation on Aggregate Liability.
  IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE TOTAL AMOUNT PAID (OR PAYABLE, AS APPLICABLE) BY CLIENT AND CLIENT’S AFFILIATES HEREUNDER FOR THE PRODUCTS AND SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S AND CLIENT’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE AGREEMENT. NOTHING IN THIS SECTION SHALL LIMIT OR EXCLUDE ANY LIABILITY FOR FRAUD.
2. Exclusion of Consequential and Related Damages.
  EXCEPT FOR CLAIMS COVERED BY A PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY LOST PROFITS, REVENUES OR GOODWILL, ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, OR THE PROCUREMENT OF ANY SUBSTITUTE PRODUCTS OR SERVICES, REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Termination
1. Termination for Cause.
  A party may terminate the Agreement for cause (i) upon 30 days’ prior written notice to the other party of a breach of any material provision of the Agreement if such breach remains uncured at the expiration of such 30 day period, or (ii) if the other party becomes the subject of a petition (which, if involuntary, is not dismissed within 30 days) in bankruptcy or any other proceeding regarding insolvency, receivership, liquidation or assignment for the benefit of creditors.
2. Effect of Termination.
  On expiration of the Term or other termination of the Agreement, all rights granted to Client under the Agreement shall automatically and immediately cease. Termination of the Agreement shall not relieve either party of any payment or other obligation that has accrued prior to the effective date of such termination. In the event of any expiration or termination of the Agreement, any provisions regarding confidentiality, limitations of liability, indemnification or which, by their terms or nature should survive, shall survive and continue in effect.
General Provisions
1. Entire Agreement.
  The Agreement contains the entire agreement between the parties and supersedes any prior written or oral agreement between them in relation to its subject matter and the parties confirm that they have not entered into the Agreement on the basis of any representations that are not expressly incorporated into the Agreement. No amendment of any of the provisions of the Agreement shall be effective unless and until set forth in a writing duly signed by authorized representatives of both parties.
2. Notices.
  Any notice consent or the like required or permitted to be given under the Agreement shall not be binding unless in writing and may be given personally sent by registered mail or sent by email to the registered address or last known administrative office address of the other party, and addressed to the principal contact of that party. In any such case (as applicable):
  - Notice given personally shall be deemed given at the time of delivery.
  - Notice sent by registered mail, shall be deemed given at the commencement of business on the second business day next following its mailing.
  - Notice sent by email, shall be deemed given at the time of its actual transmission, unless an error message or notice of incomplete transmission is received by the sender.
3. Force Majeure
  Alterian shall not be responsible or liable for any delay or nonperformance under the Agreement caused by events or circumstances beyond Alterian’s reasonable control including, but not limited to, pandemics or epidemics.
4. Waiver
  The failure by either party to enforce at any time or for any period any one or more of the terms and conditions of the Agreement shall not be a waiver of them or of the rights at any time subsequently to enforce such terms and conditions.
5. Independent Contractor
  The parties are independent contractors, and neither party shall have the right to act as an agent of or otherwise bind the other party.
6. Assignment
  Except as expressly set out in the Agreement, Client may not assign the Agreement, or any of Client’s rights or obligations hereunder, without Alterian’s prior written consent, and any purported assignment in violation of the foregoing shall be void. Alterian may assign the Agreement, or any of Alterian’s rights or obligations hereunder, without Client’s consent to an affiliate or in connection with a merger, acquisition, reorganization, consolidation, sale of all or substantially all assets or business to which the Agreement relates or other similar corporate transaction.
7. Third-Party Rights
  A person who is not a party to the Agreement (including any Permitted End User) shall not have any rights to enforce any term of the Agreement. The rights of the parties to terminate, rescind, or agree on any variation, waiver or settlement under the Agreement are not subject to the consent of any other person.
8. Governing Law and Jurisdiction
  The Agreement shall be governed by the laws of the state of New York without giving effect to its principles of conflicts of law. Each party agrees to sole jurisdiction and venue of the state and federal courts located in New York, and each party hereby consents to the jurisdiction of such courts over itself in any action relating to the Agreement; provided, however, that either party may seek preliminary equitable relief in any court of competent jurisdiction in connection with any intellectual property rights, use restrictions, confidentiality obligations or audit rights.
9. Severability
  If any provision of the Agreement is held invalid or unenforceable by any court or government body of competent jurisdiction, such provision shall continue in effect in all other circumstances and jurisdictions and otherwise to the full extent permissible under applicable law, and the other provisions shall continue in effect (unaffected thereby).

SCHEDULE I: DATA PROCESSING TERMS

This Schedule I sets forth the terms relating to the Processing of Personal Data by Alterian on behalf of Client in connection with the provision by Alterian of the Products and Services under the Agreement and this Schedule I supplements and is incorporated into the Alterian Terms and Conditions WWW.ALTERIAN.COM/ABOUT-US/TERMS-AND-CONDITIONS (the “Data Processing Terms” or “DPT”). This DPT shall be effective from the date of the Agreement and remain in full force and effect for the duration of the Agreement. In the event of any conflict or inconsistency with the terms of the Agreement, the terms of this DPT shall take precedence.

Capitalized terms not otherwise defined in this DPT shall have the meaning given in the Agreement, unless the context requires otherwise.

Definitions
In this DPT, the following terms shall have the meanings given to them below:

“Business” and “Service Provider”	have the meanings given to them in the CCPA;
“California Personal Information”	means Personal Data that is within the scope of the CCPA;
“CCPA”	means the California Consumer Privacy Act, California Civil Code sections 1798.100 et seq;
“Data Protection Laws”	means applicable worldwide legislation relating to data protection and privacy which apply to Protected Data, including the European Data Protection Laws, the CCPA and the Australian Privacy Act 1998 (Cth);
“GDPR”	means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation);
“Protected Data”	means Personal Data received by Alterian from or on behalf of the Client in connection with the performance of Alterian’s obligations under the Agreement;
“Relevant Personnel”	means those employees of Alterian and/or of any permitted Sub-Processor that are required to have access to and/or to Process the Protected Data in order for Alterian to perform its obligations under the Agreement;
“Sub-Processor”	means any agent, subcontractor or other third party (excluding its employees) engaged by Alterian for carrying out any processing activities on behalf of the Client in respect of the Protected Data;
“Territory”	means the country in which the Products and Services will be hosted by Alterian;
“UK GDPR”	means the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018; and
“Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processor” and “processing”	have the meanings given to them in the GDPR;

Compliance with Data Protection Laws
1. For the purposes of the GDPR and the UK GDPR, the parties agree that Client is the Controller and Alterian is the Processor where Alterian processes Personal Data pursuant to the Agreement.
2. Alterian shall at all times process Protected Data in compliance with the obligations placed on it under applicable Data Protection Laws and the terms of this DPT.
3. Client shall at all times comply with applicable Data Protection Laws in connection with the processing of Protected Data and ensure that all instructions given by it to Alterian in respect of Protected Data are in accordance with applicable Data Protection Laws.
4. Client warrants, represents, and undertakes that:
  1. the processing of all Protected Data shall comply in all respects with Data Protection Laws, including in terms of its collection, use and storage;
  2. fair processing and all other appropriate privacy notices have been provided to the Data Subjects of the Protected Data (and all necessary consents from such Data Subjects obtained and at all times maintained) to the extent required by Data Protection Laws in connection with all processing activities in respect of the Protected Data which may be undertaken by the Alterian and its Sub-Processors in accordance with this Agreement; and
  3. the Protected Data is accurate and up to date.
Instructions
1. Alterian shall only process (and shall ensure Relevant Personnel only process) the Protected Data in accordance with the processing particulars set out at Schedule I, Point 13 of this DPT except to the extent:
  1. that alternative processing instructions are agreed between the parties in writing; or
  2. otherwise required by applicable law (and shall inform Client of that legal requirement before processing, unless applicable law prevents it doing).
2. If Alterian believes that any instruction received by it from Client is likely to infringe applicable Data Protection Laws, it shall promptly inform Client and be entitled to cease processing Protected Data until the parties have agreed appropriate amended instructions which are not infringing.
Security
1. Alterian shall implement appropriate technical and organizational security measures appropriate to the risk, to ensure the confidentiality, integrity, availability and resilience of the Protected Data, taking in to account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out pursuant to the Agreement, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed
Sub-Processors
1. Alterian shall:
  1. not engage any Sub-Processor to carry out any processing activity in respect of Protected Data without Client’s prior written authorisation. Client agrees not to unreasonably withhold, condition, delay or object to the appointment of any Sub-Processor or to any change to the processing undertaken by any Sub-Processor;
  2. prior to any Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this DPT that is enforceable by Alterian and ensure each such Sub-Processor complies with all such obligations; and
  3. remain fully liable to Client under this DPT for all the acts and omissions of each Sub-Processor as if they were its own.
2. As at the Effective date hereof, this DPT authorizes the appointment of the Sub-Processors listed at Schedule I, Point 13 of this DPT.
Assistance
1. Alterian shall assist Client in ensuring compliance with the Client’s obligations pursuant to Articles 32 to 36 of the GDPR and UK GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to Alterian.
2. Alterian shall and taking into account the nature of the processing, assist the Client (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Client’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR and the UK GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
Cross Border Transfers of Protected Data
1. Alterian shall not transfer or otherwise permit the processing of Protected Data outside of the Territory without Client’s prior written authorization.
2. Where a transfer or processing of Protected Data outside the Territory has been authorised by Client, and will involve the transfer of Protected Data from the UK or the European Economic Area, Alterian shall only be permitted to make the transfer under the following conditions:
  1. Alterian is transferring the Protected Data to a territory which is subject to a current finding that the territory provides adequate protection for the privacy rights of individuals by (i) the European Commission in the case of transfers from the European Economic Area; or (ii) the UK Government in the case of transfers from the UK; or
  2. Alterian has implemented appropriate to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the GDPR and the UK GDPR.
3. Client authorises the transfer of Protected Data to the Sub-Processors listed at Schedule 1, Point 13 of this DPT insofar as they are located outside the Territory.
Audits and Processing
Alterian shall, in accordance with the GDPR and UK GDPR, make available to Client such information that is in its possession or control as is necessary to demonstrate Alterian’s compliance with the obligations placed on it under this DPT and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR and UK GDPR (and under any equivalent provision under applicable Data Protection Laws), and allow for and contribute to audits, including inspections, by Client (or another auditor mandated by the Client) for this purpose (subject to a maximum of one audit request in any 12 month period under this paragraph 8).
Breach
Alterian shall notify Client without undue delay and in writing on becoming aware of any Protected Data Breach in respect of any Protected Data.
Deletion/Return of Protected Data
Upon termination of the Agreement, at Client’s option, Alterian shall either return all of the Protected Data to Client or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires Alterian to store such Protected Data.
Where Alterian provides a service to the Client as a Proof of Concept (“PoC”) it shall at the end of the PoC period either return or securely delete Protected Data arising from the POC (“PoC Protected Data”) in accordance with the Client’s instructions as set out at Point 10. In the absence of such instructions, Alterian shall retain PoC Protected Data for a maximum of 12 months following the end of the POC following which it will securely delete the PoC Protected Data.
Provisions Relating to California Personal InformationWhere Protected Data includes California Personal Information, the parties agree that Client is a Business and Alterian is a Service Provider for the purposes of the CCPA when processing California Personal Information pursuant to the Agreement.
Processing Particulars
1. Subject-matter of processing:Email and SMS communications to be sent by Alterian to Client’s customers and/or sales prospects.
2. Duration of the processing:Term of the Agreement.
3. Nature and purpose of the processing:Email and SMS communications including service messages and marketing communications sent by Client to their customers and/or sales prospects.
4. Type of Personal Data:Name, email address and mobile telephone number.
5. Categories of Data Subjects:Client’s customers and/or sales prospects.
6. Specific processing instructions:None.
Approved Sub-Processors
1. Amazon Web Services (AWS) – for the purposes of hosting Alterian’s products
2. Reach Interactive – for the purposes of sending SMS messages
3. DotDigital – for the purposes of sending SMS messages
4. Alterian affiliates – for the purpose of providing professional and support services
  - Alterian Software LLC – USA
  - Alterian Software Pty Ltd – Australia
  - Alterian Software Limited – UK

Schedule II: SUPPORT (SaaS/Subscription)

This Schedule II supplements and is incorporated into the Terms and Conditions to which it is attached.

Support Administration
1. Alterian will log all support requests by Client through the support portal, which may include:
  1. the date and time of reception of the request;
  2. the name provided as that of the Client’s representative;
  3. a short description of the request or report;
  4. the date and time that handling of the request or report starts;
  5. the date and time that the request is resolved; and
  6. the name(s) of our employee(s) receiving and handling the requests.
2. Alterian will make the log information available to Permitted End Users through the support portal.
Support Categories and Response Times
1. “Working Days” and “Working Hours” for support shall be during normal business working days and hours between:
  1. 09:00 to 17:30 local time for the region specified in the Agreement, excluding local public holidays as may be further detailed in the support portal.
  2. Access to support outside of Working Days and Working Hours can be purchased as an optional additional service; however, submitting a support request alone does not activate this optional service.
2. Support is provided according to the following priority levels. Alterian may in good faith change the priority level of an error or change its status to an enhancement request upon notice to Client.
  1. A “P1 – Critical Priority Error” means a problem where the Products and Services become unavailable to Client and for which no practicable workaround is available and that prevents or materially impairs the performance of substantially all major functions of the Products and Services as described in the Agreement so that: (i) the Products and Services are unavailable to Client or at material risk of becoming unavailable; or (ii) the Client is unable to use the Products and Services due to continual failures or data corruption. Once a P1 – Critical Priority Error is resolved (as Alterian reasonably determines, whether by procedural workaround, system restart, hot-fix, or otherwise) such error’s priority level shall be reclassified to a P3 – Medium Priority Error until Client confirms that the incident report may be closed (such conformation not to be unreasonably withheld, conditioned or delayed).
  2. A “P2 – High Priority Error’ means a problem, for which no practicable workaround is available, that prevents or materially impairs the performance of a major function of the Products and Services as described in the Agreement so that: (i) a major function of the Products and Services are unavailable to Client or its availability has been materially interrupted and substantial risk of recurrence exists; or (ii) the Client is unable to use the Products and Services due to intermittent failures or data corruption; or (iii) where the Products and Services partially fail. Once a P2 – High Priority Error is resolved (as we reasonably determine, whether by procedural workaround, system restart, hot-fix, or otherwise) such error’s priority level shall be reclassified to P3 – Medium Priority Error until the Client confirms that the incident report may be closed (such conformation not to be unreasonably withheld, conditioned or delayed).
  3. A “P3 – Medium Priority Error” means a problem, whether or not a practicable workaround is available, that prevents or materially impairs the performance of a minor function in the Products and Services as described in the Agreement, but that does not make the Products and Services wholly unavailable to Client or materially inhibit Client’s use of the Products and Services.
  4. A “P4 – Low Priority Error” means a problem that does not prevent or materially impair the performance of any function in the Products and Services as described in the Agreement, and does not materially inhibit Client’s use of the Products and Services. Such a problem is typically cosmetic in nature.
3. Alterian will use commercially reasonable efforts to meet the initial response times, calculated beginning from the time that Client properly notifies Alterian through the support portal, for the respective priority levels as follows:
  
  Product Priority
  
  P1 P2 P3 P4
  
  Real-Time CX Platform, Campaign Manager, Email Manager 1 Working Hour 4 Working Hours 8 Working Hours 2 Working Days
Availability and Recovery
Alterian will use commercially reasonable efforts to achieve at least 99.9% availability of the Products and Services measured monthly as the ability to log on to our applicable production environment applications and access the FTP server, excluding planned downtime (of which Alterian will use commercially reasonable efforts to provide at least eight (8) hours’ prior notice via the Products and Services) and excluding any unavailability resulting from events or circumstances beyond our reasonable control, including without limitation telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within our possession or reasonable control, and denial of service attacks. Alterian will monitor the availability of the Products and Services.Alterian will use commercially reasonable efforts to maintain back-ups of Client’s data for recovery purposes for a period of thirty (30) days.
Support Policy Changes
This Schedule II reflects Alterian’s support policy with respect to the provision of support, as of the date of the Agreement. Alterian’s support policy is available through the support portal. Alterian reserves the right, at its discretion, to modify the terms of this policy at any time. Alterian will use commercially reasonable efforts to provide prior notice if the level of support provided under the Agreement will materially diminish in quality due to a change in the support policy.

Previous Version(s):

Product	Priority
	P1	P2	P3	P4
Real-Time CX Platform, Campaign Manager, Email Manager	1 Working Hour	4 Working Hours	8 Working Hours	2 Working Days