Technology Partner Terms of Service
Last Updated: 11/13/23
Welcome, and thank you for your interest in Alara Imaging, Inc. (“Alara,” “we,”or “our,” “us”). Alara offers the Alara Gateway software application available at https://alaracare.com (or accessible through the CMS ECQI Resource Center located athttps://ecqi.healthit.gov), along with certain related services or other software applications, to Health Care Providers. These Terms of Service are a legally binding contract between the entity, organization, or company that you are accepting these terms on behalf of (“you”) and Alara regarding your interactions with the Alara Gateway to provide your Technology Partner Offering to Health Care Providers.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
1.1 “Alara Gateway” means Alara’s proprietary software gateway that provides a data pipeline to and from a cloud or on-premise computing environment.
1.2 “CMS” means the Centers for Medicare & Medicaid Services.
1.3 “Confidential Information” means any information (including combinations of individual items of information) that relates to the actual or anticipated business, research, or development of either party and any proprietary information, trade secrets, and know-how of a disclosing party that is disclosed to a receiving party in connection with this Agreement, whether directly or indirectly, in writing, orally, or by inspection or observation of tangible items, including but not limited to, research, product plans, products, services, customer lists, development plans, inventions, processes, formulas, technology, designs, drawings, marketing, finances, and other business information; provided however that Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time a party disclosed the information to the receiving party, (b) became publicly known and made generally available, after disclosure to the receiving party by the disclosing party, through no wrongful action or inaction of the receiving party or others who were under confidentiality obligations, (c) was in the receiving party’s possession, without confidentiality restrictions, at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; or (d) was independently developed by a party without use of or reference to the other party’s Confidential Information.
1.4 “CT” means computed tomography.
1.5 “Documentation”means the user documentation, in all forms, provided by Alara relating to the Alara Gateway (e.g., user manuals, education materials, on-line help files).
1.6 “Health Care Provider” has the meaning ascribed to it in 45 CFR § 160.103.
1.7 “Materials” means visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Alara Gateway and Documentation, provided by Alara.
1.8 “Measures” means electronic clinical quality measures (eCQM) that provide a standardized method for monitoring the performance of diagnostic CT scans to discourage unnecessarily high radiation doses, while preserving adequate image quality.
1.9 “Service Data” means any data or information input, received, or otherwise transmitted through the Alara Gateway by you or a Health Care Provider in connection with your Technology Partner Offering.
1.10 “Technology Partner” means you, a technology company or service provider that wants to provide a Technology Partner Offering.
1.11 “Technology Partner Offering” means a product or service that in any way interacts with the Alara Gateway.
1.12 “Technology Partner Order Form” means the order form executed by you and Alara describing the terms and conditions of your use and interaction with the Alara Gateway to facilitate the provision of Technology Partner Offerings.
1.13 “Unauthorized Use” means any use, reproduction, distribution, disclosure, possession, examination, or other activity involving any part of the Alara Gateway, or Documentation that is not expressly authorized under this Agreement.
1.14 “Usage Data” means information related to any use of or interaction with the Alara Gateway, including log data and an identification of devices, systems, application software and peripherals.
2.1 ALARA IS NOT RESPONSIBLE FOR ANY USE OF CMS MEASURES. ALARA MAKES NO REPRESENTATIONS, WARRANTIES, OR ENDORSEMENT ABOUT THE QUALITY OF ANY ORGANIZATION OR PHYSICIAN THAT USES OR REPORTS PERFORMANCE MEASURES, AND ALARA HAS NO LIABILITY TO ANYONE WHO RELIES ON SUCH MEASURES OR SPECIFICATIONS.
2.2 THE MEASURES ARE NOT A CLINICAL GUIDELINE, DO NOT ESTABLISH A STANDARD OF MEDICAL CARE, AND HAVE NOT BEEN TESTED FOR ALL POTENTIAL APPLICATIONS.
2.3 ALARA, THE UNIVERSITY OF CALIFORNIA SAN FRANCISCO, AND ITS MEMBERS AND USERS SHALL NOT BE RESPONSIBLE FOR ANY USE OR ACCURACY OF THE MEASURES OR ANY CODE CONTAINED WITHIN THE ALARA GATEWAY. THE MEASURES, ALARA GATEWAY, AND SPECIFICATIONS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.
2.4 LIMITED PROPRIETARY CODING IS CONTAINED IN THE MEASURES SPECIFICATIONS FOR CONVENIENCE. USERS OF THE PROPRIETARY CODE SETS SHOULD OBTAIN ALL NECESSARY LICENSES FROM THE OWNERS OF THESE CODE SETS. ALARA DISCLAIMS ALL LIABILITY FOR USE OR ACCURACY OF ANY THIRD-PARTY CODE CONTAINED IN THE SPECIFICATIONS. CPT® CONTAINED IN THE MEASURE SPECIFICATIONS IS COPYRIGHT 2004-2023 AMERICAN MEDICAL ASSOCIATION. LOINC® IS COPYRIGHT 2004-2023 REGENSTRIEF INSTITUTE, INC. SNOMED CLINICAL TERMS® (SNOMEDCT®) IS COPYRIGHT 2004-2023 INTERNATIONAL HEALTH TERMINOLOGY STANDARDS DEVELOPMENT ORGANISATION. ICD-10 IS COPYRIGHT 2023 WORLD HEALTH ORGANIZATION. ALL RIGHTS RESERVED.
2.5 For the latest description of the Measures and related disclaimers, please check eCQM resource center at https://ecqi.healthit.gov/. Any later descriptions or disclaimers of the Measures are hereby incorporated by reference into this Agreement and will amend and restate the disclaimers contained herein.
2.6 These disclaimers are supplemented by, and incorporated by reference in, the additional disclaimers set forth in Section 10.3.
3. OVERVIEW; ACCOUNTS; INSTALLATION
3.1 Summary; Technology Partner Offerings. We provide access for Health Care Providers to use the Alara Gateway as required by the Measures authorized by CMS. Alara may also offer certain additional services (including Technology Partner Offerings) to Health Care Providers through the Alara Gateway, for a fee. This Agreement governs the relationship between Alara and Technology Partners that want to offer a Technology Partner Offering through the Alara Gateway, as further set forth in a Technology Partner Order Form. Alara is under no obligation to support or permit your Technology Partner Offering to interact with the Alara Gateway unless and until there is a mutually executed Technology Partner Order Form.
3.2 Eligibility. By agreeing to this Agreement, (a) you represent and warrant to us that: (i) you are a Technology Partner that wants to provide a Technology Partner Offering to a Health Care Provider, (ii) your registration and your use of the Alara Gateway to provide the Technology Partner Offering is in compliance with any and all applicable laws and regulations, (iii) this Agreement has been duly authorized and approved by you, and (iv) this Agreement constitutes a valid and binding obligation between you and Alara; and (b) the individual or entity, including any of your agents, accepting this Agreement on your behalf represents and warrants to us that: he, she, or it has full authority to (i) accept this Agreement on your behalf, (ii) make binding representations regarding the Technology Partner Offerings on your behalf, and (iii) act, including by executing documents, or otherwise interacting with or operating the Alara Gateway to provide the Technology Partner Offerings, on your behalf.
3.3 Accounts and Registration. To provide a Technology Partner Offering through the Alara Gateway, you must register for an account. When you register for an account, you may be required to provide us with some information yourself, such as your company name, name of your authorized representative, address, phone number, email address, or other contact information as well as information about the Technology Partner Offering. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You may not access your account by any other means other than the credentials provided by Alara. If you believe that your account is no longer secure, then you must immediately notify us.
3.4 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
3.5 No Obligation. Alara is not responsible for the Technology Partner Offerings or any Health Care Providers compliance with the Technology Partner Offerings. Alara has no obligation to either you or any Health Care Provider with respect to any Technology Partner Offering. Alara is not responsible for the Service Data you receive from a Health Care Provider, and it does not guarantee the availability, completeness, or accuracy of any Service Data you receive from a Health Care Provider.
4.1 License to the Service Data. During the Term and subject to the terms and conditions of this Agreement, you hereby grant to Alara a limited, worldwide, non-exclusive, non-transferable (except in accordance with Section 12.3) license to use, access, capture, copy, store, transmit, maintain, and display the Service Data solely to transmit the Service Data through the Alara Gateway. You are solely responsible for the Service Data, including any corruption, loss of data, inaccurate or incomplete data, and compliance with all applicable laws or third-party rights.
4.2 Trademark License. During the Term and subject to the terms and conditions of this Agreement, you hereby grant Alara a limited, worldwide, non-exclusive, non-transferable (except in accordance with Section 12.3) license, without the right to sublicense, to use, reproduce, perform, display, and modify (solely for technical and formatting purposes), your trademarks, service marks, trade dress and logos (collectively, “Marks”) to identify the Technology Partner Offering and for Alara’s advertising, marketing, and promotional purposes. Any use of the Marks must be in accordance with your trademark guidelines, as made available to Alara in writing, and any goodwill arising from Alara’s use of the Marks shall inure to the benefit of the Technology Partner.
5. YOUR OBLIGATIONS
5.1 Technology Partner Agreements. Any Technology Partner Offerings made available through the Alara Gateway will be governed by a separate agreement between you and the applicable Health Care Provider (the “Technology Partner Agreement”). Prior to providing any Technology Partner Offering through the Alara Gateway, you will enter into a Technology Partner Agreement with the applicable Health Care Provider. All Technology Partner Agreements will be as protective of Alara as the terms contained in this Agreement, and the Technology Partner Agreement may not: (a) charge for access to the Alara Gateway for compliance with the Measures; (b) reduce, or undermine, or otherwise negatively affect any of the rights or protections afforded to Alara by this Agreement; or (c) impose any obligations or liability on Alara. The Technology Partner Agreement must specify (w) you are solely responsible for the Technology Partner Offering; (x) Alara is not liable for any fault in the Technology Partner Offering or any harm that may result from its installation and use; (y) the Health Care Provider authorizes you to receive and transmit Service Data of the Health Care Provider through the Alara Gateway; and (z) you are solely responsible for any liability which may arise from a Health Care Provider’s interaction with or use of the Technology Partner Offering, including any use, distribution, or storageof data.
5.2 Limits. Alara may set and enforce limits on your interaction with the Alara Gateway, in our sole discretion. You agree to, and will not attempt to circumvent such limitations.
5.3 General Restrictions. Except as otherwise explicitly provided in this Agreement or expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) use or interact with the Alara Gateway for any reason other than to provide the Technology Partner Offering; (b) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Alara Gateway; (c) rent, lease, or sublicense the Alara Gateway or Documentation; (d) use the Alara Gateway on a service bureau or application service provider basis; (e) provide, divulge, disclose, make available to, or permit the use of the Alara Gateway by any third party; or (f) circumvent or disable any technological or security features or measures in the Alara Gateway, including to attempt to discern, view, exploit or repurpose the source code for the Alara Gateway; (g) use or interact with the Alara Gateway for the purposes of developing or contributing to a competitive or similar product or service; (h) develop Technology Partner Offerings that excessively burden the Alara Gateway, distribute spyware, adware, or other commonly objectionable programs, or in any way further criminal, fraudulent, or other unlawful activities; (i) develop a Technology Partner Offering with a purpose of migrating Health Care Providers off the Alara Gateway; or (j) solicit, or attempt to solicit, any Health Care Provider that uses the Alara Gateway to circumvent the use of the Alara Gateway for data transfers to you or any other third parties.
5.4 Proprietary Rights Notices. You will neither alter nor remove any copyright noticeor other proprietary rights notices that may appear on the Alara Gateway orDocumentation.
5.5 Compliance with Laws. You will use and interact with the Alara Gateway and Documentation solely in compliance with all applicable laws and regulations, including obtaining any agreements with Health Care Providers necessary for you to use and interact with the Alara Gateway, and any individual consents, authorizations, or other permissions pursuant to applicable privacy or data security laws, and will refrain from any unethical conduct or any other conduct that tends to damage the reputation of Alara. Without limiting the forgoing, you agree that Alara does not operate as your business associate or subcontractor business associate (as defined by 45 C.F.R. §103) in its provision of the Alara Gateway, in your provision of Technology Partner Offerings, or pursuant to any other activities under this Agreement.
5.6 No Warranties. You will not make or publish any representations, warranties, or guarantees on behalf of Alara concerning the Alara Gateway or Documentation without Alara’s specific prior written approval.
5.7 Protection against Unauthorized Use. You acknowledge that the Alara Gateway and any and all materials furnished to you by Alara involve valuable proprietary rights of Alara. You will take appropriate steps and precautions to protect such materials. Without limiting the generality of the foregoing, you will use your best efforts to prevent any Unauthorized Use and immediately notify Alara in writing of any Unauthorized Use that comes to your attention. In the event of any Unauthorized Use by anyone who obtained access to the Alara Gateway directly or indirectly through you or any of your employees, agents, representatives, or contractors, you will take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the applicable materials in the possession or control of the person or entity engaging in such Unauthorized Use. You will provide to Alara such cooperation and assistance related to any such Unauthorized Use as Alara may reasonably request.
6. CONFIDENTIALITY. The receiving party will not disclose the Confidential Information of the disclosing party to any third party or use such Confidential Information for any purpose other than fulfilling its obligations under this Agreement. Both parties will take all reasonable precautions to prevent any unauthorized disclosure of the other party’s Confidential Information, including, but not limited to, requiring each employee and independent contractor with access to a disclosing party’s Confidential Information to execute a nondisclosure agreement containing terms that are substantially similar to the terms contained in this Agreement. A receiving party will promptly notify the disclosing party upon discovery of any unauthorized disclosure or misuse of the disclosing party’s Confidential Information. The receiving party will not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody the disclosing party’s Confidential Information and that are provided to the receiving party in accordance with this Agreement. The Alara Gateway is deemed Alara’s Confidential Information.
7.1 Reservation of Rights. The Alara Gateway and Documentation are owned and operated by Alara. The Materials provided under this Agreement are protected by intellectual property rights and other laws. Nothing in this Agreement will be interpreted or construed as a sale or purchase of the Alara Gateway or Documentation. You will not have any rights in or to the Alara Gateway or Documentation except as expressly granted in this Agreement. Alara reserves to itself all rights to the Alara Gateway and Documentation not expressly granted to you in accordance with this Agreement. You acknowledge that the Alara Gateway and Documentation (including any and all copies), and any know-how and trade secrets related to the foregoing are the sole and exclusive property of Alara and contain Alara’s confidential and proprietary materials. Alara will have no rights to the Technology Partner Offerings not expressly granted in this Agreement, and Alara acknowledges that, as between the parties, the Technology Partner Offerings, any documentation, and any know-how and trade secrets related to the Technology Partner Offerings are your sole and exclusive property. Technology Partner reserves to itself all rights to the Technology Partner Offerings.
7.2 Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Alara Gateway and Documentation (“Feedback”), then you hereby grant Alara an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Alara Gateway and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
7.3 Usage Data. You agree that Alara may collect Usage Data. Alara may use, analyze, compile, and otherwise exploit Usage Data for industry analytics, benchmarking, and to provide, support, enhance and otherwise facilitate the development and improvement of the Alara Gateway or other Alara products, provided that the foregoing is not a license to disclose Usage Data in raw, disaggregated, or non-deidentified form, or to identify you as the source of any Usage Data or conclusions drawn in whole or in part from the Usage Data.
8.1 General Payment Terms. Fees for using the Alara Gateway in connection with your Technology Partner Offering and the terms of your interaction with the Alara Gateway will be set forth in one or more Technology Partner Order Forms executed between you and Alara.
8.2 Price. Alara reserves theright to determine pricing for using the Alara Gateway to deliver the Technology Partner Offering. Alara will provide the pricing and duration in the Technology Partner Onboarding Form. Alara may change the fees, including additional fees or charges, prior to the renewal of any Technology Partner Order Form.
8.3 Delinquent Payments. Alara may disable or remove your (or your Technology Partner Offering’s) ability to interact with to the Alara Gateway for any delinquent payments. In addition to the amount due under this Agreement, you will be charged with fees or charges that are incidental to any chargeback or collection of any of the unpaid amount, including collection fees.
9. TERMAND TERMINATION; MODIFICATION
9.1 Term. This Agreement is effective beginning when you accept this Agreement or first download, install, or use the Alara Gateway (the “Term”) and continue until terminated as provided herein.
9.2 Termination. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party, and such termination will take effect when the breaching party receives written notice of termination from the non-breaching party.
9.3 Effect of Termination. Upon termination of this Agreement: (a) your license rights will terminate and you must immediately cease providing Technology Partner Offerings through the Alara Gateway; (b) you will no longer be authorized to access your account or interact with the Alara Gateway; and (c) any and all liabilities accrued prior to the effect of termination and Sections 1, 2, 6, 7, 9.3, 10.3, 11, and 12 will survive. You are solely responsible for retaining copies of any Service Data since upon termination of this Agreement, you may lose access rights to the foregoing.
9.4 Modification. Alara reserves the right to modify or discontinue all or any portion of the Alara Gateway at any time (including by limiting or discontinuing certain features), temporarily or permanently, without notice to you; provided however that such modification or discontinuation is in compliance with instructions by CMS. Alara will have no liability for any change to the Alara Gateway, or any suspension or termination of your access to, interaction with, or implementation of the Alara Gateway.
10. WARRANTIES AND DISCLAIMER
10.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
10.2 Technology Partner Warranties. You represent and warrant that: (a) the Technology Partner Offerings and any related products, services, and technology provided by or on your behalf will perform in material conformance with any and all applicable documentation made available by you; (b) your performance hereunder, including with respect to operation of the Technology Partner Offerings, and conduct of all activities related thereto, will comply with all applicable laws, rules, and regulations; (c) you have entered into all necessary agreements with Health Care Providers to allow you to receive, use, disclose, and/or transmit protected health information from or to the Alara Gateway in compliance with applicable laws, including but not limited to the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (collectively, “HIPAA”) (as such terms are defined by HIPAA); (d) the Technology Partner Offerings and any related technology, and other materials made available in connection with the Technology Partner Offering will not infringe the rights of any third party; and (e) you will only use the Alara Gateway to develop and distribute the Technology Partner Offerings in connection with this Agreement.
10.3 Disclaimer. THE ALARA GATEWAY, DOCUMENTATION, AND ANY RELATED MATERIALS ARE PROVIDED “AS-IS” AND ON AN “AS AVAILABLE” BASIS. ALARA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING WITH RESPECT TO THE ALARA GATEWAY. ALARA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. ALARA DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE ALARA GATEWAY OR AGAINST INFRINGEMENT. ALARA DOES NOT WARRANT THAT THE ALARA GATEWAY ARE ERROR-FREE ORTHAT OPERATION OF THE ALARA GATEWAY WILL BE SECURE OR UNINTERRUPTED. ALARA EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON YOUR USE OR IMPLEMENTATION OF THE ALARA GATEWAY OR ANY DECISIONS YOU OR YOUR CUSTOMERS MAKE AS A RESULT OF USE THE ALARA GATEWAY. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF ALARA TO ANY THIRD PARTY.
NO ADVICE OR INFORMATION OBTAINED BY YOU FROM ALARA ORTHE ALARA GATEWAY, WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE ALARA GATEWAY. YOU UNDERSTAND AND AGREE THAT YOU USE OR IMPLEMENT ANY PORTION OF THE ALARA GATEWAY AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE ALARA GATEWAY) OR ANY LOSS OF DATA. THE DISCLAIMERS IN THIS SECTION 10.3 ALSO INCLUDE THE DISCLAIMERS CONTAINED WITHIN SECTION 2, WHICH ARE HEREBY INCORPORATED BY REFERENCE INTO THIS SECTION.
11. LIMITATIONS OF LIABILITY; INDEMNIFICATION
11.1 Disclaimer of Consequential Damages. EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 6 OR EITHER PARTY’S OBLIGATIONS UNDER SECTION 11.4 AND 11.5, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF IT IS APPRISED OF THE LIKELIHOOD OFSUCH DAMAGES OCCURRING.
11.2 Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ALARA’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (A) $100, OR (B) THE AGGREGATE AMOUNT OF FEES PAID TO ALARA UNDER THE APPLICABLE TECHNOLOGY PARTNER ORDER FORM IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
11.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ALARA TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OFANY LIMITED REMEDY IN THIS AGREEMENT.
11.4 Indemnification by You. To the fullest extent allowed by applicable law, you will indemnify, defend, and hold harmless Alara and its affiliates, and its and their respective officers, stockholders, directors, partners, agents, and employees against any and all claims, demands, suits, or actions, actual or threatened by a third party (“Claims”), arising out of or relating to:(a) any Unauthorized Use or other misuse of the Alara Gateway in violation of this Agreement; (b) any allegation that the use of the Technology Partner Offering or Marks infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right; (c) your breach of this Agreement; or (d) your gross negligence or willful misconduct whether such action or inaction was committed by you, anyone directly or indirectly employed by you, or anyone for whose acts you may be liable in the performance or nonperformance of your obligations under this Agreement.
11.5 IP Infringement. To the fullest extent allowed by applicable law, Alara will indemnify, defend, and hold you and your affiliates and respective officers, directors, and employees against any and all Claims arising out of or relating to any actual or threatened allegation that the authorized use of any Alara Gateway infringe or misappropriate any intellectual property or proprietary rights of a third party. If any of the Alara Gateway, or operation or use thereof, has become or is likely to become, in whole or in part, the subject of any claim of infringement, Alara may, at its option and expense, (a) procure you the right to continue using the applicable Alara Gateway; (b) replace or modify the Alara Gateway (in whole or in part) to make it non-infringing; or (c) terminate thisAgreement or the applicable Technology Partner Order Forms and all use of the applicable Alara Gateway upon notice to you. This Section states your exclusive remedy, and our sole liability and obligation, for any claim of any nature related to infringement or misappropriation of intellectual property; provided that Alara will have no obligation or liability to you under this Section if the Claim arises in connection with (i) any Unauthorized Use of the Alara Gateway; or (ii) a modification or combination of the Alara Gateway with any third-party technology or materials, including the Technology Partner Offering, if such Claim would have been avoided if such combination had not occurred.
12.1 Relationship. Alara will be and act as an independent contractor (and not as the agent or representative of you) in the performance of this Agreement.
12.2 Promotional Materials. Unless and until you opt out, Alara may add you to its vendor lists and identify you as a provider of a Technology Partner Offering on the Alara Gateway in its promotional materials; provided that your name will not be used in a manner that would reasonably be perceived as your endorsement of the Alara Gateway.
12.3 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees in writing to assume and fulfill all of the assigning party’s obligations under this Agreement.
12.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to (a) Alara at 55 Post Road West 2nd Floor Westport, CT 06880; or (b) you at the address you provided upon your account registration with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given to the receiving party two business days following the date of mailing or one business day following delivery to a courier.
12.5 Force Majeure. Alara will not be liable for, or be considered to be in breach of, or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Alara’s reasonable control, so long as Alara uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
12.6 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. All disputes arising under this Agreement including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in New Castle County, Delaware before three arbitrator(s). The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude either party from seeking provisional or equitable remedies from a court of appropriate jurisdiction.
12.7 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
12.8 Protected Activity Not Prohibited. Nothing in this Agreement shall in any way prohibit Alara from engaging in filing a charge, complaint, or report with, or otherwise communicating, cooperating, or participating in any investigation or proceeding that may be conducted by any federal, state or local government agency or commission or otherwise disclosing information about unlawful conduct to relevant authorities to the extent required by or protected by law.
12.9 Export Control Laws. Each party shall comply with all United States and applicable foreign export control laws or regulations applicable to its performance under this Agreement. You may not remove or export from the United States or allow the export or re-export of the Alara Gateway or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
12.10 No Government Rights. As defined in FAR section 2.101, the Alara Gateway, and Documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1)and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted herein.
12.11 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If the Alara Gateway or Technology Partner Offerings under this Agreement are found to be illegal, unenforceable, or invalid, your right to use the Alara Gateway will immediately terminate.
12.12 Entire Agreement. This Agreement is the final and complete expression of the agreement between these parties regarding your provision of Technology Partner Offerings through the Alara Gateway. This Agreement supersedes and governs all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of Alara has any authority to bind Alara with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Alara will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by you in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Alara specifically agrees to such provision in a writing signed by an authorized agent of Alara.