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Alignography Managed Solution Terms Of Use
Introduction
This Managed Solution Terms of Use together with the Alignography Master Services Agreement, Managed Solution Description, your Order Form and any other documents incorporated by reference therein, constitute a single, binding agreement (this “Agreement”) between Alignography, LLC (“we,” “us,” the “Company” or “Alignography”) and you (“you” or “Customer). Each of you and Alignography is designated herein as a “Party” and together, the “Parties.”
1. Engagement
Customer hereby engages Alignography and Alignography hereby accepts such engagement to develop and provide the Solution and its related Services.
2. Defined Terms
a. Capitalized terms used but not defined herein have the meanings given to them in the Alignography Master Services Agreement or on your Order Form.
b. “Acceptance Criteria” means the specific criteria listed in the Managed Solution Description.
c. “Acceptance Review” has the meaning set forth in Section 4.
d. “Change Order” has the meaning set forth in Section 5.
e. “Customer Materials” means all materials and information, including documents, data, specifications, software, content and technology that are provided to Alignography by or on behalf of Customer in connection with development of the Solution.
f. “Deliverable” means a software component or other specified requirement described and assigned a due date according to the Deliberables Milestone Schedule in the Managed Solution Description.
g. “Derivatives” has the meaning set forth in Section 6.
h. “Effective Date” has the meaning given to it in the Alignography Master Services Agreement.
i. “Estimated Launch Date” has the meaning set forth in the Managed Solution Description.
j. “Fees” has the meaning set forth in the Alignography Master Services Agreement.
k. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
l. “Nonconformity” has the meaning set forth in Section 4.
m. “Order Form” means the agreement between the Parties specifying the Services and their associated pricing.
n. “Project Manager” has the meaning set forth in Section 3.
o. “Review Period” has the meaning set forth in Section 4.
p. “Review Notice” has the meaning set forth in Section 4.
q. “Service Term” means the period for which you have acquired the license and right to use the Services, as specified in the Order Form.
r. “Services” means the Solution, together with any other specific products and services you have purchased as indicated on your Order Form. For clarity, the Services also includes all Work Product.
s. “Solution” means the application described in the Managed Solution Description.
t. “Solution Description” means the specifications detailed in the Managed Solution Description, along with any changes to such specifications implemented pursuant to a Change Order.
u. “Third-Party Materials” means materials and information, in any form or medium, including any software (including open source software), documents, data, content, specifications, products, equipment, or components integrated into or relating to the Solution that are not proprietary to Alignography.
v. “Work Product” means the software, documentation, specifications, deliverables and other documents, work product and materials related thereto that Alignography is required to or otherwise does create or provide to Customer in connection with the Solution. Except as otherwise expressly set forth in this Agreement, Work Product does not include any Derivatives (as defined below).
3. Party Responsibilities
a. Project Management. Each Party shall, throughout the Service Term, maintain within its organization a “Project Manager” to serve as such Party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each such Project Manager shall be responsible for providing all day-to-day consents and approvals on behalf of such Party under this Agreement. Each Party shall ensure its Project Manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. The initial Project Managers are listed in the Managed Solution Description. Each Party shall use commercially reasonable efforts to maintain the same Project Manager in place throughout the Service Term. If either a. Party’s Project Manager ceases to be employed by such Party or such Party otherwise wishes to replace its Project Manager, such Party shall promptly name a new Project Manager by written notice to the other Party.
b. Customer Responsibilities. Customer shall, in accordance with the terms of this Agreement:
- perform all obligations identified as Customer responsibilities in the Solution Description and related plans and specifications.
- provide the Customer Materials and all such other resources as may be specified in the Solution Description
- provide Alignography personnel with such access to Customer’s computer systems as is necessary for Alignography to perform its obligations on a timely basis as set forth in the Solution Description
- ensure that its computer systems are set up and in working order to allow Alignography to deliver the Services and perform its other obligations under this Agreement;
- participate with suitably qualified and authorized personnel in all meetings scheduled in, or in accordance with, the Solution Description and such other meetings as may be scheduled with reasonable prior notice to Customer by Alignography;
- provide all consents, approvals, exception notices, and other communications specified in the Solution Description or as otherwise may be required under this Agreement; and
- provide all cooperation and assistance Alignography reasonably requests to enable Alignography to exercise its rights or perform its obligations under this Agreement.
c. Effect of Customer Failure or Delay. Alignography is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement. In the event of any such delay or failure, Alignography may, by written notice to Customer, extend all or any subsequent due dates for any deliverables specified in the Solution Description as Alignography deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies Alignography may have for any such failure or delay by Customer.
d. Company Responsibilities. Alignography shall, in accordance with the terms of this Agreement:
- develop the Solution per the Solution Description;
- maintain the Solution by management of the relevant Services; and
- participate with suitably qualified and authorized personnel in all meetings scheduled in, or in accordance with, the Solution Description and such other meetings as may be scheduled with reasonable prior notice to Alignography by Customer.
e. Subcontractors. Alignography may from time to time in its discretion engage third parties to perform Services (each such third party, a “Subcontractor”).
f. Third-Party Materials. The Solution may include or operate in conjunction with Third-Party Materials. Alignography will identify to Customer all Third-Party Materials Alignography includes in or that are required for use with any Deliverable on or prior to delivery of the relevant Deliverable and provide to Customer: (a) a copy of all documentation and third-party license agreements relating to such Third-Party Materials as are available to Alignography; or (b) website or other information specifying where Customer can access such documentation and third-party license agreements. All Third-Party Materials are provided pursuant to the terms and conditions of the applicable third-party license agreement. Customer shall comply with all such third-party license agreements and any material breach by Customer thereof will be deemed a material breach of this Agreement.
4. Delivery; Acceptance Criteria
a. Delivery. Alignography shall deliver or otherwise make available to the Customer each Deliverable on or prior to the due date set forth in the Managed Solution Description. Customer acknowledges and agrees that Customer has no right under this Agreement to receive the source code for the Solution or any other part of the Services.
b. Acceptance Criteria. All acceptance of Deliverables shall be conducted as follows:
- Following delivery of each Deliverable, Customer will have five (5) business days (the “Review Period”) to evaluate whether such Deliverable materially conforms to the Acceptance Criteria (each such evaluation, an “Acceptance Review”). Alignography has the right to observe or participate in all or any part of such Acceptance Review.
- Promptly upon the completion of an Acceptance Review, Customer shall notify Alignography in writing of its acceptance or rejection of the Deliverable (such notice, a “Review Notice”). Customer may reject a Deliverable only if an Acceptance Review identifies a material failure of the Deliverable to conform to the Acceptance Criteria (each such failure, a “Nonconformity”). Customer shall not unreasonably withhold its acceptance and shall include, in any Review Notice rejecting a Deliverable, a reasonably detailed description of the Acceptance Review, the results thereof and each identified Nonconformity. Each Deliverable will be deemed accepted by Customer upon the expiration of the applicable Review Period if Customer has not delivered Review Notice to Alignography’s Project Manager prior to such expiration.
- Subject to the subsequent paragraph, following receipt of a Review Notice rejecting a Deliverable, Alignography shall use commercially reasonable efforts to remedy all Nonconformities and re-deliver the Deliverable. Upon re-delivery, Customer shall have an additional Review Period to conduct an Acceptance Review determining whether each Nonconformity has been remedied.
- The Parties shall repeat the process set forth in Paragraphs (a) and (b) of this Section until Customer has accepted the Deliverable as set forth in Paragraph (b) of this Section, provided, however, if Alignography fails more than once to remedy a material Nonconformity: (i) Customer may accept the Deliverable as nonconforming, in which case Alignography may equitably reduce the Fees to reflect the value of the Deliverable as received relative to the value of the Deliverable had it materially conformed to the Acceptance Criteria; and (ii) if Customer does not accept the Deliverable as nonconforming, either party may terminate this Agreement by written notice to the other party.
c. Sole Remedy. This Section sets forth Alignography’s sole obligations and Customer’s exclusive remedies for any failure of any Deliverable to conform to the Acceptance Criteria.
5. Change Of Specifications
Either Party may, at any time during the Service Term, request changes to the Services. The Parties shall evaluate and, if agreed, implement all such changes in accordance with the change request procedure set forth below.
a. A “Change Order” will be the vehicle for communicating a change request. The Change Order must be in writing and must describe the change, the rationale for the change, and the effect such change will have on the engagement. A Change Order may result in additional costs.
b.Both Parties’ Project Managers will review the proposed changes, and Alignography will specify any adjustments to cost or schedule based on the proposed changes.
c. A written Change Order must be signed by authorized representatives from both Parties in order for the Parties to act upon the requested changes. Once so authorized, a Change Order will become part of the Solution Description. Until a Change Order is properly authorized, both Parties shall continue to act in accordance with the latest authorized version of the Solution Description.
6. Intellectual Property
a. Work Product. Except as provided in the subsequent paragraph, all right, title and interest in and to (a) the Work Product and (b) all works, inventions and other subject matter incorporating, based on or derived from any Work Product, including all customizations, enhancements, improvements and other modifications thereof (collectively, “Derivatives”), in each case (subclause (a) and subclause (b)) by whomsoever made and including all Intellectual Property Rights therein, are and will remain, as appropriate, with Alignography and the respective rights holders in the Third-Party Materials. Customer has no right or license with respect to any Work Product or Derivatives except as expressly licensed in this Agreement or the applicable third-party software license, in each case subject to Section 7 below. All other rights in and to the Work Product and Derivatives are expressly reserved by Alignography and the respective third-party licensors.
b. Customer Materials. As between the parties, Customer is and will remain, the sole and exclusive owner of all right, title and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject to the licenses granted under Section 7. All other rights in and to the Customer Materials are expressly reserved by Customer.
7. Licenses
a. License to Use the Services. Alignography hereby grants to Customer a non-exclusive, revocable, worldwide, non-transferable, non-sublicensable right and license to use the Services during the Service Term, subject to the limitations set forth in this Agreement.
b. Customer Materials License. Customer hereby grants to Alignography a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify and create derivative works and improvements of the Customer Materials to develop the Work Product and otherwise as necessary to perform the Services for the benefit of Customer and for Alignography’s general development and commercialization of the Work Product and Derivatives. The term of such license will commence upon Customer’s first delivery of Customer Materials to Alignography and continue in perpetuity unless agreed otherwise by the Parties in writing.
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