Terms of Service

THIS AGREEMENT IS BETWEEN CUSTOMER AND ALERTMEDIA. “CUSTOMER” MEANS THE ENTITY ON BEHALF OF WHICH THIS AGREEMENT IS ACCEPTED. “ALERTMEDIA” MEANS ALERT MEDIA, INC.

IF YOU (THE PERSON ACCEPTING THIS AGREEMENT) ARE ACCEPTING THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU AGREE THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR SUCH ENTITY TO THIS AGREEMENT, AND (II) YOU AGREE TO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR SUCH ENTITY.

BY PLACING AN ORDER OR BY USING OR ACCESSING THE SERVICES, CUSTOMER IS BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT PLACE AN ORDER OR USE OR ACCESS THE SERVICES.

1. Definitions

“Administrator” means a person designated by Customer to perform configuration and administrative actions, provision Contacts, manage threat settings, create tasks, and/or initiate Alerts via the Service.

“Affiliate” means a person or entity that owns, is owned by, or is under common control with a party, and “control” in this definition means that a person or entity owns more than 50% of the equity interest of any entity and/or has the ability to control the management of such entity.

“Agreement” means this AlertMedia Subscription Agreement, and the applicable Order for Services.

“Alert” means a notification or message sent through the Services to a Contact or Administrator

“Contact” means an individual recipient only capable of receiving and responding to Alerts.

“Contact Information” means name, business contact details (work telephone number, cell phone number, email address and office address), personal contact details (home telephone number, cell phone number, other telephone, email address and physical address), geolocation, and employee ID or other non-personally identifying ID number provided by Customer.

“Customer Data” means any data, content or materials provided to AlertMedia by or at the direction of Customer or its Users via upload or input to the Services.

“Documentation” means the product descriptions and user guides that describe the functionality, operation, and use of applicable Service as provided or made available by AlertMedia to Customer (including any updates or revisions thereto).

“Entitlements” means Customer’s entitlements to specific volumes and quantities available to be consumed within the Services. Such entitlements may be based on number of Administrators, Contacts, Users, locations, email and/or text messages, voice minutes, saved searches or instances or other restrictions or billable units specified in an Order.

“Implementation Services” means any configuration, consulting, advisory, training, and similar ancillary services that are set forth in an Order and/or statement of work, as applicable.

“Laws” means all laws, regulations, conventions, decrees, decisions, orders, judgments, codes and requirements of any government authority (federal, state, local or international) having jurisdiction applicable to a party’s business or its respective role under this Agreement.

“Order” means AlertMedia’s ordering document, specifying the Services to be provided under this Agreement, accepted by AlertMedia.

“Personal Information” means information that directly or indirectly identifies, could be used to identify, or is otherwise reasonably linked or linkable to an individual and includes information defined as “personal information” or “personal data” under applicable data privacy Laws.

“Sensitive Personal Information” means any personally identifiable information relating to health/genetic or biometric information; religious beliefs or affiliations; political opinions or political party membership; labor or trade union membership; sexual preferences, practices or marital status; national, racial or ethnic origin; philosophical or moral beliefs; criminal record, investigations or proceedings or administrative proceedings; financial, banking or credit data; date of birth; social security number or other national id number, drivers’ license information; or any other “sensitive data” category specifically identified under any applicable data privacy Laws.

“Services” means the AlertMedia services set forth in the applicable Order.

“Subscription Term” means the term for Customer’s use of or access to the Services as identified in an Order.

“Third-Party Content” means any data, materials, or content made available by or originating from Third-Party Services, including the National Weather Service, local municipalities, counties, governmental agencies, website operators, social media networks and other third parties.

“Third-Party Services” means content sources, application programming interfaces (APIs), data feeds, platforms, integrations, connectors, software, models, and other services operated by third parties.

“User” means any individual that Customer authorizes to use the Services as a Contact or Administrator. Users may include Customer’s and its Affiliates’ employees, consultants, contractors and agents. Customer may authorize Users to access and use the Services, in accordance with this Agreement, the Documentation and Customer’s Entitlements.
Capitalized terms not otherwise defined above are defined elsewhere in the Agreement.

2. AlertMedia Services

2.1 Permitted Use. Subject to this Agreement and applicable Order, during the applicable Subscription Term, AlertMedia grants Customer and its Users a non-exclusive, worldwide right to use the Services for Customer’s and its Affiliates’ internal business purposes, in accordance with this Agreement, the Documentation and subject to Customer’s Entitlements as specified in an Order.

2.2 Data. Through Customer’s configurations and use of the Services, Customer has control over the types and amounts of Customer Data that are submitted to the Services or that are otherwise uploaded to the Services. By submitting Customer Data to the Services, Customer hereby grants to AlertMedia, the right, and is expressly instructing AlertMedia to process Customer Data in order to provide and support the Services as described in the Documentation, this Agreement, and the DPA (Data Processing Addendum). Customer authorizes AlertMedia to use information about Customer’s configuration and use of the Services (“Usage Data”), and Customer Data to: (a) provide, monitor, and improve the Services and support; and (b) manage Customer’s account, including to calculate fees. Customer agrees that AlertMedia may use aggregated and anonymized Usage Data for any legitimate business purpose. AlertMedia’s use of Usage Data and Customer Data shall, at all times, be subject to AlertMedia’s obligations under this Agreement, including those of security, confidentiality and data processing.

2.3 Feedback. If Customer provides AlertMedia with feedback or suggestions regarding the Services, Documentation or other AlertMedia offerings (“Feedback”), AlertMedia may use such Feedback without restriction or obligation, provided the Feedback is given AS IS and will not identify Customer or contain Customer Data.

2.4 Limited Grant and Reserved Rights. As between the parties: (a) Customer owns all rights, title and interest in and to Customer Data, including in each case all associated intellectual property rights, and (b) AlertMedia owns all rights, title and interest in and to the Services, Documentation, Usage Data and Feedback, including in each case all associated intellectual property rights. Except for the rights expressly granted by one party to the other in this Agreement, all rights are reserved by the granting party. All rights granted by each party to the other under this Section 2 are limited, nonexclusive and, except as otherwise provided in this Agreement, non-transferable.

2.5 Service Level and Support Services. AlertMedia will provide the Service Level and Support Services to Administrators as described in Exhibit A. AlertMedia’s provision of Support Services is subject to Customer providing timely access to Customer personnel and information reasonably requested by AlertMedia.

3. Security and Privacy

3.1 Security Measures; Compliance Program. AlertMedia will maintain reasonable administrative, physical, and technical safeguards (the “Security Measures”) designed to protect the security, confidentiality and integrity of Customer Data. Those safeguards will include measures designed to prevent unauthorized access, use, modification or disclosure of Customer Data; provided that AlertMedia may use or disclose Customer Data: (a) to provide the Services and prevent or address technical problems, (b) as compelled by law, or (c) as permitted by Customer. AlertMedia will also maintain a compliance program that includes independent third-party audits and certifications, as described in its Security Measures at https://www.alertmedia.com/security-measures/. Where Company has obtained ISO 27001 and SSAE 18 Service Organization Control 2 (SOC 2) reports for a Service, Company shall make available to Client a copy of current certifications on request.

3.2 DPA.  The Data Processing Addendum (“DPA”) available at https://www.alertmedia.com/alertmedia-dpa/ applies to AlertMedia’s provision and Customer’s use of the Services and forms part of this Agreement. With respect to the Processing of Customer Personal Information, Customer is the Controller and AlertMedia is a Processor as those terms are defined in the DPA. With respect to Personal Information, Customer will only upload or input Contact Information into the Services and is prohibited from uploading or inputting Sensitive Personal Information.

4. Other Services

4.1 Third-Party Services. AlertMedia may include access to Third-Party Services that are subject to pass-through licenses, policies, and terms that apply to the relevant Third-Party Services including but not limited to those available at Exhibit B, as updated from time to time. Customer acknowledges that AlertMedia does not own, create, curate, endorse, or control Third-Party Services or their content. Third-Party Services are provided “as is” as a convenience to Customer.

4.2 Implementation Services. AlertMedia will perform such Implementation Services specified in an Order or any statement of work. Implementation Services are not provided on a work for hire basis. Any changes to the Implementation Services will not be effective unless mutually agreed upon in writing. Customer will provide assistance, cooperation, information, equipment, data, a suitable work environment, and resources reasonably necessary to enable AlertMedia to perform the Implementation Services.

5. Customer Responsibilities and Restrictions

5.1 Customer Responsibilities.

(a) Use of Services. Customer will (i) only use and permit its Users to use the Service in accordance with this Agreement, the applicable Order, the Documentation, Third-Party Terms and all Laws; (ii) be solely responsible and liable for all activity conducted through its account in connection with the Services; and (iii) not use the Services to replace typical non-emergency or non-critical communications systems (i.e. non-emergency conference call systems) for widespread regular use unrelated to critical communications,

(b) Customer Configuration. Customer is responsible for properly configuring the Services for their intended use.

(c) Compliance; Account Information. Customer is responsible for its Users’ compliance with this Agreement and all activities of its Users including how Users access and use Customer Data. Customer agrees to maintain all security regarding its account ID, password, and connectivity with the Service. If Customer’s (or any User’s) account ID or password are stolen, or otherwise compromised Customer (and such User) is obligated to immediately change the password and promptly inform AlertMedia of the compromise.

(d) Customer Data and Content. Customer is solely responsible for the accuracy, integrity, quality and legality of the Alert Customer Data and any Customer created content used in the Services. Customer shall be responsible for any loss, damage or liability arising out of any Alert, including any mistakes contained in the message or the use or subject matter of the message.

(e) Consent from Users/Contacts. Customer must ensure it has made all disclosures and obtained all rights and consents necessary for AlertMedia to use Customer Data to provide the Services. Customer shall be responsible for procuring any necessary consents or having other legal basis to send Alerts to Contacts with respect to the provision of any data transmitted through the Service. Customer must provide Contacts with a simple mechanism for opting out or unsubscribing from receiving Alerts, including information on how to “opt-out” or unsubscribe.

5.2 Customer Restrictions

Except to the extent otherwise expressly permitted by this Agreement, Customer must not (and must not permit anyone else to): (a) rent, lease, sell, distribute or sublicense the Services or (except for Affiliates) include them in a service bureau or outsourcing offering, (b)    provide access to the Services to a third party, other than to Users, (c) use the Services to develop a similar or competing product or service, (d) reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to the Services, (e) modify or create derivative works of the Services, (f) attempt to gain unauthorized access to the Services or its related systems or networks or interfere with or circumvent Services’ usage limits or Entitlements restrictions, (g) remove, obscure or modify in any way any proprietary or other notices or attributions in the Services, or (h) upload or input Sensitive Personal Information to the Services, (i) send Alerts to phone numbers that are emergency numbers and/or other numbers that may not be called using automated dialing equipment under applicable Law, (j) send any Content that it knows or has reason to know: (i) infringes another’s rights in intellectual property; (ii) invades any privacy laws including without limitation another’s right to privacy and/or any privacy policies of Customer or any third-party; and/or (iii) justifies a complaint to the FCC and/or FTC, (k) engage or facilitate any unethical, deceptive or misleading practices in connection with the use of the Service, (l) use the Service in connection with any telemarketing, solicitations, donations, sales, spamming or any unsolicited messages (commercial or otherwise); and/or (m) provide Content to be transmitted in the Service which: (i) is defamatory, libelous, obscene, pornographic, or is otherwise harmful; (ii) promotes violence, discrimination, illegal activities, gambling, alcoholic beverages, guns or tobacco; and/or (iii) contains or otherwise links to viruses, worms, cancelbots or any other harmful code or computer programs designed to disrupt the functionality of any computer software or hardware or telecommunications equipment.

5.3 Suspension.

If (a) AlertMedia becomes aware that Customer Data may violate Law, or the rights of others, (b) Customer violates Section 5.1 (Customer Responsibilities) or 5.2 (Customer Restrictions), or (c) Customer’s use of the Services threatens the security or operation of the Services, then AlertMedia may: (i) limit access to, or remove, the relevant Customer Data, or (ii) suspend Customer’s or any User’s access to the relevant Services. AlertMedia may also take any such measures where required by Law, or at the request of a governmental authority. When practicable, AlertMedia will give Customer the opportunity to remedy the issue before taking any such measures. AlertMedia will provide Customer with prompt notice following any suspension and the parties will work in good faith to resolve the misuse or alleged misuse or breach giving rise to the suspension. AlertMedia shall reinstate Customer’s use of the Services once any misuse, alleged misuse or breach has ended and there is no risk of any harm to AlertMedia’s network, its business, or its other customers (to be determined by AlertMedia in its sole discretion (acting reasonably)).

6. Orders Invoicing and Payment

6.1 Orders. No Order is binding until AlertMedia provides its acceptance, including by sending a countersigned copy, a confirmation email or providing Customer access to the Services. AlertMedia will deliver login instructions electronically, to Customer’s account (or through other reasonable means) promptly upon acceptance of an Order.  Orders are non-cancelable, and all fees and expenses are non-refundable, except as otherwise provided in this Agreement. If multiple Orders are issued under this Agreement, unless otherwise stated on an Order, all Orders executed subsequently to the first Order, shall co-terminate with the Order with the earliest start date that is then currently active.

6.2 Invoicing. Unless otherwise provided on the Order, AlertMedia shall invoice Customer annually in advance for the Services upon execution of the Order. If Customer exceeds the Entitlements set forth in the Order, AlertMedia shall invoice Customer for such excess Entitlements on a quarterly basis in arrears, at the rate set forth on the Order for Additional Entitlements Rates. Implementation Services will be delivered as set forth on the applicable Order or statement of work. Invoices based on time and material will be issued monthly in arrears. Invoices based on a fixed fee basis will be issued upon the execution of the applicable Order or any statement of work.

6.3 Payment. Customer will pay the fees described in the Order. If Customer purchases directly from AlertMedia, fees and any payment terms are net 30 unless otherwise specified in Customer’s Order with AlertMedia.

6.4 Late Fees.  AlertMedia may, in its sole discretion, charge a late fee on delinquent, undisputed payments at the lesser of (i) the maximum amount chargeable by law; or (ii) one and one-half percent (1.5%) per month from the date such payment was due until the date paid. Late fees shall not accrue on any amounts disputed in good faith in accordance with this Agreement, and shall only apply to undisputed amounts.

6.5 Purchase Orders. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Upon request, AlertMedia shall reference the purchase order number on its invoices, provided, however, that Customer agrees that a failure to issue a purchase order or provide AlertMedia with the corresponding purchase order shall not relieve Customer of its obligations to provide payment to AlertMedia.

6.6 Renewals.  Unless otherwise specified in an Order and subject to the Services continuing to be generally available, a Subscription Term will automatically renew for a Subscription Term equal to Customer’s prior Subscription Term, subject to the annual price increase in the applicable Order. Unless otherwise specified in an Order, either party may elect not to renew a Subscription Term by giving notice to the other party 60 days before the end of the current Subscription Term.

6.7 Taxes.  Fees and expenses are exclusive of any sales, use, GST, value-added, withholding or similar taxes or levies that apply to Customer’s Orders. Other than taxes on AlertMedia’s net income, Customer is responsible for any such taxes or levies and must pay those taxes or levies, which AlertMedia will itemize separately, in accordance with an applicable invoice. To the extent Customer is required to withhold tax from payment to AlertMedia in certain jurisdictions, Customer must provide valid documentation it receives from the taxing authority in such jurisdictions confirming remittance of withholding. This documentation must be provided at the time of payment of the applicable invoice to AlertMedia. If Customer claims exemption from any sales tax, VAT, GST or similar taxes under this Agreement, Customer must provide AlertMedia a valid tax exemption certificate or tax ID at the time of Order, and after receipt of valid evidence of exemption, AlertMedia will not include applicable taxes on the relevant Customer invoice.

6.8 Reseller Transactions. If any of Customer’s purchases of the Service(s) are made through an authorized reseller of AlertMedia (“Reseller”):

(a) Customer will pay any owed amounts to the Reseller, as agreed between Customer and the Reseller and Sections 6.1 through 6.4 above shall not apply. Customer agrees that AlertMedia may suspend or terminate Customer’s use of the Service(s) if AlertMedia does not receive its payment of fees for such Service(s) from the Reseller.

(b) The Reseller will be invoiced for any orders placed via self-service and will, in turn, invoice Customer. The Reseller and Customer are responsible for the accuracy of all orders placed with Reseller.

(c) Reseller may not modify this Agreement or make any commitments on AlertMedia’s Only this Agreement governs AlertMedia’s obligations to Customer.

(d) The amounts paid by the Reseller to AlertMedia for Customer’s use of the Service(s) under this Agreement will be deemed the amount actually paid under this Agreement for purposes of calculating AlertMedia’s liability under Section 11 (Limitation of Liability).

(e) Purchases made through Resellers will not automatically renew and Section 6.6 (Renewals) above will not apply. Customer’s renewal pricing will be communicated to Customer by the Reseller prior to the expiration of Customer’s Subscription Term. Should Customer elect to continue purchasing Service(s) through the Reseller, Customer will place a new order with the Reseller.

7. Warranties

7.1 Performance Warranties.  AlertMedia warrants to Customer that: (a) AlertMedia will not materially decrease the functionality or overall security of the Services during the applicable Subscription Term, and (b) AlertMedia will use reasonable efforts designed to ensure that the Services, when and as provided by AlertMedia, are free of any viruses, malware or similar malicious code (each, a “Performance Warranty”).

7.2 Performance Warranty Remedy. If AlertMedia breaches a Performance Warranty and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, AlertMedia will use reasonable efforts to correct the non-conformity. If AlertMedia determines such remedy to be impracticable, either party may terminate the affected Subscription Term. AlertMedia will then refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. These procedures are Customer’s exclusive remedy and AlertMedia’s entire liability for breach of a Performance Warranty. The Performance Warranty does not apply to the extent the issue or non-conformity is caused by Customer’s unauthorized use or modification of the Services

7.3 Customer Acknowledgement. Customer acknowledges that AlertMedia’s Services are often used during inherently dangerous, unpredictable events which pose threats to Customer’s employees and business. Customer further acknowledges that such events are completely outside the control of AlertMedia. Therefore, AlertMedia does not assume any risk, liability or responsibility whatsoever for the use of AlertMedia’s Services by Customer, its Users or any recipient of any notification or message. By using AlertMedia’s Services, Customer and each User agrees to assume all the risks associated with such use. AlertMedia also has no control over third parties including but not limited to cellular service providers, Internet service providers, Wi-Fi providers, phone carriers, first responders, emergency personnel, and/or communication or device manufacturers. Customer acknowledges that AlertMedia may block Alerts (e.g., based on instructions from Contacts, carriers, aggregators, government agencies, etc.).

7.4 Third-Party Content or Services. AlertMedia is not responsible or liable for the operation, availability, accuracy, legality, security, or performance of any Third-Party Content or Third-Party Services, or for the availability or operation of the Services to the extent they depend on Third-Party Content or Third-Party Services. Any exchange of data or other interaction between Customer and a third party is solely between Customer and that third party and is governed by the applicable Third-Party Terms. Any unavailability of the Third-Party Content or Third-Party Services is excluded from any service level commitments under the Agreement. AlertMedia may add, modify, or discontinue access to any Third-Party Content or Third-Party Services at any time in its discretion.

7.5 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7 (WARRANTIES), THE SERVICES ARE PROVIDED “AS IS.” ALERTMEDIA MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ALERTMEDIA DOES NOT WARRANT THAT CUSTOMER’S USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE. ALERTMEDIA IS NOT LIABLE FOR DELAYS, FAILURES OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE ALERTMEDIA’S CONTROL.

8. Term; Termination.

8.1 Term. This Agreement commences on the date Customer accepts it and expires after all Subscription Terms under all Orders have ended.

8.2 Termination for Cause. Either party may terminate this Agreement or a Subscription Term if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor, or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. If Customer terminates this Agreement or a Subscription Term in accordance with this Section, AlertMedia will refund to Customer any pre-paid, unused fees for the terminated portion of the Agreement or applicable Subscription Term.

8.3 Effect of Termination.  Upon expiration or termination of this Agreement or a Subscription Term: (a) Customer’s rights to use the applicable Services will cease, and (b) Customer must immediately cease accessing the Services. Following expiration or termination, subject to Section 8.4 below, unless prohibited by Law, AlertMedia will delete Customer Data.

8.4 Data Retrieval. Upon request by Customer made prior to the date of termination or expiration of this Agreement, AlertMedia will continue to make the Customer Data available to Customer for export or download for 30 days thereafter. AlertMedia will have no obligation to maintain or provide any Customer Data, and may thereafter, and will, upon Customer request, delete or destroy all copies of Customer Data in AlertMedia’s possession, unless obligated to retain such information by applicable Law or a court or regulatory body.

8.5 Surviving Provisions. The following Sections will survive expiration or termination of this Agreement: 1 (Definitions), 2.2 (Data), 2.3 (Limited Grant and Reserved Rights), 5 (Customer Responsibilities and Restrictions), 6.3 (Payment) (for amounts then due), 6.4 (Late Fess), 6.7 (Taxes), 7.5 (Disclaimers), 8.3 (Effect of Termination), 8.4 (Data Retrieval), 9 (Confidentiality), 10 (Indemnification), 11 (Limitation of Liability), and 12 (General Provisions).

9. Confidentiality

9.1 Definition.  “Confidential Information” means information disclosed by one party to the other under or in connection with this Agreement that: (a) is designated by the disclosing party as proprietary or confidential, or (b) should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. AlertMedia’s Confidential Information includes any source code and technical or performance information about the Services. Customer’s Confidential Information includes Customer Data.

9.2 Obligations. Unless expressly permitted by the disclosing party in writing, the receiving party must: (a) hold the disclosing party’s Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, and (b) only use such Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose such Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for AlertMedia, the subcontractors referenced in Section 12.12 (Subcontractors and Affiliates), provided the receiving party remains responsible for their compliance with this Section 9 (Confidentiality) and they are bound to confidentiality obligations no less protective than this Section 9 (Confidentiality).

9.3 Exclusions.  These confidentiality obligations do not apply to information that the receiving party can demonstrate: (a) is or becomes publicly available through no fault of the receiving party, (b) it knew or possessed prior to receipt under this Agreement without breach of confidentiality obligations, (c) it received from a third party without breach of confidentiality obligations, or (d) it independently developed without using the disclosing party’s Confidential Information.

9.4 Required Disclosure. If the receiving party is required by law, regulation, or court order, to disclose any of the disclosing party’s Confidential Information, the receiving party shall (to the extent legally permitted) provide prompt written notice to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. The receiving party shall disclose only that portion of Confidential Information that is legally required to be disclosed and shall use reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.

9.5 Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief without the necessity of proving actual damages or posting a bond (or if a bond is required, the amount of such bond shall not exceed $100), in addition to other available remedies, for breach or anticipated breach of this Section 9 (Confidentiality).

10. Indemnification.

10.1 Indemnification by AlertMedia.  AlertMedia must: (a) defend Customer from and against any third-party claim to the extent alleging that the Services, when used by Customer as authorized by this Agreement, infringe any intellectual property right of a third party (an “Infringement Claim” or “Claim”), and (b) indemnify and hold harmless Customer against any damages, fines or costs finally awarded by a court of competent jurisdiction (including reasonable attorneys’ fees) or agreed in settlement by AlertMedia resulting from an Infringement Claim.

10.2 Indemnification by Customer.  Customer must: (a) defend AlertMedia from and against any third-party claim to the extent alleging (i) Customer’s use of the Services in a manner not authorized by the Agreement; or (ii) AlertMedia’s use of Customer Data as authorized by the Agreement (each a “Claim”), and (b) indemnify and hold harmless AlertMedia against any damages, fines or costs finally awarded by a court of competent jurisdiction (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from a Claim.

10.3 Procedures. The indemnitor’s obligations in this Section 10 (Indemnification) are subject to indemnitee providing indemnitor: (a) sufficient notice of the Claim so as to not prejudice indemnitor’s defense of the Claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the Claim, and (c) all reasonably requested cooperation, at indemnitor’s expense for reasonable out-of-pocket expenses. Indemnitor may participate in the defense of a Claim with its own counsel at its own expense.

10.4 Settlement.  Indemnitee may not settle a Claim without indemnitors prior written consent. Indemnitor may not settle a Claim without indemnitee’s prior written consent if settlement would require indemnitee to admit fault or take or refrain from taking any action (other than relating to use of the Services).

10.5 Infringement Mitigation.  In response to an actual or potential Infringement Claim, AlertMedia may, at its option: (a) procure rights for Customer’s continued use of the Services, (b) replace or modify the alleged infringing portion of the Services without reducing the overall functionality of the Services, or (c) terminate the affected Subscription Term and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term.

10.6 Exceptions.  AlertMedia’s obligations in this Section 10 (Indemnification) do not apply to the extent an Infringement Claim arises from: (a) Customer’s modification or unauthorized use of the Services, (b) use of the Services in combination with items not provided by AlertMedia (including Third-Party Services), (c) any unsupported release of the Services, or (d) Third-Party Services, or Customer Data.

10.7 Exclusive Remedy. This Section 10 (Indemnification) sets out Customer’s exclusive remedy and AlertMedia’s entire liability regarding infringement of third-party intellectual property rights.

11. Limitation of Liability.

11.1 Damages waiver.  Except for Excluded Claims, to the maximum extent permitted by law, neither party nor their respective affiliates or any of their officers, directors, employees or representatives will have any liability arising out of or related to this agreement for any loss of use, lost data, lost profits, revenues, goodwill, cover, interruption of business or any indirect, special, incidental, reliance, consequential or punitive damages of any kind, even if informed of their possibility in advance.

11.2 Liability cap.  Except for Excluded Claims, to the maximum extent permitted by law, each party’s entire liability arising out of or related to this agreement will not exceed in aggregate the amounts paid or payable to AlertMedia under the order for the services giving rise to the liability during the twelve (12) months preceding the first event out of which the liability arose.

11.3 Excluded claims.  “Excluded Claims” means: (a) customer’s payment obligations under sections 3 (Payment) and 6.7 (taxes) (b) customer’s breach of section 5 (customer responsibilities and restrictions), (c) either party’s breach of section 9 (confidentiality) but excluding claims relating to Customer Data, (d) amounts payable to third parties under a party’s obligations in section 10 (indemnification) or (e) a party’s gross negligence, willful misconduct or fraud.

11.4 Nature of claims and failure of essential purpose.  The exclusions and limitations in this section 11 (limitation of liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this agreement fails of its essential purpose.

12. General Provisions.

12.1 Publicity. AlertMedia may, for the sole purpose of marketing its products or services, use the names, trademarks and other logos (“Marks”) of Customer in its list of customers (including on its website and on other marketing materials), provided any such use will be in accordance with the Customer’s standard usage guidelines relating to its Marks.

12.2 Proof of Concept Access. Customer may receive access to certain Services or features on a free trial basis or as an early access offering (“POC”). Use of a POC is subject to this Agreement and any additional terms specified by AlertMedia, such as the applicable scope and term of use. At any time, AlertMedia may terminate or modify Customer’s use (including applicable terms) of a POC without any liability to Customer.   Notwithstanding anything else in this Agreement, to the maximum extent permitted by Law, AlertMedia provides no warranty, indemnity, service level agreement or support for a POC and its aggregate liability for a POC is limited to US$1,000.

12.3 Compliance with Laws.  Each party must comply with all Laws applicable to its business in its performance of obligations or exercise of rights under this Agreement.

12.4 Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may, without the consent of the other Party, assign this Agreement to an Affiliate, or entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume all rights and obligations under this Agreement. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement.

12.5 Governing Law; Jury Trail Waiver. If Customer is domiciled: (i) in Europe, the Middle East, or Africa, this Agreement is governed by the laws of England and Wales, with the jurisdiction and venue for actions related to this Agreement in the courts of England, or (ii) elsewhere, this Agreement is governed by the laws of the State of Delaware, This Agreement will be governed by such laws without regard to conflicts of laws provisions. THE PARTIES FURTHER WAIVE TRIAL BY JURY IN ANY DISPUTE TO WHICH THEY MAY BE PARTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. THIS WAIVER OF JURY TRIAL IS SEPARATELY GIVEN, AND IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE. The United Nations Convention on the International Sale of Goods does not apply to this Agreement.

12.6 Attorney Fees. In the event any attorney is employed by either party to this Agreement with regard to any legal or equitable action, arbitration or other proceeding brought by such party for the enforcement of this Agreement or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party in such proceeding shall be entitled to recover from the other party reasonable attorneys’ fees and other costs and expenses incurred, including but not limited to post judgment costs, in addition to any other relief to which the prevailing party may be entitled.

12.7 Notices.  Except as specified elsewhere in this Agreement, notices under this Agreement must be in writing and are deemed given on: (i) personal delivery, (ii) when received by the addressee if sent by a recognized overnight courier with receipt request, (iii) the third business day after mailing, or (iv) the first business day after sending by email, except that email will not be sufficient for notices regarding Infringement Claims, alleging breach of this Agreement by AlertMedia, or of Customer’s termination of this Agreement in accordance with Section 8.2 (Termination for Cause).

(a) Notices to AlertMedia shall be provided to AlertMedia at AlertMedia, Inc., 401 S. 1st St., Suite 1400, Austin, TX 78704, USA with a copy to [email protected]

(b) Notices to Customer must be provided to the billing or technical contact provided to AlertMedia, which may be updated by Customer from time to time. AlertMedia may provide general or operational notices via email, on its website or through the Services.

12.8 Entire Agreement.  This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In the event of a conflict among the documents making up this Agreement, the main body of this Agreement will control, except that the DPA will control for its specific subject matter.

12.9 Interpretation, Waivers and Severability. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. Waivers must be granted in writing and signed by the waiving party’s authorized representative. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

12.10 Changes to this Agreement. AlertMedia may modify this Agreement from time to time, by posting the modified Agreement on AlertMedia’s website. AlertMedia will use commercially reasonable efforts to post any such modification at least thirty (30) days prior to its effective date. Modifications to this Agreement will take effect at the next Order or renewal unless either party elects to not renew. AlertMedia may specify that modifications will become effective during a then-current Subscription Term if: (A) required to address compliance with Law, or (B) required to reflect updates to Service functionality or introduction of new Services. If Customer objects, Customer may terminate the remainder of the then-current Subscription Term for the affected Services as its exclusive remedy. To exercise this right, Customer must notify AlertMedia of its termination under this Section within thirty (30) days of the modification notice, and AlertMedia will refund any pre-paid fees for the terminated portion of the applicable Subscription Term.

12.11 Force Majeure.  Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control and occurring without that party’s fault or negligence.

12.12 Subcontractors and Affiliates. AlertMedia may use subcontractors or its Affiliates in the performance of its obligations under this Agreement, but AlertMedia remains responsible for its overall performance under this Agreement and for having appropriate written agreements in place with its subcontractors to enable AlertMedia to meet its obligations under this Agreement.

12.13 Independent Contractors.  The parties are independent contractors, not agents, partners or joint venturers.

12.14 Export Restrictions. The Services may be subject to U.S. export restrictions and import restrictions of other jurisdictions. Customer must comply with all applicable export and import Laws in its access to, use of, and download of the Services or any content or records entered into the Services. Customer must not (and must not allow anyone else to) export, re-export, transfer or disclose the Services or any direct product of the Services: (a) to (or to a national or resident of) any U.S. embargoed jurisdiction, (b) to anyone on any U.S. or applicable non-U.S. restricted- or denied-party list, or (c) to any party that Customer has reason to know will use the Services in violation of U.S. export Law, or for any restricted end user under U.S. export Law.

12.15 Anti-Bribery and Anti-Corruption. Each party shall comply with applicable Laws concerning anti-bribery and anti-corruption, which may include the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. As of the date of this Agreement and the date of each Order, each party represents that it has neither received nor been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any employee, agent or representative of the other party or its Affiliates in connection with this Agreement. Each party agrees to promptly notify the other party if it learns of any violation of the foregoing. This representation is not intended to include customary and reasonable gifts and entertainment provided in the ordinary course of business, to the extent such gifts and entertainment are permitted by Applicable Law.

12.16 US. Government Customers. The Services and Documentation are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Customer or any User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer and Customer’s Users must immediately discontinue use of the Services and Documentation. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.

12.17 No Contingencies. The Services in each Order are purchased separately and not contingent on purchase or use of other AlertMedia products and services, even if listed in the same Order. Customer’s purchases are not contingent on delivery of any future functionality or features.

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Exhibit A – Service Level Agreement and Support Policy

A.1   Service Level Agreement.  The Services shall include access to AlertMedia’s proprietary platforms, on a monthly subscription basis, with an availability equal to or greater than 99.9% (“Availability Commitment”), except for planned downtime, which AlertMedia shall give reasonable advance notice, and unavailability caused by a force majeure event.

(a) Credit If the actual availability of the Service is less than the Availability Commitment in any two consecutive months, Customer may request a refund of 50% of the amount of fees paid by Customer relating to those two months.

(b) Claims. Customer must notify AlertMedia via support ticket within five (5) business days from the occurrence of an SLA incident and provide the details of the incident (a “SLA Claim”). AlertMedia will use log files, database records, audit logs and any other information available to validate an SLA Claim.

(c) Exclusions. Customer shall not have any remedies under the SLA to the extent any SLA Claim is due to unavailability of the Services resulting from: (a) a Force Majeure Event, (b) issues associated with the Customer’s computing devices, local area networks, or internet service provider connections, (c) use of the Services outside the scope described in the Agreement, or (d) AlertMedia’s inability to provide the Services due to acts or omissions of a Customer or any of the Customer’s Users.

A.2   AlertMedia Support Policy.  This AlertMedia Support Policy describes AlertMedia’s Support programs and policies available to any customer with an active subscription to the Services for use in accordance with the applicable agreement in effect between AlertMedia and the Customer. Except as otherwise modified or defined herein, capitalized terms shall have the same meaning as in the agreement and/or the applicable Order.

(a) Customer Success Manager. Every AlertMedia customer is paired with a dedicated Success Manager that provides one-on-one guidance during implementation and beyond. Your CSM will provide hands-on training, guidance, ongoing support, and best practices.

(b) Accessing Support. There is online help available which can be accessed by clicking “Help” in the menu when logged into the AlertMedia Service which gives you access to the following options:

Knowledge Base Visit the AlertMedia Support Portal to review our Knowledge Base 24x7x365 and find answers online.
Submit a Ticket Submit a Ticket to file a bug or feature request.
Contact Us Directly

E-mail support at [email protected] or
Telephone Support call 1-800-826-0777 (US) or +44 7480 609494 (UK).
Live Chat

(c) Incident Response Timing. AlertMedia shall use commercially reasonable efforts to acknowledge all issues reported by Customer and correct any error in the Services reported by Customer or otherwise known to AlertMedia in accordance with the priority level assigned to such error, as follows:

(d) Severity Level. Customer will select the priority for initial response when Customer submits the initial case. Once a CSM has received the case, the CSM may change the priority in good faith if the issues do not conform to the criteria set forth above for the selected priority. The CSM assigned to the case will notify Customer of any such change of priority level.

(e) Administrators. Support will be provided to Administrators in accordance with the terms of this document. Contacts requesting help may be referred to Administrators. Customer agrees to provide AlertMedia with reasonable information and assistance to facilitate AlertMedia’s performance of support, including, without limitation, a clear description of the issue, related configuration and log files, and cooperation to reproduce errors.

(f) Definitions.
“Business Hours” Monday-Friday, 8am-6pm (08:00-18:00 hours) in the U.S. Central time zone, excluding local holidays.

“Error Correction” means AlertMedia’s repair of the Services in the form of a patch or e-fix to remedy an Error Problem such that the functionality of the Service is substantially restored to conformity with the Documentation.

“Error” means a defect in the Service such that it does not work in accordance with the applicable Documentation, and which significantly degrades one or more features or the functionality of the Services.

“Response” means acknowledgement of AlertMedia’s receipt of a customer’s notice of an Error via an email to the Customer’s designated support contact containing AlertMedia’s assigned support engineer name, the date and time assigned, the Severity Level assigned to the Problem, and other information.

“Workaround” means a change to customer’s procedures, or to data supplied by a customer, suggested by AlertMedia to help the customer avoid an Error without substantially impairing the Customer’s use of the affected Service.

Exhibit B – Third-Party Terms

X Terms of Service. The X Terms of Service are located at: https://x.com/en/tos. Customer may not use, or knowingly display, distribute, or otherwise make available X Content (as defined at https://developer.x.com/en/developer-terms/agreement-and-policy), and information derived from X Content for: (1) surveillance purposes, including but not limited to: (a) investigating or tracking X’s users or their X Content; or (b) tracking, alerting, or other monitoring of sensitive events (including but not limited to protests, rallies, or community organizing meetings); (2) conducting or providing surveillance, analyses, or research that isolates a group of individuals or any single individual for any unlawful or discriminatory purpose, or in a manner inconsistent with X users’ reasonable expectations of privacy; or (3) targeting, segmenting, or profiling individuals based on health (including pregnancy), negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical beliefs, sex life or sexual orientation, trade union membership, data relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by law. If law enforcement personnel request information about X or its users for purposes of an ongoing investigation, Customer shall not provide such information and shall instead refer them to X’s Guidelines for Law Enforcement, located at: https://help.x.com/en/rules-and-policies/x-law-enforcement-support.

Amazon Translate/Claude. Customer’s use of Amazon Translate and Amazon Bedrock (e.g., Anthropic “Claude”) is subject to the AWS Service Terms (https://aws.amazon.com/service-terms/) and Anthropic’s Usage Policy (https://www.anthropic.com/legal/aup). Customer is responsible for all required notices/consents for end user content processed by such services. Customer is responsible for reviewing and verifying Third-Party Content, and any outputs generated from it, before using or relying on it.