Welcome to Alert Media!
These Terms of Service, together with the Quote Summary and Customer Acceptance Form (collectively, the “Agreement”), govern Customer’s and Customer’s Authorized Users’ acquisition and use of Alert Media’s Services.
Acceptance. By entering into a Customer Acceptance form or otherwise using the Services, the Customer’s signatory or user of the Services agrees on behalf of the Customer entity entering into this Agreement (“Customer”) to be bound by this Agreement as of that date (the “Effective Date”) and represents he or she has the power and authority to enter into this Agreement on behalf of Customer. In the event Customer submits a purchase order to Alert Media, any terms and conditions contained therein are rejected and the use of the Services is bound only by this Agreement.
1. Defined Terms.
“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.
“Alert Media” or “AlertMedia” means Alert Media, Inc., a Delaware corporation.
“Authorized Users” means individuals who are authorized by Customer to use the Services, including those who have been supplied user identifications and passwords by Customer. Authorized Users may include the employees, consultants, contractors, agents, or other designees of Customer and its Affiliates, but shall not knowingly include any employee or agent of any Alert Media competitor.
“Customer Acceptance Form” or “Quote Summary” means a document issued by Alert Media and executed or otherwise agreed upon by authorized representatives of the Customer which specifies, among other things and as applicable, a description of the Services, the Fees, payment terms, and any other details specifically related to the Services.
“Customer Data” means all information and data (including text, images, photos, videos, audio, and documents) or any other content in any media and format provided or made available to Alert Media by or on behalf of Customer in relation to the use of the Services.
“Services” means Alert Media’s proprietary critical event communications platform and associated applications, and any additional products and services that are ordered by Customer pursuant to a Customer Acceptance Form or otherwise.
Capitalized terms not otherwise defined above are defined elsewhere in the Agreement.
2. Alert Media Services.
(a) Services. During the Term, and subject to the terms and conditions of this Agreement, Alert Media shall provide the Services to Customer and its Authorized Users as indicated on the Customer Acceptance Form solely for Customer’s internal business purposes.
(b) Service Level. The Services shall include access to Alert Media’s proprietary platforms, on a monthly subscription basis, with an availability equal to or greater than 99.9% (“Availability Commitment”), except for (a) planned downtime (of which Alert Media shall give reasonable advance notice), and (b) unavailability caused by a force majeure event. If Alert Media fails to meet the Availability Commitment in any consecutive two-month period, Alert Media will, upon request, refund Customer 50% of the pro-rata amount of fees paid by Customer during those two months.
(c) Protection of Customer Data. Alert Media will maintain reasonable administrative, physical, and technical safeguards 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 Alert Media 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.
(d) Third Party Content. Alert Media may include third party content, such as alerts or threats from the National Weather Service, local municipalities, counties, governmental agencies, and other third parties upon opt-in from a Customer and/or its Authorized Users (“Third Party Content”). Alert Media does not verify the accuracy of any Third Party Content. Alert Media makes no representation or warranty regarding such Third Party Content and assumes no liability for the delivery, or failure to deliver relevant Third Party Content.
(e) Acceptable Use of the Services.
1. Customer shall (i) be responsible and liable for its, its Affiliates’ and their Authorized Users’ compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Customer Data and of the means by which it acquired or generated Customer Data; (iii) prevent unauthorized access to or use of the Services, including not permitting any third party to access or use its user name, password, or account for the Services; (iv) be solely responsible and liable for all activity conducted through its account by its Authorized Users in connection with the Services; (v) promptly notify Alert Media if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer’s (or any Authorized User’s) user name, password, or account; and (vi) use the Services only in accordance with applicable laws and government regulations.
2. Except to the extent such restrictions are prohibited by applicable law, Customer shall not (i) use the Services to store or transmit any content, including Customer Data, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (ii) upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, malware, spyware, malicious code, time bomb, software lock, or other harmful component; (iii) use the Service to send, or initiate the sending of, any promotional material (including any material which may be considered “junk” or “spam”) or any other solicitation, (iv) attempt to modify, copy or otherwise reproduce, create a derivative work of, reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, in whole or in part, for any third-party use of the Services, or any third-party data contained therein; (v) use the Services to build a competitive product or service or copy any ideas, features, functions, or graphics of the Services; (vi) attempt to gain unauthorized access to the Services or its related systems or networks; (vii) use the Services for any activity unrelated to the purpose of the Services or that differs significantly from the authorized use of the Services set forth in the Customer Acceptance Form (“Planned Use”); (viii) 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, or (ix) authorize, permit, or encourage any third party to do any of the above.
(f) Suspension. Alert Media may immediately suspend or terminate Customer’s use of the Services and this Agreement to prevent any harm to Alert Media’s network, its business, or its other customers based on Customer’s misuse or alleged misuse of the Services, including in violation of this Agreement.
(g) Trial and Evaluation. In addition to the disclaimers of warranty set out in this Agreement, Customer expressly acknowledges and agrees that any trial or evaluation use is at Customer’s sole risk. Alert Media reserves the right to terminate any trial or evaluation use at any time.
3. Fees for Services.
(a) Fees. Customer will be charged for the use of the Services at the rates and frequency set forth on the Customer Acceptance Form, and Customer is responsible for all fees and expenses as set forth therein (the “Fees”). Unless otherwise set forth in the Customer Acceptance Form, Customer will pay all undisputed Fees due to Alert Media within thirty (30) days of the receipt of an invoice. Beginning with the first Renewal Term, and on each subsequent Renewal Term during the Term of this Agreement, the then-current Fees for the Services shall increase by 3.9%.
(b) Late Fees. Alert Media may, in its sole discretion, charge a late fee on delinquent payments at the lesser of (i) the maximum amount chargeable by law; or (ii) one percent (1%) per month from the date such payment was due until the date paid, provided that Alert Media notifies Customer of any delinquent amounts outstanding.
(c) Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature. Customer is responsible for paying all Taxes associated with the subscription to the Services, except for Taxes based solely on Alert Media’s net income. If Alert Media has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Alert Media with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Intellectual Property Rights.
(a) Customer Data. Customer and its Authorized Users shall retain all right, title, and interest in and to the Customer Data and all intellectual property rights therein. For the purpose of supporting Customer’s use of the Services, providing Services to Customer, and providing notifications to Authorized Users, Customer hereby grants Alert Media a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 12(a)) license to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer Data. Subject only to the limited license expressly granted herein, nothing in this Agreement will confer on Alert Media any right of ownership or interest in the Customer Data or the intellectual property rights therein.
(b) Usage Data. Customer shall own all right, title, and interest in and to any data that is collected by Alert Media from Customer or its Authorized Users in connection with the use of and interaction with the Services (“Usage Data”). Customer grants to Alert Media a limited, non-exclusive, non-transferable (except as set forth in Section 12(a)), non-sublicensable, royalty-free license to use such Usage Data in order to provide the Services to Customer, and as necessary to monitor and improve the Services. Additionally, Customer agrees that Alert Media may use the Usage Data to collect, develop, create, extract or otherwise generate statistics and other information and to otherwise compile, synthesize, and analyze such Usage Data (“Blind Data”). Notwithstanding anything in this Agreement to the contrary, to the extent that Alert Media collects or generates Blind Data, such Blind Data will be owned solely by Alert Media and may be used for any lawful business purpose without a duty of accounting to Customer, provided that such Blind Data is not personally identifiable and the source of such Blind Data is not identifiable.
(c) Alert Media Services. Alert Media shall retain and own all proprietary rights in and to all of Alert Media’s intellectual property, including but not limited to all Alert Media Services, including any updates, modifications, and enhancements, and any other services provided hereunder and all software, source code, trademarks, service marks, and other intellectual property rights associated therewith. Customer may provide feedback to Alert Media concerning the functionality and performance of the Services (“Feedback”) from time to time and Customer hereby assigns and agrees to assign all of its right, title, and interest in and to such Feedback to Alert Media. All of the foregoing shall belong exclusively to Alert Media, with Alert Media having the sole right to obtain, hold and renew in its own name, patents, copyrights, trademarks, trade secrets, registrations and/or other appropriate protection.
(d) Names and Trademarks. Alert Media may, for the sole purpose of marketing its products, 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.
5. Confidentiality. Customer acknowledges that the Services, the terms of this Agreement, and any other proprietary or confidential information provided by Alert Media constitutes Alert Media’s valuable proprietary information and trade secrets and constitutes Alert Media’s Confidential Information. Customer’s Data, Usage Data, and any other proprietary or confidential information provided to Alert Media by Customer shall constitute Customer’s Confidential Information. Each party agrees to preserve the confidential nature of the other’s Confidential Information by retaining and using it in trust and confidence, solely for its internal use except as provided herein, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this section. Each receiving party agrees to promptly report any breaches of this section to the disclosing party. Notwithstanding the foregoing, Confidential Information shall not include any information which (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public without breach of this Agreement by the receiving party; (ii) was acquired by the receiving party without restriction as to use or disclosure before receiving such information from the disclosing party, as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iii) is obtained by the receiving party without restriction as to use or disclosure by a third party authorized to make such disclosure; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
6. Representations, Warranties, Remedies and Disclaimers.
(a) Representations. Each party represents that it has validly entered into this Agreement and has the legal authority to do so.
(b) Warranties. Alert Media warrants that: (a) this Agreement, the Customer Acceptance Form, and any documentation provided by Alert Media accurately describes the Services, and that these Services will not materially decrease in terms of features and functionality during the subscription period; (b) to the best of its knowledge, the Services do not violate any patent, trademark, trade secret, copyright or any other right of ownership of any third party and (c) the Services provided by Alert Media will not knowingly introduce malicious code, and that the Services will be scanned with commercially available anti-virus software.
(c) Customer Acknowledgement. Customer acknowledges that Alert Media’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 Alert Media. Therefore, Alert Media does not assume any risk, liability or responsibility whatsoever for the use of Alert Media’s Services by Customer, Authorized Users or any recipient of any notification or message. By using Alert Media’s Services, Customer and each Authorized User agrees to assume all of the risks associated with such use. Alert Media 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.
(d) Alert Media Equipment. Tangible items or equipment provided by Alert Media (“Alert Media Equipment”) are subject to wear and tear and are not intended to be “fail safe.” Accordingly, it is the sole and exclusive responsibility of Customer and its Authorized Users to test such Alert Media Equipment on a regular basis for wear and tear and possible failure.
(e) Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALERT MEDIA EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT. FURTHERMORE, ALERT MEDIA DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S SPECIFIC REQUIREMENTS, OR THAT THE SERVICES WILL BE ERROR FREE, ALWAYS AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE OR COMPLETE.
7. Limitation of Liability.
(a) Limitation of Liability. IN NO EVENT SHALL ALERT MEDIA OR ITS AFFILIATES OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, OR REPRESENTATIVES BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO THE DAMAGES IN THE 12 MONTHS BEFORE THE CAUSE OF ACTION AROSE.
(b) Exclusion of Consequential and Related Damages. IN NO EVENT WILL ALERT MEDIA AND/OR ITS AFFILIATES OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, OR REPRESENTATIVES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
(c) THE LIMITATIONS IN THIS SECTION 7 SHALL APPLY EVEN IF ALERT MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
(a) Indemnification by Alert Media. Alert Media shall defend Customer from and against any and all third-party claims, suits, actions or proceedings (each, a “Claim”) (i) that the use of the Services as permitted hereunder infringes, violates or misappropriates any copyright, patent, trademark, trade secret or other intellectual property right of a third party or (ii) arises due to the gross negligence or intentional misconduct of Alert Media and shall indemnify Customer for any losses, damages and costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer in connection with any such Claim. Alert Media will have no liability for any Claim to the extent it arises from (i) a modification of the Services by Customer or an Authorized User; (ii) use of the Services in violation of this Agreement or applicable law; (iii) use of the Services after Alert Media notifies Customer to discontinue use because of an infringement or misappropriation claim; (iv) the combination, operation, or use of the Services with any other software, program, or device not provided or specified by Alert Media to the extent such infringement would not have arisen but for such combination, operation, or use; or (v) Customer’s use of the Services in a manner that is inconsistent with its intended use. If the Services have become, or in Alert Media’s opinion is likely to become, the subject of any such Claim, Alert Media may at its option and expense (a) procure for Customer the right to continue using the Services as set forth hereunder; (b) replace or modify the Services or certain functionalities to make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate this Agreement. This Section 8(a) sets forth Alert Media’s sole liability (and Customer’s sole remedy) regarding infringement or misappropriation of third party rights.
(b) Indemnification by Customer. Customer shall defend Alert Media from and against any and all Claims and shall indemnify Alert Media from and against all Losses incurred by Alert Media in connection with any such Claim, to the extent arising out of or alleging: (i) that the Customer Data or Customer’s use of the Services in violation of this Agreement infringes, violates or misappropriates any copyright, patent, trademark, trade secret or other intellectual property right of a third party; or (ii) Customer’s violation or breach of Section 2(e) of this Agreement.
(c) Indemnification Procedures. As a condition to any indemnification hereunder, the indemnified party shall promptly notify the indemnifying party in writing of any claim for which the indemnified party is seeking indemnification (provided that the failure to provide this notice will not relieve the indemnifying party of its indemnification obligations unless such failure materially prejudices the indemnifying party’s ability to defend the Claim) and cooperate in the defense of such claim to the extent reasonably requested by the indemnifying party and at the indemnifying party’s expense. The indemnifying party may assume control of the defense of such claim, provided, that the indemnified party shall have the right to participate in the defense or settlement of such claim with legal counsel of its choosing and at its own expense. The indemnifying party will not settle any claim that involves any remedy other than the payment of money by the indemnifying party (which consent may not be unreasonably withheld, delayed or rejected).
9. Term; Termination.
(a) Term. This Agreement will commence on the Effective Date and, unless earlier terminated, shall continue for the term set forth on the Customer Acceptance Form (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for successive one (1) year periods (each, a “Renewal Term”), unless either party provides at least sixty (60) days prior written notice of its intent not to renew prior to the expiration of the then current Term. The Initial Term and any Renewal Terms are collectively referred to herein as that “Term.”
(b) Termination. This Agreement may be terminated as follows: (i) By either party upon a breach of this Agreement that the breaching party has not cured within thirty (30) days from receipt of written notice advising of such failure from the non-breaching party; or (ii) by either party if the other party files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
(c) Data Portability. Upon request by Customer made within 30 days after the date of termination or expiration of this Agreement, Alert Media will continue to make the Customer Data available to Customer for export or download. After such 30-day period, Alert Media 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 Alert Media’s possession, unless legally prohibited.
(d) Surviving Provisions. Sections 2(e), 3 (as to amounts owed as of termination), 4, 5, 6(e), 7, 8, 9(c) and 10-12 shall survive any termination of this Agreement.
Any notice required under this Agreement shall be given in writing and shall be deemed effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination, an indemnifiable claim or other legal notices (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Unless otherwise specified, all notices to Alert Media shall be sent to the attention of the CEO, if by mail to Alert Media headquarters at 901 S. Mopac Expressway, Building 3, Suite 400, Austin, Texas 78746, if by email to email@example.com. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant system administrator designated by Customer.
11. Force Majeure.
Alert Media shall not be liable for any delay or failure to perform hereunder due to the inability of Customer, Alert Media or any other person to connect to the Internet, receive cellular or Wi-Fi signals, or any other failure or unavailability of the Internet or connectivity for any cause whatsoever, acts of God or of the public enemy, or of any government or agency thereof, restrictions imposed by governmental agencies, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, severe weather, Internet congestion, virus attacks, denial of service attacks, differences with workmen, war, hostilities, terrorist acts, riot, rebellion, delay in or lack of transportation facilities, inability to secure materials, power failure or fluctuation or any other cause beyond the control of Alert Media.
12. General Provisions.
(a) Assignment. Neither party may transfer or assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, and any attempt to do so shall be null and void, provided that either party may assign this Agreement without consent to an Affiliate or in the event of a merger, acquisition or sale of all or substantially all of its assets.
(c) Entire Agreement. This Agreement, including any documents referenced herein, shall constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. To the extent of any conflict between this Agreement and a Customer Acceptance Form, the Customer Acceptance Form shall take precedence. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation. Except as otherwise provided herein, the parties agree that this Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy. Headings are for reference purposes only, have no substantive effect, and shall not enter into the interpretation hereof. Alert Media reserves the right to modify these Terms of Service at any time, with changes to these Terms of Service becoming effective immediately upon publication on Alert Media’s website.
(d) Relationship of the Parties. Alert Media is an independent contractor and nothing in this Agreement shall be deemed to make Alert Media an agent, employee, partner or joint venturer of Customer. Neither party shall have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
(e) Governing Law. This Agreement shall be governed by the laws of the State of Texas, excluding the conflicts of law provisions of any state or jurisdiction. Customer and Alert Media each submit to the exclusive jurisdiction of the courts of Travis County, Texas for the enforcement of this Agreement or any action arising out of or relating to this Agreement.
All inquiries concerning these Terms and the Site or Services, please Contact Us.
Effective Date: April 10, 2019