TERMS OF SERVICE

Effective: December 19th, 2024

Please read these Terms of Service carefully. These Terms of Service constitute a binding legal agreement (the “Agreement”) between you (on behalf of yourself if you are an individual customer or on behalf of the entity that you represent if you are using products and services on behalf of an entity) and Alive Technologies, Inc. (“Alive5”). This Agreement establishes the terms and conditions by which you are permitted to access and use Alive5 products, services, software applications, and websites (collectively the “Services”). By accessing or using the Services, you confirm that you have read this Agreement and the Alive5 Privacy Policy, that you understand them, and that you agree to be bound by them. Use of the Services and, where applicable, registration of an account online to obtain Services constitute your electronic signature. If you are entering into this Agreement on behalf of your employer or client, then “you” refers to that entity, and you (the individual) represent and warrant that you have all necessary authority and permission to enter into this Agreement on the entity’s behalf. If you do not agree to all of the terms and conditions of this Agreement, do not access or use any Services.

THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION IN SECTION 19, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS WITH RESPECT TO DISPUTES YOU MAY HAVE WITH ALIVE5. 

Alive5 reserves the right to modify and update this Agreement from time to time. Alive5 will post notice of any such modifications on this website. You can always review the most recent version of this Agreement at https://www.alive5.com/terms-of-service/. Except to the extent that you and Alive5 have otherwise agreed in a written agreement signed by you and an authorized representative of Alive5, the Services are governed by the then-current version of this Agreement at the time of your use. If you use the Services after any such modification or update to this Agreement, you consent to those modifications or updates. Modifications to this Agreement will not be applied retroactively.

Alive5 may also, from time to time, add additional products, features, or services (whether as part of the Services or separate from the Services) or modify, suspend, or discontinue certain existing products, features, or services available as part of the Services. Alive5 may correct any error in the Services without any liability. New or modified products, features, or services will be governed by this Agreement unless Alive5 publishes a separate or additional agreement in connection with those new products, features, or services (such as a EULA, or a new terms of service document). Alive5 will not be liable to you or any third party under this Agreement for suspending or discontinuing any product, feature, or service.

You acknowledge and agree that except as otherwise agreed to in this Agreement, you bear the entire risk of your use of the Services. Any unauthorized use immediately terminates this Agreement and all permissions or licenses granted to you by Alive5.

1. Eligibility. To use the Services, you must be (i) eighteen (18) years of age or older, and (ii) be able to form binding contracts under applicable law. By using the Services, you are representing and warranting that both (i) and (ii) above are true and correct. The Services are based in the United States, and intended for U.S. users. Users from outside of the U.S. use the Services at their own risk. All users are responsible for compliance with any local laws applicable to their use of the Services.

2. Registration. You may access the Alive5 website and certain other Services without registering. However, certain Services require the creation of a user account and may be subject to fees. If you choose to register, you must provide an email address and create a password. You are responsible for all actions taken using your account and login credentials; accordingly, you must keep your account information and password private and not share them with third parties. You must immediately notify Alive5 if your account has been used without your authorization. To do so, please contact Alive5 at privacy@alive5.com. If you are a business or an entity, you are responsible and liable for all acts or omissions of any and all users under your Services account.

3. Payment Terms. Applicable fees are specified at the Services interface “check-out” and must be paid in advance unless specified otherwise at the time of signup. Payment obligations are non-cancelable and, except as expressly stated in this Agreement, fees paid are non-refundable. If any fees are invoiced by Alive5 and not payable in advance, then payment is due upon receipt of invoice, and Alive5 reserves the right to charge late payment interest of 1.5% per month on any overdue balance. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with the Services, except for taxes based on Alive5’s net income. Should any payment for the Services be subject to withholding tax by any government, you will promptly reimburse Alive5 upon request for such withholding tax.

4. Personal Information; Consent to Privacy Policy. In order to purchase and/or subscribe to Services, you must provide certain information to Alive5, including your credit card number, billing address, shipping address, and other contact information, as applicable. You hereby authorize Alive5 to use all information submitted by you, in accordance with Alive5’s Privacy Policy (https://www.alive5.com/privacy-policy).

5. Usage of Services and Related Responsibilities.

(a) Right to Use. Subject to your compliance with this Agreement and payment of applicable fees, Alive5 grants you a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services you have signed up for during the term of your Services subscription. No rights are granted to you under this Agreement by implication, estoppel, exhaustion, or otherwise, other than as expressly set forth in this Agreement.

(b) Authorized Users. If you are an individual, the rights and licenses granted to you are personal to you. If you are an entity, you will permit use of the Services only by those of your employees or contractors that you have expressly authorized to use the Services on your behalf (“Authorized Users”). You are responsible for all acts or omissions by you and your Authorized Users and will not permit any other person or entity to access or use the Services. You must protect any login credentials from unauthorized use or disclosure.

(c) Support. If you are a subscriber to paid Services and remain current in your payment obligations, Alive5 will provide you with commercially reasonable technical support in connection with your use of the paid Services, including being reasonably available to answer questions or address bugs or other technical issues that prevent the Services from operating substantially in compliance with Alive5’s published technical documentation.

(d) Usage Data. Alive5 may collect aggregate and anonymous data and statistics relating to your use of the Services (specifically excluding any data that identifies you or any individual or entity) (“Usage Data”). Alive5 may use any such Usage Data for any purpose relating to its business, including to develop and improve the Services or other Alive5 products and services, and to analyze usage and traffic patterns relating to the Services.

(e) Service Use Limitations. You agree to use the Services only in compliance with all applicable laws. You may not reproduce, duplicate, copy, sell, resell, or otherwise exploit the Services, any Alive5 Property (defined below in Section 6), or any portion thereof for any purpose other than as expressly permitted by this Agreement. You may not use the Services in any way that may damage or disable Alive5 systems or equipment, or interfere with other users’ ability to access and use the Services. You may not attempt to gain unauthorized access to any portion or feature of the Services or any systems or networks connected to the Services or any Alive5 server or system by hacking, password “mining” or any other means, or use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Services.

(f) Feedback. If you or any Authorized User provides any ideas, suggestions, and/or feedback relating to the Services or other Alive5 products and services (collectively, “Feedback”), Alive5 owns all right, title and interest worldwide in and to such Feedback. Alive5 may, but is not obligated to, incorporate such Feedback into the Services and/or into other products and services.

(g) AUP. Additionally, you hereby agree to comply with the following Acceptable Use Policy:

• You will not install or use any part of the Services on any computer, any web server, or in any manner that allows any person or computer to access the Services other than as expressly permitted in this Agreement;
  
  
• You will not take any action that interferes with or disrupts (or attempts to interfere with or disrupt) the Services or any Alive5 systems;
  
  
• You will not transmit or disseminate (or attempt to transmit or disseminate) any malicious code, files, or programs, including software code or computer worms, that may interrupt, destroy, or limit the functionality of the Services, Alive5 systems, or any other computer software, hardware or telecommunications equipment;
  
  
• You will not alter, remove, or obscure Alive5’s proprietary notices, including copyright, trademark, or other legal notices in the Services;
  
  
• You will not extract, decompile, modify, reformat, translate, reverse-engineer, assemble, re-digitize, attempt to discover the source code of, or remove or disable any security feature of, any part of the Services;
  
  
• You will not embed or incorporate any part of the Services or the Alive5 Property into any document, medium, application, software, product, or service;
  
  
• If you are collecting or transmitting credit card information using the Services, you will fully comply with Payment Card Industry Data Security Standard (“PCI DSS”), and you will not use SMS, MMS, or any other insecure method of communication to transmit or receive any information subject to PCI DSS;
  
  
• Your use of the Services must comply with (a) the CTIA Messaging Principles and Best Practices Guidelines; (b) the CTIA Short Code Monitoring Handbook; and (c) any other applicable laws, rules, and regulations, including, but not limited to, those applicable to data privacy and use and consumer protection and the Telephone Consumer Protection Act (“TCPA”) 47 U.S.C. § 227, and all implementing rules, orders, and regulations of the Federal Communications Commission, 47 C.F.R. § 64.1200 et seq., and the Federal Trade Commission, 16 C.F.R. § 310. For example, (i) you must ensure that all phone numbers and other personal information you collect or use in connection with the Services have been collected and used in compliance with the TCPA, (ii) you must ensure that you have provided sufficient notices and received valid consents in connection with your use of the Services and any information you collect or use, and (iii) you are solely responsible for the preparation and distribution of all messages, content, and other materials you deliver via the Services to any recipients; and
  
  
• You must further comply with any rule, requirement, or guideline relating to customer conduct as posted by Alive5 on the Alive5 website or otherwise communicated to you by Alive5.
  
  

6. Intellectual Property. Alive5 is and will be the exclusive owner of all worldwide right, title, and interest in and to all content included in the Services, including all text, images, fonts, graphics, designs, logos, button icons, digital downloads, data compilations, page designs, navigation systems, and software, as well as the overall structure and “look and feel” of the Services, and all related trademarks, service marks, copyrights, patent rights, and other intellectual property or proprietary rights (collectively, the “Alive5 Property”), which are protected by United States and international laws. You agree not to challenge Alive5’s ownership or the validity of any such rights, and further agree not to infringe any of Alive5’s rights. Alive5 reserves all rights in and to the Services and the Alive5 Property, except for the limited license rights expressly granted in this Agreement. 

7. Customer-Provided Materials. In connection with your use of some Services, you may (or must) provide Alive5 with data, information, digital assets, code, artwork, designs, equipment, documents, specifications, intellectual property, or other content or material (collectively, “Customer-Provided Materials”). You must provide all Customer-Provided Materials necessary for Alive5’s performance of this Agreement for you. As between you and Alive5, you own all right, title, and interest in and to the Customer-Provided Materials. Alive5 will protect the Customer-Provided Materials as your Confidential Information (as defined below) and will not disclose them (through the Services or otherwise) to any third party without your consent. However, you grant to Alive5 a non-exclusive right and license to use, copy, modify, and create derivative works of the Customer-Provided Materials as necessary and appropriate to provide the Services (including to maintain and improve the Services, to train and improve the Service’s machine learning model, and to provide any Services that use artificial intelligence). You represent and warrant that you have the necessary rights to provide the Customer-Provided Materials to Alive5 for the purposes for which such materials are provided.

8. Product Descriptions and Prices. Alive5 attempts to be as accurate as possible. However, Alive5 does not warrant that product descriptions or other content of Alive5 website are accurate, complete, reliable, current, or error-free. Prices are subject to change without notice.

9. Third Party Links. The Services may include links to third party websites, products, or services. Some of these may contain materials that are objectionable, unlawful, or inaccurate. The presence of any such links does not mean that Alive5 endorses these third-party sites, products, or services, and Alive5 is not responsible or liable for any of them.

10. Disclaimer of Warranties; Limitation of Liability. The Services and all information, content, materials, software, and services made available to you are provided by Alive5 on an “as is” and “as available” basis. Alive5 makes no representations or warranties of any kind, express or implied, and to the fullest extent permissible by applicable law, Alive5 disclaims all warranties, express or implied, including but not limited to, those relating to non-infringement, merchantability, and fitness for a particular purpose. Alive5 does not warrant that the Services and/or any information, content, materials, software, and services made available to you, including without limitation any email sent from Alive5, are free of viruses or other harmful components.

Alive5 will not be liable to you or to any third party for any indirect, incidental, punitive, and consequential damages of any kind arising from or relating to this Agreement or your use (or inability to use) the Services, including any lost profits or lost savings, loss of goodwill, business interruption, work stoppage, loss of data, computer failure, damage or malfunction, even if Alive5 has been apprised of the possibility of such damages, and regardless of the theory upon which such claim is based (including contract tort, strict liability, negligence or otherwise). Unless otherwise specified in this Agreement, your sole and exclusive remedy for any issue with the Services or any dispute with Alive5 is the cancellation of your Services account. In no event will Alive5’s total cumulative liability arising from this Agreement or your use (or inability to use) the Services exceed the amount paid by you to Alive5 in the twelve months prior to the incident that gives rise to the claim. Certain jurisdictions do not allow some of the disclaimers, exclusions, and limitations in this Section. If these laws apply to you, then you agree to apply the above disclaimers, exclusions, and limitations to the maximum extent permitted by applicable law. The disclaimers of warranty and liability set forth in this Section constitute an essential part of this Agreement.

11. Indemnification. You, at your sole expense, shall defend and indemnify Alive5, its agents, employees, officers, directors, shareholders, advisors, successors, and assigns and any of their affiliates from and against, and hold them harmless from, all losses, damages, claims, expenses (including, but not limited to, third party claims and attorneys’ fees and court costs) (any of the foregoing, a “Loss”) arising out of or resulting from: (i) any use of the Services by you or via your account, (ii) any breach of this Agreement by you or via your account, or (iii) violation of any rights of a third party by you or via your account. Your indemnification obligation does not apply to Losses resulting entirely from Alive5’s gross negligence or willful misconduct. If you have a current account for paid Services and you remain current in your payments, Alive5 shall defend and indemnify you and your employees, officers, and directors from and against, and hold them harmless from, all Losses arising from a third-party claim alleging that the Services (excluding any Customer-Provided Materials and any third-party data, components, content, or applications) infringes the intellectual property rights of the third party. In the event of a third-party claim for which a party seeks defense and indemnification under this section, the indemnified party must: (a) promptly notify the indemnifying party of any such claim of which it becomes aware, (b) permit the indemnifying party to control the defense or settlement of the claim, and (c) provide reasonable cooperation, at the indemnifying party’s expense, in connection with the defense or settlement of any such claim. The indemnified party may participate at its own expense in the defense of any such claim, but will not make any admissions or settle any third-party claim without the indemnifying party’s prior written consent. The indemnifying party will not enter into any settlement or stipulation that imposes any obligation or liability on the indemnified party unless it has received the prior written consent of the indemnified party, such consent not to be unreasonably withheld, conditioned, or delayed.

12. Confidentiality. Neither you nor Alive5 will disclose any Confidential Information (as defined below) to any third parties and will limit internal sharing to affiliates, employees, agents or professional advisers who need to know such Confidential Information and who have agreed in writing to keep it confidential. The receiving party is responsible and liable for all such affiliates, employees, agents, and professional advisers and their compliance with this Agreement. The receiving party will use the disclosing party’s Confidential Information only to the extent necessary to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential. Notwithstanding anything to the contrary herein, the receiving party may disclose Confidential Information to the extent required by applicable legal process; provided that the receiving party: (i) promptly notify the disclosing party of such disclosure before disclosing unless prohibited by law enforcement from doing so; and (ii) comply with the disclosing party’s efforts to oppose the disclosure. “Confidential Information” means any non-public information, in whatever form, that is disclosed by a party that is identified as “Confidential” and/or “Proprietary” or that by its nature reasonably should be understood to be confidential and/or proprietary; provided, that it does not include information that is independently developed by the receiving party, is rightfully given to the receiving party by a third party without confidentiality obligations, or becomes public through no fault of the receiving party.

13. Publicity. You grant Alive5 the right to use your company name and logo as a reference for marketing or promotional purposes on Alive5’s website and in other public or private communications with existing or potential customers, subject to your standard trademark usage guidelines as provided to Alive5 in writing from time-to-time. Alive5 does not want to list customers who don’t want to be listed, so you may send an email to privacy@alive5.com stating that you do not wish to be used as a reference.

14. Assignment. Alive5 may assign this Agreement at any time to any parent, subsidiary, or any affiliated company, or to a successor as part of the sale to, merger with, or other transfer of the company or the business relating to the Services. You may not delegate, assign, transfer, or sublicense your rights under this Agreement to anyone else, in whole or in part, unless Alive5 otherwise agrees in a writing signed by an authorized representative of Alive5. Any attempt by you to delegate, assign, transfer, or sublicense this Agreement, in whole or in part, will be void ab initio.

15. Force Majeure. Alive5 shall not be liable for damages resulting directly or indirectly from acts of nature, forces or causes beyond Alive5’s reasonable control including, but not limited to: internet failures, network failures, computer equipment failures, telecommunications equipment failures, other equipment failures, electrical power failures, acts of God, terrorist action, acts of civil or military authority, government actions, fires, epidemics, riots, wars, sabotage, insurrections, labor shortages, or disputes.

16. Term of Agreement. This Agreement is effective on the first date that you access or use any Services or sign up for a Services Account, and it remains effective until you no longer have access or use of any Services.

17. Termination for Cause. Alive5 reserves the right to suspend or terminate your account and your access to the Services and/or to remove or edit content at any time, with or without prior notice, if it believes that you have materially breached this Agreement or that you have put Alive5, the Services, or any others at risk.

18. Effect of Termination. Upon termination by Alive5, your account will be deactivated, you will lose all access to the Services, and you will not be entitled to any refund. If you cancel or terminate your own Services account, you may be entitled to a refund of a pro-rated portion of certain prepaid fees for Services that would have occurred after the effective date of termination. However, fees paid are nonrefundable unless the express terms of your Services subscription (provided by Alive5 in writing at the time you sign up for such subscription) provide a refund right. Consult the terms of your specific Services subscription to determine whether you would be eligible for any such refund. In no event will any termination relieve you of the obligation to pay any fees payable to Alive5 for the period prior to the effective date of termination. Terms that by their nature survive termination shall survive the termination of this Agreement.

19. Dispute Resolution; Waiver of Class Action. Any unresolved disputes arising from or relating to this Agreement, other than those relating to Alive5’s intellectual property rights and/or those for which Alive5 seeks injunctive or other equitable relief, shall be submitted to confidential arbitration in Houston, Texas, which shall be conducted by a single arbitrator under the rules of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. The parties agree to arbitrate solely on an individual basis, and this Agreement does not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding.

20. Governing Law; Jurisdiction and Venue. This Agreement and all rights and obligations arising from or relating to this Agreement shall in all respects be governed by, and construed and enforced in accordance with, the laws of the State of Texas, but without regard to its principles of conflicts of laws. Subject to Section 19 above with respect to arbitration of certain claims, you hereby irrevocably submit to exclusive personal jurisdiction and venue in the state or federal courts sitting in the City of Houston, Texas over any suit, action, or proceeding arising out of or relating to this Agreement except for those subject to arbitration in Section 19 above (“Action”). You hereby waive and agree not to assert, as a defense to any Action or a motion to transfer venue of any Action, any claim (a) that it is not subject to such jurisdiction and venue; (b) that any Action may not be brought against it or is not maintainable in the courts located in Houston; (c) that this Agreement may not be enforced in or by those courts; (d) that you are exempt or immune from the Action; (e) that an Action in Houston is brought in an inconvenient forum; or (f) that venue in Houston for the Action is in any way improper. The parties hereby wave any right to a jury trial in any Action.

21. No Waiver. No failure by either party to object to any breach of any provision of this Agreement shall constitute a waiver of such provision, a waiver of any other breach, or a waiver of any other provision of this Agreement.

22. Severability. The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of any other provision of this Agreement. To the fullest extent permitted by law, if any provision of this Agreement, or the application thereof to any person or circumstance, is invalid or unenforceable (a) a suitable and equitable provision shall be substituted in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability.

23. Entire Agreement. This Agreement, including the Privacy Policy and any additional subscription plan terms provided by Alive5 at signup, constitutes the entire understanding between the parties concerning the Services and all products and services offered therein, and supersedes all previous agreements, promises, representations, and negotiations between the parties concerning the same. No pre-printed terms of any purchase order, invoice, order summary, website, or advertisement will add to, modify, or supersede the terms of this Agreement.

If you have an inquiry, please feel free to contact Alive5:

Alive Technologies, Inc.

ATTN: Legal Department

2100 West Loop South, Suite 900

Houston, Texas 77027

Email: legal@alive5.com