ALTURA PRIVACY POLICY
Altura Strategies, LLC (hereinafter, “Altura”) is committed to respecting the privacy rights of users of the Altura web site located at www.alturastudies.com and other and the services available through the web site (HCP Studies mobile app and portal) (the “Services”).l. Altura created this Privacy Policy to explain its information collection and use practices and the protection of your information when you (“You” or “Your”) visit and use the Services. Any terms capitalized but not otherwise defined herein shall have the respective meanings set forth in the Altura Terms of Use. This Privacy Policy is only applicable to the Service and does not apply to any other websites or applications that are owned or operated by third parties (“Third-Party Websites/Applications”), which may have data collection, storage and use practices and policies that differ materially from this Privacy Policy. For additional information, see the section concerning Third-Party Websites/Applications, below.
Where applicable law requires (for instance, in the European Union), Altura is a controller of Your Personal Information when you use the Portal and Altura is a processor of Patient Information where you provide Patient Information to the Services, as those terms are defined below.
BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO THE TERMS OF, THIS PRIVACY POLICY. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO BE BOUND BY THIS PRIVACY POLICY, YOU MAY NOT USE THE SERVICES.
1. INFORMATION COLLECTION PRACTICES
a. Traffic Data. Altura automatically gathers information of the sort that browsers automatically make available, including: (i) IP addresses; (ii) domain servers; (iii) types of computers accessing the Services; and (iv) types of Web browsers accessing the Portal (collectively “Traffic Data”).
b. Cookies. A “Cookie” is a string of information that a website stores on a user’s computer, and that the user’s browser provides to the website each time the user interacts with the website. The purpose of a Cookie is to identify the user as a unique user of the website. The Service uses session cookies to maintain your session state and to obtain statistics and information about how you use the Portal. IF YOU DO NOT WISH TO HAVE COOKIES PLACED ON YOUR COMPUTER, YOU SHOULD SET YOUR BROWSERS TO REFUSE COOKIES BEFORE ACCESSING THE PORTAL, WITH THE UNDERSTANDING THAT CERTAIN OF THE SERVICES AND CERTAIN FEATURES OF THE PORTAL MAY NOT FUNCTION PROPERLY WITHOUT THE AID OF COOKIES.
c. Registration Information. You will be asked to provide Altura certain information related to You through your registration and use of the Services (“Registration Information”). Registration Information includes, without limitation, contact information such as Your name and email address.
d. Under certain data protection and privacy laws, traffic data, Cookies, and Registration Information are considered personal data or personal information (“Your Personal Information”), and where that is the case, we will process Your Personal Information in accordance with applicable laws.
2. INFORMATION USE AND DISCLOSURE PRACTICES
a. Traffic Data and Information Gathered Using Cookies, & Mobile Device Data. The Services uses Cookies to store your password and maintain your session so You do not have to re-enter Your password each time You visit the Service. Altura also analyzes Traffic Data and information gathered using Cookies, and Mobile Device Data to obtain statistics and other information about how you use the Services to help Altura better understand who is using the Services and how they are using the Services. By identifying patterns and trends in usage, Altura is able to better design the Portal to improve Your experience, and to serve You more relevant and interesting content. From time to time, Altura may release Traffic Data and information gathered using Cookies, and Mobile Device Data in the aggregate, such as by publishing a report on trends in the usage of the Portal. In addition, Altura may share Traffic Data and information gathered using Cookies with: (1) third-party analytics companies so that such third-parties may help Altura better understand who is using the Services and how they are using the Services; and (2) service providers so that we can personalize, provide and improve our Services to Your use and interests.
b. Your Personal Information. Your Personal Information that You provide is used for such purposes as allowing you to set up a user account and profile, providing the Services and related Services to You and Your patients, monitoring and improving the content and usage of the Services, interacting with the Services, customizing the content you see, communicating with you about new features and other news, and any other purpose for which the information was collected. . Altura also uses Your Personal Information to send You information about Altura and Altura’s products and services, and to contact You when necessary in connection with the Services. Altura uses Your Personal Information (when instructed by You) to connect You with Your friends and other members with whom You want to connect with, according to the preferences set in Your account.
c. Other Disclosure Practices. Except as otherwise provided in this Privacy Policy, when You otherwise give permission, or under the following circumstances, Altura will not share Your Personal Information or Patient Information with third parties.
– Disclosure in Connection with Services. Altura may disclose Your Personal Information or Patient Information to those who help it provide services, including those who perform technical, administrative and data processing tasks such as hosting, billing, fulfillment, and data storage and security.
– By Law or to Protect Rights. Altura discloses Your Personal Information or Patient Information when required to do so by law, or in response to a subpoena, court order, or other legal process, or when Altura believes in its sole discretion that disclosure is reasonably necessary to protect the property or rights of Altura, third-parties or the public at large.
– Business Transfers; Bankruptcy. Altura reserves the right to transfer all of Your Personal Information and Patient Information in its possession to a successor organization in the event of a merger, acquisition, or bankruptcy or other sale of all or a portion of Altura’ assets, or to the extent reasonably necessary to proceed with the negotiation or completion thereof. Other than to the extent ordered by a bankruptcy or other court, the use and disclosure of all Your Personal Information and Patient Information that is transferred will be subject to this Privacy Policy, or to a new privacy policy if You are given notice of that new privacy policy and an opportunity to affirmatively opt-out of it. Your Personal Information and Patient Information submitted or collected after a transfer, however, may be subject to a new privacy policy adopted by Altura’s successor organization.
3. EMAIL COMMUNICATIONS FROM ALTURA
In providing the Services, You may receive periodic email communications from Altura regarding the Services, which are part of the Services and which You cannot opt out of receiving. You may also receive periodic promotions and other offers or materials Altura believes might be of interest to You, if you have consented to receive such promotions or otherwise as permitted by law. You can opt-out of receiving these promotional messages at any time by (a) following the unsubscribe instructions contained in each message; or (b) changing the messaging preferences in Your account.
4. TEXT MESSAGE COMMUNICATION FROM ALTURA
If you provide mobile phone contact information when registering for the Services, You may receive periodic text message or SMS communications from Altura alerting You to studies, surveys or resources that may be of interest to you. You can opt-out of receiving these messages at any time by following the unsubscribe instructions contained in each text or changing the messaging preferences in Your account.
5. SECURITY OF PERSONAL INFORMATION
Altura has implemented and maintains reasonable security procedures and practices designed to protect against the unauthorized access, use, modification, destruction or disclosure of Your Personal Information and Patient Information. However, despite these efforts, no security measures are perfect or impenetrable and no method of data transmission can be guaranteed against any interception or other type of misuse. In the event that Your Personal Information or Patient Information is compromised as a result of a breach of security, if required by applicable law, Altura will promptly notify You.
6. USER ABILITY TO ACCESS, UPDATE, AND CORRECT PERSONAL INFORMATION
If you reside in the EU, or where required by law, You have a right to access, update, rectify, and modify Your Personal Information collected from You through the Services. You also have a right to oppose, for legitimate grounds, the processing of Your Personal Information through the Services. Should You oppose the processing of Your Personal Information on legitimate grounds, You understand that You may not be able to use the Services and this may result in reduced functionality of the Services. You may exercise Your rights to access, update, rectify, modify, and oppose the processing of Your Personal Information by contacting us at [email protected].
If You have an account, You can access and modify Your Personal Information through Your account, at any time. If you completely delete all such information You may not be able to access or use the Services correctly. If You would like Altura to delete Your Personal Information from its database, please contact us at [email protected] with a request that we delete Your Personal Information from its database. Altura will honor Your requests respecting Your Personal Information as required by law; however, Altura may retain an archived copy of Your records as required by law or for other legitimate business purposes (e.g., defense of legal claims).
Altura wants Your Personal Information to be complete and accurate. By using the Services, You represent and warrant that all information You provide on any registration form or otherwise in connection with Your use of the Services will be complete and accurate, and that You will update that information as necessary to maintain its completeness and accuracy. To confirm the completeness and accuracy of, or make changes to, Your Personal Information, please visit Your personal profile.
7. THIRD-PARTY WEBSITES/APPLICATIONS
The Services contain links to Third-Party Websites/Applications. Altura does not own or control these Third-Party Websites/Applications. Altura is not responsible for the privacy and security practices and policies of those Third-Party Websites/Applications and this Privacy Policy does not apply to any Third-Party Websites/Applications, except with respect to Your Personal Information provided directly to them by Altura. Before visiting or providing Your Personal Information to a Third-Party Website, You should inform Yourself of the privacy policies and practices (if any) of that Third-Party Website, and should take those steps necessary to, in Your discretion, protect Your privacy.
8. UPDATES AND CHANGES TO PRIVACY POLICY
Altura reserves the right to update, change or modify this Privacy Policy. Any changes to this policy will be posted on the Services (or You may be notified by email or other notification) and will indicate when such changes will become effective. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Services following the date in which the modified or amended Privacy Policy is posted on the Services, unless the revisions materially increase the ways in which we collect, use, or disclose Your Personal Information we have previously collected from You, in which case we will give You the opportunity to consent to such changes before applying them to Your Personal Information. Otherwise, use of Your Personal Information is subject to the Privacy Policy in effect at the time such information was collected.
9. INTERNATIONAL USERS
If You are located outside the United States and choose to provide Your Personal Information through your use of the Services, Your Personal Information will be transferred to the United States and processed there (or any other country where Altura operates), which may not have the same privacy laws For Your Personal Information as your home country, but we will take steps to protect Your Personal Information and keep it secure in accordance with this Privacy Policy.
10. CONTACT INFORMATION
If You have any questions about this Privacy Policy, please contact Altura Strategies by fax at 949-716-6655, or by email at [email protected].
EFFECTIVE DATE: 4/3/20
TERMS OF USE FOR ALTURA WEB SITE AND SERVICES
1. AGREEMENT
These Terms of Use (the “Agreement”) constitute a legally binding agreement by and between Altura Strategies, LLC (hereinafter, “Altura”) and you (“You” or “Your”) concerning Your use of the Altura web site located at www.alturastudies.com and the services available through the web site (HCP Studies mobile app and portal) (the “Services”). By using the Services, You represent and warrant that You have read and understand, and agree to be bound by, this Agreement and Altura’s Privacy Policy, which is incorporated herein by reference and made part of this Agreement. IF YOU DO NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT USE THE SERVICES.
2. PRIVACY POLICY
By using the Services, You consent to the collection and use of certain information about You, as specified in the Privacy Policy. Use of information we collect now is subject to the Privacy Policy in effect at the time such information is used.
3. CHANGES TO AGREEMENT
ALTURA RESERVES THE RIGHT TO CHANGE THIS AGREEMENT AT ANY TIME UPON NOTICE TO YOU, TO BE DELIVERED TO THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT OR THE NEXT TIME YOU LOG ON TO THE SERVICES. IT IS YOUR RESPONSIBILITY TO REVIEW ANY SUCH CHANGES. By not terminating your account within fourteen (14) days after receiving such notice of changes, you agree to comply with, and be bound by, the changes.
4. ELIGIBILITY
BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. This Agreement is void where prohibited.
5. LICENSE
Subject to Your compliance with the terms and conditions of this Agreement, Altura grants You a non-exclusive, non-sublicensable, revocable, non-transferable license to use the Services. The Services, including the Portal and the Applications, or any portion thereof, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of Altura. Except as expressly set forth herein, this Agreement grants You no rights in or to the intellectual property of Altura or any other party. For Applications that you downloaded and use through a third party application store (“App Store”), the license granted in this section to use the Applications is limited to the use of the Applications on any device that You own or control, as permitted by any usage rules set forth by the App Store. The license granted in this section is conditioned on Your compliance with the terms and conditions of this Agreement. In the event that You breach any provision of this Agreement, Your rights under this section will immediately terminate.
6. THE SERVICE DOES NOT PROVIDE PROFESSIONAL MEDICAL SERVICES OR ADVICE; NO DOCTOR-PATIENT RELATIONSHIP
Altura provides the Services for informational purposes only. THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. Altura is not a medical professional, and Altura does not provide medical services or render medical advice. The Services are not a substitute for the advice of a medical professional, and the information made available on or through the Services should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition. If you require medical advice or services, You should consult a medical professional. YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND ALTURA OR ANY OTHER MEDICAL PROFESSIONALS WITH WHOM YOU MAY INTERACT THROUGH THE SERVICES.
7. STUDIES
You acknowledge that some Services and studies are provided to You on a non-exclusive basis. You also acknowledge that You have provided the necessary authorization(s) to disclose any health or medical information that you provide through the Service.
8. RELIANCE ON THIRD-PARTY CONTENT
Opinions, advice, statements, or other information made available by means of the Services by third parties, are those of their respective providers, and should not necessarily be relied on. Such authors are solely responsible for such content. ALTURA DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD-PARTY INFORMATION ON THE SERVICE; OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE BY A THIRD-PARTY BY MEANS OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL ALTURA BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SERVICES OR TRANSMITTED TO OR BY ANY THIRD-PARTY. You also understand that by accessing and using the Services, You may encounter information, materials and subject matter that You or others may deem offensive, indecent, or objectionable. You agree to use the Services at Your sole risk and that Altura and its affiliates, partners, suppliers and licensors shall have no liability to You for information, material or subject matter that is found to be offensive, indecent, or objectionable.
9. RISK ASSUMPTION
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICES. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY ALTURA AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES.
10. USER INFORMATION; PASSWORD PROTECTION
In connection with Your use of certain Services, You may be required to be approved to participate and may be required to complete a registration form. You represent and warrant that all user information You provide on the registration form or otherwise in connection with Your use of the Services will be current, complete and accurate., and that You will update that information as necessary to maintain its completeness and accuracy by visiting your personal profile. For additional information, see the section concerning “User Ability to Access, Update, and Correct Personal Information” in Altura’s Privacy Policy. You will also be asked to provide a user name and password in connection with Your use of certain of the Services. You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account, user name, or password of any other Member at any time. You agree to notify Altura immediately of any unauthorized use of Your account, user name, or password. Altura shall not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by Altura, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your account or password.
11. INFORMATION PROVIDED BY USERS
ALTURA DOES NOT REPRESENT, WARRANT OR GUARANTEE THE CURRENCY OR ACCURACY OF INFORMATION PROVIDED BY OTHER USERS OF THE SERVICES, AND HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY TO YOU BASED ON YOUR USE OF OR RELIANCE ON ANY INFORMATION PROVIDED BY OTHER USERS TO THE SERVICES.
12. THIRD-PARTY SERVICES
Certain features, aspects, products and services offered through the Services are provided, in whole or in part, by third parties (“Third-Party Services” as provided by “Third-Party Service Providers”). In order to use Third-Party Services, You may be required to enter into additional terms and conditions with Third-Party Service Providers. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO BE BOUND BY THOSE ADDITIONAL TERMS AND CONDITIONS, YOU MAY NOT BE ABLE TO USE THE RELATED THIRD-PARTY SERVICES. In the event of any inconsistency between terms and conditions relating to Third-Party Services and the terms and conditions of this Agreement, those additional terms and conditions will control, although only with respect to such Third-Party Services. The providers of Third-Party Service Providers may collect and use certain information about you, as specified in the Third-Party Service Providers’ privacy policies. Prior to providing information to any Third-Party Service Provider, you should review their privacy policy. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO THE TERMS OF A THIRD-PARTY SERVICE PROVIDER’S PRIVACY POLICY, YOU SHOULD NOT USE THE RELATED THIRD-PARTY SERVICES. ALTURA HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY OF YOUR INFORMATION COLLECTED OR USED BY THIRD-PARTY SERVICE PROVIDERS.
13. YOUR CONTENT
“Your Content” is any content, materials or information (e.g., any text, information, photos, images, video, and other content and material, including information about Your patients) that You upload or post to, or transmit, display, perform or distribute by means of, the Services, , or through the use of any Third Party Services or otherwise. You represent and warrant that, when using the Services, You will obey the law and respect the intellectual property rights of others. Your use of the Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE PORTAL, APPLICATIONS AND SERVICES. YOUR BEAR THE SOLE BURDEN OF PROVING THAT YOUR CONTENT DOES NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS.
14. INTELLECTUAL PROPERTY
a. Software. You acknowledge and agree that the Services and all intellectual property rights associated therewith are, and shall remain, the property of Altura. Furthermore, You acknowledge and agree that the source and object code of the Services and its applications and the format, directories, queries, algorithms, structure and organization of the Services and its applications are the intellectual property and proprietary and confidential information of Altura and its affiliates, licensors and suppliers. Except as expressly stated in this Agreement, You are not granted any intellectual property rights in or to the Services and its applications by implication, estoppel or other legal theory, and all rights in and to the Services and its applications not expressly granted in this Agreement are hereby reserved and retained by Altura.
The Services may utilize or include third party software that is subject to third party license terms (“Third Party Software”). You acknowledge and agree that Your right to use such Third Party Software as part of the Services is subject to and governed by the terms and conditions of the third party license applicable to such Third Party Software. In the event of a conflict between the terms of this Agreement and the terms of such third party licenses, the terms of the third party licenses shall control with regard to Your use of the relevant Third Party Software. You and Altura acknowledge that, in the event of any third party claim that the Services or Your possession and use of the Services infringes that third party’s intellectual property rights, the Altura will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
b. Trademarks. Altura, Alturastudies.com, Alturastudiesapp.com, Altura2000.com, Alturastrategies.com, HCP Studies, hcpstudies.com, Patient Study Life Cycle, Patient Connect, Study Engagement Platform, Results Connect and the Altura logo (collectively, the “Altura Marks”) are trademarks or registered trademarks of Altura Strategies, LLC. Other trademarks, service marks, graphics, logos and domain names appearing on the Services may be the trademarks of third-parties. Neither Your use of the Services, nor this Agreement, grant You any right, title or interest in or to, or any license to reproduce or otherwise use, the Altura Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the Altura Marks generated as a result of Your use of the Services will inure to the benefit of Altura Strategies, LLC, and You agree to assign, and hereby do assign, all such goodwill to Altura Strategies, LLC. You shall not at any time, nor shall You assist others to, challenge Altura Strategies, LLC’s right, title, or interest in or to, or the validity of, the Altura Marks.
c. Copyrighted Materials; Copyright Notice. All content and other materials available through the Services, including without limitation the Altura logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by Altura Strategies, LLC or are the property of Altura’s licensors and suppliers. Except as explicitly provided, neither Your use of the Services nor this Agreement grant You any right, title or interest in or to any such materials.
15. DISCLAIMERS; LIMITATION OF LIABILITY
a. NO WARRANTIES. ALTURA, ON BEHALF OF ITSELF AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALTURA, ON BEHALF OF ITSELF AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER ALTURA NOR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS OR SUPPLIERS WARRANTS THAT OR THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
b. YOUR RESPONSIBILITY FOR LOSS OR DAMAGE; BACKUP OF DATA. YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD ALTURA OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA. THE SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
IMPORTANTLY, YOU HEREBY ACKNOWLEDGE THAT A CATASTROPHIC SERVER FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF THE DATA RELATED TO YOUR ACCOUNT. YOU AGREE AND UNDERSTAND THAT IT IS YOUR RESPONSIBILITY TO BACKUP YOUR DATA TO YOUR PERSONAL COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.
c. LIMITATION OF LIABILITY. THE LIABILITY OF ALTURA AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ALTURA OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO ALTURA OR ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF ALTURA AND ITS THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL BE $50.00. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ALTURA AND YOU. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
d. APPLICATION. THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN THIS AGREEMENT, ANY OTHER AGREEMENT BETWEEN YOU AND ALTURA OR BETWEEN YOU AND ANY OF ALTURA’S THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. ALTURA’S THIRD-PARTY SERVICE PROVIDERS LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICES OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
16. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that Your use of the Services will be in accordance with this Agreement and any other applicable Altura policies and guidelines, and with any applicable laws or regulations. You further represent and warrant that You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
17. INDEMNITY BY YOU
Without limiting any indemnification provision of this Agreement, You agree to defend, indemnify and hold harmless Altura and its officers, directors, employees, agents, affiliates, representatives, sublicensees, successors, assigns, and Third-Party Service Providers (collectively, the “Indemnified Parties”) from and against any and all claims, actions, demands, causes of action and other proceedings (collectively, “Claims”), including but not limited to legal costs and fees, arising out of or relating to: (i) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) Your access to or use of the Services; (iii) Your provision to Altura or any of the Indemnified Parties of information or other data; (iv) Your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation; or (v) Your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
The Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by You of any Claim as to which You are required to defend, indemnify or hold harmless the Indemnified Parties. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
18. GOVERNING LAW; JURISDICTION AND VENUE
This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in Orange County, California and shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE, EXCEPT TO THE EXTENT THAT SOME JURISDICTIONS DO NOT ALLOW A ONE-YEAR LIMITATION, IN WHICH CASE THE TIME PERIOD IN WHICH YOU MAY BRING A CAUSE OF ACTION WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
a. Requirement of Arbitration. You agree that any dispute, of any nature whatsoever, between You and Altura arising out of or relating to this Agreement, shall be decided by neutral, binding arbitration before a representative of JAMS in Orange County, California (unless You and Altura mutually agree to a different arbitrator), who shall render an award in accordance with the substantive laws of California and JAMS’ Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS’ fee and reasonable attorney’s fees) to the prevailing party.
b. Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude You or Altura from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude You or Altura from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN ORANGE COUNTY, CALIFORNIA; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
19. TERMINATION
a. Termination; Survival. Either party may terminate this Agreement and its rights hereunder at any time, for any or no reason at all, by providing to the other party notice of its intention to do so in accordance with this Agreement. This Agreement shall automatically terminate in the event that You breach any of this Agreement’s representations, warranties or covenants. Such termination shall be automatic and shall not require any action by Altura. Upon termination, all rights, licenses and obligations created by this Agreement will terminate, except that Sections 1-4, 6-10, 13-22 will survive any termination of this Agreement.
b. Effect of Termination. Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Services. Subsequent to termination, Altura reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Services, including without limitation technological barriers such as IP blocking and direct contact with Your Internet Service Provider.
c. Legal Action. If Altura, in Altura’s discretion, takes legal action against You in connection with any actual or suspected breach of this Agreement, Altura will be entitled to recover from You as part of such legal action, and You agree to pay, Altura’s reasonable costs and attorneys’ fees incurred as a result of such legal action. The Altura Parties will have no legal obligation or other liability to You or to any third party arising out of or relating to any termination of this Agreement.
20. NOTICES AND CONTACT
All notices required or permitted to be given under this Agreement must be in writing. Altura shall give any notice by email sent to the most recent email address, if any, provided by You to Altura. You agree that any notice received from Altura electronically satisfies any legal requirement that such notice be in writing. YOU BEAR THE SOLE RESPONSIBILITY OF ENSURING THAT YOUR EMAIL ADDRESS ON FILE WITH ALTURA IS ACCURATE AND CURRENT, AND NOTICE TO YOU SHALL BE DEEMED EFFECTIVE UPON THE SENDING BY ALTURA OF AN EMAIL TO THAT ADDRESS. You shall give any notice to Altura by means of: (1) fax to: 949-716-6655; or (2) email to: [email protected]. Notice to Altura shall be effective upon receipt of notice by Altura. If You have any questions, complaints or claims with respect to this Agreement, please contact us using the contact information provided in this section.
21. GENERAL
This Agreement constitutes the entire agreement between Altura and You concerning Your use of the Services.
This Agreement may only be modified by a written amendment signed by an authorized executive of Altura or by the unilateral amendment of this Agreement by Altura and by the posting by Altura of such amended version. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Altura may assign or transfer this Agreement at any time, with or without notice to You. This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of Altura. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. You and Altura are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Except for the Altura Parties and the Indemnified Parties as and to the extent set forth in this Agreement, and Altura’s licensors and suppliers as and to the extent expressly set forth herein, there are no third-party beneficiaries to this Agreement. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third party rights by You would cause irreparable injury to Altura and Altura’s licensors and suppliers, and would therefore entitle Altura or Altura’s licensors or suppliers, as the case may be, to injunctive relief. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement.
EFFECTIVE DATE: 4/3/20