LAST UPDATED: March 10, 2023
These Terms and Conditions (“Agreement”) apply to your use of the Alta Tools mobile application development platform (the “Service”). By registering for or accessing or using the Service, you agree to the terms and conditions of this Agreement, which form a binding contract between you and Alta Tools, Inc. (“Alta”, “we”, “us” or “our”). If you do not agree to this Agreement, do not access, register or use the Service.
The term “Customer”, “you” or “your” as used herein means the individual that has registered to use the Service and any employer of that individual or legal entity on whose behalf the individual has registered to use the Service and produce a Customer Application as noted below. You represent and warrant that you are authorized to act on behalf of and bind such employer or legal entity.
Please read these Terms carefully, as they affect your legal rights. Among other things, these Terms include your agreement that except for certain types of disputes described in the Arbitration section below, you agree that disputes between you and us will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration. By using the Service, you are agreeing to abide by and be bound by these Terms.
1. Registration: Prior to accessing and using the Service, Customer shall register and create an account with Alta to access the Service. Customer shall create a username, password and provide certain information about Customer as prompted by the registration form, including Customer’s contact’s name and a valid email address. Customer shall provide full, complete and accurate information when registering or creating an account, and update that information promptly if it should change. Customer is responsible for any use of Customer’s account. Alta will provide Customer with information and account credentials for accessing the Service. Customer shall promptly notify Alta if there is any unauthorized use of Customer’s account of which Customer becomes aware.
2. Subscription and Use of Platform. The Service allows Customer to create a mobile application (“Customer Application”) that can be distributed on the Apple iOS and Google Android platform. The Service further allows you to synchronize and connect your data to the Customer Application, access to Alta Tools teams members and technical support. Alta offers different forms of subscription plans that determine the level and scope of the Service (such as the amount of data supported), which plans are set forth on the Atla Tools website. Subscriptions are provided on a monthly basis on a per user basis.
4. Payments. Customer shall pay Alta the applicable subscription fees and other charges set forth on the Alta Tools pricing page at the time of use of the Service. All payments, fees, and other charges payable by Customer to Alta under this Agreement are exclusive of all taxes, levies, and assessments of any jurisdiction (other than income tax). Customer shall make all payments in U.S. dollars via credit card or other payment method provided by Alta to Customer; Customer hereby authorizes Alta to charge the Customer-provided credit card or payment method for the applicable fees and charges related to the Services. Except as expressly set forth herein, all payments made hereunder are non-refundable. Alta shall be entitled to seek reimbursement from Customer for its reasonable expenses of collection on undisputed amounts due.
5. Taxes. You agree to pay promptly: (i) all sales, use, excise, value added, and any other taxes which you are required to pay to any other governmental authority (and, at our request, will provide to us evidence of such payment) and (ii) all sales, use, excise, value added and any other taxes (collectively, “Tax” or “Taxes”) attributable to your use of the Service.
7. Customer Content. Customer hereby grants Alta a non-exclusive, royalty-free, fully paid-up, sublicensable (through one or more tiers of sublicensees), and transferable license to use, reproduce, create derivative works of, distribute, perform, and display the Customer Content during the Service Term for the purpose of (i) providing the Service; (ii) producing, hosting and distributing the Customer Application; and (iii) developing, maintaining, supporting or improving the Service. Customer acknowledges and agrees that Alta may collect technical information and data about Customer’s use of the Service. Customer shall not provide, disclose, or deliver any Customer Content to Alta that Customer does not own or otherwise have a valid authorization or license to do so or that is defamatory, obscene, harassing, infringing or otherwise in violation of any intellectual property, privacy or publicity right or Applicable Law. Without Alta’s prior written consent, Customer shall not provide, disclose, or transfer to Alta, or process via, or submit to, the Service any Customer Content that includes any: (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act of the United States of America; (ii) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state or national issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers (except such data that is necessary for Customer to pay fees under these Terms; or (v) biometric information, such as fingerprints or voiceprints. “Customer Content” means any trademark, service mark, design, artwork, audio, video, data, links, information, media, content, or materials provided, disclosed, posted, or delivered by Customer as part of the Customer Application or otherwise via the Service.
8. Restrictions. Customer shall not (and not allow, permit, authorize, or assist any third party to): (i) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of, any part of the Service; (ii) use or integrate the Service, or any component thereof, with any software, hardware, or system other than the Customer Application (as defined below) without Alta’s express prior written agreement; (iii) sell, resell, license, sublicense, distribute, rent or lease any part of the Service or include any part of the Service in a service bureau or outsourcing offering, or encumber the Service with any lien or grant a security interest in the Service; (iv) publish or otherwise disclose to any third party any results of any benchmark or other performance test of the Service; (v) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Service; (vi) copy, frame, or mirror any part of the Service; (vii) access the Service for the purposes of monitoring its availability, performance, or functionality; (viii) access, or use any materials, content, technology, information, or data available via or forming a part of the Service in order to build a competitive product or service, or copy any features, functions, or graphics of the Service; (ix) attempt to knowingly disrupt, degrade, impair, or violate the integrity or security of the Service, including, without limitation, by executing any form of network monitoring; (x) use the Service to knowingly store or transmit any viruses, software routines, or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (xi) knowingly provide incomplete or inaccurate information when registering or creating an account; or (xii) take any action that knowingly imposes, or may impose an unreasonable or disproportionally large load on Alta’s infrastructure.
9. Customer Systems. Customer is solely responsible for the operation and maintenance of the Customer Systems and for having all equipment and internet access necessary to access and use the Service, including maintaining any systems and databases that connect to the Customer Application via the Service. Alta disclaims all warranties, express or implied, and shall have no liabilities to Customer, arising from or related to the operation or maintenance of the Customer Systems or any incompatibilities, faults, defects, or damage attributable thereto. “Customer Systems” means any server systems, mobile devices, personal computers or other equipment owned, operated, or managed by Customer on which the Service is accessed; except to the extent caused by the negligence or willful misconduct of Alta.
10. Feedback. Customer may have the opportunity to present to Alta recommendations or feedback for new features, functionality, or other improvements to the Service (“Feedback”), which Alta will consider, at its sole discretion, implementing in future updates to the Service. The parties agree that all Feedback is and shall be given voluntarily and shall not be considered confidential or proprietary to Customer. Alta shall have the worldwide, perpetual, irrevocable and royalty-free right to use Feedback for any purpose, including for improving or developing any new features to the Service, without any notice or any obligation to Customer.
11. Resultant Data. Notwithstanding anything to the contrary in this Agreement, Alta shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Content and data derived therefrom) (collectively, “Resultant Data”), and Alta will be free to (i) use such Resultant Data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Alta offerings, and (ii) disclose such Resultant Data solely in aggregated or other de-identified form.
12. Changes to Service. Customer understands and agrees that Alta may change or discontinue the Service or change or remove functionality of the Service at any time in Alta’s sole discretion. Alta will notify Customer of any material change to or discontinuation of the Service. If Alta discontinues the Service or changes or removes the functionality of the Service in a manner that materially and adversely affects Customer’s use thereof, Alta will, refund to Customer any fees pre-paid by Customer for Customer’s access to the Service following the date of such discontinuance or material and adverse change, whereupon this Agreement shall terminate.
13. Ownership. Except for the rights expressly granted in this Agreement, Alta retains all right, title, and interest, including all intellectual property rights, in and to the Service and its documentation, including any code underlying the Customer Application. No implied license or right is granted by Alta by estoppel, reliance, or otherwise.
14. Representations and Warranties; Disclaimer
a. Organization; Authority. Each party represents and warrants to the other party that such party is a corporate entity duly organized, validly existing, and in good standing under the laws of the state or country first indicated above as such party’s state or country of incorporation, and such party has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement, and to consummate the transactions contemplated hereby.
b. Customer Warranties. Customer hereby represents and warrants to Alta that: (i) Alta’s use, reproduction, modification, distribution, performance, and display of the Customer Content will not knowingly infringe, violate, or misappropriate any intellectual property rights of a third party; (ii) Customer exclusively owns or has a valid and written license agreement to all Customer Content provided to Alta via the Service or otherwise and has all rights necessary to grant to Alta the rights and licenses contained in this Agreement; (iii) Customer has the authority to provide, disclose, and deliver Customer Content to Alta and doing so will not knowingly violate any applicable laws, regulations, contractual commitments or privacy commitments; and (iv) the Customer Content does not knowingly include any viruses, trap doors, time bombs, Trojan horses or other malicious code.
c. Disclaimer. THE SERVICE IS AND PREMISES ARE PROVIDED BY COMPANY “AS IS,” AND NEITHER COMPANY NOR ITS LICENSORS OR PROVIDERS OF THE PREMISES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY STATUTE, USAGE, TRADE CUSTOM, OR OTHERWISE, AND COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE. COMPANY DOES NOT GUARANTEE OR WARRANT THAT THE SERVICE WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED, MEET CUSTOMER’S REQUIREMENTS.
a. Customer Indemnification. Customer, at its expense, shall indemnify, defend, and hold harmless, or at Customer’s option, settle, any third-party claim, demand, suit, action, proceeding, including reasonable costs, damages, liabilities, losses, judgments, and reasonable expenses (including reasonable attorneys’ fees) associated therewith (individually a “Claim” and collectively, “Claims”) made or brought against Alta alleging (i) facts, that if true, would constitute a breach of Customer’s representations, warranties, and covenants under this Agreement; (ii) Customer’s use of the Premises (including any personal injury or property damage caused as result of such use); (ii) Alta’s using, reproducing, modifying, distributing, performing, or displaying of the Customer Content infringes, violates, or misappropriates any intellectual property right; except to the extent any Claim is due to the negligence or willful misconduct of Alta.
b. Alta Indemnification. Alta, at its expense, shall indemnify, defend, and hold harmless Customer from any Claims made or brought against Customer alleging (i) a breach of Alta’s representations, warranties or covenants under this Agreement; or (ii) that Alta’s Service (excluding Customer Content) infringes on any third party’s copyright or trademark.
c. Indemnification Procedures. The indemnified party shall: (i) notify the indemnifying party promptly in writing of any Claim, (ii) provide reasonable assistance in connection with the defense and settlement thereof, and (iii) permit the indemnifying party to control the defense and settlement thereof, provided that the indemnifying party shall not settle any Claim without the indemnified party’s prior written consent. The indemnified party may, at its expense, participate in the defense of any Claim with counsel of its choice.
16. LIMITATION OF LIABILITY. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 2 (CONFIDENTIALITY), OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, LOSS OF REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT, OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO COMPANY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, COMPANY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 2 (CONFIDENTIALITY), OR COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO COMPANY HEREUNDER IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM HEREUNDER. THE DISCLAIMERS AND LIMITATIONS IN SECTION 4 AND THIS SECTION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
17. Term and Termination. As to a particular Customer, this Agreement shall commence on the date the Customer first accesses or uses the Service and continue thereafter as long as Customer continues its subscription unless terminated in accordance with this Section 17. Subscriptions shall automatically renew for successive subscription terms of equal length to the selected subscription plant (usually monthly) unless terminated by Customer prior to the end of the then current subscription term. In addition, Alta may suspend or terminate this Agreement or Customer’s access to the Service at any time for any reason upon notice to Customer. Upon termination of this Agreement or any subscription, Customer shall cease use of the Service. Sections 6, 7, 8, 9, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 shall survive termination of this Agreement.
18. Force Majeure. Except for payment obligations, notwithstanding anything else in this Agreement, no default, delay, or failure to perform on the part of either party will be considered a breach of this Agreement if such default, delay, or failure to perform is shown to be due to causes beyond reasonable control of the party charged with a default, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier. Alta will not be liable for, and will not be considered in default or breach of this Agreement on account of, any delay or failure to perform arising out of or caused by, directly or indirectly, forces that are beyond Alta’s or the Premises Owner’s reasonable control, including, without limitation, any delays or changes in construction of, or Alta’s ability to procure any space in, any Premises; any conditions under the control of the landlord at the Premises location; acts of God; epidemics or pandemics; or public health emergencies.
a. Initial Dispute Resolution. We are available by email at email@example.com to discuss any concerns you may have regarding your use of the Service. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
b. Binding Arbitration. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to section 23(a) above, then either party may initiate binding arbitration. Unless you have opted out as set forth below, all claims arising out of or relating to this Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered by the American Arbitration Association (the “AAA”) in accordance with the provisions of its Consumer Arbitration Rules and the supplementary procedures for consumer related disputes of the AAA, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The procedures and rules of the Federal Arbitration Act shall exclusively govern the interpretation and enforcement of this arbitration provision.
c. The AAA’s rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1.800.778.7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. A request for payment of filing fees should be submitted to AAA along with your form for initiating the arbitration, and we will make arrangements to pay all necessary filing fees directly to AAA. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases.
d. The parties understand that, absent this mandatory provision, they would have the right to sue in court. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
e. Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
f. 30 Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the preceding paragraphs by sending written notice of your decision to opt-out to the following address:
5214F Diamond Heights Blvd #3370 San Francisco, CA 94131
The notice must be sent within thirty (30) days of creation of an account via the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, we also will not be bound by them.
g. Exception - Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
h. Exclusive Venue for Litigation. Solely to the extent the arbitration provisions set forth above do not apply, or for purposes of either party seeking injunctive relief or for enforcing an award granted to it pursuant to arbitration, the parties agree that any litigation between them shall be filed exclusively in the federal district court for the Northern District of California, or, if federal subject matter jurisdiction is lacking, then in the state courts located in San Mateo County, California. The parties expressly hereby consent to exclusive jurisdiction in the aforesaid courts for any litigation, hereby also consent to personal jurisdiction in said courts for any litigation and waive, for all purposes, their right to challenge the lack of personal jurisdiction said courts over any litigation arising in connection with, out of, or as a result of (a) this Agreement or the Service, and (b) any acts or omissions of the Company in connection with this Agreement or the Service.
20. Governing Law and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of California, without reference to conflict of laws principles.
21. Electronic Communications. When Customer visits the Site or Service or send e-mail to us, you are communicating with Alta electronically. Customer consents to receive communications from Alta either by email or by posting notices on this Site. Customer agrees that all agreements, notices, disclosures and other communications that Alta provides to Customer electronically satisfy any legal requirement that such communications be in writing. Customer may update it e-mail address by accessing its account or by emailing Alta at firstname.lastname@example.org. If you do not provide Alta with accurate information, Alta cannot be held liable if it fails to notify you.
22. General Provisions. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day-to-day activities of the other; (ii) constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking; or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. This Agreement will be binding upon and inure to the benefit of the parties hereto, their successors, and permitted assigns. No modification of, or amendment to, this Agreement will be effective unless in writing signed by an authorized representative of each party. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. No waiver of any term or condition of this Agreement will be valid or binding on either party unless the same will have been mutually assented to in writing by an officer of both parties. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.” This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior and contemporaneous communications, representations, discussions, and agreements between the parties with respect to such subject matter. Customer shall not assign or delegate this Agreement or any of its licenses, rights, or duties under this Agreement without the prior written consent of Alta, and any purported assignment shall be void and of no force or effect. Alta may freely assign this Agreement. Any notice or other communication required or permitted to be delivered hereunder must be in writing and sent by email to the Customer at the email on Customer’s account or and to Alta at email@example.com. Such notice will be deemed to have been given when delivered.