This Agreement, is entered into by and between ALERO SOFTWARE LLC, a New Jersey limited liability company, with an address of 420 W First Avenue, Roselle, New Jersey 07203 (“Alero”) and You (“Customer”) (Alero and Customer, each being a “Party,” and collectively being the “Parties”).
WHEREAS, Alero owns and licenses certain computer software, which includes copyrighted elements and trade secret elements (“Software”).
WHEREAS, Customer desires to use the Software at its site(s).
NOW, THEREFORE, in consideration of the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

ALERO’S PRODUCTS & SERVICES
Limited License.
Alero owns and retains ownership of all rights of whatever nature in and to the Software (whether tangible or intangible). Customer may access, view, and use the Software only as expressly specified in this Agreement. The Parties shall at all times act in accordance with applicable laws, including export controls and economic sanctions that apply in connection with this Agreement.

Changes to Software.
The Software may change from time to time at Alero’s sole discretion.

Passwords.
Customer’s access to the Software is password protected. Customer is responsible for assigning the passwords and for ensuring that passwords are kept confidential. Sharing passwords is strictly prohibited. Customer shall maintain industry standard computing environments to ensure that the Software is secure and inaccessible to unauthorized persons.

Unauthorized Technology.
Unless previously authorized by Alero, Customer must not (i) run or install any computer software or hardware utilizing or affecting the Software; (ii) use any technology to automatically download, mine, scrape or index the Software; or (iii) automatically connect (whether through APIs or otherwise) the Software to other data, software, services or networks. Customer will not knowingly introduce any malicious software or technologies into the Software.

Usage Information.
Alero may collect information related to Customer’s use of the Software, including collecting feedback relating to the Software provided by the Customer (“Collected Information”). For avoidance of doubt, any comments, suggestions, ideas or recommendations related to the Software provided by Customer to Alero is considered Collected Information. Alero shall be sole owner of Collected Information with Customer having no rights in the Collected Information. Alero may use the Collected Information to (i) test, develop and improve its products and services, including testing, developing, and improving the Software, (ii) create and own new works and/or derivative works based on the Collected Information and (iii) protect and enforce Alero’s rights under this Agreement. Alero, in its sole discretion, may pass any bit of the Collected Information to third party providers for the same purposes.

Third Party Providers.
The Software may utilize data and/or software from third parties. Some third party providers require Alero to pass additional terms through to Customer. The third party providers may change their terms occasionally and new third party providers may be added from time to time. To see the current third party additional terms for the Software click the following URL: [insert link]. Customer agrees to comply with all applicable third party terms.

Limitations.
Unless otherwise expressly permitted in the Agreement, Customer may not itself or assist a third party to: (i) sell, sublicense, distribute, display, store, copy, create, modify, decompile or disassemble, reverse engineer, translate or transfer the Software in whole or in part, or as a component of any other product, service or material; (ii) use the Software to create any derivative works or competitive products; or (iii) allow any third parties to access, use or benefit from the Software in any way. Exercising legal rights that cannot be limited by agreement is not precluded. Except as expressly set forth in this Agreement, Alero retains all rights, and Customer is granted no rights, in or to the Software. Customer agrees to not develop, or assist in developing, any computer program or software which utilizes the layout, arrangement, appearance, or organization of the Software.

Services.
Alero may provide services relating to the Software which will be provided using reasonable skill and care. Any charges related to services provided to Customer, if any, shall be described in an ordering document, invoice, or a statement of work.

Security.
Each Party will use, and will require any third party data processors to use, industry standard organizational, administrative, physical and technical safeguards to protect the other’s data. Each Party will inform the other in accordance with applicable law if such Party becomes aware of any unauthorized third-party access to the other Party’s data and will use reasonable efforts to remedy identified security vulnerabilities.

Customer’s Responsibilities.
Customer shall be responsible for and/or will take all necessary steps to ensure or regarding (i) proper use of the Software in accordance with all usage instructions and operating specifications; (ii) adherence to the minimum recommended technical requirements; (iii) implementing and maintaining proper and adequate virus or malware protection and proper and adequate backup and recovery systems; (iv) implementing and maintaining up-to-date computer hardware and network connectivity; and (iv) installing updates.

LICENSE LIMITED TO SOFTWARE AS A SERVICE (SaaS)
License.
Further to Section 1(a), Customer may only use the Software as a Software as a Service (SaaS) only for internal business purposes.

Delivery.
Alero shall deliver the Software as SaaS by providing Customer with online access to it. When accessing the Software, Customer accepts it for use in accordance with this Agreement.

Content. 
Alero’s SaaS platform is designed to protect the content entered or uploaded by Customer. Customer grants Alero permission to use, store and process this content in accordance with applicable law. Access and use of this content by Alero, its employees and contractors will be limited to the extent necessary to deliver the Software as SaaS, including training, technical support and other services. Alero may delete or disable Customer’s content if required under applicable laws and in such instances, Alero will use reasonable efforts to provide notice to Customer. If content is lost or damaged, Alero will assist Customer in restoring the content to the SaaS platform from any available backup copy.

CHARGES
Payment and Taxes. 
Unless agreed to in writing by Alero, Customer shall provide details for a source of payment, subject to Alero’s approval, which permits automatic electronic payment to Alero (e.g., credit card, debit card, third-party payment processor, ACH enabled account) with Customer expressly authorizing automatic monthly payments to Alero utilizing the source of payment. Customer shall take all necessary steps to enable and maintain automatic monthly payments to Alero. In the event of a failed or missed payment, Alero may automatically suspend Customer’s access to the Software, with Alero having sole discretion in determining whether this Agreement should be terminated. Alero may allow resumption of access to the Software at its discretion with payment of all monies owed. Customer’s obligation to pay owed amounts will not be affected by the suspenson of Customer’s access to the Software and/or the termination of this Agreement. Customer must pay applicable taxes and duties, other than taxes on Alero’s income.

CONFIDENTIALITY
Confidential information received from each Party will not be disclosed to anyone else except to the extent required by law or as permitted under the Agreement. If a court or government agency orders either Party to disclose the confidential information of the other, the other will be promptly notified so that an appropriate protective order or other remedy can be obtained unless the court or government agency prohibits prior notification. This section shall survive three (3) years after the termination of the Agreement or until the confidential information is no longer deemed confidential under applicable law, whichever occurs first.

WARRANTIES AND DISCLAIMERSALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW INCLUDING, WITHOUT LIMITATION, WARRANTIES OR OTHER TERMS AS TO SUITABILITY, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS. IN ENTERING THIS AGREEMENT, NEITHER PARTY HAS RELIED UPON ANY STATEMENT, REPRESENTATION, WARRANTY OR AGREEMENT OF THE OTHER PARTY EXCEPT FOR THOSE EXPRESSLY CONTAINED IN THIS AGREEMENT.

EXCLUSION OF WARRANTIES. UNLESS OTHERWISE EXPRESSLY STATED IN THE AGREEMENT, AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, ALERO DOES NOT WARRANT OR REPRESENT OR INCLUDE ANY OTHER TERM THAT THE SOFTWARE WILL BE PROVIDED FREE OF ANY INACCURACIES, INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS, OR THAT ANY OF THESE WILL BE CORRECTED AND ALERO WILL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM SUCH FAULTS. ALERO DOES NOT WARRANT THE LIFE OF ANY URL OR THIRD PARTY WEB SERVICE.

CONDITION. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY, CONDITION OR ANY OTHER TERM OF ANY KIND.
SOFTWARE. ALERO WARRANTS THAT THE SOFTWARE WILL SUBSTANTIALLY CONFORM TO ALERO’S DOCUMENTATION FOR 90 DAYS AFTER INITIAL USE. IF DURING THIS WARRANTY PERIOD ALERO IS UNABLE TO CORRECT, WITHIN A REASONABLE TIME PERIOD AND MANNER, A SOFTWARE ERROR REPORTED BY CUSTOMER, CUSTOMER MAY TERMINATE THIS AGREEMENT BY PROMPT WRITTEN NOTICE TO ALERO FOLLOWING THE REASONABLE PERIOD. CUSTOMER’S ONLY REMEDY AND ALERO’S ENTIRE LIABILITY FOR BREACH OF THIS WARRANTY WILL BE A REFUND OF THE APPLICABLE CHARGES.

DISCLAIMER. CUSTOMER IS SOLELY RESPONSIBLE FOR THE PREPARATION, CONTENT, ACCURACY AND REVIEW OF ANY DOCUMENTS, DATA, OR OUTPUT PREPARED OR RESULTING FROM THE USE OF THE SOFTWARE AND FOR ANY DECISIONS MADE OR ACTIONS TAKEN BASED ON THE DATA CONTAINED IN OR GENERATED BY THE SOFTWARE.
LIABILITYLIMITATION. EACH PARTY’S OR ANY OF ITS THIRD PARTY PROVIDERS’ ENTIRE LIABILITY IN ANY CALENDAR YEAR FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, INCLUDING FOR NEGLIGENCE, WILL NOT EXCEED THE AMOUNT PAYABLE IN THE PRIOR 12 MONTHS FOR THE SOFTWARE (OR, IF THE CLAIM IS MADE WITHIN THE FIRST 12 MONTHS, 12 TIMES THE AVERAGE OF THE MONTHLY CHARGES PAID). IN NO EVENT SHALL ALERO OR ITS THIRD PARTY PROVIDERS BE LIABLE FOR ANY PENALTIES, INTEREST, TAXES OR OTHER AMOUNTS IMPOSED BY ANY GOVERNMENTAL OR REGULATORY AUTHORITY. NEITHER PARTY IS LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF DATA, OR LOSS OF PROFITS (IN EITHER CASE, WHETHER DIRECT OR INDIRECT) EVEN IF SUCH DAMAGES OR LOSSES COULD HAVE BEEN FORESEEN OR PREVENTED.

Third Party Intellectual Property.
 If a third party sues Customer claiming that the Software, excluding any portions of the same provided by any of Alero’s third party providers, infringes their intellectual property rights and Customer’s use of the Software has been in accordance with the terms of the Agreement, Alero shall defend Customer against the claim and pay damages that a court finally awards against Customer or that are included in a settlement approved by Alero, provided the claim does not result from: (i) a combination of all or part of the Software, or any other of Alero’s services or data, with technology, products, services or data not supplied by Alero; (ii) modification of all or part of the Software other than by Alero or its subcontractors; (iii) use of a version of the Software after having been notified of a requirement to use a subsequent version; or (iv) Customer’s breach of this Agreement. Alero’s obligation in this Section 6(b) is conditioned on Customer (A) promptly notifying Alero in writing of the claim; (B) supplying information Alero reasonably requests; and (C) allowing Alero to control the defense and settlement.

Customer Obligations.
Customer is responsible for any loss, damage or cost Alero and any of its affiliates incur arising out of or in connection with a third party claim, or a regulatory fine or penalty, connected to: (i) an allegation that Alero’s, or any of Alero’s affiliates’, use of the information, data, software, or other materials provided to Alero by Customer or on Customer’s behalf, infringes the intellectual property rights of a third party (except to the extent of any indemnity Alero provides to Customer under Section 9(b) (Third Party Intellectual Property)); (ii) Customer’s use of the Software, or any other of Alero’s products, services or data, including communications and networks, in breach of this Agreement; (iii) Alero or any of Alero’s affiliates’ compliance with any instruction given on behalf of Customer to Alero in the course of this Agreement; or (iv) an assertion by any person accessing or receiving the benefit of any part of the Software, or any other of Alero’s products, services or data, through Customer.

Failure to Perform.
Alero will not be responsible if the Software fails to perform because of Customer’s third party software, Customer’s hardware malfunction, or Customer’s actions or inaction, including, but not limited to, Customer’s failure to maintain up-to-date computer hardware and/or network connectivity. If Alero learns that the Software failed because of one of these, Alero reserves the right to charge Customer for Alero’s work in investigating the failure. At Customer’s request, Alero will assist Customer in resolving the failure at a fee to be agreed upon.

Customer Data.
The Parties acknowledge that Customer shall enter or upload data (text, photographs, files, etc.) using the Software, relating to Customer sales, products, pricing, progress of jobs, and so forth (“Customer Data”). Alero shall make best efforts to store and maintain Customer Data. After termination of this Agreement, Alero shall not have any obligation to transfer, store, or maintain Customer Data, and, Alero, in its sole discretion, may delete Customer Data, in whole or in part. Alero shall not be responsible for the breach or loss of Customer Data resulting from hardware damage or malfunction, loss of network connectivity, and/or malicious or negligent acts.

TERM, TERMINATION
Term.
If not agreed to otherwise, this Agreement will automatically renew annually unless either Party gives the other at least 60 days written notice before the end of the then current term.

Suspension.
Alero may on notice terminate, suspend or limit Customer’s use of any portion or all of the Software if (i) requested to do so by a third party provider, court or regulator; (ii) Customer becomes or are reasonably likely to become insolvent or affiliated with one of Alero’s competitors; or (iii) there has been or it is reasonably likely that there will be: a breach of security; a breach of Customer’s obligations under this Agreement or another agreement between the Parties; a breach of Alero’s agreement with a third party provider; or a violation of third party rights or applicable laws. Alero’s notice will specify the cause of the termination, suspension or limitation and, if the cause of the termination suspension or limitation is reasonably capable of being remedied, Alero will inform Customer of the actions Customer must take to reinstate the Software. If Customer does not take the actions or the cause cannot be remedied within 30 days, Alero may suspend, limit or terminate the Agreement in whole or in part. Charges remain payable in full during periods of suspension or limitation arising from Customer’s action or inaction.

Termination.
Either Party may terminate this Agreement immediately upon written notice if the other Party commits a material breach and fails to cure the material breach within 30 days of being notified to do so. Any failure to fully pay any amount when due under this Agreement is a material breach for this purpose.

Effect of Termination.
Except to the extent the Parties have agreed otherwise, upon termination, all Customer’s usage rights end immediately. Termination of this Agreement will not (i) relieve Customer of its obligation to pay Alero any amounts owed up to and including the date of termination; (ii) affect other accrued rights and obligations; or (iii) terminate those parts of the Agreement that by their nature should continue.

Amendments.
Alero may amend the terms of this Agreement from time to time by giving Customer at least 30 days prior written notice. Customer may request good faith negotiations regarding the amended terms and conditions. If the Parties cannot reach mutual agreement on the amended terms and conditions within 30 days, Customer may terminate this Agreement immediately upon written notice.

FORCE MAJEURE
Alero is not liable for any damages or failure to perform its obligations under this Agreement because of circumstances beyond Alero’s reasonable control. If those circumstances cause material deficiencies in the Software and continue for more than 30 days, either Party may terminate this Agreement.

THIRD PARTY RIGHTS
Alero’s affiliates and third-party providers benefit from Alero’s rights and remedies under this Agreement. No other third parties have any rights or remedies under this Agreement.

GENERAL
Assignment.
Customer may not assign, delegate or otherwise transfer this Agreement (including any of Customer’s rights or remedies) to anyone else without Alero’s prior written consent. Alero may assign or otherwise transfer this Agreement (including any of Alero’s rights or remedies) and will notify Customer of any such assignment or transfer.

Agreement Compliance.
Alero or Alero’s representatives may review Customer’s compliance with this Agreement throughout the term of this Agreement. If the review reveals that Customer has exceeded the authorized use permitted by this Agreement, Customer will pay all unpaid or underpaid charges.

Governing Law.
If not otherwise stated in the order form, the Agreement will be governed by the laws of the State of New Jersey and each Party hereby irrevocably submits to the exclusive jurisdiction of the federal and state courts of the State of New Jersey to settle all disputes or claims arising out of or in connection with this Agreement.

Injunctive Relief.
Customer acknowledges that misuse, copying, or disclosure of the Software will give rise to irreparable injury to Alero, and leave Alero inadequately compensable in damages. Accordingly, Alero may seek and obtain injunctive relief against Customer’s breach or threatened breach, in addition to any other legal remedies, such as suit for copyright infringement, which may be available. Customer further acknowledges and agrees that the covenants contained herein are necessary for the protection of Alero’s legitimate business interests and are reasonable in scope and content.

Trials.
All trials of the Software are subject to the terms of this Agreement, unless Alero notifies otherwise. Access to the Software for trials may only be used for Customer’s evaluation purposes.

Support Provided.
To assist in resolving technical problems with the Services, Alero may provide telephone and/or online access to its helpdesk and/or may provide self-help tools. Additional information related to the support provided by Alero may be described on [web link] or as otherwise provided by Alero.

Notices.
Notices to Parties shall be at the addresses first stated above.

Severability.
If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired.

No Waiver.
If either Party delays or fails to exercise any right or remedy under this Agreement, it will not have waived that right or remedy.

Entire Agreement and Non-Reliance.
This Agreement contains the entire understanding between the Parties regarding its subject matter and supersedes all prior agreements, understandings, negotiations, proposals and other representations, verbal or written, in each case relating to such subject matter, including without limitation any terms and conditions appearing on a purchase order or other form(s) used by Customer. Each Party acknowledges that in entering into this Agreement neither Party has relied on any representations made by the other that are not expressed in this Agreement.