IMPORTANT – PLEASE READ CAREFULLY – BY CREATING AN ACCOUNT OR BY SUBSCRIBING TO THE SERVICES AS DEFINED BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT.
This software as a service subscription agreement (the “Agreement”) sets forth the obligations and conditions between you (“Customer”) and Align Technologies, Corp. (“Align”) relating to your use of the website, services, and software (collectively, the “Services”) provided by Align. By clicking “I Agree” and/or using the Services as a paid subscriber, Customer agrees to the terms of this Agreement. If you are an agent or employee of the Customer, you individually represent and warrant to Align that you are authorized to bind that party to this Agreement.
Use of Services
Customer may specify one or more administrators to manage its account, including the ability to access, monitor, use, export and disclose all content posted by End Users in accordance with applicable local laws. Customer is responsible for: (i) the selection of its Administrator(s); (ii) maintaining the confidentiality of passwords and Administrator accounts; (iii) managing access to Administrator accounts; and (iv) ensuring that each Administrator’s use of the Service complies with this Subscription Agreement. Align shall not be held liable for any actions on the part of Customer’s Administrator(s).
Customer is responsible for use of the Services by its End Users and for their compliance with Align’s Terms and Conditions. Customer will promptly notify Align if it becomes aware of any unauthorized access to Customer’s account or the Services or any use of the Services by an End User that is a potential violation of Align’s User Terms and Conditions.
Align may request that Customer suspend the account of any End User who: (i) violates the User Terms and Conditions; or (ii) is using the Service in a manner that Align reasonably believes may cause a security risk, a disruption to others’ use of the Service, or liability for Align. If Customer fails to promptly suspend or terminate such End User’s account, Align reserves the right to do so.
Align reserves the right to monitor and reasonably restrict Customer’s ability to use the Services if Customer is using excessive computing resources which are impacting the performance of the Services for other subscribers. Align agrees to notify Customer in cases where it restricts such use and use good faith efforts to determine an appropriate alternative or work-around solution. Customer acknowledges that its rights to use the Services will be web-based only pursuant to the terms of this Agreement and that no part of the Services will be installed on any servers or other computer equipment owned or controlled by Customer or otherwise provided to Customer.
Customer/End User Content
The Services allow End Users to submit information, text, images, and other materials (“Content”). Customer owns all Content that its End Users submit or upload to the Services. However, Align maintains a limited, non-exclusive and non-transferable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit and display End User Content for the purpose of providing the Services and to improve the quality of Align’s products and platform. Nothing in this Agreement shall preclude Align from de-identifying, anonymizing and aggregating End User Content and using such de-identified, anonymized and aggregated Content for any purpose.
By providing Content to Align, Customer represents and warrants that its End Users have the right to provide such Content to Align and that such Content does not infringe, misappropriate, violate or contravene any laws, regulations, or rights of third parties (including, without limitation, any rights in Intellectual Property). Customer understands that Align does not control, and is not responsible for, End User Content, which may contain errors and inaccuracies. Customer agrees to indemnify, release, and hold Align harmless from any all liability, claims, actions, loss, harm, damage, injury, cost or expense arising out of any End User Content posted to the Services.
Align may incorporate into the Services any suggestions or feedback received from Customer and its End Users without any obligation to Customer and any such modifications to the Services shall be the sole and exclusive property of Align. Align may also share and publish aggregated, anonymized data about the use of our Services by our customers.
The Services contain the copyrighted material, trademarks, patents, trade secrets, and other proprietary information (“Intellectual Property”) of Align. Align owns and retains all proprietary rights in the Services and the Intellectual Property. This Agreement does not grant Customer any rights or interest in or to the Services or any Align Intellectual Property. The provision of Align’s Intellectual Property through the Services does not transfer to Customer, End User, or any third party any rights, title or interest in or to such Intellectual Property. Customer and its End Users will not: (i) rent, sell, resell or lease the Services to any third party; (ii) distribute, sub-license, translate, reverse-engineer, decompile, or disassemble the Services or Intellectual Property or the source code thereof, or attempt to derive the source code thereof in any other way; (iii) modify the Services or Intellectual Property or merge all, or any part, of the Services or Intellectual Property or the source code thereof into another program; or (iv) remove, modify or alter any of Align’s Intellectual Property from any part of the Services or Intellectual Property or the source code thereof. “Intellectual Property” shall mean all copyrighted material, trademarks, patents, trade secrets and other proprietary information contained in the Services.
Fees and Payment
By subscribing to the Service and providing payment account information, Customer agrees to these payment terms and conditions. Fees are non-refundable except as required by law or as explicitly set forth herein. Customer agrees to pay all applicable fees when due and, if such fees are being paid via credit card or other electronic means, Customer authorizes Align to charge such fees using Customer’s selected payment method. Fees will be charged on an annual basis. Customer will be charged the full amount of its annual subscription at the commencement of the subscription. On the rare occasion where a Customer may be allowed to pay their annual subscription amount via recurring monthly payments, Customer expressly agrees that, in the event the Customer terminates its account before the expiration of the annual contract, it will be charged, and that Customer will pay, the remaining balance of its annual subscription amount.
By default, customer accounts are set to auto-renew. Align may automatically charge Customer for such renewal on or after the renewal date associated with Customer’s account unless Customer has terminated the Services. Customer must cancel the Services prior to its renewal date in order to avoid billing of the next period’s fee. If Customer chooses to cancel the Service, Customer may use the Services until the end of the current period but will not be issued a refund for the most recently (or any previously) charged fees. Customer can cancel Services by contacting Align at firstname.lastname@example.org prior to its renewal date.
Align may revise fee rates and/or the billable amount structure for the Services from time to time and will provide Customer with email notice of any changes in fees at least thirty (30) days prior. Customer is responsible for providing complete and accurate billing information to Align.
At any time during an active subscription billing cycle, Customer may increase the total number of End Users on its account above its initial minimum user commitment.
If Customer adds any additional End Users above and beyond its initial minimum user commitment, the cost for each additional End User added during the active subscription billing cycle shall be a prorated amount determined based on the following formula:
Prorated cost of each additional End User is:
(Per User Cost determined by the initial minimum user commitment ÷ 365) x (# of days remaining in subscription billing cycle)
If Customer removes an End User and thus no longer needs the previously added user license above and beyond its initial minimum user commitment, the remaining value of the additional user license, determined based on the formula below, will be held as a credit in Customer’s account to be applied to future purchases if made within the current active subscription billing cycle. Such credit will expire if not used within the current active subscription billing cycle.
Credit value of a cancelled End User above and beyond initial minimum user commitment is:
(Per User Cost determined by the initial minimum user level ÷ 365) x (# of days remaining in subscription billing cycle)
Modification and Termination
Align reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof), with or without notice. Customer agrees that Align shall not be liable to it or any third party for any modification, suspension or discontinuance of the Services. This Agreement is effective unless and until terminated by Customer or Align. If Align terminates Customer’s right to access the Services, this Agreement will terminate and all rights Customer has to access the Services will immediately terminate. Termination of Customer’s account may also include, at Align’s sole discretion, the deletion of the accounts of Customer’s End Users and End User Content. Any provision of this Agreement that by its nature is reasonably intended to survive beyond termination of this Agreement shall survive.
During the course of the performance of this Agreement, each party may make available to the other party information that is not generally known to the public and at time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information shall include, but shall not be limited to: business priorities, strategies, forecasts, tasks; financial information; business processes, methods and models; employee, customer and supplier information; and sales and marketing information. Except as otherwise expressly permitted under this Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. Align may disclose Customer’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information solely for the purpose of performing Align’s obligations under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement.
The foregoing confidentiality obligations shall not apply to any Confidential Information that the receiving party can demonstrate: (i) the receiving party possessed, without any obligation of confidentiality, prior to disclosure by the disclosing party; (ii) is or becomes publicly available without breach of this Agreement by the receiving party; (iii) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (iv) is or was received by the receiving party from a third party that does not have an obligation of confidentiality to the disclosing party or its affiliates. Either party may disclose the terms of this Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The receiving party may disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding, provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures.
By Align: Align shall defend, indemnify and hold harmless Customer from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees, resulting from any third-party claim, suit or proceeding alleging that the Services infringe or misappropriate any U.S. trade secret, trademark, or copyright. Align will have no indemnity obligation to Customer if the alleged infringement or misappropriation is based on (i) any combination, operation, or use of the Services with products, services, information, materials, technologies, business methods or processes not furnished by Align to the extent the infringement or misappropriation is based on such combination, operations or use; (ii) any modification (other than by Align) to the Services to the extent the infringement or misappropriation is based on such modification; or (iii) the Customer’s failure to promptly install any update of the Services provided by Align that would have eliminated the actual or alleged infringement or misappropriation.
By Customer: Customer agrees to indemnify, defend and hold Align and its affiliates, directors, officers, agents, employees, representatives and other partners harmless from any loss, liability, claim, demand or cause of action of any kind including, but not limited to, reasonable attorney’s fees, asserted by any third party in connection with or arising from Customer’s and its End User’s use of the Services, submission of End User Content, violation of this Agreement, Align’s Terms and Conditions or any applicable law, or any breach of Customer’s representations and warranties set forth herein.
To the fullest extent permitted under applicable law, the Services are provided by Align “As Is” without warranty, representation, or guarantee of any kind, either expressed or implied, including, but not limited to, any warranty of quality, merchantability, fitness for a particular purpose, accuracy or non-infringement, all of which are expressly disclaimed by Align. Align does not guarantee and does not promise any specific results from the use of the Services.
Limitation of Liability
To the fullest extent permitted under applicable law, in no event shall Align or its directors, officers, employees, agents or other representatives be liable to Customer, End User or any other person or entity for any indirect, incidental, special, consequential, or punitive damages (including, but not limited to, damages for loss of profits, loss of data, or loss of use) arising out of or in connection with the Services, whether or not Align has been advised of the possibility of such damages and regardless of the legal or equitable theory upon which the claim is based. If the foregoing limitation of liability is found to be unenforceable, Align’s liability for any claim or cause of action arising from Customer’s or End User’s use of the Services will at all times be limited to the amount Customer paid to Align for the Services during the twelve (12) months preceding such cause of action.
This Agreement shall be construed in accordance with and governed by the laws of Louisiana notwithstanding its conflicts of law provisions. Customer acknowledges and agrees that any dispute arising out of this Agreement and/or Customer’s or any End User’s use of the Services shall be initiated and brought in the state or federal courts of Orleans Parish, Louisiana.
Please contact us at email@example.com with any questions regarding this Agreement.
Effective as of May 11, 2021