Terms of Service
Universal Terms of Service Agreement
Last Revised: December 8, 2019
PLEASE READ THIS UNIVERSAL TERMS OF SERVICE AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
This Universal Terms of Service Agreement (this “Agreement”) is entered into by and between Alana, the owners of Alana Enabled™ (including but not limited to the Alana Enabled Platform and Alana Enabled Applications), a California Corporation (“Alana”) and you, and is made effective as of the date of your use of the Alana Enabled website (“Site”) or the date of electronic acceptance. This Agreement sets forth the general terms and conditions of your use of the Site and the products and services purchased or accessed through this Site (individually and collectively, the “Services”), and is in addition to (not in lieu of) any specific terms and conditions that apply to the particular Services.
The terms “we”, “us” or “our” shall refer to Alana. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement, has access to your account or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
- MODIFICATION OF AGREEMENT, SITE OR SERVICES
Alana may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services. In addition, Alana may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your account (“Account”) information current. Alana assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address. In addition, Alana may terminate Your use of Services for any violation or breach of any of the terms of this Agreement by You. Alana reserves the right to modify, change, or discontinue any aspect of this Site or the Services, including without limitation prices and fees for the same, at any time.
- ELIGIBILITY; AUTHORITY
This Site and the Services are available only to individuals (“Users”) who can form legally binding contracts under applicable law. By using this Site or the Services, you represent and warrant that you are (i) at least eighteen (18) years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, or (iii) are not a person barred from purchasing or receiving the Services found under the laws of the United States or other applicable jurisdiction.
If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms “you”, “your”, “User” or “customer” shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, Alana finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. Alana shall not be liable for any loss or damage resulting from Alana’s reliance on any instruction, notice, document or communication reasonably believed by Alana to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Alana reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.
- YOUR ACCOUNT
In order to access some of the features of this Site or use some of the Services, you will have to create an Alana account (“Account”) by providing the full legal name of the business, current address, phone number, a valid email address, and any other information indicated as required. Alana may reject your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.
The person signing up for the Service will be the contracting party (“Account Owner”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding account we may provide to the Account Owner in connection with the Service.
If you are signing up for the Service on behalf of your employer, your employer shall be the Account Owner. If you are signing up for the Service on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to our Terms of Service.
You represent and warrant to Alana that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. If Alana has reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, Alana reserves the right, in its sole and absolute discretion, to suspend or terminate your Account. You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Account information secure, including without limitation your customer number/login, password and Payment Method(s) (as defined below). For security purposes, Alana recommends that you change your password at least once every six (6) months for each Account. You must notify Alana immediately of any breach of security or unauthorized use of your Account. Alana will not be liable for any loss you incur due to any unauthorized use of your Account. You, however, may be liable for any loss Alana or others incur caused by your Account, whether caused by you, or by an authorized person, or by an unauthorized person.
Upon completion of sign up for the Service, Alana will create a PayPal Express Checkout account on your behalf, using your email address.
You acknowledge that PayPal Express Checkout will be your default payments gateway and that it is your sole responsibility as the Account Owner to activate and maintain these accounts. If you do not wish to keep the payment account active, it is your responsibility to deactivate it. For the avoidance of doubt, PayPal Express Checkout is a Third Party Service, as defined in Section 15 of these Terms of Service.
- GENERAL RULES OF CONDUCT
You acknowledge and agree that:
i. Your use of this Site and the Services , including any content you submit, will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations.
ii. You will not collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent.
iii. You will not use this Site or the Services in a manner (as determined by eKaisha in its sole and absolute discretion) that:
- Is illegal, or promotes or encourages illegal activity;
- Promotes, encourages or engages in child pornography or the exploitation of children;
- Promotes, encourages or engages in terrorism, violence against people, animals, or property;
- Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
- Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
- Violates the Fight Online Sex Trafficking Act of 2017 or similar legislation, or promotes or facilitates prostitution and/or sex trafficking;
- Infringes on the intellectual property rights of another User or any other person or entity;
- Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;
- Interferes with the operation of this Site or the Services found at this Site;
- Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or
- Contains false or deceptive language, or unsubstantiated or comparative claims, regarding Alana or Alana’s Services.
iv. You will not copy or distribute in any medium any part of this Site or the Services, except where expressly authorized by Alana.
v. You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies.
vi. You will not access Alana Content (as defined below) or User Content through any technology or means other than through this Site itself, or as Alana may designate.
vii. You agree to back-up all of your User Content so that you can access and use it when needed. Alana does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content.
viii. You will not re-sell or provide the Services for a commercial purpose, including any of Alana’s related technologies, without Alana’s express prior written consent.
ix. You will not circumvent, disable or otherwise interfere with the security-related features of this Site or the Services found at this Site (including without limitation those features that prevent or restrict use or copying of any Alana Content or User Content) or enforce limitations on the use of this Site or the Services found at this Site, the Alana Content or the User Content therein.
x. You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.
xi You are aware that Alana may from time-to-time call you about your account, and that, for the purposes of any and all such call(s), you may be subject to call recording and hereby consent to the same, subject to any applicable laws and our restrictions and obligations thereunder, including, where permissible, to record the entirety of such calls regardless of whether Alana asks you on any particular call for consent to record such call. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted as evidence in any legal proceeding in which Alana is a party.
- PROTECTION OF YOUR DATA
Alana offers certain hosted Services available to you that may involve the submission, collection and/or use of personally identifying or identifiable information about you and your own customers (“Your Data”) in the course of your use of these Services (“Covered Services”). Your Data, for the purpose of this Section, excludes any User Content. Alana’s Data Processing Addendum (“DPA”), which is hereby incorporated by reference and applicable to Covered Services, is meant to provide you contractual assurance that we have robust mechanisms to ensure the transfer of Your Data, including transfers of Your Data from the EEA to the Covered Services, meets with compliance under applicable data privacy laws.
For the purposes of the DPA and the Standard Contractual Clauses attached to the DPA (when and as applicable), you (and your applicable affiliates) are considered the Data Controller/Data Exporter, and your acceptance of the terms of service governing Covered Services at the time of purchase of any Covered Services will also be treated as your acknowledgement and acceptance of the DPA and its appendices (including the Standard Contractual Clauses and its appendices, as applicable). If you wish to print, sign and return a physical copy of the DPA, please send an email request to firstname.lastname@example.org
Covered Services, as defined in this Section and in the DPA, include hosted services that are subject to the terms and conditions of the following Agreements: (1) Hosting, (2) Online Store/Quick Shopping Cart, (3) Website Builder and Maintenance Services.
- USER CONTENT
Some of the features of this Site or the Services, including those Services that are hosted with Alana, may allow Users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice via forum posts, content submitted in connection with a contest, product reviews or recommendations, or photos to be incorporated into a social media event or activity (“User Submissions”), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, “User Content”). All content submitted through your Account is consider User Content. By posting or publishing User Content to this Site or to or via the Services, you represent and warrant to Alana that (i) you have all necessary rights to distribute User Content via this Site or via the Services, either because you are the author of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party. You shall be solely responsible for any and all of your User Content or User Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.
User Submissions. You acknowledge and agree that your User Submissions are entirely voluntary, do not establish a confidential relationship or obligate Alana to treat your User Submissions as confidential or secret, that Alana has no obligation, either express or implied, to develop or use your User Submissions, and no compensation is due to you or to anyone else for any intentional or unintentional use of your User Submissions.
Alana shall own exclusive rights (including all intellectual property and other proprietary rights) to any User Submissions posted to this Site, and shall be entitled to the unrestricted use and dissemination of any User Submissions posted to this Site for any purpose, commercial or otherwise, without acknowledgment or compensation to you or to anyone else.
User Content Other Than User Submissions. By posting or publishing User Content to this Site or through the Services, you authorize Alana to use the intellectual property and other proprietary rights in and to your User Content to enable inclusion and use of the User Content in the manner contemplated by this Site and this Agreement. You hereby grant Alana a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content in connection with this Site, the Services and Alana’s (and Alana’s affiliates’) business(es), including without limitation for promoting and redistributing all or part of this Site in any media formats and through any media channels without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to you or any third party. You also hereby grant each User of this Site a non-exclusive license to access your User Content (with the exception of User Content that you designate “private” or “password protected”) through this Site, and to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content as permitted through the functionality of this Site and under this Agreement. The above licenses granted by you in your User Content terminate within a commercially reasonable time after you remove or delete your User Content from this Site. You understand and agree, however, that Alana may retain (but not distribute, display, or perform) server copies of your User Content that have been removed or deleted. The above licenses granted by you in your User Content are perpetual and irrevocable. Notwithstanding anything to the contrary contained herein, Alana shall not use any User Content that has been designated “private” or “password protected” by you for the purpose of promoting this Site or eKaisha’s (or Alana’s affiliates’) business(es). If you have a website or other content hosted by Alana, you shall retain all of your ownership or licensed rights in User Content.
- AVAILABILITY OF WEBSITE/SERVICES
Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide this Site and the Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time this Site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto.
- MONITORING OF CONTENT; ACCOUNT TERMINATION POLICY
Alana generally does not pre-screen User Content (whether posted to a website hosted by Alana or posted to this Site). However, Alana reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with this Agreement. Alana may remove any item of User Content (whether posted to a website hosted by Alana or posted to this Site) and/or terminate a User’s access to this Site or the Services found at this Site for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by Alana in its sole and absolute discretion), at any time and without prior notice. Alana may also terminate a User’s access to this Site or the Services found at this Site if Alana has reason to believe the User is a repeat offender. If Alana terminates your access to this Site or the Services found at this Site, Alana may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.
- DISCONTINUED SERVICES; END OF LIFE POLICY
Alana reserves the right to cease offering or providing any of the Services at any time, for any or no reason, and without prior notice. Although Alana makes great effort to maximize the lifespan of all its Services, there are times when a Service we offer will be discontinued or reach its End-of-Life (“EOL”). If that is the case, that product or service will no longer be supported by Alana, in any way, effective on the EOL date.
Notice and Migration. In the event that any Service we offer has reached or will reach EOL, we will attempt to notify you thirty or more days in advance of the EOL date. It is your responsibility to take all necessary steps to replace the Service by migrating to a new Service before the EOL date, or by entirely ceasing reliance on said Service before the EOL date. In either case, Alana will either offer a comparable Service for you to migrate to for the remainder of the term of your agreement, a prorated in-store credit, or a prorated refund, to be determined by Alana in its sole and absolute discretion. Alana may, with or without notice to you, migrate you to the most up-to-date version of the Service, if available. You agree to take full responsibility for any and all loss or damage arising from any such migration.
No Liability. Alana will not be liable to you or any third party for any modification, suspension, or discontinuance of any of the Services we may offer or facilitate access to.
- BETA SERVICES
From time to time, Alana may offer new Services (limited preview services or new features to existing Services) in a pre-release version. New Services, new features to existing Services or limited preview services shall be known, individually and collectively, as “Beta Services”. If you elect to use any Beta Services, then your use of the Beta Services is subject to the following terms and conditions: (i) You acknowledge and agree that the Beta Services are pre-release versions and may not work properly; (ii) You acknowledge and agree that your use of the Beta Services may expose you to unusual risks of operational failures; (iii) The Beta Services are provided as-is, so we do not recommend using them in production or mission critical environments; (iv) Alana reserves the right to modify, change, or discontinue any aspect of the Beta Services at any time; (v) Commercially released versions of the Beta Services may change substantially, and programs that use or run with the Beta Services may not work with the commercially released versions or subsequent releases; (vi) Alana may limit availability of customer service support time dedicated to support of the Beta Services; (vii) You acknowledge and agree to provide prompt feedback regarding your experience with the Beta Services in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you experience. You acknowledge and agree that we may use your feedback for any purpose, including product development purposes. At our request you will provide us with comments that we may use publicly for press materials and marketing collateral. Any intellectual property inherent in your feedback or arising from your use of the Beta Services shall be owned exclusively by Alana; (viii) You acknowledge and agree that all information regarding your use of the Beta Services, including your experience with and opinions regarding the Beta Services, is confidential, and may not be disclosed to a third party or used for any purpose other than providing feedback to Alana; (ix) The Beta Services are provided “as is”, “as available”, and “with all faults”. To the fullest extent permitted by law, Alana disclaims any and all warranties, statutory, express or implied, with respect to the Beta Services including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.
- FEES AND PAYMENTS
You will pay the Fees applicable to your Service and any other applicable fees, including but not limited to fees relating to the processing of transactions under your Account (“Transaction Fees”). Together, the Transaction Fees and any Additional Fees are referred to as the “Fees”.
You must keep a valid credit card on file with us to pay for all incurred and recurring Fees. Alana will charge applicable Fees to the credit card account that you authorize (“Authorized Card”), and Alana will continue to charge the Authorized Card (or any replacement card) for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Account Owner via the email provided.
You must maintain your current location and promptly update your location if you move jurisdictions. If you change jurisdictions you must promptly inform Alana by email of such change at email@example.com
Alana does not provide refunds.
(A) GENERAL TERMS
Payment Due at Time of Order; Non-Refundable. You agree to pay all amounts due for Services at the time orders are placed. All amounts are non-refundable.
Price Changes. Alana reserves the right to change its prices and fees at any time. Changes in prices and fees shall be effective when the Services in question come up for renewal as further described below.
Payment Types. Except as prohibited in any product-specific agreement, you may pay for Services by using any of the following “Payment Methods”: (i) valid credit card; (ii) electronic payment from your personal or business checking account, as appropriate (and as defined below); (iii) PayPal.
Monthly Billing Date. If you are being billed on a monthly basis, your monthly billing date will be based on the date of the month Services were rendered, unless that date falls after the 28th of the month, in which case your billing date will be the 28th of each month.
Auto-Renewal Terms. Other than as required by applicable law, Alana does not retain hard copies or electronic versions of mandate, standing order or standing instruction forms and/or any signed consents relating to your usage of our automatic renewal services, and we are therefore unable to provide any such document upon request.
In order to ensure that you do not experience an interruption or loss of Services, all Services are offered on automatic renewal. Except for reasons described below in this section, automatic renewal automatically renews the applicable Service upon expiration of the then current term for a renewal period equal in time to the most recent service period. For example, if your last service period is for one year, your renewal period will typically be for one year.
In addition, Alana may participate in “recurring billing programs” or “account updater services” supported by your credit card provider (and ultimately dependent on your bank’s participation). If we are unable to successfully charge your existing Payment Method, your credit card provider (or your bank) may notify us of updates to your credit card number and/or expiration date, or they may automatically charge your new credit card on our behalf without notification to us. In accordance with recurring billing program requirements, in the event that we are notified of an update to your credit card number and/or expiration date, Alana will automatically update your payment profile on your behalf. Alana makes no guarantees that we will request or receive updated credit card information. You acknowledge and agree that it is your sole responsibility to modify and maintain your Account settings, including but not limited to (i) cancelling products and (ii) ensuring your associated Payment Method(s) are current and valid. Further, you acknowledge and agree that your failure to do so, may result in the interruption or loss of Services, and Alana shall not be liable to you or any third party regarding the same.
If for any reason Alana is unable to charge your Payment Method for the full amount owed, or if Alana receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to your Payment Method, you agree that Alana may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation, without notice to you, of any domain names or Services registered or renewed on your behalf. Alana also reserves the right to charge you reasonable “administrative” fees” for (i) tasks Alana may perform outside the normal scope of its Services, (ii) additional time and/or costs Alana may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by Alana in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention; (ii) UDRP actions(s) in connection with your sites(s) and/or disputes that require accounting or legal services, whether performed by Alana staff or by outside firms retained by Alana; (iii) recouping any and all costs and fees, including the cost of Services, incurred by Alana as the results of chargebacks or other payment disputes brought by you, your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method you have on file with Alana.
(B) REFUND POLICY
Alana does not provide refunds.
- ADDITIONAL RESERVATION OF RIGHT
Alana expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any Account or Services for any reason (as determined by Alana in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by Alana in offering or delivering any Services, (ii) to assist with our fraud and abuse detection and prevention efforts, (iii) to comply with court orders against you and/or your site and applicable local, state, national and international laws, rules and regulations, (iv) to comply with requests of law enforcement, including subpoena requests, (v) to comply with any dispute resolution process, (vi) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, (vii) to avoid any civil or criminal liability on the part of Alana, its officers, directors, employees and agents, as well as Alana’s affiliates, including, but not limited to, instances where you have sued or threatened to sue Alana, or (viii) to respond to an excessive amount of complaints related in any way to your Account, site(s), or content on your site that could result in damage to Alana’s business, operations, reputation or shareholders.
Alana expressly reserves the right to review every Account for excessive space and bandwidth utilization, and to terminate or apply additional fees to those Accounts that exceed allowed levels.
Alana expressly reserves the right to terminate, without notice to you, any and all Services where, in Alana’s sole discretion, you are harassing or threatening Alana and/or any of Alana’s employees.
Alana Content. Except for User Content, the content on this Site and the Services , including without limitation the machine readable codes, text, software, scripts, source code, API, graphics, photos, sounds, music, videos and interactive features and the trademarks, service marks and logos contained therein (“Alana Content”), are owned by or licensed to Alana in perpetuity, and are subject to copyright, trademark, and/or patent protection in the United States and foreign countries, and other intellectual property rights under United States and foreign laws. Alana Content is provided to you “as is”, “as available” and “with all faults” for your information and commercial use only as specified. Alana reserves all rights not expressly granted in and to the Alana Content, this Site and the Services, and this Agreement do not transfer ownership of any of these rights.
- NO SPAM; LIQUIDATED DAMAGES
No Spam. We do not tolerate the transmission of spam. We monitor all traffic to and from our web servers for indications of spamming and maintain a spam abuse complaint center to register allegations of spam abuse. Customers suspected to be using our products and services for the purpose of sending spam are fully investigated. If we determine there is a problem with spam, we will take the appropriate action to resolve the situation.
We define spam as the sending of Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE) or Unsolicited Facsimiles (Fax), which is email or facsimile sent to recipients as an advertisement or otherwise, without first obtaining prior confirmed consent to receive these communications.
We will not allow our servers and services to be used for the purposes described above. In order to use our products and services, you must not only abide by all applicable laws and regulations, which include the Can-Spam Act of 2003 and the Telephone Consumer Protection Act, but you must also abide by this no spam policy. Commercial advertising and/or bulk emails or faxes may only be sent to recipients who have “opted-in” to receive messages. They must include a legitimate return address and reply-to address, the sender’s physical address, and an opt-out method in the footer of the email or fax. Upon request by us, conclusive proof of opt-in may be required for an email address or fax number.
If we determine the account, products, or services in question are being used in association with spam, we may re-direct, suspend, or cancel any account, web site hosting, domain registration, email boxes, or other applicable products or services. In such event, at our election, we may require you to respond by email to us stating that you will cease to send spam and/or have spam sent on your behalf and to require a non-refundable reactivation fee to be paid before the site, email boxes, and/or services are reactivated.
Liquidated Damages. You agree that we may immediately terminate any Account which we believe, in our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then you agree to pay us liquidated damages in the amount of $1.00 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your Account.
- THIRD PARTY SERVICES
In addition to these Terms of Service, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, Alana’s partners or other third parties.
Alana does not provide any warranties with respect to Third Party Services. You acknowledge that Alana has no control over Third Party Services and shall not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services on Alana’s websites, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Alana. Alana does not guarantee the availability of Third Party Services and you acknowledge that Alana may disable access to any Third Party Services at any time in its sole discretion and without notice to you. Alana is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. Alana strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates you should charge to your customers.
If you install or enable a Third Party Service for use with the Services, you grant us permission to allow the applicable Third Party Provider to access your data and to take any other actions as required for the inter-operation of the Third Party Service with the Services, and any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. Alana is not responsible for any disclosure, modification or deletion of your data or other Materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other Materials.
Google Maps is a Third Party Service that may be used within the Services. Your use of the Service is subject to your acceptance of the Google Maps and Earth Enterprise Universal Acceptable Use Policy, as it may be amended by Google from time to time.
Under no circumstances shall Alana be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever that result from any Third Party Services or your contractual relationship with any Third Party Provider, including any Expert. These limitations shall apply even if Alana has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
You agree to indemnify and hold Alana and (as applicable) our subsidiaries, affiliates, Alana partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.
- LINKS TO THIRD-PARTY WEBSITES
This Site and the Services found at this Site may contain links to third-party websites that are not owned or controlled by Alana. Alana assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. In addition, Alana does not censor or edit the content of any third-party websites. By using this Site or the Services found at this Site, you expressly release Alana from any and all liability arising from your use of any third-party website. Accordingly, Alana encourages you to be aware when you leave this Site or the Services found at this Site and to review the terms and conditions, privacy policies, and other governing documents of each other website that you may visit.
- DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
You specifically acknowledge and agree that your user of this site and services found at this site shall be at your own risk and that this site and the services found at this site are provided “as is,” and “with all faults.” Alana, its officers, directors, employees, agents, and all third party service providers disclaim all warranties, statutory, express or implied, including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Alana, its officers, directors, employees and agents make no representations or warranties about (i) the accuracy, completeness, or content of this site, (ii) the accuracy, completeness, or content of any sites linked (through hyperlinks or otherwise) to this site, and/or (iii) the services found at this site or any sites linked (through hyperlinks or otherwise) to this site, and Alana assumed no liability or responsibility for the same.
In addition, you specifically acknowledge and agree that no oral or written information or advice provided by Alana, its officers, directors, employees or agents (including without limitation its call center or customer service representatives), and third party service providers will (1) constitute legal or financial advice or (ii) create a warranty of any kind with respect to this site or the services found at this site, and users should not rely on any such information or advice.
The foregoing disclaimer of representations and warranties shall apply to the fullest extent permitted by law, and shall service any termination or expiration of this agreement or your use of this site or the services found at this site.
- LIMITATION OF LIABILITY
In no event shall Alana, its officers, directors, employees, agents, and all third party providers, be liable to you or any other person or entity for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever, including any that may result from (i) the accuracy, completeness, or content of this site, (ii) the accuracy, completeness, or content of any sites linked (through hyperlinks or otherwise) to this site, (iii) the services found at this site or any sites linked (through hyperlinks or otherwise) to this site, (iv) personal injury or property damage of any nature whatsoever, (v) third-party conduct of any nature whatsoever, (vi) any unauthorized access to or use of our servers and/or any and all content, personal information, financial information or other information and data stored therein, (vii) any interruption or cessation of services to or from this site or any sites linked (through hyperlinks or otherwise) to this site, (viii) any viruses, worms, bugs, Trojan horses, or the like, which may be transmitted to or from this site or any sites linked (through hyperlinks or otherwise) to this site, (ix) any user content or content that is defamatory, harassing, abusive, harmful to minors or any protected class, pornographic, “X-rated,” obscene or otherwise objectionable, and/or (x) any loss or damage of any kind incurred as a result of your use of this site or the services found at this site, whether based on warranty, contract, tort, or any other legal or equitable theory, and whether or not Alan is advised of the possibility of such damages
In addition, you specifically acknowledge and agree that in no event shall Alana’s total aggregate liability exceed $200 U.S. Dollars.
The foregoing limitation of liability shall apply to the fullest extent permitted by law, and shall survive any termination or expiration of this agreement or your use of this site or the services found at this site.
You agree to protect, defend, indemnify and hold harmless Alana and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by eKaisha directly or indirectly arising from (i) your use of and access to this Site or the Services found at this Site; (ii) your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.
- COMPLIANCE WITH LOCAL LAWS
Alana makes no representation or warranty that the content available on this Site or the Services found at this Site are appropriate in every country or jurisdiction, and access to this Site or the Services found at this Site from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Site or the Services found at this Site are responsible for compliance with all local laws, rules and regulations.
- DISPUTES, BINDING INDIVIDUAL ARBITRATION AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE PROVISIONS REQUIRING YOU TO RESOLVE DISPUTES THROUGH INDIVIDUAL ARBITRATION.
(A) Disputes. The terms of this Section shall apply to all Disputes between you and Alana. For the purposes of this Section, “Dispute” shall mean any dispute, claim, or action between you and Alana arising under or relating to any Alana Services or Products, Alana’s websites, these Terms, or any other transaction involving you and Alana, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. You and Alana agree that “dispute” as defined in these terms shall not include any claim or cause of action by you or Alana for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, and (iv) trademark infringement or dilution. Moreover, notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
(B) Binding Arbitration. You and Alana further agree: (i) to arbitrate all Disputes between the parties pursuant to the provisions in these Terms; (ii) these Terms memorialize a transaction in interstate commerce; (iii) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section; and (iv) this Section shall survive termination of these Terms. Arbitration means that you waive your right to a judge or jury in a court proceeding and your grounds for appeal are limited. The arbitrator may award you the same damages as a court sitting in proper jurisdiction, as limited by the Limitation of Liability set forth in Section 17 of this Agreement and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, 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. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
(C) Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
(D) Dispute Notice. In the event of a Dispute, you or Alana must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to Alana must be addressed to: Alana, 11040 Bollinger Canyon Rd., Ste. E 880, San Ramon, CA 94582, Attn.: Legal Department (the “Alana Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If Alana and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or Alana may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
(E)Waiver of class actions and class arbitrations. You and Alana agree that each party may bring disputes against the other party only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, including without limitation federal or state class actions, or class arbitrations. Neitehr you nor Alana will seek to have any dispute heard as a class action, private Attorney General action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitations or proceedings.
(F) Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be administered by the American Arbitration Association (“AAA”) and governed by the Consumer Arbitration Rules of the AAA (“AAA Rules”) in conjunction with the rules set forth in these Terms, except that AAA may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. The AAA Rules are at www.adr.org or by calling 1-800-778-7879. If there is a conflict between the AAA Rules and the rules set forth in these Terms, the rules set forth in these Terms shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws, as limited by the Limitation of Liability set forth in Section 17 of this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these Terms. 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 also have exclusive authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trademark infringement or dilution, which are excluded from the definition of “Disputes” as stated above. 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. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in Contra Costa County, California.
- SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
- NO THIRD-PARTY BENEFICIARIES
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
- U.S. EXPORT LAWS
This Site and the Services found at this Site are subject to the export laws, restrictions, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). Users shall not use the Services found at this Site to collect, store or transmit any technical information or data that is controlled under U.S. Export Laws. Users shall not export or re-export, or allow the export or re-export of, the Services found at this Site in violation of any U.S. Export Laws. None of the Services found at this Site may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws. By using this Site and the Services found at this Site, you agree to the foregoing and represent and warrant that you are not a national or resident of, located in, or under the control of, any restricted country; and you are not on any denied parties list; and you agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If you access this Site or the Services found at this Site from other countries or jurisdictions, you do so on your own initiative and you are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, you shall not access this Site or the Services found at this Site. The obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.
- TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
- ENGLISH LANGUAGE CONTROLS
This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language.
- CONTACT INFORMATION
If you have any questions about this Agreement, please contact us by email or regular mail at the following address:
Alana Legal Department
11040 Bollinger Canyon Rd., Ste. E 880
San Ramon, CA 94582
Copyright © 2018 Alana. All Rights Reserved.