Welcome to AverQ, Inc. (AverQ, subscription-based, Unified Transparency Apps Service (Service)). It is offered as a Paid Subscription Service, which may be initiated by registering Your Company and agreeing to the terms and conditions of this Agreement. Paid Subscriptions shall be also be evidenced by an Order Form executed by you.
If you register for a Free Trial for our services or are invited for a Free Trial of our services, this agreement will also govern that Free Trial. Your registration for, or use of, the Service shall be deemed to be your assent to abide by this Agreement including any materials available on AverQ’s website –http://averq.com/service-agreement/ incorporated by reference herein. AverQ reserves the right to update and change, from time to time, these Additional Terms and all documents incorporated by reference. You can always find the most recent version of these Additional Terms at http://averq.com/service-agreement/ .
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
- License Grant & Restrictions. AverQ hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you in the Agreement are reserved by AverQ and its licensors. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device, without the express written consent of AverQ; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
- Your Responsibilities. You are responsible for all activity occurring in your service account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Accounts registered by “bots” or other automated methods are not permitted. Each user account you create may only be used by one person – a single login shared by multiple people is not permitted. You and each user you create are responsible for maintaining the security of their respective accounts and password. AverQ cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You are responsible for all content posted and activity that occurs under your account even when content is posted by others who have accounts under your account.
- Account Information and Data. Except as otherwise provided, AverQ does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Data”). You, not AverQ, shall have sole ownership and are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and AverQ shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), AverQ will make available to you a file of the Customer Data of whatever is then possible to export, within 30 days of termination upon written request at the time of termination. AverQ reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and AverQ shall have no obligation to maintain or forward any Customer Data.
- Intellectual Property Ownership. AverQ alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to AverQ Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, AverQ Technology or the Intellectual Property Rights owned by AverQ, The AverQ name, AverQ logo, and the product names associated with the Service are trademarks of AverQ or third parties, and no right or license is granted to use them. The look and feel of the Service is copyrighted. All rights reserved. You may not duplicate, copy, or reuse any portion not limited to visual design elements, features and documentation without express written permission from AverQ.
- Privacy & Security; Disclosure AverQ’s privacy and security policies may be viewed at http://www.averq.com/privacy.html. AverQ reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. If you become a user of the Service, you agree that AverQ can disclose the fact that you are a user of the Service.
- Charges and Payment of Fees You shall pay any and all applicable fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments shall be made in accordance with the terms and conditions set forth by AverQ’s Order Form, or as otherwise mutually agreed upon. You are responsible for paying any then, generally applicable fees or charges during the applicable billing period.The Service is billed in advance on an annual basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made. AverQ reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
- Billing and Renewal. AverQ will charge and collect for use of the Service in accordance with its billing practices and procedures then in effect. AverQ will automatically renew and bill your credit card or issue an invoice to you for any applicable billing period, or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of Subscriptions subscribed to on the AverQ Order Form, plus any additional Subscriptions utilized over and above the number subscribed to on the AverQ Order Form during any applicable billing period, multiplied by the subscription fee in effect during the applicable billing period, unless AverQ has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services such as prior audit data migration, special purpose reports and integrations etc. will be charged on an as-quoted basis. AverQ’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on AverQ’s income.
- Non-Payments and Suspension. In addition to any other rights granted to AverQ herein, AverQ reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent. Delinquent invoices are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for Subscriptions during any period of suspension. If you or AverQ initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the charges and payment of fees noted above. You agree that AverQ may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. AverQ reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service.
- Termination.This Agreement commences on the start date you agree to use the Service by creating an account on the Service, or as designated on any AverQ Order Form, or otherwise. Use of the Service may be terminated at any time in AverQ’s sole discretion. Upon the expiration of any applicable term of the Service, this Agreement will automatically renew for successive renewal terms at AverQ’s then current and applicable fees and charges for Subscriptions. Either party may terminate this Agreement, effective only upon the expiration of the then current Subscription Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the succeeding monthly term. If you terminate this Agreement prior to the expiration of the subscription term, you will be subject to AverQ’s then in effect early termination fee.
- Termination for Cause. Any breach of your payment obligations or unauthorized use of AverQ Technology or Service will be deemed a material breach of this Agreement. AverQ, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that AverQ has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement. including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
- Representations & Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. AverQ represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online AverQ help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
- Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
- Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
- Mutual Indemnification. You shall indemnify and hold AverQ, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that AverQ (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release AverQ of all liability and such settlement does not affect AverQ’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim. AverQ shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Artifact of its representations or warranties; or (iii) a claim arising from breach of this Agreement by AverQ; provided that you (a) promptly give written notice of the claim to AverQ; (b) give AverQ sole control of the defense and settlement of the claim (provided that AverQ may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to AverQ all available information and assistance; and (d) have not compromised or settled such claim. AverQ shall have no indemnification obligation, and you shall indemnify AverQ pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
- Disclaimer of Warranties. AVERQ AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. AVERQ AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ARTIFACT AND ITS LICENSORS.
- Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- General. This Agreement shall be governed by the laws of the State of California and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California. No text or information set forth on any other purchase order, preprinted form or document (other than an AverQ Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and AverQ as a result of this agreement or use of the Service. The failure of AverQ to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Artifact in writing. This Agreement, together with any applicable AverQ Order Form, comprises the entire agreement between you and AverQ and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.