This Terms of Service (the “Agreement”) is made and entered into between Avatria, Inc. (“Avatria”) and you (hereinafter “Customer”) and applies to Customer’s access to Avatria’s software as a service solution (“Avatria Convert”) and any application, application programming interface (“API”), service, feature, content, Training Service and/or online service where this Agreement is posted now or in the future (collectively the “Services”).
By creating an account, submitting a registration form and/or by accessing and/or using the Services, Customer acknowledges and agrees that Customer has read, understands and agrees to be bound by all of the terms and conditions of this Agreement, as well as all other applicable rules or policies, terms and conditions or agreements that are or may be established by Avatria from time to time and the foregoing shall be incorporated herein by reference. If Customer is an individual agreeing to this Agreement on behalf of the Customer’s legal entity, Customer represents that such individual has the legal authority to bind such entity. If Customer does not agree with this Agreement, Customer must not use the Services. The terms and conditions of this Agreement will exclusively govern Customer’s access to and use of the Services. This Agreement is entered into as of the earlier of (i) the date Customer first registers an account that is accepted by Avatria or (ii) Customer’s initial access to and/or use of the Services (“Effective Date”).
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN ARTICLE 15, CUTOMER AGREES THAT DISPUTES BETWEEN CUSTOMER AND AVATRIA WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND CUSTOMER WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.
Scope of Use.
Services. The Services encompass a service solution for data analytics of ecommerce trends and buying patterns with respect to Customer’s site visitors. Customers use the Services to assist in determining the optimal order of products and related search pages using third-party analytics platforms, including without limitation, ‘Google’ analytics. Customer must make its own independent determination regarding the information, recommendations and/or reports generated through the Services. Avatria will provide Customer with access to documents online through its website and such documents will outline features of the service, support information and how-to guides (collectively “Training Services”). Upon the Customer’s request, additional phone and/or email Training Services may be provided during regular business hours at Avatria’s then-current rates.
Use of the Services. Customer is solely responsible for obtaining, maintaining, installing and supporting all ‘Internet’ access, computer hardware, software, telecommunications capabilities and other equipment and services (specifically including responsibility for providing appropriate personal computers and mobile devices) needed for it and its authorized users to access the Services. Customer shall ensure that its network and systems comply with the relevant specifications provided by Avatria from time to time and shall provide Avatria with information as may be required by Avatria in order to provide the Services. Customer shall be responsible for (a) providing proper controls and/or access to Customer’s third-party analytics account including without limitation, its ‘Google Analytics’ account; (b) the implementation and/or ongoing maintenance of its analytics account; (c) uploading any necessary documents into the Service; and/or (d) implementing any recommendations derived from the Services. Avatria retains the right, in its sole discretion, to deny service and/or access to and/or use of the Services to anyone at any time for any reason without liability. While Avatria uses reasonable efforts to keep the Services accessible, the Services may be unavailable from time to time. Customer understands and agrees that there may be interruptions to the Services and/or access to Customer’s account due to circumstances both within Avatria’s control (e.g., routine maintenance) and outside of Avatria’s control. The Services may be modified, updated, suspended and/or discontinued at any time without notice and/or liability.
License. Avatria has developed and provides access to the API that may be used for programmatically accessing the Services. Subject to the terms and conditions of this Agreement, Avatria grants to Customer a nonexclusive, nontransferable, non-sublicensable, revocable right and license during the term to: (a) use the API in the manner expressly provided by Avatria; and (b) use the Avatria API to develop, implement and distribute certain features solely for use by Customer in connection with the Service. Customer shall not use the API for any other purpose without Avatria’s prior written consent. Due to the nature of the Services, Avatria will update the API and related documentation from time to time, and may add or remove functionality.
API Calls. The number of API calls Customer will be permitted to make during any given period shall be set forth in Customer’s selected subscription plan. Unused API calls will not roll over to the next month.
Notwithstanding anything herein to the contrary, Avatria reserves the right, without liability to the Customer, to disable and/or suspend the Customer’s access to the Services in the event (a) of any breach or anticipated breach of this Agreement, (b) Customer and/or its users use of the Services disrupts and/or poses a security risk to the Services and/or any other customer, may harm Avatria’s systems and/or any provider of any third-party services and/or may subject Avatria and/or any third-party to liability; (c) Customer and/or its authorized users are using the Services for fraudulent and/or illegal activities; and/or (d) Avatria’s continued provision of any of the Services to the Customer is prohibited by applicable law.
Data Security; Unauthorized Access. Customer acknowledges and agrees that Avatria utilizes third-party service providers to host and provide the Services and store Customer data and the protection of such data will be in accordance with such third party’s safeguards for the protection and the security and confidentiality of Customer’s data. Customer is responsible for properly configuring and using the Services and taking appropriate steps to maintain security, protection and backup of all Customer Content (as defined in Section 7.3 herein) and data. Avatria is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of, Customer Content and data or other information that Customer or its users submits and/or uses in connection with the Services (including as a result of Customer errors, acts or omissions).
Errors, Inaccuracies, Omissions and Performance. Occasionally there may be information on the Services that contain typographical errors, inaccuracies, and/or omissions that may relate to services, information, and data. Avatria reserves the right to (i) correct any errors, inaccuracies, and/or omission; and/or (ii) make changes to content, descriptions, service and/or other information without obligation to issue any notice of such changes, except as prohibited by law. Avatria also reserves the right to revise, suspend and/or terminate an event and/or promotion at any time without notice and without liability. Customer acknowledges that the Services may not function in the event Customer has implemented improper tags and/or if Customer is missing tags or other relevant data as further set forth in the Services. Customer further agrees that Avatria shall not be liable for any inaccuracies or functionality of the Services based on data accuracy of such third parties and related services, including but not limited to ‘Google Analytics.’
Creating an Account. Customer may establish an account through the Services. Customer’s account requires Customer to (i) indicate agreement to this Agreement, (ii) provide contact information, and (iii) submit any other form of authentication required during the enrollment process, as determined by Avatria in its sole and absolute discretion. Customer may have multiple authorized users as determined through the applicable Services level chosen. When initially registering an account, Customer may determine the administrative user authorized to control Customer’s account access and/or controls. If Customer establishes an account with Avatria, Customer agrees to provide true, accurate and current information in connection with Customer’s account. Customer will ensure that its users of the Services abide by the terms and conditions of this Agreement and Customer acknowledges and agrees that it shall be fully liable for any breach of the terms set forth herein. The Customer will determine the access controls for its users and will be liable for activity occurring under Customer’s account, including compliance with the terms and conditions of this Agreement. Customer agrees to (a) maintain the accuracy and completeness of information provided to Avatria and agrees to provide any changes to Avatria within thirty (30) days after any such change and (b) notify Avatria immediately of any unauthorized access to, or use of the Services.
Maintenance; Modification. Avatria will make available to the Customer updates, patches and bug fixes with respect to the Services as may, from time to time, be developed and made generally available by Avatria to its customers. Avatria reserves the right to modify and/or discontinue, temporarily and/or permanently, the Services and/or any features or portions thereof without prior notice. Customer agrees that Avatria will not be liable for any modification, suspension and/or discontinuance of the Services or any part thereof.
Illegal Use. Customer shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Services that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, (ii) facilitates illegal activity, and/or (iii) causes damage or injury to any person or property. “Virus” shall mean any thing or device (including without limitation any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device, prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise) and/or adversely affect the user experience, including worms, ‘Trojan’ horses, viruses and other similar things or devices. Notwithstanding anything herein to the contrary, Avatria reserves the right, without liability to the Customer, to disable or suspend the Customer’s access to the Services in the event (a) of any breach or anticipated breach of this Agreement (b) Customer and/or its users use of the Services disrupts or poses a security risk to the Services and/or any other Customer, may harm Avatria’s systems and/or any provider of any third-party services and/or may subject Avatria and/or any third-party to liability; (c) Customer and/or its authorized users are using the Services for fraudulent or illegal activities; and/or (d) Avatria’s continued provision of any of the Services to the Customer and/or its users is prohibited by applicable law.
Prohibited Conduct. Except as expressly permitted hereunder, Customer shall not, directly or indirectly, without the express, prior written consent of Avatria: (i) use or permit the use of, reproduce or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, or transfer the Services or any portion thereof, or any of Customer’s rights thereto; (ii) merge any Services or any portion thereof with any other program or materials; (iii) reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of any Services or any other compiled software provided or made available by Avatria hereunder; (iv) adapt, translate, localize, port, or otherwise modify any Services or any other compiled software provided or made available by Avatria hereunder; (v) remove, obliterate, or cancel from view any copyright, trademark, or other proprietary or confidentiality notice or legend appearing on or in any materials provided or made available by Avatria hereunder, or fail to reproduce any such notice or legend on any copy made of any such materials; (vi) take any action that materially interrupts or interferes with, or that might reasonably have been expected to materially interrupt or interfere with, the Services, Avatria’s business operations or other Customers; (vii) submit and/or transmit any emails, Customer Content or other materials through the Service; (viii) copy or imitate part or all of the design, layout and/or look and feel of the Services in any form or media; and (ix) permit any other user, person or entity to engage in any of the foregoing conduct. In the event of Customer’s breach of Section 2.3 or Section 2.4, Avatria may terminate Customer’s account immediately.
Fees. In consideration of the provision of Services described herein, Customer shall pay Avatria the Fees set forth herein
Subscription Fee. Customer agrees to pay Avatria a monthly subscription fee for the subscription tier selected by Customer (“Subscription Fee”). The Subscription Fee is due and payable monthly in advance.
Usage Fee. Customer agrees to pay Avatria a monthly usage fee based on the data processing that Customer requires, which includes user sessions, API requests and/or user accounts in excess of the number allotted in the Subscription Fee (“Usage Fee”). The Usage Fee is due and payable monthly in arrears and shall be billed based on Customer’s actual usage within an applicable calendar month.
Add-On Service Fee. Customer may choose to add-on features and services with pricing and/or billing to be based on the feature and/or service (“Add-On Service Fee”). The Subscription Fee, Usage Fee and Add-on Service Fee shall collectively be referred to herein as “Fee(s)”.
Badge. Avatria may from time to time offer Customer discounts in the event Customer displays an Avatria Convert badge on Customer’s website (“Badge Discount”). The Badge Discount will apply to future monthly Subscription Fees and/or monthly Usage Fees only and subject to Avatria’s rules and/or limitations as determined by Avatria in its sole and absolute discretion. Avatria reserves the right to terminate a Badge Discount at any time in its sole discretion for any reason.
Notwithstanding anything herein to the contrary, Fees and charges are subject to change by Avatria at any time upon thirty (30) days prior notice to Customer. All Fees, expenses and taxes due hereunder will be paid in U.S. dollars. All Fees due and payable by Customer to Avatria under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. For avoidance of doubt, refunds (if any) shall be in the sole and absolute discretion of Avatria.
Payment. Except for Add-On Service Fees, Customer shall receive a single combined invoice through Customer’s account for the Subscription Fee and the prior month’s Usage Fee at the beginning of each billing cycle. For avoidance of doubt, payment for Fees are due prior to accessing and/or use of the Services.
Credit Card Payments; ACH. All Fees shall be deducted from a payment account designated by Customer. Customer authorizes Company and/or its third-party service provider to automatically charge the payment account for the Fees in advance or as otherwise agreed to by the parties to such credit card or debit the bank account provided to Avatria until the Services are terminated as set forth in this Agreement. If Customer’s payment account on file is closed or the account information is changed, or if, for any reason, a charge is rejected by Customer’s payment account, Customer shall immediately update Customer’s payment account or supply a new payment account, as appropriate. If Customer is unable to update its payment account with appropriate information, then Company will send an invoice to Customer detailing the amount due. Customer must pay the amount due in full within seven (7) days of the date of the invoice. Upon Avatria’s request, Customer agrees to promptly complete and submit a credit card authorization and/or ACH authorization form to Avatria, as applicable. Customer permanently and irrevocably waives any and all right to enact a 'chargeback' (that is, a disputed, reversed or contested charge with the applicable bank, credit card or charge card) against such payments for any reason whatsoever against Avatria.
Expenses; Taxes. Customer shall promptly reimburse Avatria for any out-of-pocket expenses reasonably incurred in connection with the performance of the Services. Fees are exclusive of applicable taxes. Customer is responsible for all taxes, fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all Fees under this Agreement (collectively, “Taxes”) except for taxes based on Avatria’s net income and/or payroll taxes. Customer will indemnify, defend and hold harmless Avatria for all taxes imposed which may be attributable to the Services.
Out of Scope Services. In the event Customer requests additional services outside the scope of Services described herein, then Customer shall submit such request in writing to Avatria. Thereafter, the parties shall memorialize any agreed upon changes in writing by entering into a separate agreement.
Late Payment. In the event that Fees are not paid on a timely basis, including without limitation due to an invalid account and/or expired credit card number, Avatria may, in addition to other available remedies, disable the password, account and access to all or part of the Services if any Fees, charges and/or expenses are not paid immediately. In the event of the foregoing, Avatria shall not be obligated to provide any or all of the Services until such Fees, charges and/or expenses are paid in full. Customer acknowledges and agrees that Avatria shall not be in breach of this Agreement or liable for failure to perform in the event Customer fails to make payments when due hereunder.
This Agreement shall commence on the Effective Date and shall continue for a trial period of thirty (30) days thereafter, unless otherwise extended by Avatria or in the event Customer subscribes to the Services or terminated earlier by Customer or Avatria in accordance with the terms and conditions set forth herein. Thereafter, in order to continue utilizing the Services, Customer shall choose the applicable subscription level and such renewal term shall commence on the date Customer makes such election and shall continue for the applicable timeframe related to such subscription level, unless terminated earlier in accordance with the terms and conditions set forth herein. Thereafter, the Services will automatically renew for the applicable timeframe related to such subscription level and the then-current rate applicable to such subscription level, unless terminated earlier in accordance with the terms and conditions set forth herein.
If Customer violates this Agreement or if Avatria has grounds to suspect that Customer violated this Agreement and/or other use parameters included on the Services, Avatria may refuse use of the Services (or any portion thereof). Avatria also reserves the right, in its sole discretion, to terminate Customer’s access to the Services or any portion thereof at any time, without cause and/or without notice and without liability. In the event Customer fails to pay for the access granted (if applicable), and/or share the access granted with any person and/or entity, and/or misuse the system by any means actionable under a federal, state, and/or local statute, code, regulation, law, and/or civil action, Avatria will consider Customer’s access as having been acquired by fraud and/or misrepresentation and will terminate Customer’s access. In such a case, Avatria retains the right to seek civil and/or criminal redress, the entire cost of which shall be borne solely by Customer.
Customer may terminate its subscription directly in the Services at any time; provided, however, in the event Customer terminates its account, Customer’s effective date of termination shall be the last day of the then-current applicable term.
Effect of Termination. In the event of termination, Customer shall pay all outstanding Fees, charges and expenses incurred through the end of the then-current term of this Agreement, including without limitation all Usage Fees incurred following notice of termination that Customer incurs during the then-current billing cycle. Upon termination, any Customer Content and/or other materials within the Services may not be retrievable and Avatria will have no obligation to maintain Customer Content in Customer’s account following termination.
Confidential Information. During the term of this Agreement, the parties may have access to certain information that is not generally known to others including any and all information relating to the party and its business including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement ("Confidential Information"). The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”
Receiving Party. Receiving Party agrees not to use or disclose the Confidential Information, and may disclose the Confidential Information only as necessary and appropriate to perform its obligations hereunder and to receive the benefit of the Services in accordance with this Agreement to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement. The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement. The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written consent and without such third party having a contractual obligation (consistent with this Article 6) to keep such Confidential Information confidential. The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.
Exclusions. Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; and/or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.
Legal Requirements. If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a "Legal Requirement"), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.
Confidentiality Breach. The parties agree that ownership of any IP (as defined in Article 7) in any materials owned by the other party shall remain with that party, and nothing in this Agreement shall imply that any right or license in respect of such IP is being granted to the other party.
Disposition of Confidential Information on Termination or Expiration. Upon termination or expiration of this Agreement or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control. Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed. The obligations with respect to Confidential Information, as set forth in this Article 6, shall continue in force and effect for a period of five (5) years after termination or expiration of this Agreement or, with respect to such portions of such Confidential Information that constitute trade secrets under applicable law, for so long as such trade secret status is maintained.
Remedy. Each party acknowledges that a breach of this Article 6 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. The terms of this Article 6 shall survive the expiration or termination of this Agreement.
Intellectual Property. Avatria retains all rights, title, interest and ownership of, any and all IP and proprietary rights with respect to the Services, and any other materials provided or made available to Customer by Avatria hereunder. “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights. Except for the rights expressly granted to Customer in this Agreement, all such Services and other materials that are provided or made available, and all work product that is developed, under this Agreement, all modifications, compilations, and derivative works thereof, and all intellectual property and proprietary rights pertaining thereto, are and shall remain the property of Avatria and its respective licensors (and to the extent any rights of ownership in any such materials, works, or rights might, for any reason, otherwise vest in Customer, Customer hereby assigns such ownership rights to Avatria).
Rights. Avatria confirms that it has all the rights necessary to provide the Services described herein and has the ability to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
Avatria Warranty. Avatria represents and warrants that (i) the Services will perform substantially in accordance with the terms set forth herein, (ii) it will, at all times, comply with all applicable local, state, federal and foreign laws in providing the Services, and (iii) it has taken all action necessary for the approval of this Agreement. The warranty set forth in this Section 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Avatria’s instructions, or modification or alteration of the Services by any party other than Avatria and/or authorized by Avatria in writing.
Customer represents and warrants that (i) it will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Services and (ii) it has the requisite legal and corporate power, right, and authority to enter into this Agreement.
Remedy. Customer’s sole and exclusive remedy and Avatria’s sole and exclusive liability for any breach of Avatria’s warranties set forth herein is for Avatria to use commercially reasonable efforts to correct any non-conformance within a reasonable period of time or provide Customer with an alternative means of accomplishing the desired performance; provided that Customer notifies Avatria of such breach in writing within thirty (30) days after the date of Avatria’s alleged breach.
DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 OF THIS AGREEMENT, AVATRIA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES AND MATERIALS ARE PROVIDED BY AVATRIA ON AN “AS-IS” BASIS. AVATRIA DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICES AND MATERIALS (INCLUDING, BUT NOT LIMITED TO, ANY DOCUMENTATION, REPORTS, ADVICE AND RECOMMENDATIONS, IN ANY FORM) PROVIDED BY AVATRIA IN CONNECTION WITH THIS AGREEMENT, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR CONTINUOUSLY AVAILABLE. AVATRIA DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICE AND MATERIALS WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED. AVATRIA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM (A) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR (B) INABILITY TO ACCESS OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON.
Limitation of Liability
AVATRIA’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE GREATER OF (I) THE FEES PAID BY CUSTOMER TO AVATRIA FOR THE SERVICES PROVIDED DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM OR (II) ONE HUNDRED FIFTY DOLLARS (US$150.00). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL AVATRIA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA AND BUSINESS) WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, AND/OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY AVATRIA ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, AVATRIA’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Indemnification by Avatria. Avatria agrees to indemnify, defend and hold harmless Customer, its members, trustees, employees, agents, officers and officials, from and against any liabilities, losses, costs, damages, demands and expenses, including reasonable attorney fees, arising out of, or relating to, any claim (“Claim”) that Customer’s use of the Services constitutes infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. Notwithstanding anything herein to the contrary, the indemnity in this Section 10.1, shall not apply (i) to a Claim arising from any modification of the Services by Customer or any third party, or from the use of the Services in a manner contrary to those specific business functions as expressly provided under this Agreement, to the extent such modification or use resulted in the Claim, (ii) if such Claim results from Customer’s use of the Services after notice of the alleged or actual infringement from Avatria or any appropriate authority, and/or (iii) in the event of any breach of Customer’s obligations under this Agreement, or the use of the Services other than in connection with this Agreement, or in a manner not reasonably contemplated by this Agreement. The indemnities set forth herein shall survive the termination of this Agreement.
Indemnification by the Customer. Customer shall indemnify, defend and hold Avatria and its officers, associates, employees, contractors and agents harmless from and against all Claims arising out of or related to (i) Customer’s acts and/or omissions, (ii) Customer’s breach of the terms of this Agreement, (iii) Customer’s failure to use the Services in accordance with the terms and conditions set forth herein, and/or (iv) Avatria’s use of Customer’s IP and/or Customer Content constitutes an infringement, violation, trespass, contravention or breach of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party.
The indemnified party shall: (i) provide notice to the indemnifying party of any Claim immediately upon becoming aware of the same; (ii) provide the indemnifying party the sole right to conduct the defense of any claim or action, or the negotiation of any settlement, in respect of a Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express written instructions of the indemnifying party; and (iii) act in accordance with the reasonable instructions of the indemnifying party and gives the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense including without prejudice to the generality of the foregoing the filing of all pleadings and other court processes and the provision of all relevant documents. The indemnified party acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such claim. The indemnified party may reasonably participate in such defense, at its sole expense.
Claim. In the event of a Claim related to either party’s IP infringement indemnification obligations described herein, the indemnifying party shall be entitled at its own expense and option to (i) procure the right for indemnified party to continue utilizing the IP which is at issue; (ii) modify the IP to render same non-infringing; or (iii) replace the IP with an equally suitable, functionally equivalent, compatible, non-infringing IP. If none of the foregoing is possible as determined by the indemnifying party in its sole and absolute discretion, the indemnifying party may terminate this Agreement without liability upon written notice to indemnified party. This Section sets forth the indemnified party’s sole and exclusive remedy for any Claim related to either party’s IP infringement indemnification obligations described herein.
It is understood and agreed that the relationship of Avatria to Customer is and shall continue to be that of an independent contractor and neither Avatria nor any of Avatria’s employees shall be entitled to receive Customer employee benefits. Nothing in this Agreement will be construed to create an agency or employment relationship between Customer and Avatria for any purpose or create obligations of such party to third parties. As an independent contractor, Avatria agrees to be responsible for the payment of all taxes and withholdings specified by law, which may be due in regard to compensation paid by Customer.
Notwithstanding anything herein to the contrary, neither party shall be liable or deemed to be in default for any delay or failure in performance hereunder to the extent resulting, directly or indirectly, from acts of God, acts of war, terrorism, or civil insurrection, strikes, walkouts, or other organized labor interruptions, telecommunications or utility interruptions or failures, fire, explosions, floods, or other natural disasters, any similar cause or any third party beyond the reasonable control of such party, and any delay or failure of the other party to fulfill its obligations hereunder (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. Either party may terminate this Agreement by giving the other party written notice if the other party fails to perform those obligations for sixty (60) days due to such Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event shall never excuse the failure to make a payment due under this Agreement, except to the extent that the Force Majeure Event physically interferes with the delivery of the payment. The party whose performance is affected shall use commercially reasonable efforts to minimize the impact of such Force Majeure Event.
All notices required under this Agreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party's address, as subsequently modified by written notice.
This Agreement may be assigned by Avatria at any time and for any reason. This Agreement shall not be assigned, delegated or transferred by Customer without prior written consent from Avatria. This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.
Disputes. Before filing a claim against Avatria, Customer agrees to try to resolve the dispute informally by contacting us at firstname.lastname@example.org. Avatria will try to resolve the dispute by contacting Customer via email, but if Avatria cannot resolve the dispute within thirty (30) days of submission, Customer and/or Avatria agree to resolve any claims related to this Agreement through final and binding arbitration, except as forth under ‘Exceptions to Agreement to Arbitrate’ section below and/or Customer opts out as described below.
Opt-Out. Customer can opt-out and decline this agreement to arbitrate by contacting Avatria within thirty (30) day from the date that Customer first became subject to this arbitration provision (i.e.: the date Customer initially accepted this Agreement). Customer must write Avatria at Avatria, Inc., Attn: Opt-Out Arbitration, 4240 N. Avers Avenue, Chicago, Illinois 60618. If Customer opts out, neither Customer nor Avatria can require the other to participate in an arbitration proceeding.
Arbitration Procedures. Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below and/or if Customer opts out of arbitration as described herein, all claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration Association. Any such controversy and/or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. The arbitration shall be held in Cook County, Illinois USA or any other location Avatria agrees to. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings.
Exceptions to Agreement to Arbitrate. Either Customer and/or Avatria may assert claims, if it qualifies, in small claims court in Cook County, Illinois. Either party may bring a lawsuit for injunctive relief to stop unauthorized use and/or abuse of the Services, breach of Avatria’s confidential information and/or intellectual property infringement (for example, trademark, trade secret, copyright and/or patent rights) without first engaging in arbitration and/or the informal dispute-resolution process described in this Article 15.
Judicial forum for disputes. In the event that the agreement to arbitrate is found not to apply to Customer and/or Customer’s claim, Customer and Avatria agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Cook County, Illinois. Both Customer and Avatria consent to the foregoing venue and jurisdiction.
Avatria reserves the right to change and/or modify this Agreement and/or any policy and/or guideline of the Services, at any time and in its sole discretion. If Avatria makes material changes to this Agreement, Avatria will inform Customer by posting a notice on the Services and changing the ‘Last Updated’ date above. Avatria may also provide Customer with additional forms of notice of modifications and/or updates as appropriate under the circumstances. Any changes and/or modifications will be effective immediately upon posting the revisions to the Services, and Customer waives any right it may have to receive specific notice of such changes and/or modifications. Customer’s continued use of the Services will confirm Customer’s acceptance of such changes and/or modifications; therefore, Customer should frequently review this Agreement and applicable policies to understand the terms and conditions that apply to Customer’s use of the Services. If Customer does not agree to the amended terms, Customer must stop using the Services.
Governing Law. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Illinois, without regard to its choice of laws principles. Any action related to or arising from this Agreement shall take place exclusively in the courts situated in the City of Chicago, Cook County, Illinois and the parties hereby submit to the venue of the courts situated therein.
Waiver. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy, or option or in any way affect the validity of this Agreement. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
Linked Sites. The Services may provide links to various other independent third-party websites (“Linked Sites”) that may be of interest to Customer and for Customer’s convenience only. Avatria does not control and/or endorse such Linked Sites and is not responsible for their content nor is it responsible for the accuracy and/or reliability of any information, data, opinions, advice or statements contained within such Linked Sites. Customer will need to make its own independent judgment regarding Customer’s interaction with these Linked Sites at Customer’s own risk. Avatria reserves the right to terminate any link and/or linking program at any time. Avatria disclaims all warranties, express and implied, as to the accuracy, validity, and legality and/or otherwise of any materials or information contained on such Linked Sites.
Severability; Survival. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement.
Publicity. Customer hereby grants Avatria the right to use Customer’s name, trade name, trademark, logo, acronym, or other designation to identify Customer as Avatria’s customer in connection with brochures, advertising, promotional materials or otherwise, without the Customer’s prior consent. Avatria may further develop and publish a case study highlighting the Services provided for Customer in Avatria’s promotional materials including, but not limited to, its client lists, brochures, white papers and/or electronic media; provided that, Customer provides its prior approval of such usage, which shall not be unreasonably withheld, conditioned and/or delayed.
Headings. The headings and titles of the Sections of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.
Communications from Avatria. By using the Services, Customer agrees to receive certain communications in connection with the Services. When Customer access and/or use the Services, Customer is communicating with Avatria electronically, and Customer consents to receive communications from Avatria electronically including but not limited to notices related to the Services provided to Customer via email. Customer agrees that all agreements, notices, disclosures and/or other communications that Avatria provides to Customer electronically satisfy any legal requirement that such communications be in writing. Customer’s consent to receive records and notices electronically will remain in effect until Customer withdraws it. Customer may withdraw Customer consent to receive further records and notices electronically at any time by contacting Avatria. If Customer withdraws Customer’s consent to receive such records and notices electronically, Avatria will revoke Customer’s access to the Services. Any withdrawal of Customer’s consent to receive records and notices electronically will be effective only after Avatria has a reasonable period of time to process Customer’s request for withdrawal.
Counterparts. This Agreement and any amendments thereto may be executed in counterparts and will not be effective or enforceable unless and until it is executed by an authorized representative of each of the relevant entities.
Attorneys Fees. If either party brings legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover all fees, costs and expenses (including without limitation reasonable attorneys' fees) incurred in connection with the action.
Entire Agreement. This Agreement, together with the applicable documents referenced herein, constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.
Other Agreements. Customer may have other agreements with Avatria. Such agreements are separate and in addition to this Agreement. This Agreement does not modify, revise or amend the terms of any other agreements Customer may have with Avatria.
Outside Usage. This Agreement is written in English. To the extent any translated version of this Agreement conflicts with the English version, the English version controls. In the event Customer is using the Services outside of the United States, Customer agrees as follows (i) Customer consents to having its personal data transferred to and processed in the United States; (ii) if Customer is located in a country embargoed by the United States, or are on the U.S. Treasury Department's list of ‘Specially Designated Nationals’ Customer will not engage in commercial activities through the Services; and/or (iii) Customer will not use Avatria’s Services if Customer is prohibited from receiving products, services or software originating from the United States.