Avatria Convert Terms of Service
The Beta Product Terms of Service (the “Agreement”), made and entered into by and between Avatria, Inc., an Illinois corporation with a principal address at 4240 N. Avers Ave, Chicago, IL 60618 (hereinafter “Company”), and you (hereinafter “Customer”). If Customer agrees to this Agreement on behalf of an entity, or in connection with receiving services on behalf of an entity, Customer represents and warrants that Customer has authority to bind such entity or agency to this Agreement. In such event, “Customer” as used herein will refer and apply to such entity Customer chooses to sign up through the Beta Product (as defined herein). This Agreement along with any applicable registration constitutes a legally binding agreement between Company and Customer.
Company has developed certain proprietary information, ideas, product design and technology pertaining to a software as a service solution for data analytics of ecommerce trends and buying patterns with respect to customer site visitors (hereinafter “SaaS Service”). Customer desires to access and use the alpha and/or beta version of the SaaS Service and the documentation related thereto (collectively, “Beta Product”) and Company so desires to provide such Beta Product and documentation in accordance with the terms and conditions set forth herein. Please review carefully before purchasing and using the Beta Product.
By clicking on the “Accept” button on the screen, submitting a registration form and/or by accessing and/or using the Beta Product, 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 Company from time to time and the foregoing shall be incorporated herein by reference. The terms and conditions of this Agreement will exclusively govern Customer’s access to and use of the Beta Product. This Agreement is entered into as of the earlier of (i) the date Customer first registers an account that is accepted by Company or (ii) Customer’s initial access to and/or use of the Beta Product (“Effective Date”).
1.1 Company will provide the Beta Product to Customer during the Beta Period (as defined below). Customer shall be required to provide access to all data from Customer’s ‘Google Analytic’ account(s), which shall be integrated into the Beta Product. Customer shall also upload profile information related to Customer’s account. Company will assist Customer with initial set-up, and configuration of the Beta Product to be functional within Customer’s environment. Additional services outside the scope set forth herein shall not be included in the Beta Product unless otherwise agreed to by the parties in writing. Once the Beta Product is properly implemented, Avatria may, upon Customer’s request, assist Customer with interpreting the data being collected by the Beta Product and provide recommendations to Customer based on such information. Customer may use the Beta Product for internal business purposes only. Customer may not use the Beta Product for any other purpose than expressly set forth herein.
1.2 The Beta Product will be accessed through the Customer’s ‘Internet’ browser. Customer is responsible for obtaining, maintaining, and supporting all ‘Internet’ access, computer hardware, and other equipment and services needed for it to access and/or use the Beta Product. Customer is responsible for all telephone access lines, fees for any necessary third-party software licenses, telephone and computer equipment and any service fees necessary to access and/or use the Beta Product. Customer shall ensure that its network and systems comply with the relevant specifications provided by Company from time to time and shall provide Company with information as may be required by Company in order to provide the Beta Product.
1.3 Customer will determine the access controls for its authorized users and will be responsible for activity occurring under Customer’s account, including compliance with this Agreement.
1.4 Customer acknowledges and agrees that participating in the Beta Product test program does not entitle Customer to any compensation and/or any rights not expressly set forth herein.
2. Right to Use; License Grant; Restrictions.
2.1 Subject to Customer’s compliance with the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, non-transferable, non-assignable, right to access and/or use the Beta Product during the Beta Period, solely as necessary to install, execute, and test the Beta Product solely for the purpose set forth in Article 1 and as expressly set forth herein. All rights not expressly granted herein are reserved by Company (including, without limitation, rights to all IP).
2.2 Subject to Customer’s compliance with the terms set forth herein, Company hereby grants to Customer and Customer hereby accepts a nonexclusive, nontransferable, limited license to use any documentation provided by Company in relation to providing the Beta Product solely for the purpose set forth in Article 1 and as described in this Agreement.
2.3 Customer shall not, directly or indirectly, without the express written consent of Company: (a) remove, alter, or obscure any proprietary notices (including copyright notices) of Company on the Beta Product; (b) modify the Beta Product, merge it with any other product or software, or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Beta Product; (c) rent, transfer or otherwise distribute any copies of the Beta Product (or portions thereof) to a third party, allow a third party to use the Beta Product, or make the functionality of the Beta Product available to the public in any manner; (d) use the Beta Product to develop services or products for sale or include any components of the Beta Product in any product; (e) use any portion of the Beta Product to create a competitive service, product or technology; (f) use the Beta Product for production or commercial purposes or any other purpose other than as permitted in Article 1; and/or (g) register, prosecute or otherwise obtain any intellectual property rights in the Beta Product and/or derivatives thereof, and/or attempt to do any of the foregoing.
2.4 Customer shall not access, store, distribute and/or transmit any Viruses and/or any material during the course of its use of the Beta Product 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 and/or otherwise adversely affect the operation of any computer software, hardware and/or network, any telecommunications service, equipment and/or network and/or any other service and/or device, prevent, impair and/or otherwise adversely affect access to and/or the operation of any program and/or data, including the reliability of any program and/or data (whether by re-arranging, altering and/or erasing the program and/or data in whole or part or otherwise) and/or adversely affect the user experience, including worms, trojan horses, viruses and other similar things and/or devices. Notwithstanding anything herein to the contrary, Company reserves the right, without liability to the Customer, to disable or suspend the Customer’s access to and/or use of the Beta Product in the event (a) of any breach or anticipated breach of this Section; (b) Customer and/or its users use of the Beta Product disrupts and/or poses a security risk to the Beta Product and/or any other customer, may harm Company’s systems and/or any provider of any third-party services and/or may subject Company and/or any third-party to liability; (c) Customer and/or its authorized users are using the Beta Product for fraudulent and/or illegal activities; and/or (d) Company’s continued provision of the Beta Product to the Customer is prohibited by applicable law.
2.5 Customer shall be responsible for (a) providing proper controls and/or access to Customer’s ‘Google Analytics’ account; (b) uploading any necessary documents into the Beta Product; and/or (c) implementing any recommendations derived from the Beta Product.
3. Customer Testing. During the Beta Period and in consideration for receiving a copy of the Beta Product for testing, Customer agrees to serve as a beta tester for the Beta Product and to provide Company with suggestions, comments, usability, bug reports, ideas, criticisms, functionality recommendations, evaluations and test reports and other feedback (collectively, “Feedback”) related thereto on a weekly basis via telephone and/or email unless otherwise mutually agreed upon by the parties. Customer acknowledges and agrees that all Feedback is and shall be given entirely voluntarily and Customer is not violating any obligations of confidentiality by disclosing such Feedback. Customer hereby assigns to Company all of its rights, title and interest, and all intellectual property rights throughout the world in any and all Feedback Customer provides. Accordingly, Customer acknowledges that Company will be free to disclose, use, reproduce, license and/or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind.
4. Support and Maintenance. Company will provide initial support services for the Beta Product during the Beta Period. Support services include: (i) the initial set-up and use of the Beta Product including explanation of the workflow and/or (ii) training regarding use of the Beta Product which may be provided via documentation, videos and/or conference calls as determined by the Company in its sole and absolute discretion. Such support shall be provided to Customer during regular business hours Monday through Friday 9:00 a.m. to 5:00 p.m (CST). This Agreement does not entitle Customer to future releases or updates to the Beta Product. Company shall not be obligated to provide maintenance, updates, patches and/or bug fixes with respect to the Beta Product and shall not provide any support for third party products or be liable for third party products.
5. Confidentiality. In the performance of services, 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, design, performance characteristics, commercial, marketing, competitive advantage or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, object code, source code, architecture, algorithms, techniques, formulas, processes, know-how, systems, ideas, inventions (whether or not patentable or copyrighted), Feedback, 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.” In addition, the structure, sequence, organization and code of the Beta Product constitute valuable trade secrets of Company. The Receiving Party will use commercially reasonable efforts to protect and prevent any access to the Confidential Information by anyone other than the Receiving Party’s employees who are obligated to comply with the terms hereof (including, by taking all efforts the Receiving Party takes with respect to its own sensitive confidential materials) and in any event will use no less than a reasonable degree of care to protect Confidential Information. The Receiving Party’s personnel will use the Confidential Information solely in connection with this Agreement and for no other purpose. The Receiving Party will be liable for its personnel’s acts and/or omissions including without limitation such personnel’s compliance with the terms and conditions of this Agreement. All Confidential Information will remain the property of the Disclosing Party.
b. Company retains rights, title, interest and ownership of, and all IP and proprietary rights with respect to the SaaS Service, Beta Product and any other materials provided and/or made available to Customer by Company 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 hereunder, the Beta Product, Product and other materials that are provided and/or made available, and all Feedback that is developed, under this Agreement, all modifications, compilations, and derivative works thereof, and all IP and proprietary rights pertaining thereto, are and/or shall remain the property of Company and/or its respective licensors (and to the extent any rights of ownership in any such materials, works and/or rights might, for any reason, otherwise vest in Customer, Customer hereby assigns such ownership rights to Company). All copies, improvements, updates, modifications and/or enhancements to the Beta Product will remain the property of Company (including any changes which incorporate any Feedback).
7.1 THE BETA PRODUCT IS PROVIDED “AS IS” AND WITH ALL FAULTS. COMPANY MAKES NO WARRANTIES WITH RESPECT TO THE BETA PRODUCT, WHETHER EXPRESS, IMPLIED, AND/OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, SYSTEM INTEGRATION AND/OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE AND/OR TRADE PRACTICE. Customer acknowledges and agrees that the Beta Product may not be complete and/or fully functional and may contain bugs, errors, omissions and other problems that could cause system and/or other failures and data loss. Customer acknowledges that Company has no express and/or implied obligation to Customer to make the Beta Product available and/or operational, to maintain or correct errors in the Beta Product, and/or to announce and/or publicly introduce a production version of the Beta Product. Accordingly, Customer acknowledges and agrees that any access to and/or use of the Beta Product and/or any product associated with the Beta Product is done entirely at Customer’s own risk. To the full extent permitted by law, the duration of statutorily required warranties, if any, will be limited to the maximum extent permitted by law.
7.2 It is Customer’s responsibility to evaluate the accuracy, completeness and usefulness of the services and/or other information provided through the Beta Product. All information rendered through the Beta Product is distributed with the understanding that Company is not rendering professional advice and/or opinions on specific facts or matters, and accordingly assume no liability in connection with its use.
8. Limitation of Liability. COMPANY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL IN NO EVENT EXCEED FIFTY DOLLARS ($50.00). IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER AND/OR ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCT AND/OR SERVICES, LOST PROFITS, LOST DATA, AND/OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT AND/OR CUSTOMER’S ACCESS TO AND/OR USE OF OR INABILITY TO ACCESS AND/OR USE THE BETA PRODUCT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CUSTOMER ACKNOWLEDGES THAT THE BETA PRODUCT MAY CEASE OPERATION AFTER THE BETA PERIOD, WITH OR WITHOUT FURTHER NOTICE, AND AGREES THAT COMPANY WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, CLAIM AND/OR LIABILITY THAT CUSTOMER MAY SUFFER IN CONNECTION WITH THE TERMINATION OF THIS AGREEMENT AND CUSTOMER’S INABILITY TO ACCESS AND/OR USE THE BETA PRODUCT.
THE LIMITATIONS SPECIFIED IN ARTICLE 7 (DISCLAIMER) AND THIS ARTICLE 8 ARE A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND COMPANY WOULD BE UNABLE TO MAKE AVAILABLE THE BETA PRODUCT EXCEPT ON THE TERMS AND CONDITIONS SET FORTH HEREIN. SUCH LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. Term and Termination. This Agreement shall commence on the Effective Date and will continue for a period of up to three (3) months thereafter, unless sooner terminated as provided herein (“Beta Period”). Either party may terminate this Agreement upon ten (10) days prior written notice to the other party. Upon any termination or expiration, Customer shall immediately cease accessing and using the Beta Product and Customer shall immediately cease all use of, and delete and/or destroy (or return, if requested by Company) the Beta Product and other Confidential Information in Customer’s possession and/or control. Company may terminate this Agreement immediately upon notice to Customer in the event of Customer’s breach of this Agreement and Company may seek all available remedies and law and in equity. Nothing in this Agreement obligates either party to enter into any further agreement with the other party.
10. Indemnification by the Customer. Customer shall indemnify, defend and hold Company and its officers, associates, employees, contractors and agents harmless from and against any liabilities, losses, costs, damages, demands and expenses, including reasonable attorney fees, arising out of, or relating to (i) Customer’s acts and/or omissions and/or (ii) Customer’s use of the Beta Product.
11. Fees. Company shall provide the Beta Product to Customer at no cost during the Beta Period. For avoidance of doubt, Customer is responsible for all charges associated in connection with its use of the Beta Product as set forth in Article 1.
12. General Provisions.
12.1 This Agreement, and the rights of the parties hereunder, will be governed by and construed in accordance with the laws of the State of Illinois. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement. Customer may not assign, delegate, and/or otherwise transfer this Agreement and/or any of the Customer’s rights and/or obligations hereunder, either voluntarily and/or by operation of law, without the prior written consent of Company. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
12.2 Any notices relating to this Agreement shall be given in writing and shall be deemed sufficiently given, served and received for all purposes upon the first to occur of actual receipt, or delivery by generally recognized overnight courier service or by facsimile transmission, or three (3) days after deposit in the United States Mail, certified or registered, return receipt requested, with postage prepaid.
12.3 If any provision of this Agreement is held invalid by a court of competent jurisdiction, such provision shall be deemed modified to eliminate the invalid element, and, as so modified, such provision shall be deemed a part of this Agreement. If it is not possible to modify any such provision to eliminate the invalid element, such provision shall be deemed eliminated from this Agreement. The invalidity of any provision of this Agreement shall not affect the force and effect of the remaining provisions.
12.4 No provision of this Agreement may be altered, amended and/or waived, except by a written document signed by both parties hereto setting forth such alteration, amendment and/or waiver. The parties hereto agree that the failure to enforce any provision or obligation under this Agreement shall not constitute a waiver thereof and/or serve as a bar to the subsequent enforcement of such provision and/or obligation and/or any other provisions and/or obligation under this Agreement.
12.5 Captions contained in this Agreement are inserted for reference only, and in no way define, limit, extend or describe the scope of this Agreement and/or the intent of any provision to this Agreement. The recitals are hereby incorporated into the body of this Agreement for all intents and purposes as if fully set forth herein.
12.6 Each party hereto warrants and represents to the other party that this Agreement shall be binding upon the parties once executed, and that the individual executing this Agreement is duly authorized or has been empowered to do so in accordance with applicable law.
12.7 Each of the parties hereto has joined in and contributed to drafting this Agreement; there shall be no presumption favoring and/or burdening any one or more parties hereto based upon draftsmanship.
12.8 In the event of any litigation arising out of or related to this Agreement, the prevailing party shall be entitled to recover from the other party all costs and expenses incurred, including, but not limited to, reasonable attorney fees incurred.
12.9 This Agreement constitutes the entire Agreement between the parties hereto and contains all of the agreements between said parties and supersedes any and all other agreements, whether written or oral, with respect to the subject matter hereof. There is no statement, promise, agreement or obligation in existence which may conflict with the terms of this Agreement or may modify, enlarge or invalidate this Agreement or any provision hereof.