1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access Avtal.
1.2 “Applicable Data Protection Laws” means any applicable US state laws, regulations, orders, or judgments issued by a governmental authority that govern the privacy, security, confidentiality, protection, Processing or transfer of Personal Data.
1.3 “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access Avtal pursuant to Customer’s rights under this Agreement.
1.4 “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.
1.5 “Documentation” means the technical materials provided by Avtal to Customer, if any, in hard copy or electronic form describing the use and operation of Avtal.
1.6 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.7 “Licensed Material” means results, reports, materials and documentation made available to Customer as part of the Services.
1.8 “Personal Data” means any Customer Content, whether in electronic or paper-based form that constitutes“personal data,” “personal information,” or “personally identifiable information” or similar information governed by Applicable Data ProtectionLaws. For clarity, Personal Data does not include information pertaining to Customer’s business contacts and/or representatives who are Customer personnel where Avtal has determined what information to collect and for what purposes.
1.9 “Processing” (including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
1.10 “Services” means any services provided by Avtal to Customer
2.1 Access. Avtal will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access Avtal in accordance with the Access Protocols; provided that nothing herein will be construed to require Avtal to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access Avtal from the Internet.
2.2 Support Services. Subject to the terms and conditions of this Agreement, Avtal will exercise commercially reasonable efforts to (a) provide support for the use of the Avtal to Customer, and (b) keep Avtal operational and available to Customer, in each case in accordance with its then-current standard policies and procedures.
3.1 License Grant. Subject to the terms and conditions of this Agreement, Avtal grants to Customer a non-exclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)) license during the Term (as defined below), solely for Customer’s internal business purposes, (a) to access and use Avtal and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of Avtal. Customer may permit any Authorized Users to access and use the features and functions of Avtal as contemplated by this Agreement; provided Customer will be solely responsible for all acts or omissions of its Authorized Users with respect to the use of Avtal.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access Avtal, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate Avtal, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of Avtal or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of Avtal, except as permitted by law; (e) interfere in any manner with the operation of Avtal or the hardware and network used to operate Avtal; (f) modify, copy or make derivative works based on any part of Avtal or Documentation; (g) access or use Avtal to build a similar or competitive product or service; (h) attempt to access Avtal through any unapproved interface; or (i) otherwise use Avtal, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant) or in a manner inconsistent with applicable law (including, without limitation, Applicable Data Protection Laws), the Documentation, or this Agreement. Customer will not remove, alter, or obscure any proprietary notices(including copyright and trademark notices) of Avtal or its licensors on the Licensed Material or any copies thereof.
3.3 Ownership. Avtal, Licensed Materials and Documentation, and all enhancements and improvements thereto, and worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Avtal and its suppliers. All rights in and to Avtal and Documentation not expressly granted to Customer in this Agreement are reserved by Avtal and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding Avtal, Documentation, or any part thereof.
3.4 License to Licensed Material. Subject to the terms and conditions of this Agreement, Avtal grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)), non-sublicensable license to use the Licensed Material solely for Customer’s internal business purposes.
3.5 Open Source Software. Certain items of software may be provided to Customer with Avtal and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.3 (Ownership) or 11 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Avtal makes such Open Source Software, and Avtal’s modifications to that Open Source Software, available by written request at the notice address specified below.
3.6 Feedback. Customer hereby grants to Avtal a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Avtal will not identify Customer as the source of any such feedback.
4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Avtal under this Agreement, Customer will pay to Avtal the Fees. Except as otherwise provided, all Fees are billed at the beginning of the month due and payable within thirty (30) days of the date of the invoice. Avtal reserves the right (in addition to any other rights or remedies Avtal may have) to discontinue Avtal and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
4.2 Third Party Provider. From time to time Avtal may use certain third parties to provide payment services (e.g., card acceptance, merchant settlement and related services) (“Payment Processors”). By selecting certain billing and/or payments features, Customer agrees to comply with the terms and conditions and policies of the Payment Processors used by Avtal, and hereby consents and authorizes Avtal to share any information and payment instructions provided herein with Payment Processors to the minimum extent required to complete Customer’s transactions hereunder.
4.3 Taxes. It is the Customer’s responsibility to: (ii) collect, report and remit the correct tax to the appropriate tax authorities. Avtal is not responsible for determining whether taxes apply to a transaction, or for collecting, reporting, or remitting any taxes arising from any transaction. Avtal may from time to time make available to Customer certain tax calculation services offered by third party providers. Such tax calculation services are Third Party Services, as defined in the Avtal Terms of Service.
5.1 License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Avtal to collect, access, use, and otherwise Process the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for providing all notices to, and obtaining from, third parties, including, without limitations its customers, all necessary rights and consents for Avtal to use the Customer Content for the purposes set forth in this Agreement (including, without limitation, all notices and consents required under Applicable Data Protection Laws). Customer grants Avtal a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Services, (b) to use the Customer trademarks, service marks, and logos as required to provide the Services, or in promotional materials marketing websites and the like, and (c) derive aggregated, de-identified and/or anonymized data from Customer Content (“Derived Data”). Avtal will be the sole owner of all such Derived Data and will have the right to use such Derived Data for any lawful business purpose. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Avtal in this Agreement are reserved by Customer.
5.2 Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Avtal’s system or data; and (e) otherwise violate the rights of a third party. Avtal is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of Avtal contrary to or in violation of the representations and warranties of Customer in this Section 5.2 Customer Warranty) constitutes unauthorized and improper use of Avtal.
5.3 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access Avtal. Customer will have the ability to export its own Customer Content out of Avtal. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
5.4 Customer Responsibility for Operating its Own Business. Customer acknowledges that it, and not Avtal, is responsible for operating Customer’s own business, including with respect to obtaining all licenses, permits and other governmental registrations to enable its use of the Services. Avtal is not intended to be used as advice as to whether to engage in any particular transaction.
6.1 Data Security. During the Term, Avtal will maintain commercially reasonable safeguards and procedures designed to prevent the authorized use or disclosure of Personal Data (“Data Safeguards”). During the Term, Avtal will maintain commercially reasonable physical, administrative and technical security measures designed to maintain the availability, integrity and confidentiality of Personal Data.
6.2 Privacy. Without limiting Customer’s obligations under Sections 2 (Provision of Services), and 3 (Intellectual Property), each party shall comply with all Applicable Data Protection Laws in the performance of their respective obligations under thisAgreement with respect to the Processing of Personal Data. The sale, retention, use or disclosure of Personal Data shall be governed by Avtal’s Privacy Policy, in effect from time to time.
6.3 Additional Agreements. To the extent that Avtal or Customer reasonably determine that Applicable Data Protection Laws require the parties to execute any additional agreements governing Personal Data, the parties agree to negotiate in good faith with respect to such additional agreements.
7.1 Disclaimer. EXCEPT AS SPECIFICALLY SET OUT IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. AVTAL AND ITS THIRD-PARTY LICENSORS AND SUPPLIERS MAKE NO OTHER REPRESENTATIONS AND GIVE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICES OR ANY PRODUCTS PROVIDED UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, AVTAL SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, DURABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. AVTAL DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S EXPECTATIONS, BE SECURE, TIMELY, UNINTERRUPTED OR FREE FROM DEFECTS OR ERRORS, OR THAT DEFECTS OR ERRORS WILL BE CORRECTED. AVTAL DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING THE RESULTS OF USING THE SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CUSTOMER BASE, COMMERCIAL ADVANTAGE, OR RISK OF INJURY TO CUSTOMER’S OR ANY USER’S SYSTEMS OR NETWORK. AVTAL SHALL NOT BE LIABLE TO CUSTOMER, ANY USER OR ANY THIRD PARTY FOR ANY USE OF OR INACCURACY IN ANY MATERIALS OR FOR ANY TRANSACTIONS PROCESSED THROUGH THE PLATFORM(S).
8.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AVTAL BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT AVTAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AVTAL’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED BY AVTAL FOR THE SERVICES AND THAT IF AVTAL WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, THE FEES WOULD OF NECESSITY BE SUBSTANTIALLY INCREASED.
8.2 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
9.1 Confidential Information. “Confidential Information” means any non public information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Avtal.
9.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any ConfidentialInformation of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Avtal). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the ReceivingParty will, upon request, certify to the Disclosing Party its compliance with this sentence.
9.3 Exceptions. The confidentiality obligations set forth in Section 10.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to theConfidential Information. In addition, the Receiving Party may discloseConfidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10.1 Customer will indemnify and hold Avtal and (as applicable) its subsidiaries, affiliates, partners, officers, directors, agents, and employees, harmless from and against any third party claims, demands, suits or proceedings (“Claims”) together with any resulting losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees and court costs) due to, arising out of or related to: (i) the Materials; (ii) Customer’s use or misuse of the Services except to the extent such Claims arise solely from a third party claim that Avtal IP infringes Third Party Rights or violates applicable law or from a breach of this Agreement by Avtal; (iii) disputes arising from transactions made via the Platform(s), or Customer’s relationship with any of its customers, clients or users; (iv) any breach of Customer’s representations and warranties; (v) Customer’s breach of the Agreement, the Avtal Terms of Service, and any documents the Avtal Terms of Service incorporated by reference; or (vi) Customer’s violation of any applicable law or Third Party Rights.
11.1 Term. Unless terminated earlier pursuant to the terms and conditions of this Agreement (and except as otherwise expressly provided for in the Order, if at all), this Agreement shall commence on the Effective Date and shall remain in force for an initial term of one (1) year (the “Initial Term”). The Agreement shall automatically renew for successive one-year terms (each a “Renewal Term”) beginning at the end of the Initial Term and each one-year anniversary thereafter (except as otherwise expressly provided for in the Order, if at all), unless either party provides the other with notice of its intention not to renew at least 30 days prior to the expiry of the Initial Term or then-current Renewal Term. Either party may terminate the Agreement at any time during any Renewal Term by providing the other party with at least 30 days’ prior written notice. The Initial Term and Renewal Term, except to the extent earlier terminated as expressly provided for in this Agreement, are collectively referred to as the “Term”.
11.2 Termination. Upon the expiry of the Agreement, or termination of the Agreement by either party for any reason: In addition to Avtal’s right to terminate the Services pursuant to the Avtal Terms of Service and the termination rights set out elsewhere in this Agreement, either party may terminate this Agreement upon written notice if the other party:
(i) assigns or attempts to assign this Agreement to a third-party in violation of this Agreement; (ii) fails to correct a material breach of its obligations under this Agreement within 30 days after receipt of written notification from the notifying party of such material breach; (iii) ceases to carry on business as a going concern; or (iv) initiates a bankruptcy, reorganization or insolvency proceeding, or has such a proceeding initiated against it, makes an assignment for the benefit of creditors, or consents to the appointment of a trustee.
11.3 Effect of Termination. Upon the expiry of the Agreement, or termination of the Agreement by either party for any reason:
12.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for New Castle County, Delaware for any lawsuit filed there against Customer by Avtal arising from or related to this Agreement. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
12.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S.technical data acquired from Avtal, or any products utilizing such data, in violation of the United States export laws or regulations.
12.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
12.6 Compliance with Law. Customer will, and will ensure that all Authorized Users, always comply with all foreign and domestic laws, ordinances, regulations, and statutes that are applicable to its and their purchase and use of the Services, Licensed Material and Documentation.
12.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
12.8 Independent Contractors. Customer’s relationship to Avtal is that of an independent contractor, and neither party is an agent or partner of the other.Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Avtal.
12.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Avtal, by emailing support@avtal.com and if to Customer by emailing the Customer Point of Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
12.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
12.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Avtal.
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