This AVA Software as a Service Agreement, (the “Agreement”) is between you or the entity you represent (“Customer”) and Aqueous Asset Inc. (“Aqueous”).
1. Definitions
As used in this Agreement, the following terms shall have the following meanings:
A. “Aqueous Technology” means all of Aqueous’ proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to Customer by Aqueous. Aqueous Technology also may contain third party components used under open-source licenses.
B. “Aqueous Materials” shall mean the written materials relating to the operation and use of AVA including, but not limited to, user manuals, user guides or videos, technical manuals, release notes, and online help files.
C. “AVA” means Aqueous’ Aqueous Valuation Algorithm software services, to which Customer is being granted access under this Agreement, including the Aqueous Technology and the Content.
D. “Content” means the audio and visual information, documents, software, products, and services made available to Customer in the course of using AVA.
E. “Intellectual Property Rights” means any unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
F. “Customer Data” means all data, files, documents, audio and visual information, graphics, that Customer uploads to, creates, uploads to or transfers in or through AVA or provides in the course of using AVA, including property refinements entered and images uploaded by Customer, Customer Data does not include identification and other information provided by Customer relative to Customer Users, nor does it include Feedback as defined in Section 4.F.
G. “User(s)” means Customer employees, representatives, consultants, contractors, or agents who are authorized to use AVA and have been supplied user identifications and passwords by Customer (or by Aqueous at Customer’s request).
H. “Subscriber(s)” refers to the number of individual Users a specific subscription allows.
I. “Subscription Term” mean that period specified in a Subscription Order during which Customer will have access and use of AVA and shall be on a per-use, monthly or annual basis.
J. Subscription Order means Aqueous’ ordering documentation, or online sign-up subscription flow, that references this Agreement and is made a part of this Agreement by such reference. A Customer may have multiple Subscription Orders.
K. “Third party Products” means application software products provided by third party vendors, including operating system and application software with which the Aqueous Software interfaces and which provides certain functionality essential to the operation of the Aqueous Software. Third Party Products are licensed to Aqueous for incorporation and use in the hosted environment as part of AVA. For the sake of clarity, the term Third-Party Products does not refer to third-party software components, if any, incorporated into Aqueous Software
2. Use of AVA
A. Subject to the terms and conditions of this Agreement, and in consideration of the fees paid by Customer, Aqueous hereby grants Customer a nonexclusive, nontransferable, non-sublicensable, revocable, limited right to permit Users to access and use AVA, solely for Customer’s internal business purposes, provided such internal business operations shall not include commercial time-sharing, rental, outsourcing, service bureau or similar use.
B. Customer does not acquire any rights in AVA, Aqueous Technology, or Aqueous Materials, express or implied, other than those expressly granted in this Agreement and all rights not expressly granted to Customer are reserved by Aqueous and Third Party Vendors; and (xi) this Agreement is not a sale and does not convey any rights of ownership in or related to AVA, Aqueous Software, Third Party Products, Aqueous Technology or Aqueous Materials to Customer.
3. Restrictions on Use of AVA
Customer agrees it shall not: (i) exceed the number of Subscribers Customer has authorized, as set forth in an effective Subscription Order referencing this Agreement; (ii) permit multiple Users to access AVA via a single Subscriber access, but may reassign Subscriber authorization from time to time to new Users who are replacing former Users who are no longer permitted to access AVA; (iii) modify, tamper with, make derivative works of, disassemble, reverse compile, or reverse engineer any part of AVA, Aqueous Technology , or Aqueous Materials; (iv) create Internet “links” to AVA or “frame” or “mirror” any part of AVA, including any content contained in AVA or displayed by, on any other server or device; (v) copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means any part of AVA. Aqueous Technology, or Aqueous Materials; (vi) permit unauthorized third parties to access AVA; (vii) remove any proprietary notices, labels, or marks from AVA, or us any Aqueous trademark, logo or mark except as expressly permitted herein; (viii) send or store material through or on AVA that contains software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (ix) or interfere with or disrupt the integrity or performance of AVA or the data contained therein.
4. Customer Responsibilities
A. Customer is responsible for all activity occurring under Customer’s User and Subscriber accounts.
B. Customer shall: (i) safeguard all passwords relating to AVA, and provide such passwords only to authorized employees or personnel who need to know such information for the purpose of using AVA; (ii) notify Aqueous immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (iii) report to Aqueous immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer or Customer Users.
C. Aqueous does not own any Customer Data.
D. Subject to the terms and conditions of this Agreement, Customer grants to Aqueous a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights, in any media known now or developed in the future in all Customer Data. To the fullest extent permitted under applicable law, you waive your right to enforce your Intellectual Property Rights in Customer Data against us, our assignees, our sublicensees, and their assignees based on the use of that content.
E. You represent and warrant that, for all Customer Data, you own or otherwise control all necessary rights to do so and to meet your obligations under this Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any Customer Data by us, our users, or others in contract with us, and in compliance with this Agreement, does not and will not infringe any Intellectual Property Rights of any third party. Aqueous assumes to no responsibility or no liability for any content provided by you or any third party.
F. Customer grants Aqueous a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into AVA, Aqueous Technology or Aqueous Documentation any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Users, relating to the operation AVA (collectively “Feedback”).
G. Aqueous shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Upon termination, Customer’s right to access or use Customer Data through AVA immediately ceases, and Aqueous shall have no obligation to maintain or forward any Customer Data and may delete such Customer Data immediately upon termination. Any post-termination data retrieval assistance from Aqueous is subject to separate agreement between Aqueous and Customer.
5. Term; Termination
A. This Agreement commences on the Effective Date of Customer’s first Subscription, and shall continue until terminated under this section 5.
B. Each Subscription commences on the Effective Date continues for and for the period listed on the Subscription Order, and terminates as follows, unless otherwise terminated earlier as provided herein:
Per-use subscriptions allow Customers to do one search only. Search results are held in memory and Customers can look at their historic search results.
Monthly subscriptions will automatically renew for successive monthly terms unless Customer cancels the subscription by giving Aqueous 30 days notice of cancellation using the “cancel” function on Customer’s Dashboard. There are no refunds for partial months.
Annual subscriptions shall automatically renew for successive annual periods unless either party delivers written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current Subscription Term. There are no refunds for partial years.
C. This Agreement may be terminated at any time by Aqueous or by Customer, immediately on providing written notice, however there will be no refund of any pre-paid Fees.
D. Aqueous reserves the right to suspend Customer’s access and use of AVA without terminating this agreement:
for any account for which any payment is due but remains unpaid after fifteen day’s written notice of such delinquency.
on giving reasonable telephone or email notice to Customer, if Aqueous reasonably concludes that Customer’s use AVA is causing ongoing harm to AVA, Aqueous or others. Aqueous will use commercially reasonable efforts to resolve the issues causing the suspension of Service.
Customer agrees that Aqueous will not be liable to Customer or to any third party for any suspension of AVA under such circumstances as described in this Section 5.D.
E. Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach. Upon termination by Customer due to material breach by Aqueous, Aqueous will refund a prorated portion of pre-paid fees based on the date of the material breach.
6. Fees and Payment.
A. Customer shall pay Aqueous the fees set forth in Exhibit A (“Fees”) in accordance with this Article 6. All fees are based on up-front payment for the full Subscription Term. Any changes in the payment schedule can change applicable Fees.
B. Customer further agrees to pay all foreign, federal, states, and local taxes, if applicable, to Customer’s access to, use of, or receipt of documents from AVA.
C. Customer shall pay all Fees in advance by the method initially stated on the Subscription Order.
D. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, including its rights under Section 5.D. Aqueous may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and Customer shall reimburse Aqueous for all costs incurred by Aqueous in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
E. Aqueous may increase Fees annually. Aqueous will provide written notice of Fee increased at least 45 calendar days prior to increase date. Increases will apply to each Subscription on the first renewal date after the increase. When fees are increased the Subscription Order will be deemed amended accordingly.
7. Intellectual Property Ownership
Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, AVA, Aqueous Technology, whether expressly, by implication, estoppel, or otherwise. Customer acknowledges and agrees that Aqueous shall exclusively own and retain all right, title, and interest, including but not limited to all Intellectual Property Rights, in and to the Aqueous Technology, Aqueous Materials, AVA and any Feedback and other suggestions, ideas, enhancement requests, recommendations, and other information provided by Customer or any other party relating to AVA, and any derivatives, modifications and improvements of any of the foregoing
8. Confidentiality
AVA, Aqueous Technology and Aqueous Materials are confidential and proprietary to Aqueous. Customer agrees not to disclose any part of Aqueous’ confidential information to any third party without Aqueous’ prior written permission. Customer acknowledges and agrees that unauthorized use or disclosure of such information would cause irreparable harm and significant injury to Aqueous that would be difficult to ascertain; accordingly, Customer agrees that Aqueous shall have the right to obtain injunctive or other equitable relief to enforce obligations under this Agreement without limiting any other rights or remedies.
9. Warranties
Aqueous represents and warrants that it will provide the services of AVA in a professional manner consistent with general industry standards and that AVA will perform substantially in accordance with the Documentation. For any beach of this warranty, Customer’s exclusive remedy shall be as provided in Section 5.E5.E (termination for breach).
10. Disclaimer of Warranties
A. AQUEOUS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, OR COMPLETENESS OF AVA OR ANY CONTENT. AVA AND ALL CONTENT ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY AQUEOUS.
B. AQUEOUS DOES NOT GUARANTEE THAT AVA’S SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT AQUEOUS WILL CORRECT ALL SAAS SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT AQUEOUS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT AVA SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
11. Limitation of Liability
NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF AQUEOUS) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE.
12. General Provisions
A. Entire Agreement. This Agreement, including all Subscription Orders and the Aqueous general Terms of Use (the “TOU”) found above, and the Aqueous Privacy Policy (the “Privacy Policy”) found at https://account.askava.net/privacy-policy contain the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement.
B. Modification of Terms. Aqueous reserves the right to modify the TOU and Privacy Policy which are incorporated in this Agreement at any time, effective upon posting of an updated version of this Agreement on the Aqueous website at www.askAVA.net. AVA. Customer is responsible for regularly reviewing the Aqueous website. Continued use of AVA after any such changes have been posted shall constitute Customer’s consent to such changes.
Aqueous may modify the terms of this SaaS Agreement by providing written notice to Customer at least 45 calendar days prior such modification. If Customer does not agree to the modified terms, Customer shall so notify Aqueous within 20 days of receipt of the notice of modification, and then the original terms will remain in effect until the end of the then-current Subscription Term, and Customer will be deemed to have submitted a timely notice of non-renewal.
C. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given (i) the second business day following mailing if sent by U.S. nationally recognized courier service; (ii) on the date of any receipt sign by the recipient; or (iii) on the day sent if transmitted prior to 4:00 PM in the time zone of the recipient or the next business day if sent later when sent by email, where there is reasonable certainty that such email notice originated either from a valid Aqueous email address, or from the email address registered to Customer with Aqueous, as the case may be.
D. Miscellaneous. (i) This Agreement may not be assigned by Customer without the prior written approval of Aqueous. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, pandemics, communication line failures, and power failures. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force. This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity. This Agreement shall be governed by the laws of the State of California, excluding its conflict of law principles.
E. Survival. Sections 1, 3, 4, 7, 8, and 10 through 12 of this Agreement shall survive the expiration or termination of this Agreement for any reason.
F. Dispute Resolution.
Customer’s satisfaction is an important objective to Aqueous in performing its obligations under this Agreement. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of this Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies.
If the dispute cannot be settled through direct discussions, the parties agree to endeavor next attempt to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator. The place of arbitration shall be determined by the parties or in the absence of agreement, in Los Angeles, California. The Arbitrator shall apply the laws of the state of California, without regard to the conflicts of laws principles thereof. The Expedited Procedures of the Commercial Rules shall apply and take priority in all procedural matters. Arbitrator will have the authority to allocate the costs of the arbitration process among the parties but will only have the authority to allocate attorneys’ fees if a particular law permits or as permitted in this Agreement. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. The arbitrator shall not award consequential damages in any arbitration initiated under this section. Proceedings shall be conducted electronically to the extent reasonable as determined by the arbitrator.
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BY ACCESSING OR USING ANY OR ALL PORTIONS OF AVA, OR BY CLICKING THE “I ACCEPT” BUTTON AT THE END OF THIS AGREEMENT, YOU ACKNOWLEDGE YOUR ACCEPTANCE OF THE WWW.ASKAVA.NET GENERAL TERMS OF USE (the “TOU”), THE WWW.ASKAVA.NET PRIVACY POLICY (the “Privacy Policy”) AND THIS SAAS AGREEMENT; AND YOU REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO THE AGREEMENT ON BEHALF OF YOURSELF OR THE COMPANY WHICH YOU REPRESENT. THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. WHEN YOU CLICK “I ACCEPT,” CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS.