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This AVA Software as a Service Agreement, (the âAgreementâ) is between you or the entity you represent (âCustomerâ) and Aqueous Asset Inc. (âAqueousâ).
As used in this Agreement, the following terms shall have the following meanings:
A. âAqueous Technologyâ 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. âAqueous Materialsâ 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. âAVAâ 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. âContentâ means the audio and visual information, documents, software, products, and services made available to Customer in the course of using AVA.
E. âIntellectual Property Rightsâ 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. âCustomer Dataâ 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. âUser(s)â 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 Customerâs request).
H. âSubscriber(s)â refers to the number of individual Users a specific subscription allows.
I. âSubscription Termâ 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 Aqueousâ 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. âThird party Productsâ 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
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 Customerâs 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.
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.
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 âFeedbackâ).
G. Aqueous shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Upon termination, Customerâs 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.
A. This Agreement commences on the Effective Date of Customerâs 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 âcancelâ function on Customerâs 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 Customerâs access and use of AVA without terminating this agreement:
for any account for which any payment is due but remains unpaid after fifteen dayâs written notice of such delinquency.
on giving reasonable telephone or email notice to Customer, if Aqueous reasonably concludes that Customerâs 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.
A. Customer shall pay Aqueous the fees set forth in Exhibit A (âFeesâ) 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 Customerâs 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 attorneysâ 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.
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
AVA, Aqueous Technology and Aqueous Materials are confidential and proprietary to Aqueous. Customer agrees not to disclose any part of Aqueousâ confidential information to any third party without Aqueousâ 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.
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, Customerâs exclusive remedy shall be as provided in Section 5.E5.E (termination for breach).
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 âAS ISâ 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 AVAâS 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.
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 PARTYâS 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.
A. Entire Agreement. This Agreement, including all Subscription Orders and the Aqueous general Terms of Use (the âTOUâ) found above, and the Aqueous Privacy Policy (the âPrivacy Policyâ) 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 Customerâs 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 partyâs 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.
Customerâs 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 âTOUâ), THE WWW.ASKAVA.NET PRIVACY POLICY (the âPrivacy Policyâ) 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 âI ACCEPT,â CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS.
January 26, 2022
Aqueous Asset Inc. (âCompanyâ or âWeâ) respect your privacy and are committed to protecting it through our compliance with this policy.
This policy describes the types of information we may collect from you or that you may provide when you visit the website AskAVA.net (our âWebsiteâ) and our practices for collecting, using, maintaining, protecting, and disclosing that information.
This policy applies to information we collect:
It does not apply to information collected by:
Please read this policy carefully to understand our policies and practices regarding your information and how we will treat it. If you do not agree with our policies and practices, your choice is not to use our Website. By accessing or using this Website, you agree to this privacy policy. This policy may change from time to time (see Changes to Our Privacy Policy). Your continued use of this Website after we make changes is deemed to be acceptance of those changes, so please check the policy periodically for updates.
Capitalized terms not defined in this Policy are defined in our Terms of Use.
Our Website is not intended for children under 18 years of age. No one under the age of 18 may provide any personal information to or on the Website. We do not knowingly collect personal information from children under 18. If you are under 18, do not use or provide any information on this Website or through any of its features, register on the Website, use any of the interactive or public comment features of this Website, or provide any information about yourself to us, including your name, address, telephone number, email address, or any screen name or user name you may use. If we learn we have collected or received personal information from a child under 18 without verification of written parental consent, we will delete that information. If you believe we might have any information from or about a child under 18, please contact us at info@AskAVA.net.
California residents under 16 years of age may have additional rights regarding the collection and sale of their personal information. Please see Your California Privacy Rights for more information.
We may collect several types of information from and about users of our Website, including information:
We collect this information:
The information we collect on or through our Website may include:
You also may provide information to be published or displayed (hereinafter, âpostedâ) on public areas of the Website, or transmitted to other users of the Website or third parties (collectively, âUser Contributionsâ). If we allow User Contributions, your User Contributions are posted on and transmitted to others at your own risk. Although we limit access to certain pages, you may set certain privacy settings for such information by logging into your account profile, please be aware that no security measures are perfect or impenetrable. Additionally, we cannot control the actions of other users of the Website with whom you may choose to share your User Contributions. Therefore, we cannot and do not guarantee that your User Contributions will not be viewed by unauthorized persons.
As you navigate through and interact with our Website, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions, and patterns, including:
We also may use these technologies to collect information about your online activities over time and across third-party websites or other online services (behavioral tracking). At the end of this Policy, we have information on how you can opt-out of behavioral tracking on this website and how we respond to web browser signals and other mechanisms that enable consumers to exercise choice about behavioral tracking.
The information we collect automatically is only statistical data and does not include personal information, but we may maintain it or associate it with personal information we collect in other ways or receive from third parties. It helps us to improve our Website and to deliver a better and more personalized service, including by enabling us to:
The technologies we use for this automatic data collection may include:
Some content or applications, including advertisements, on the Website are served by third-parties, including advertisers, ad networks and servers, content providers, and application providers. These third parties may use cookies (alone or in conjunction with web beacons or other tracking technologies) to collect information about you when you use our website. The information they collect may be associated with your personal information or they may collect information, including personal information, about your online activities over time and across different websites and other online services. They may use this information to provide you with interest-based (behavioral) advertising or other targeted content.
We do not control these third parties’ tracking technologies or how they may be used. If you have any questions about an advertisement or other targeted content, you should contact the responsible provider directly. For information about how you can opt out of receiving targeted advertising from many providers, see Choices About How We Use and Disclose Your Information.
We use information that we collect about you or that you provide to us, including any personal information:
We may also use your information to contact you about our own and third-parties’ goods and services that may be of interest to you. If you do not want us to use your information in this way, please check the relevant box located on the form on which we collect your data (the order or registration form) and adjust your user preferences in your account profile. For more information, see Choices About How We Use and Disclose Your Information.
We may use the information we have collected from you to enable us to display advertisements to our advertisers’ target audiences. Even though we do not disclose your personal information for these purposes without your consent, if you click on or otherwise interact with an advertisement, the advertiser may assume that you meet its target criteria.
We may disclose aggregated information about our users and information that does not identify any individual, without restriction.
We may disclose personal information that we collect or you provide as described in this privacy policy:
We may also disclose your personal information:
We strive to provide you with choices regarding the personal information you provide to us. We have created mechanisms to provide you with the following control over your information:
We do not control third parties’ collection or use of your information to serve interest-based advertising. However, these third parties may provide you with ways to choose not to have your information collected or used in this way. You can opt out of receiving targeted ads from members of the Network Advertising Initiative (âNAIâ) on the NAI’s website.
You can review and change your personal information by logging into the Website and visiting your account profile page.
You may also send us an email at support@askava.net to request access to, correct or delete any personal information that you have provided to us. We cannot delete your personal information except by also deleting your user account. We may not accommodate a request to change information if we believe the change would violate any law or legal requirement or cause the information to be incorrect.
If you are an individual residing in California, and not accessing the Website or using the Services for business purposes California law may provide you with additional rights regarding our use of your personal information. To learn more about your California privacy rights, visit the California Consumer Privacy Act (CCPA) at https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1798.83.&nodeTreePath=8.4.32&lawCode=CIV
California’s âShine the Lightâ law (Civil Code Section § 1798.83) does not apply to non-business Internet users. However, we are advising you that if you are a resident of California and on our website for only personal, family, or household purposes, you may request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes. To make such a request, please email us at: info@AskAVA.net.
It is our policy to post any changes we make to our privacy policy on this page with a notice that the privacy policy has been updated on the Website home page at www.askAVA.net. The date the privacy policy was last revised is identified at the top of the page. You are responsible for periodically visiting our Website and this privacy policy to check for any changes.
To ask questions or comment about this privacy policy and our privacy practices, contact us at: info@AskAVA.net