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Service Agreement

Welcome to AverQ, Inc. (AverQ, subscription-based, Unified Transparency Apps Service (“Service”)).

It is offered as a Paid Subscription Service, which may be initiated by registering Customer’s Company (“Customer”) and agreeing to the terms and conditions of this Agreement. Paid Subscriptions shall be also be evidenced by an Order Form executed by Customer that references this agreement. If Customer is invited for a Free Trial of our services, this agreement will also govern that Free Trial.

Customer’s registration for, or use of, the Service shall be deemed to be Customer’s assent to abide by this Agreement including any materials available on AverQ’s website (https://www.averq.com/service-agreement/) incorporated by reference herein.

AverQ reserves the right to update and change, from time to time, these Additional Terms and all documents incorporated by reference. Customer can always find the most recent version of these Additional Terms at https://www.averq.com/service-agreement/ .

Customer may not access the Services if Customer is competitor to AverQ, except with AverQ’s prior written consent. Customer may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

    1. License Grant & Restrictions. AverQ hereby grants Customer a non-exclusive, non-transferable, worldwide right to use the Service, solely for Customer’s own business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Customer in the Agreement are reserved by AverQ and its licensors. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet links to the Service or frame or mirror any Content on any other server or wireless or Internet-based device, without the express written consent of AverQ; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.

    2. Subscriptions and Usage. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by AverQ regarding future functionality or features. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, AverQ may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding AverQ’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon AverQ’s request, and/or pay any invoice for excess usage in accordance with the “Charges and Payment of Fees” section below.

    3. Provision of Purchased Services. AverQ will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide applicable AverQ standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which AverQ shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond AverQ’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, Internet service provider failure or delay, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to AverQ’s provision of its Services to its customers generally, and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form. AverQ will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with AverQ’s obligations under this Agreement, except as otherwise specified in this Agreement.

    4. Customer’s Responsibilities. Customer is responsible for all activity occurring in Customer’s service account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Accounts registered by bots or other automated methods are not permitted. Each user account Customer create may only be used by one named person – a single login shared by multiple people is not permitted. Customer and each user Customer create are responsible for maintaining the security of their respective accounts and password. AverQ cannot and will not be liable for any loss or damage from Customer’s failure to comply with this security obligation. Customer is responsible for all content posted and activity that occurs under Customer’s account even when content is posted by others who have accounts under Customer’s account.

    5. Account Information and Data. Except as otherwise provided, AverQ does not own any data, information or material that Customer submit to the Service in the course of using the Service (“Customer Data”). Customer, not AverQ, shall have sole ownership and are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and AverQ shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Customer’s breach), AverQ will make available to Customer a file of the Customer Data exportable according to the Documentation, within 30 days of termination upon written request at the time of termination. AverQ reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Customer’s non-payment. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases, and AverQ shall have no obligation to maintain or forward any Customer Data.

    6. Intellectual Property Ownership. AverQ alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to AverQ Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, AverQ Technology or the Intellectual Property Rights owned by AverQ, The AverQ name, AverQ logo, and the product names associated with the Service are trademarks of AverQ or third parties, and no right or license is granted to use them. The look and feel of the Service is copyrighted. All rights reserved. Customer may not duplicate, copy, or reuse any portion not limited to visual design elements, features and documentation without express written permission from AverQ.

    7. Confidentiality:  “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of AverQ includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of AverQ services. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, AverQ may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform AverQ’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

    8. Privacy & Security; Disclosure AverQ’s privacy and security policies may be viewed here. AverQ reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. If Customer become a user of the Service, Customer agree that AverQ can disclose the fact that Customer is a user of the Service.

    9. Charges and Payment of Fees Customer shall pay any and all applicable fees or charges to Customer’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments shall be made in accordance with the terms and conditions set forth by AverQ’s Order Form, or as otherwise mutually agreed upon. Fees are based on Services purchased and not actual usage. Quantities purchased cannot be decreased during the relevant billing period. Customer is responsible for paying any then, generally applicable fees or charges during the applicable billing period. The Service is billed in advance on an annual basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. AverQ reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to Customer, which notice may be provided by e-mail. Except as otherwise specified all pricing terms are confidential, and Customer agree not to disclose them to any third party.

    10. Billing and Renewal. AverQ will charge and collect for use of the Service in accordance with its billing practices and procedures then in effect. AverQ will automatically renew and bill Customer’s credit card or issue an invoice to Customer for any applicable billing period, or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of Subscriptions subscribed to on the AverQ Order Form, plus any additional Subscriptions utilized over and above the number subscribed to on the AverQ Order Form during any applicable billing period, multiplied by the subscription fee in effect during the applicable billing period, unless AverQ has given Customer at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services such as migration, customization and integrations will be charged on an as-quoted basis evidenced by prior duly authorized separate Statement of Work (SOW). AverQ’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If AverQ has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, AverQ will invoice Customer and Customer will pay that amount unless Customer provides AverQ with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, AverQ is solely responsible for taxes assessable against it based on its income, property and employees.

    11. Non-Payments and Suspension. In addition to any other rights granted to AverQ herein, AverQ reserves the right to suspend or terminate this Agreement and Customer’s access to the Service if Customer’s account becomes Delinquent. Delinquent invoices which are 30 days or more overdue subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. AverQ will give Customer at least 10 days’ prior notice that its account is overdue before suspending services to Customer. Customer will continue to be charged for Subscriptions during any period of suspension. If Customer or AverQ initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer’s account computed in accordance with the charges and payment of fees noted above. Customer agree that AverQ may charge such unpaid fees to Customer’s credit card or otherwise bill Customer for such unpaid fees. AverQ reserves the right to impose a reconnection fee in the event Customer is suspended and thereafter request access to the Service. AverQ will not exercise its rights if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

    12. Termination. This Agreement commences on the start date Customer agree to use the Service by creating an account on the Service, or as designated on any AverQ Order Form, or otherwise. Use of the Service may be terminated at any time in AverQ’s sole discretion. Upon the expiration of any applicable term of the Service, this Agreement will automatically renew for successive renewal terms at AverQ’s then current and applicable fees and charges for Subscriptions. Either party may terminate this Agreement, effective only upon the expiration of the then current Subscription Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the succeeding monthly term. If Customer terminate this Agreement prior to the expiration of the subscription term, Customer will be subject to AverQ’s then in effect early termination fee.

    13. Termination for Cause. Any breach of Customer’s payment obligations or unauthorized use of AverQ Technology or Service will be deemed a material breach of this Agreement. AverQ, in its sole discretion, may terminate Customer’s account or use of the Service if Customer breach or otherwise fail to comply with this Agreement. Customer agree and acknowledge that AverQ has no obligation to retain the Customer Data, and may delete such Customer Data, if Customer have materially breached this Agreement including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

    14. Representations & Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. AverQ represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online AverQ help documentation under normal use and circumstances. Customer represent and warrant that Customer have not falsely identified Customer’s self nor provided any false information to gain access to the Service and that Customer’s billing information is correct.

    15. Federal Government End Use Provisions. AverQ provides the Services, including related software and technology, for ultimate U.S. Government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license provides in accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.

    16. Export Compliance. The Services, other technology and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use Services in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.

    17. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

    18. Mutual Indemnification. Customer shall indemnify and hold AverQ, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Customer of Customer’s representations and warranties; or (iii) a claim arising from the breach by Customer or Customer’s Users of this Agreement, provided in any such case that AverQ (a) gives written notice of the claim promptly to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally release AverQ of all liability and such settlement does not affect AverQ’s business or Service); (c) provides to Customer all available information and assistance; and (d) has not compromised or settled such claim. AverQ shall indemnify and hold Customer and Customer’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Artifact of its representations or warranties; or (iii) a claim arising from breach of this Agreement by AverQ; provided that Customer (a) promptly give written notice of the claim to AverQ; (b) give AverQ sole control of the defense and settlement of the claim (provided that AverQ may not settle or defend any claim unless it unconditionally releases Customer of all liability); (c) provide to AverQ all available information and assistance; and (d) have not compromised or settled such claim. AverQ shall have no indemnification obligation, and Customer shall indemnify AverQ pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Customer’s products, service, and hardware or business process(s).

    19. Disclaimer of Warranties. AVERQ AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. AVERQ AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU 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, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ARTIFACT AND ITS LICENSORS.

    20. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    21. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

    22. General. This Agreement shall be governed by the laws of the State of California and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California. No text or information set forth on any other purchase order, preprinted form or document (other than an AverQ Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and AverQ as a result of this agreement or use of the Service. The failure of AverQ to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Artifact in writing. This Agreement, together with any applicable AverQ Order Form, comprises the entire agreement between Customer and AverQ and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.