TERMS OF USE
These Terms of Use (“Terms”), together with: (i) the quote (the
“Quote”), (ii) the online order form (the “Order Form”),
and (iii) Avancir’s Data and Privacy Policy available at:
https://legal.avancir.app/, collectively, constitute a binding “Agreement” between AVANCIR
SOFTWARE GROUP LLC, a Delaware limited liability company
(“Avancir”) and the Person (defined below) to whom the Quote was
addressed (the “Client”). This Agreement governs Client’s
use of the Avancir Software (the “Software” further defined
below), the purchase of certain RFID hardware and related goods (the
“Hardware”) and any related professional services (the
“Services”) to the extent set forth on the Quote. The
Software, Services, and Hardware are referred to herein, collectively,
as the “Solution”.
The Solution is purchased by Avancir’s delivery to Client of a Quote and
the Client’s completion of an Order Form. The Agreement will be
effective on the date Client completes and submits an Order Form to
Avancir (such date, the “Effective Date”). Avancir and
Client are referred to herein, collectively, as the “Parties” or
individually as a “Party.” The Agreement is subject to
amendment by notice to Client in accordance with the ‘Amendment’ section
of these Terms. By submitting an Order Form, Client is subscribing
to a monthly license for use of the Software until the Agreement is
terminated.
The Parties acknowledge that the Client may, from time to time, change
its subscription level for the Software, purchase additional Services,
and/or order additional Hardware. In such event, the most recent
Quote that has been accepted by Client by completing an Order Form shall
supersede all prior Quotes, provided that, for the avoidance of doubt,
the previously-purchased Services and the Hardware shall remain subject
to the Agreement. The Parties intend that any change to the
Software licensed by Client shall be evidenced by an updated Quote
accepted by Client through completion of an Order Form. If Client
desires that other Affiliates of Client be permitted to use the
Software, Client shall request that Avancir issue a new Quote in
Avancir’s sole and absolute discretion.
By completing an Order Form, the person completing such Order Form
represents and warrants that such person has full right, power, and
authority to bind the Client to the terms of this Agreement, and that
this Agreement has been duly authorized and will be binding upon Client
in accordance with its terms. By using any component of the
Solution, Client affirms that Client is of legal age to enter into this
Agreement.
THIS AGREEMENT REQUIRES RESOLUTION OF DISPUTES THROUGH ARBITRATION
AND CONTAINS MATERIAL LIMITATIONS OF AVANCIR’S LIABILITY.
EXCEPT AS EXPRESSLY INCORPORATED HEREIN, THE AGREEMENT SUPERSEDES AND
PREVAILS OVER ANY TERMS OR CONDITIONS CONTAINED IN ANY OTHER
DOCUMENTATION, AND EXPRESSLY EXCLUDES ANY OF CLIENT’S GENERAL TERMS
AND CONDITIONS CONTAINED IN ANY PURCHASE ORDER OR OTHER DOCUMENT
ISSUED BY CLIENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS
OF THIS AGREEMENT AND THE TERMS OF ANY PURCHASE ORDER OR ANY OTHER
DOCUMENT ISSUED BY CLIENT, THE TERMS OF THIS AGREEMENT SHALL
PREVAIL.
1.
DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings:
(a) “Action” shall mean any charge, claim, judgement, settlement, or
action of any kind, nature or character whatsoever (including, without
limitation, claims arising under contract, tort (including negligence),
strict liability, or otherwise).
(b) “Additional Fees” shall mean all Taxes, Shipping Charges, and
Third-Party Fees, collectively, to the extent not set forth on the
Quote.
(c) “Affiliate” means with respect to any Person, any other Person
that directly or indirectly controls, is controlled by, or is under
common control with, such first Person. For purposes of this
definition, “control” means the direct or indirect ownership or control
of more than 50% of the voting interests of the subject Person.
(d) “Authorized Payment Method” means the credit card information
provided by or on behalf of Client in an Order Form.
(e) “Authorized Users” means Client’s employees, agents, and
contractors, but shall not include any customers or licensees of Client.
(f) “Availability Date” shall mean the date Avancir first makes the
Solution available to Client for use by Avancir’s provision of access
credentials for the Software, regardless of Client’s actual use of the
Solution, or, if earlier, the date that Client would have been able to
use the Solution but for a delay attributable to Client.
(g) “Documentation” means Avancir’s user manuals, handbooks, and
installation guides relating to the Software, including, without
limitation, to the extent published on Avancir’s website.
(h) “Hardware Cost” shall mean the aggregate amount set forth on the
Quote for all Hardware.
(i) “Intellectual Property Rights” means any and all registered and
unregistered rights granted, applied for, or otherwise now or hereafter
in existence under or related to any patent, copyright, trademark, trade
secret, database protection, or other intellectual property rights laws,
and all similar or equivalent rights or forms of protection, in any part
of the world.
(j) “License Area” shall mean the United States of America unless an
additional license area is expressly set forth on a Quote.
(k) “Loss” or “Losses” shall mean all losses, damages,
deficiencies, Actions, judgments, settlements, interest, awards,
penalties, fines, costs, or expenses of whatever kind, including
reasonable attorneys’ fees, reasonable expert fees, and the costs of
enforcing any right to indemnification hereunder and the cost of
pursuing any insurance providers.
(l) “Monthly License Fee” shall mean the monthly fee for use of the
Software as set forth on the Quote.
(m) “Order Form” means an online form completed by or on behalf of
the Client after Client’s receipt of a Quote, the completion of which
constitutes Client’s acceptance of the Agreement and authorization of
Avancir to charge Client’s Authorized Payment Method for the Solution
Cost.
(n) “Person” means an individual, corporation, partnership, joint
venture, limited liability company, governmental authority,
unincorporated organization, trust, association, or other entity.
(o) “Reimbursable Expenses” shall mean the cost of reasonable out of
pocket expenses incurred by Avancir and its employees and contractors in
connection with travel to Client’s offices or other facilities or
otherwise related to delivery of the Services.
(p) “Services Cost” shall mean the aggregate amount set forth on the
Quote for all Services.
(q) “Shipping Charges” shall mean all charges, insurance costs, and
shipping costs associated with delivery of Hardware to Client (further
including, without limitation, all export and import costs, tariffs
(with respect to, or measured by, the manufacture, sale, shipment, use,
or price of the Hardware) (including interest and penalties thereon)).
(r) “Software Data” shall mean any materials, information or data of
any kind that is generated by the Software or uploaded to the Software
by or on behalf of Client, and as may be amended in accordance with this
Agreement.
(s) “Software” shall mean the “Basic” / “Pro” or “Premium” Avancir
Software as such terms are defined at:
https://avancir.com/pricing/.
(t) “Solution Cost” shall mean the sum of: the Reimbursable
Expenses, Additional Fees, the Hardware Cost, the Services Cost, and the
Monthly License Fee.
(u) “Taxes” shall mean all sales, use, and excise taxes, and any
other similar taxes, duties, and charges of any kind imposed by any
foreign, federal, state, or local governmental or regulatory authority
arising out of this Agreement or otherwise attributable to any amounts
payable by Client hereunder, other than any taxes imposed on Avancir’s
income.
(v) “Term” shall mean the period beginning on the Effective Date and
continuing until the termination of this Agreement in accordance with
its terms.
(w) “Third Party” means any Person other than Client or Avancir.
(x) “Third-Party Fees” includes all credit card fees, value added
taxes, foreign exchange fees, and foreign transaction fees payable to a
Third Party in connection with this Agreement.
(y) “Updates” means any updates, bug fixes, patches, or other error
corrections to the Software that Avancir develops after the Effective
Date.
(z) “Warranty Period” shall mean the Term of the Agreement.
2. CANCELLATION RIGHT. Client acknowledges and agrees that
once a Quote has been accepted by completing an online order form,
Client cannot cancel its order for the Hardware or the Services, and the
Services Cost and the Hardware Cost shall be non-refundable under all
circumstances. All Hardware shall be non-returnable after the
completion of an Order Form. Subject to the previous two
sentences, Client may terminate this Agreement at any time after the
Availability Date by providing fifteen (15) days’ notice to
Avancir. In the event of such termination, Avancir shall retain
the Services Cost and the Hardware Cost, Client shall retain the
Hardware (or, if not already shipped to Client, Avancir will ship the
Hardware to Client), and the Monthly License Fee shall be prorated as of
the date of termination. Client shall cease all use of the
Software after termination of this Agreement. Client acknowledges
and agrees that the Solution will not function without a license to use
the Software.
3. PAYMENT AND SHIPPING TERMS.
(a) Solution Cost Does Not Include Additional Fees. The Solution
Cost is exclusive of, and Client is solely responsible for all
Additional Fees. Client hereby authorizes Avancir to charge and
bill the Authorized Payment Method for all Additional Fees, which shall
be included in the total Solution Cost (even if not set forth on the
Quote). If Avancir incurs any Losses arising out of Additional
Fees, Avancir may invoice Client for the cost thereof, which shall be
immediately due and payable, even if such Additional Fees are in excess
of the Solution Cost set forth on the Quote.
(b) Hardware Cost and Services Cost. The Hardware Cost and the
Services Cost are one-time costs due and payable in full on the date an
Order Form is submitted to Avancir or, if later, (i) the Services Cost
will be due and payable at the time Services are performed, and (ii) the
Hardware Cost will be due and payable on the date the Hardware is
shipped. Client hereby authorizes Avancir to bill and charge the
Authorized Payment Method for the Hardware Cost and the Services Cost on
the day(s) such amounts are due and payable.
(c) Monthly License Fee. The Monthly License Fee is a recurring,
monthly cost for use of the Software. Client authorizes Avancir to
bill and charge Client’s Authorized Payment Method for the Monthly
License Fee (in advance) on the first day of each month during the Term
beginning on the Availability Date. The Monthly License Fee is
subject to adjustment by Avancir upon thirty (30) days advance written
notice to Client, and Client hereby authorizes Avancir to bill and
charge Client’s Authorized Payment Method for any Monthly License Fee as
adjusted pursuant to this sentence. If Avancir adjusts the Monthly
License Fee, it will provide Client with a new Quote, and the new Quote
will be binding if Client does not terminate this Agreement in
accordance with the ‘Cancellation Right’ section of these Terms within
thirty (30) days of Client’s receipt of the new Quote.
(d) Authorized Payment Method. Client hereby authorizes Avancir or
its authorized vendor(s) to store Client’s Authorized Payment Method and
use it in connection with Client’s use of the Solution and to bill such
payment method for the Solution Cost. To avoid interruption of service,
Avancir may participate in programs supported by Client’s card provider
to try to update Client’s payment information. Client hereby authorizes
Avancir or Avancir’s authorized vendor(s) to continue billing and
charging Client’s account for amounts owed with the information that
Avancir may obtain.
(e) Failure of Authorized Payment Method. Client shall keep
its Authorized Payment Method and contact information updated at all
times during the Term. In the event of a failed attempt to charge
Client’s Authorized Payment Method (for example, if Client’s credit card
has expired or is no longer valid), Avancir reserves the right, and
Client authorizes Avancir, to retry billing Client’s Authorized Payment
Method. Avancir may suspend Client’s access to the Software if
Avancir is unable to charge Client’s credit card after such second
attempt, which failure will constitute a material breach of this
Agreement by Client.
(f) Terms of Delivery; Risk of Loss. The Hardware covered by this
Agreement shall be supplied Ex Works (EXW) at Avancir’s designated
facility. The Client is responsible for all transportation, loading,
unloading, insurance, and any other costs, fees, and liabilities arising
after the goods are made available at Avancir’s facility. Risk of
loss or damage to the goods shall transfer to the Client once the
Hardware is made available for collection at Avancir’s facility, in
accordance with Incoterms 2020. Notwithstanding the previous sentence, if an alternative set
of Incoterms are specified on the Quote, such alternative terms shall
control.
4. License Grant and Scope.
(b)
Limitations on Use. Client shall not, and shall require its
Authorized Users not to, directly or indirectly:
(i) use (including make any copies of) the Software or Documentation
beyond the scope of the license granted under this Agreement;
(ii) use, distribute, export, display, or permit the use of the Software for
any purpose outside of the License Area;
(iii) provide any other Person, including any subcontractor, independent
contractor, Affiliate of Client, customer, or service provider of
Client, with access to or use of the Software or Documentation;
(iv) modify, translate, adapt, or otherwise create derivative works or
improvements, whether or not patentable, of the Software or
Documentation or any part thereof;
(v) combine the Software or any part thereof with, or incorporate the
Software or any part thereof in, any other programs;
(vi) reverse engineer, disassemble, decompile, decode, or otherwise
attempt to derive or gain access to the source code of the Software or
any part thereof;
(vii) remove, delete, alter, or obscure any trademarks or any copyright,
trademark, patent, or other Intellectual Property Rights or notices
provided on or with the Software or Documentation, including any copy
thereof;
(viii) copy the Software or Documentation, in whole or in part;
(ix) rent, lease, lend, sell, sublicense, assign, distribute, publish,
transfer, or otherwise make available the Software, or any features or
functionality of the Software, to any Third Party for any reason,
whether or not over a network or on a hosted basis, including in
connection with the internet or any web hosting, wide area network
(WAN), virtual private network (VPN), virtualization, time-sharing,
service bureau, software as a service, cloud, or other technology or
service;
(x) use the Software or Documentation in, or in association with, the
design, construction, maintenance, or operation of any hazardous
environments or systems,
(xi) use the Software or Documentation in violation of any law,
regulation, or rule; or
(xii) use the Software or Documentation for purposes of competitive
analysis of the Software, the development of a competing software
product or service, or any other purpose that is to Avancir’s
commercial disadvantage.
5.
Responsibility for Use of Software; Hardware.
(a) Use of Software; Passwords. Client is responsible and
liable for all uses of the Software and Documentation through access
thereto provided by Client, directly or indirectly. Specifically, and
without limiting the generality of the foregoing, Client is responsible
and liable for all actions and failures to take required actions with
respect to the Software and Documentation by its Authorized Users or by
any other Person to whom Client or an Authorized User may provide access
to or use of the Software and/or Documentation, whether such access or
use is permitted by or in violation of this Agreement. Client
shall not disclose and shall take commercially reasonable efforts to
maintain the security of all passwords providing access to the Software,
and Client shall be solely responsible for, and shall indemnify, defend,
and hold Avancir harmless from and against all Losses arising out of any
failure of Client or Client’s Authorized Users, to maintain the security
of any such passwords.
(b)
Software Data. If and to the extent use of the Solution results in, generates,
captures, or otherwise stores or transmits any Software Data, all
such Software Data will be the sole and exclusive property of
Client. Client shall collect, maintain, and safeguard all
Software Data in accord with all applicable laws and
regulations. Client represents and warrants that: (i) it has
the right, power, and authority to use the Software Data without the
consent of any Third Party, and such use will not violate the rights
(including but not limited to Intellectual Property Rights) of any
Third Party and (ii) the Software Data will be free from any and all
viruses, Trojan horse, self-replicating or other computer
instructions that may involuntarily: (1) alter, destroy, inhibit or
discontinue effective functioning of the Software and/or the
Solution, (2) erase, destroy, corrupt or modify any data, programs,
materials or information, or (3) store any data, programs, materials
or information on any computer or server.
(c)
License Regarding Software Data. Client hereby grants Avancir a non-exclusive, worldwide,
royalty-free, irrevocable right to access, collect, and use Software
Data solely for the purpose of improving, enhancing, and developing
the Software, including, without limitation, training and optimizing
artificial intelligence algorithms and models. Such use shall be
subject to the confidentiality obligations set forth in this
Agreement and applicable data privacy laws. To the extent
Software Data contains any personally identifiable information,
Avancir agrees to anonymize or aggregate such Software Data prior to
its use for development or training purposes, ensuring that all
personally identifiable information is not disclosed.
(d)
Expense Reimbursement. Client acknowledges that the Solution Cost includes, and Client shall
be solely responsible for Reimbursable Expenses. Avancir will seek
written pre-approval from Client for all Reimbursable Expenses to the
extent Avancir deems such expenses are required in connection with
performing the Services. Client shall pay, within thirty (30) days
of invoice from Avancir, the cost of all Reimbursable Expenses that were
pre-approved by Client in writing. If a line item for travel
expenses is included in the Quote, Client is hereby deemed to have
approved Reimbursable Expenses up to the amount of such line item.
(e)
Hardware. All RFID Hardware used in connection with the Solution will
be purchased from Avancir. Client acknowledges that Avancir is
not able to provide any services, support, or warranty on any
hardware or other goods that are not purchased from Avancir.
Client shall install and maintain all Hardware in accordance with
the system operations manuals or such other specifications as may be
provided by Avancir or the Hardware’s manufacturer (even if not
provided by Avancir). Client warrants that it will not use any
Hardware in contravention of any law or regulation.
(f)
HARDWARE INSTALLATION. CLIENT FURTHER ACKNOWLEDGES THAT THE SOLUTION MAY NOT FUNCTION IF
THE HARDWARE IS NOT PROPERLY INSTALLED OR CONFIGURED. RFID
EQUIPMENT’S PERFORMANCE VARIES IN THE ENVIRONMENT IN WHICH IT IS
USED (INCLUDING, WITHOUT LIMITATION THE MATERIALS ON WHICH RFID TAGS
ARE APPLIED, ENVIRONMENTAL CONDITIONS, READ RANGES, AND READ
ORIENTATIONS). CLIENT SHALL BE SOLELY RESPONSIBLE FOR
INSTALLING AND CONFIGURING RFID EQUIPMENT AND FOR PLACEMENT,
APPLICATION, AND THE ENVIRONMENT IN WHICH RFID TAGS WILL BE USED
(COLLECTIVELY, “HARDWARE INSTALLATION”) UNLESS AVANCIR EXPRESSLY ASSUMES SUCH RESPONSIBILITY IN A QUOTE
SPECIFICALLY REFERENCING HARDWARE INSTALLATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, AVANCIR SHALL HAVE NO
LIABILITY OF ANY KIND, AND CLIENT COVENANTS NOT TO BRING AGAINST
AVANCIR, ANY ACTION ARISING OUT OF OR RELATING TO HARDWARE
INSTALLATION.
6.
COMPLIANCE MEASURES.
(a) The Software contains technological copy protection or other security
features designed to prevent unauthorized use of the Software,
including features to protect against any use of the Software that is
prohibited by this Agreement. Client shall not, and shall not attempt
to, remove, disable, circumvent, or otherwise create or implement any
workaround to, any such copy protection or security features.
(b) During the Term, Avancir may, in Avancir’s sole discretion, audit
Client’s use of the Software to ensure Client’s compliance with this
Agreement. Client shall cooperate with Avancir’s personnel conducting
such audits and provide all reasonable access requested by Avancir to
records, systems, equipment, information, and personnel, including
machine IDs, serial numbers, and related information.
(c) If Avancir determines that the Client’s use of the Software exceeds
or exceeded the use permitted by this Agreement then Client shall pay and adjusted Monthly License
Fee for the time period Client’s use exceeded Client’s license scope
within thirty (30) days of such discovery (and without limiting
Avancir’s right to pursue additional remedies
Avancir may have at law or in equity, whether under this Agreement or
otherwise).
7.
MAINTENANCE AND SUPPORT. Avancir will provide reasonable levels of support for use of the
Solution during the Term based on Avancir’s then-standard practices and
Client’s subscription tier. Client acknowledges and agrees that
the level of Client’s Software subscription licenses contains certain
limitations on Avancir’s obligation to provide support, and if Client
exceeds such limitations, Avancir reserves the right to modify Client’s
Software license subscription level by providing written notice to
Client and an updated Quote for Avancir’s premium support offering, and
Avancir shall have no obligation to provide services in excess of
Clients then-current subscription level unless and until Client accepts
the updated Quote. Avancir shall have no obligation to provide
Updates to the Software other than such Updates as Avancir makes in
Avancir’s sole discretion and makes available to other licensees of the
Software.
8.
INTELLECTUAL PROPERTY RIGHTS. Client acknowledges and agrees that the Software and Documentation
are provided under license, and not sold, to Client. Client does not
acquire any ownership interest in the Software or Documentation under
this Agreement, or any other rights thereto, other than to use the
same in accordance with the license granted and subject to all terms,
conditions, and restrictions under this Agreement. Avancir
reserves and shall retain its entire right, title, and interest
in and to the Software and all Intellectual Property Rights arising
out of or relating to the Software, except as expressly granted to the
Client in this Agreement. Client shall safeguard all Software
(including all copies thereof) from infringement, misappropriation,
theft, misuse, or unauthorized access. Client shall promptly notify
Avancir if Client becomes aware of any infringement of Avancir’s
Intellectual Property Rights in the Software and fully cooperate with
Avancir in any legal action taken by Avancir to enforce its
Intellectual Property Rights.
9.
TERM AND TERMINATION.
(a) Term Generally. This Agreement and the license granted
hereunder shall remain in effect for the Term.
(b) Termination due to Client’s Breach. Avancir may terminate this
Agreement, effective upon written notice to Client, if Client,
breaches this Agreement and such breach: (i) is incapable of cure; or
(ii) being capable of cure, remains uncured fifteen (15) days after
Avancir provides written notice thereof.
(c) Termination due to Bankruptcy Events. Avancir may terminate
this Agreement, effective immediately, if Client files, or has filed
against it, a petition for voluntary or involuntary bankruptcy or
pursuant to any other insolvency law, makes or seeks to make a general
assignment for the benefit of its creditors or applies for, or
consents to, the appointment of a trustee, receiver, or custodian for
a substantial part of its property.
(d) Termination for Convenience by Avancir. Avancir may terminate
this Agreement for any (or no) reason, for convenience, effective upon
ninety (90) days advance written notice to Client. Avancir shall
have no liability of any kind for any Loss arising out of Client’s
inability to use the Solution from and after the effective date of such
termination.
(e) Effect of Termination. Upon expiration or earlier termination
of this Agreement for any reason (including, without limitation
pursuant to Client’s ‘Cancellation Right’): (i) the license granted
hereunder shall terminate automatically on the termination date, and
Client shall immediately cease all use of the Software as of the
termination date, (ii) the Solution will no longer function after the
termination date, (iii) each Party will, upon written request of the
other Party, return all Confidential Information of the other Party,
and (iv) the entire Solution Cost (including prorated Monthly License
Fees) shall be due and payable by Client to Avancir on the termination
date. No termination of this Agreement shall relieve either Party from
any breach occurring prior to the date of such Termination.
10.
Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty
Disclaimer.
(a) Limited Warranty. Avancir warrants that, during the Warranty
Period:
the Software will substantially contain the functionality described in
the Documentation, and when properly installed according to the
specifications set forth in, and operated in accordance with the
Documentation, the Software will substantially perform in accordance
therewith. Client acknowledges that Avancir does not manufacture any
Hardware. Avancir will pass through to Client any warranties given
by the applicable Hardware’s manufacturer to the extent permitted by the
terms and conditions of Avancir’s agreement with the applicable
manufacturer. Avancir will make such pass-through warranty
available to Client upon Client’s written request. Avancir shall
not be liable for any Loss in the event any Hardware manufacturer fails
to honor its warranty with respect to the Hardware. Client further
acknowledges and agrees all or some portion of the Hardware may not be
covered by any manufacturer warranty and that RFID tags, specifically,
are not covered by any manufacturer warranty.
(b) Warranty Requirements. The warranty set forth in this Section
will not apply and will become null and void if Client breaches any
provision of this Agreement regarding the use or operation of the
Solution, or if Client, any Authorized User, or any other Person
provided access to the Software by Client or any Authorized User,
whether or not in violation of this Agreement:
(i) installs or uses the Software on or in connection with any hardware
or software not specified in the Documentation;
(ii) modifies or damages the Software, or the media on which it is
provided, including abnormal physical or electrical stress; or
(iii) misuses the Software, including any use of the Software other than as
specified in the Documentation.
(c) Remedy for Warranty Breaches. If, during the Term, any
Software covered by the warranty set forth in this Section fails to
perform substantially in accordance with the Documentation, and such
failure is not excluded from warranty pursuant to this Section or
otherwise by operation of this Agreement (e.g., a performance failure
related to Hardware Installation), Avancir will, subject to Client’s
promptly notifying Avancir in writing of such failure, at its sole
option, either:
(i) repair or replace the Solution, provided that Client provides Avancir
with all information Avancir requests to resolve the reported failure,
including sufficient information to enable Avancir to recreate such
failure; or
(ii) refund the Monthly License Fee paid for the Software during the one
(1) year prior to the effective termination, subject to Client’s
ceasing all use of and, if requested by Avancir, returning to Avancir
all copies of the Software and returning all Hardware to Avancir.
The remedies set forth in this Section are Client’s sole remedies and
Avancir’s sole liability for any Action alleging the Solution (or any component thereof) fails
to perform in accord with the Documentation or is otherwise defective,
non-functioning, or non-operational in any way.
(d) DISCLAIMER OF OTHER WARRANTIES. EXCEPT FOR THE LIMITED
WARRANTY SET FORTH IN THIS SECTION, THE SOLUTION AND DOCUMENTATION ARE
PROVIDED TO CLIENT “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT
WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE
LAW, AVANCIR, ON ITS OWN BEHALF AND ON BEHALF OF AVANCIR’S AFFILIATES
AND ITS AND THEIR RESPECTIVE SUPPLIERS AND SERVICE PROVIDERS,
EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOLUTION, INCLUDING ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE
OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE
PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, AVANCIR PROVIDES NO
WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT
THE SOLUTION WILL MEET THE CLIENT’S REQUIREMENTS, ACHIEVE ANY INTENDED
RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS,
SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY
PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY
ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
11.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL AVANCIR OR AVANCIR’S AFFILIATES, OR ANY OF ITS OR
THEIR RESPECTIVE SUPPLIERS OR SERVICE PROVIDERS, BE LIABLE TO CLIENT,
CLIENT AFFILIATES, OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION,
DELAY, OR INABILITY TO USE THE SOLUTION; LOST REVENUES OR PROFITS;
DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS
OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE
FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER,
READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT
INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT
COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE
DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE,
REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT
AVANCIR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL AVANCIR’S OR AVANCIR’S AFFILIATES’, INCLUDING ANY OF
ITS OR THEIR RESPECTIVE SUPPLIERS’ AND SERVICE PROVIDERS’, COLLECTIVE
AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS
SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND
OTHERWISE, EXCEED THE LESSER OF (I) THE SOLUTION COST AND (II) THE
AMOUNTS PAID BY CLIENT TO AVANCIR DURING THE ONE (1) YEAR PERIOD PRIOR
TO THE EVENT GIVING RISE TO AVANCIR’S LIABILITY.
(c) THE LIMITATIONS SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF THE
CLIENT’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL
PURPOSE. CLIENT ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS SET FORTH IN
THIS SECTION ARE A MATERIAL PART OF AVANCIR AND CLIENT’S AGREEMENT AND
THAT THE PRICE FOR THE SOLUTION WOULD BE MATERIALLY HIGHER IF SUCH
LIMITATIONS WERE NOT INCLUDED IN THIS AGREEMENT.
(d) Notwithstanding anything to the contrary, Avancir shall have no
liability of any kind for any delay in delivery of the Solution or any
component thereof to Client. Avancir will use commercially
reasonable efforts to cause the Availability Date to occur as soon as
practicable following the Effective Date.
12.
EXPORT REGULATION. The Software may be subject to US export control laws, including
the Export Control Reform Act and its associated regulations. Client
shall not, directly or indirectly, export, re-export, or release the
Software to, or make the Software accessible from, any jurisdiction or
country to which export, re-export, or release is prohibited by law,
rule, or regulation. Client shall comply with all applicable federal
laws, regulations, and rules, and complete all required undertakings
(including obtaining any necessary export license or other
governmental approval), prior to exporting, re-exporting, releasing,
or otherwise making the Software available outside the US. Nothing in this Section shall limit any restriction regarding
the License Area.
13.
ARBITRATION. CLIENT AGREES AND HEREBY DOES GIVE UP ANY RIGHTS TO
LITIGATE ACTIONS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN
A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY
ACTION. OTHER RIGHTS THAT CLIENT WOULD HAVE IF CLIENT WENT
TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN
ARBITRATION.
(a)
ANY ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER
PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER
PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE
CLAIMS) BETWEEN OR AMONG AVANCIR AND/OR AVANCIR’S AFFILIATES ON THE
ONE HAND AND CLIENT AND/OR CLIENT’S AFFILIATES ON THE OTHER HAND
ARISING FROM OR RELATING IN ANY WAY TO THE SOLUTION AND/OR THIS
AGREEMENT (a “DISPUTE”) SHALL BE SUBMITTED TO MANDATORY, FINAL AND BINDING ARBITRATION
AS DESCRIBED BELOW.
(b)
The arbitration will be submitted to and administered by the
American Arbitration Association (“AAA”) in accordance with the
Commercial Arbitration Rules then in effect.
(c)
There shall be one arbitrator, who will be agreed to by the Parties
within 30 days of receipt by respondent of a copy of the demand for
arbitration. If the Parties cannot agree on an arbitrator within the
time period specified then, at the request of either Party, such
arbitrator shall be appointed by the AAA. The language of the
arbitration shall be English. The place of the arbitration shall be
Birmingham, Alabama, U.S.A. The arbitrator shall be an attorney
licensed in Alabama with at least ten (10) years of
experience.
(d)
The arbitration shall be the sole and exclusive forum for
resolution of any Dispute, and the award shall be in writing, state
the reasons for the award and be final and binding. Judgment thereon
may be entered in any court of competent jurisdiction.
(e)
By agreeing to arbitration, the Parties do not intend to deprive
any court of its jurisdiction to issue a pre-arbitral injunction,
pre-arbitral attachment, or other order in aid of arbitration
proceedings and the enforcement of any award. Without prejudice to
such provisional remedies as may be available under the jurisdiction
of a court, the AAA shall have full authority to grant provisional
remedies and to direct the Parties to request that any court modify
or vacate any temporary or preliminary relief issued by such court,
and to award damages for the failure of any Party to respect the
AAA’s orders to that effect. In any such judicial action: (i) each
of the Parties irrevocably and unconditionally consents to the
exclusive jurisdiction and venue of the federal or state courts
located in Birmingham, Alabama, U.S.A. (the “Alabama Courts”) for the purpose of any pre-arbitral injunction, pre-arbitral
attachment, or other order in aid of arbitration proceedings, and to
the non-exclusive jurisdiction of such courts for the enforcement of
any judgment on any award; (ii) each of the Parties irrevocably
waives, to the fullest extent they may effectively do so, any
objection, including any objection to the laying of venue or based
on the grounds of forum non conveniens or any right of objection to
jurisdiction on account of its place of incorporation or domicile,
which it may now or hereafter have to the bringing of any such
action or proceeding in any Alabama Courts; and (iii) Client
irrevocably consents to service of process by first-class certified
mail, return receipt requested, postage prepaid at the address
specified in any Quote or order form.
(f)
The prevailing Party, as determined by the AAA, shall be entitled
to recover its reasonable costs and attorneys’ fees.
(g)
Except as may be required by law, the Parties shall preserve the
confidentiality of all aspects of the arbitration, and shall not
disclose to a Third Party (other than disclosure to Affiliate(s) of
a Party on a need-to-know basis and such Affiliate(s) is/are
informed of the confidential nature of such information and is/are
instructed to keep such information confidential), all information
made known and documents produced in the arbitration not otherwise
in the public domain, all evidence and materials created for the
purpose of the arbitration, and all awards arising from the
arbitration, except, and to the extent that disclosure is required
by law or regulation, is required to protect or pursue a legal right
or is required to enforce or challenge an award in legal proceedings
before a court or other competent judicial authority.
(h)
Client agrees to an arbitration on an individual basis. In any
dispute, neither Client nor Avancir will be entitled to join or
consolidate claims by or against other customers in court or in
arbitration or otherwise participate in any claim as a class
representative, class member or in a private attorney general
capacity.
14.
AVANCIR’S RIGHT TO MITIGATE. In the event any Action alleges use of the Solution in accordance with
the terms of this Agreement infringes United States patent or United
States copyright or misappropriates trade secrets pursuant to laws of a
state in the United States or any other intellectual property right
under any jurisdiction or governmental body has occurred or in Avancir’s
reasonable opinion is likely to occur, Avancir may (but shall not be
required to), to (i) procure for Client the right to continue using the
Solution, (ii) replace or modify the Solution so that it becomes non
infringing but provide Client substantially similar or better
capabilities, or (iii) if Avancir reasonably determines that both of the
foregoing are technically impracticable or commercially infeasible,
immediately terminate both Parties’ respective rights and obligations
under this Agreement with respect to the infringing component of the
Solution, in which case Client shall return to Avancir all copies of
such component of the Solution in its possession or control, and Avancir
shall refund to Client the applicable amount paid by Client for the
then-current Term prorated for the portion of the Term through the date
of such termination.
15.
AMENDMENT. Avancir may modify any part or all of the Terms by posting
a revised version at https://legal.avancir.app/terms-and-conditions
and by notifying Client by email. The revised version will become
effective and binding the next business day after it is posted.
If Client does not agree with a modification to the Terms,
Client must notify Avancir in writing within thirty (30) days after
Avancir sends the notice of amendment. If Client gives
Avancir this notice, then the Agreement will continue to be governed
by the terms and conditions of the Agreement prior to modification
until the first day of the subsequent calendar year, after which the
terms posted at https://legal.avancir.app/terms-and-conditions will
apply. However, Avancir we can no longer reasonably provide
the Software to Client under the terms prior to modification (for
example, if the modifications are required by law or result from
general product changes), then the Agreement will terminate upon our
notice to Client and Avancir will promptly refund any prepaid but
unused Monthly License Fee covering use of the Software after
termination in accordance with the ‘Term and Termination’ provision
of this Agreement.
16.
MISCELLANEOUS.
(a) All matters arising out of or relating to this Agreement shall be
governed by and construed in accordance with the internal laws of the
State of Alabama without giving effect to any choice or conflict of
law provision or rule.
(b) In no event shall Avancir be liable to Client, or be deemed to have
breached this Agreement, for any failure or delay in performing its
obligations under this Agreement if and to the extent such failure or
delay is caused by any circumstances beyond Avancir’s reasonable
control, including but not limited to: (i) acts of God; (ii) flood,
fire, earthquake, epidemics, pandemics, or explosion; (iii) war,
invasion, hostilities (whether war is declared or not), terrorist
threats or acts, riot or other civil unrest; (iv) government order,
law, or actions; (v) embargoes or blockades in effect on or after the
date of this Agreement; (vi) national or regional emergency, (vii)
strikes, labor stoppages or slowdowns, or other industrial
disturbances, (viii) shortage of adequate power or transportation
facilities, or (ix) shortage or delays in Avancir’s ability to procure
Hardware.
(c) All notices, requests, consents, claims, demands, waivers, and other
communications hereunder shall be sent: (i) to Avancir by email at admin@avancir.com, with a required
copy to https://legal.avancir.app/terms-and-conditions, and (ii) to
Client by email to the address specified in Client’s Order Form.
Notices will be effective when sent in accordance with this Section.
In order to be effective as notice for purpose of this Agreement,
the applicable email must state, all capital letters, “Legal Notice” in
the subject line of the email.
(d) This Agreement, and all other documents that are incorporated by
reference herein, constitutes the sole and entire agreement between
Client and Avancir with respect to the subject matter contained
herein, and supersedes all prior and contemporaneous understandings,
agreements, representations, and warranties, both written and oral,
with respect to such subject matter.
(e) Client shall not assign or otherwise transfer any of its rights, or
delegate or otherwise transfer any of its obligations or performance,
under this Agreement, in each case whether voluntarily, involuntarily,
by operation of law, or otherwise, without Avancir’s prior written
consent, which consent Avancir may give or withhold in its sole
discretion. No delegation or other transfer will relieve Client of any
of its obligations or performance under this Agreement, whether
arising before or after the date of the assignment. Any purported
assignment, delegation, or transfer in violation of this Agreement is
void. Avancir may freely assign or otherwise transfer all or any of
its rights, or delegate or otherwise transfer all or any of its
obligations or performance, under this Agreement without Client’s
consent. This Agreement is binding upon and inures to the benefit of
the Parties and their respective permitted successors and permitted
assigns.
(f) This Agreement is for the sole benefit of the Parties hereto and
their respective successors and permitted assigns and nothing herein,
express or implied, is intended to or shall confer on any other Person
any legal or equitable right, benefit, or remedy of any nature
whatsoever under or by reason of this Agreement.
(g) No waiver by any Party of any of the provisions hereof shall be
effective unless explicitly set forth in writing and signed by the
Party so waiving. Except as otherwise set forth in this Agreement, no
failure to exercise, or delay in exercising, any right, remedy, power,
or privilege arising from this Agreement shall operate or be construed
as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power, or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy,
power, or privilege.
(h) If any term or provision of this Agreement is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or
unenforceability shall not affect any other term or provision of this
Agreement or invalidate or render unenforceable such term or provision
in any other jurisdiction.
(i) All rights, obligations and provisions under this Agreement that, by
their terms or nature, are intended to survive termination or expiration
of this Agreement shall survive any expiration or termination of this
Agreement until the expiration of the applicable statute of limitations
or, if shorter, the express survival or warranty period set forth in
this Agreement.
17.
LIMITATIONS PERIOD. Any Action arising out of or related
to breach of this Agreement by Avancir and/or Avancir’s Affiliates must
be asserted by Client by the submission of a Dispute in accordance with
this Agreement on or before the date that is six (6) months after
expiration of the Term (the “Limitations Period”). Client
and Client Affiliates hereby covenant not to bring any such Action or
commence any Dispute after the Limitations Period. Client shall
indemnify, defend, and hold Avancir harmless from and against all Losses
arising out of breach of this Section or out of breach of Section 10
(Arbitration).