These terms and conditions outline the rules and regulations for the use of Avidestal Technologies' website, located at avidestal.com.
By accessing this website, we assume you accept these terms and conditions set by Avidestal Technologies. Please discontinue the use of Avidestal Technologies if you do not agree to all of the terms and conditions stated on this page.
The following terminology applies to these Terms and Conditions, Privacy Statement and Disclaimer Notice and all Agreements:
“Account” means an Account that is created when an individual, company, or other entity, or any representative of such, signs up with a username and password.
“Account Owner” or “Platform Owner" means the person, company, corporation, organization, or other entity who pays for the Services.
“Add-ons” means users, members, domains, and other features Avidestal Technologies may develop in the future that CLIENT has the option of adding to their Account based on Subscription level, and usually for an additional fee.
“Additional Work” refers to all additional services delivered during the term of this Agreement which are in excess of the scope of Services initially agreed upon by Avidestal Technologies and the CLIENT.
“Agreement” refers to the relationship between Avidestal Technologies and CLIENT formed by the conclusion of an Order between Avidestal Technologies and CLIENT, a Subscription to the Services and/or any other agreement concluded between Avidestal Technologies and CLIENT. The Agreement shall be governed by these General Terms and Conditions, Order Confirmation document and any other documents stemming from a specific Order concluded with the CLIENT.
“General Terms and Conditions” or “Terms” refers to these General Terms and Conditions in their entirety, including any Additional Terms that may govern execution of a specific Order.
“License” means the right of the CLIENT to make use of the Software and Services offered by Avidestal Technologies for an agreed time period in exchange for an agreed monthly fee determined by Avidestal Technologies.
“Order Confirmation” or “Order” refers to a specific Order concluded between Avidestal Technologies and the CLIENT, including but not limited to orders placed via www.avidestal.com, online plan activations, Avidestal Technologies Platform orders, Additional Orders and any other orders issued for or made available to use by CLIENT. As such, the act of Order Confirmation or conclusion of an Order shall be taken to mean both an online submission of an order via www.avidestal.com and signing of an order offered by Avidestal Technologies to CLIENT or any other custom written agreement concluded between and signed by both parties. The scope of the Order and specific details thereof are laid out in the Order Confirmation document.
“Plan” means a Subscription plan.
“Services” refer to all services, including Software as a service, access and hosting, support, consulting, development, design, and other services to be delivered to CLIENT by Avidestal Technologies from the setup of and throughout the project, as laid out in a particular Order Confirmation.
“Sensitive Information” means credit or debit card numbers; personal financial information; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; religious affiliation; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security.
“Site” means the Avidestal Technologies website (www.avidestal.com) and its subdomains not associated with a CLIENT.
“Software” means proprietary online Software of Avidestal Technologies to be made available to the CLIENT as an inherent part of provision of Services and term of this Agreement. In the light of this Agreement, Software shall mean Avidestal Technologies Platform which may include but shall not be limited to modules, widgets and/or additional features; administrator interfaces thereof, and any other products Avidestal Technologies shall make available for CLIENT’s Order.
“Standard Business Hours” means the time window between 9:30 AM and 5:00 PM Indian Standard Time, Monday through Friday, excluding statutory holidays of the country of the local office.
“Subscription” means an online subscription to Avidestal Technologies’ Services. It encompasses access to paid features, and can begin with a free trial.
“Subscription Period” means the period between billings.
“Support” means assistance in the use of the Services, revision and response to CLIENT’s Support requests, answering of questions and other services of information provided to the CLIENT regarding the use of Services. Support may be divided into “Regular Support”, which covers normal use of the Services and “Incident Support”, which covers support for when Services are not working as can be naturally expected.
“Third Party” means any organization or person other than CLIENT or Avidestal Technologies. This includes but is not limited to CRM/CMS systems, email marketing software, billing and shopping cart/checkout platforms, PPC conversion tracking codes, analytics (and other tracking software), non-Avidestal forms, file hosting/sharing platforms and any organization or person with which CLIENT or Avidestal Technologies conducts business or integrates.
“User” means any and all named or specified (by password or other user identification) individuals authorized by CLIENT in the Agreement to use the Services, regardless of whether the individual is actively using the Software at any given time. CLIENT and any employees thereof are considered to be Users under this Agreement.
“Upgrading” or “Activating” means CLIENT’s Subscription to a paid or higher plan.
These Terms govern the relationship between Avidestal Technologies and the CLIENT and shall, therefore, form, together with the Order Confirmation document, an Agreement. By concluding an Order, CLIENT acknowledges that these Terms and the information incorporated in these Terms, together with the relevant Order Confirmation document, are the complete Agreement for the Services ordered by CLIENT and that this complete Agreement supersedes all prior or contemporaneous agreements, any prior or contemporaneous terms of purchase or other ordering documents not issued by Avidestal Technologies. Any of CLIENT's general terms and conditions and/ or general purchase conditions are hereby explicitly rejected unless expressly otherwise agreed in writing before Order Confirmation.
This Agreement shall not be modified, altered or waived by CLIENT unless otherwise explicitly agreed by both parties in writing.
If any of these Terms is found to be invalid, null or unenforceable, the remaining provisions shall remain effective. Parties shall then, in mutual consultation, be obliged to replace the invalid, nullified or unenforceable stipulation in writing.
Avidestal Technologies reserves the right to alter or change these General Terms and Conditions at any time, and the changed General Terms and Conditions shall have an immediate effect on this Agreement. CLIENT hereby obliges, upon said notification, to get acquainted with the updated Terms on time. Should the CLIENT disagree with any or all of the revised General Terms and Conditions, the CLIENT shall have the right, within the said period of 10 business days, to submit an objection upon which both parties shall negotiate adjustments to the Agreement. In case no objection is submitted within this period, Avidestal Technologies shall conclude that the CLIENT has been sufficiently informed, and the updated version of these General Terms and Conditions will become valid.
Any Additional Terms provided by Avidestal Technologies are inseparable from and must be interpreted in light of these General Terms and Conditions. In case of conflict between specific provisions of these Terms and any Additional Terms, the latter shall supersede the former.
CONCLUSION OF AGREEMENT
All Orders concluded between Avidestal Technologies and CLIENT are deemed to be binding agreements and are subject to these General Terms and Conditions. All such Orders shall be subject to a Service Level Agreement (SLA).
Avidestal Technologies shall provide an opportunity to the CLIENT to test the Services upon request before Order Confirmation. Orders cannot be cancelled and shall thus be treated as termination of Agreement, as laid out in these Terms.
SUSPENSION AND TERMINATION OF AGREEMENT
This Agreement shall be automatically terminated by the accomplishment of the term initially agreed upon unless the parties explicitly agree otherwise or an express order for extension of the Agreement in writing has been presented by the CLIENT. Upon accomplishment of term initially agreed upon by the parties, any exemptions, exceptions, discounts, price reductions and any other special conditions agreed upon by the parties shall expire and regular costs, fees and prices shall apply unless otherwise agreed by parties thereafter.
If the CLIENT fails to meet any obligations, either arising from this Agreement or resting with the CLIENT by virtue of this Agreement, Avidestal Technologies shall, without prejudice to any other rights it may have in respect thereof, be entitled to suspend its obligations until the CLIENT has cured the breach. Avidestal Technologies shall inform the CLIENT of any such breach with a warning. CLIENT shall be given a period of grace of 5 business days to cure the breach.
Avidestal Technologies reserves the right to terminate this Agreement with the CLIENT with an immediate effect by registered letter, without notice of default or judicial intervention, if the CLIENT is in default with payment or timely payment or fails to observe or does not strictly observe any other obligation arising from the Agreement. CLIENT shall be given a period of grace of 5 business days from the date of receipt to fulfill its obligations.
Regardless of the stipulations provided elsewhere in this Agreement, either of the parties shall be entitled to terminate the Agreement in writing with an immediate effect, without notice of default or judicial intervention, in cases such as the following:
4.1. if and as soon as the other party is granted a moratorium or provisional moratorium on payments and this moratorium or provisional moratorium on payments has lasted longer than six consecutive months;
4.2. if and as soon as the other party is declared to be in a state of involuntary liquidation;
4.3. if and as soon as the company of the other party is wound up, has ceased, or a substantial part thereof is sold;
4.4. if and as soon as a pre-judgment attachment or execution is levied on a considerable part of the assets of the other party and this attachment prevents a proper performance of the Agreement;
4.5. if and as soon as the other party must be deemed not or no longer to be able to fulfill its obligations arising from the Agreement.
In case an Agreement has been executed for an indefinite period of time and thus is not terminated by accomplishment, either of the parties can terminate the Agreement by notice of termination in writing, provided that the decision and reasons to terminate the Agreement have been properly communicated by either of the parties to one another. If no express notice period has been agreed upon between the parties, a notice period of a maximum of 2 calendar months shall be observed in the event of termination.
Termination of this Agreement, with respect to any or both Parties, shall be without prejudice to any obligations which are expressly stated to continue after or not to be affected by such termination.
In case an Agreement is terminated by CLIENT before any setup or design work has been completed, the agreed fees associated with this work need to be paid by CLIENT in full. In case these fees have already been paid, then no refund is possible.
Additional work shall be taken to mean all that is delivered during the term of the Agreement concluded with a CLIENT which is in excess of what has initially been agreed on.
An additional Order pertaining to additional work shall be executed upon request of the CLIENT. Avidestal Technologies shall only be bound to the Additional work after it has confirmed the instruction received from the CLIENT in writing.
Any and all expenses arising from the execution of Additional work by Avidestal Technologies due to loss of data, incorrectness of settings, and/or non-compliance with this Agreement arising from actions of the CLIENT shall be borne by the CLIENT. In such event, Avidestal Technologies shall inform the CLIENT in advance of the execution of Additional Work, and the parties will execute a corresponding amendment to this agreement to agree upon the relevant increase.
PRICES AND INVOICING
Unless otherwise expressly announced in writing, all prices quoted in Orders concluded between Avidestal Technologies and CLIENT shall be based on the rates indicated at the moment of Delivery and exclusive of VAT, sales tax and any other taxes, charges and levies, shipping, insurance, transport and/or operating system costs, installation, cable-wiring and non-durable goods, database and other software licenses necessary for the use of Services.
If, in fulfilling this Agreement, Avidestal Technologies must, for the purpose of best performance of this Agreement, use other products and/or Materials instead of the products and/or Materials agreed on, any and all additional costs shall be communicated to and thereafter borne by the CLIENT.
Avidestal Technologies holds explicit right to:
3.1. Modify or change prices for Software and Services offered by Avidestal Technologies without notice. Such changes shall not affect any pre-existing Agreements between Avidestal Technologies and its clients and shall only be applicable to automatic or non-automatic extensions of said Agreements and/ or new Agreements to be concluded by the parties;
3.2. Increase the prices quoted in the Agreement if the costs incurred by Avidestal Technologies rise as a result of circumstances beyond its control, including but not limited to a change in exchange rates, an increase in labour costs, a rise in energy prices or an increase in the cost of Materials. Should such be the case, the increased prices shall apply to this Agreement from the 1st of January of the next calendrical year.
Reasonable travel and/or accommodation costs arising from the execution of this Agreement are not included and shall be borne by the CLIENT.
Avidestal Technologies may offer discounts on specific Orders, in the event of which Avidestal Technologies shall communicate such discounts in writing, either in this Agreement or on www.avidestal.com or any other method of communication chosen by Avidestal Technologies. Discounts shall apply to the costs, fees or prices initially agreed upon in this Agreement for the term initially agreed upon for this Agreement.
Unless otherwise explicitly agreed by CLIENT and Avidestal Technologies in advance, CLIENT obliges, upon submitting or signing an Order, to conform with Avidestal Technologies’ terms of payment as follows.
Avidestal Technologies shall only accept wire transfer payments or credit card payments unless otherwise specifically agreed between parties. By selecting the credit card payment method, CLIENT, hereby authorizes Avidestal Technologies to initiate monthly credit card debit entries for payment if the project period spans a timeframe longer than 1 month. Avidestal Technologies shall assume no responsibility or liability if credit card payment by CLIENT fails, is rejected, disputed, or cannot be processed or accepted by the financial institution in charge. Should either be the case, Avidestal Technologies shall be entitled to reject CLIENT’s application to receive Services and/or may suspend the receipt of Services, including without limitation to the Software until valid payment in full is received.
Unless otherwise explicitly agreed by Avidestal Technologies and the CLIENT, the CLIENT shall pay Avidestal Technologies a one-time fee of accumulated Delivery costs and a monthly fee for the Services, including but not limited to License costs, Additional Work expenses and any other costs to be borne by the CLIENT as laid out in this Agreement, calculated according to the rates applied by Avidestal Technologies.
All invoices shall be sent to be paid by CLIENT in advance except for the invoices regarding Additional Work as defined in these Terms. All payments of invoices shall be made within 15 days of the invoice date, without extension or set-off, unless otherwise stated in the contract or order confirmation. In the event of failure to pay, the CLIENT shall be in default by operation of law and, therefore, an interest rate of 0.75% per month shall be payable by CLIENT to Avidestal Technologies without further notice of such default. Should such be the case, a part of a month shall be calculated as a month.
Any judicial and/or extrajudicial costs incurred in the collection of payments due to Avidestal Technologies shall be borne by the CLIENT.
Payments shall first be set off against the aforementioned costs and interest and shall, subsequently, be set off against the invoice which is overdue for the longest period of time.
The amounts due and payable to Avidestal Technologies shall be immediately claimable by operation of law as soon as any of the following occurs:
7.1. CLIENT is declared to be in a state of involuntary liquidation;
7.2. CLIENT applies for a moratorium of payments;
7.3. A petition for a guardianship order has been filed;
7.4. An attachment has been levied on CLIENT’s goods or part thereof;
7.5. CLIENT’s assets or part thereof are put under administration;
7.6. CLIENT loses, wholly or partially, disposition over their assets;
7.7. CLIENT is in the process of being wound up or is dissolved, whether in general partnership or as a private limited company.
If before or during the execution of the Agreement, Avidestal Technologies has good reasons to believe that the CLIENT will not or not timely be able to fulfill its payment obligations, Avidestal Technologies shall be entitled, after a warning and a period of grace of 5 business days, to suspend the performance of its obligations until the CLIENT has on request furnished sufficient security therefore. If the CLIENT fails to furnish such security, Avidestal Technologies shall be entitled to terminate the Agreement. The CLIENT shall compensate Avidestal Technologies for all the loss or damage sustained by Avidestal Technologies arising from this suspension or dissolution.
Each setoff invocation by the CLIENT shall be excluded unless the setoff invocation refers to a claim against Avidestal Technologies, which Avidestal Technologies has unconditionally recognized.
EXECUTION OF THE ORDER
Avidestal Technologies shall execute the Order in accordance with specifications laid down in the Order Confirmation document.
All Services to be delivered by Avidestal Technologies shall also depend on the data, Materials and documents provided by the CLIENT, which shall be assumed to be correct and complete. Avidestal Technologies is not liable to pay any damages and costs ensued as a consequence of incorrectness and/or incompleteness of the data provided.
Avidestal Technologies is entitled to assign the execution, wholly or in part, to third parties if and in so far as such is deemed necessary, useful or required for the proper execution of this Agreement. Avidestal Technologies remains fully responsible for the performance and execution of this Agreement by these third parties.
Avidestal Technologies shall only have an obligation to perform to the best of its ability and no obligation to guarantee a certain result unless otherwise explicitly agreed in writing. Avidestal Technologies never guarantees the suitability of its Services for a specific purpose unless otherwise explicitly agreed in writing.
RESERVATIONS TO EXECUTION OF THE AGREEMENT
Modifications to Software, Content creation and other sorts of Services which are not explicitly listed on www.avidestal.com nor offered to CLIENT in writing by Avidestal Technologies nor otherwise made available to CLIENT are not included by standard unless otherwise explicitly agreed in writing.
Avidestal Technologies shall deliver the Services provided for by this Agreement to the CLIENT after the payment, or sufficient proof thereof is received, unless otherwise explicitly agreed between Avidestal Technologies and CLIENT in writing.
Delivery dates, in any way mentioned by Avidestal Technologies, shall be deemed to be estimates. CLIENT hereby acknowledges that no damages shall be claimed from Avidestal Technologies if Delivery dates are exceeded unless mandatory statutory provisions prescribe otherwise.
Avidestal Technologies shall be entitled to deliver an Order wholly or successively in parts. In the latter case, partial Delivery will be communicated to the CLIENT and invoiced separately before the partial Delivery takes place.
Should the CLIENT fail to pay for (partial) Delivery or to provide sufficient proof of payment thereof, Avidestal Technologies shall be entitled, in so far as Avidestal Technologies has not yet concluded the Agreement, to terminate the Agreement without judicial intervention and without giving any notice of default to the CLIENT, without prejudice to its right to claim damages and without prejudice to its right to claim compliance instead of dissolution.
5. Avidestal Technologies reserves the right to charge repeated Delivery costs, as described in these Terms, in case the CLIENT requests the provision of Services to be continued after a suspension caused by conditions laid out in these Terms.
No action, regardless of form, arising from this Agreement may be brought by either party more than one year after the cause of action has accrued, with the exception of actions regarding non-payment, breach of Avidestal Technologies’ proprietary rights in the Software and Services, and any or all of the cases defined as follows:
1.1. Claims by the CLIENT regarding defects in the Services delivered by Avidestal Technologies shall be invoked by registered letter within a period of 5 business days of the date that the CLIENT has discovered or could reasonably have discovered the defect, in the absence of which the rights of the CLIENT shall lapse in respect thereof, provided that the CLIENT has not attempted to correct the alleged defect or trusted the correction with a Third Party without written consent of Avidestal Technologies;
1.2. Claims with respect to invoices shall be submitted to Avidestal Technologies within 10 business days of the invoice date, in the absence of which the rights of the CLIENT shall lapse in this respect.
2. No Claim as referred to under paragraphs 1 and 2 of this Article shall suspend the CLIENT's payment obligations.
INTELLECTUAL PROPERTY RIGHTS OF AVIDESTAL TECHNOLOGIES
CLIENT acknowledges that title in and rights to the Software and custom Design Services provided wholly by Avidestal Technologies to the CLIENT remain exclusively with Avidestal Technologies or a Third Party which has granted Avidestal Technologies the right to use and sublicense part of the Software. No stipulations arising from this Agreement shall be deemed to constitute a transfer of title. CLIENT shall only be granted a License or right to use or apply the Software and/or custom Design Services for the purposes agreed upon together with this Agreement.
In the event that Avidestal Technologies incorporates any new features or functionalities upon request of the CLIENT into the Software, such new features and/or functionalities shall be the sole and exclusive property of Avidestal Technologies unless explicitly agreed otherwise in writing.
CLIENT retains the copyright to any and all custom design data, files and graphic logos provided by the CLIENT and grants Avidestal Technologies the rights to publish and use such Material. CLIENT must obtain permission and rights to use any information and/or files copyrighted by a Third Party and is further responsible for granting Avidestal Technologies permission and rights to use said information and/or files. CLIENT hereby agrees to indemnify and hold harmless Avidestal Technologies from any and all claims, proceedings, penalties, payment of damages, liabilities, losses and other expenses resulting from CLIENT’s negligence or inability to obtain proper copyright permissions for data, files and graphic logos used in the custom design. Order conclusion and, subsequently, installation of custom design, created or otherwise arranged by Avidestal Technologies, in Software of Avidestal Technologies shall be regarded as a guarantee by CLIENT to Avidestal Technologies that such permissions have been fully obtained, with sufficient evidence of such acquisition. Avidestal Technologies reserves the right to deny service upon failure to provide such evidence.
Avidestal Technologies has taken sufficient (legal) measures to ensure that the use of the Software by CLIENT is ascertained in the event of any discontinuity of or in relation to Avidestal Technologies. Avidestal Technologies shall, upon request of CLIENT, provide insight into the measures taken by Avidestal Technologies.
Avidestal Technologies may allow re-use of custom design, at a price rate set by Avidestal Technologies, delivered wholly by Avidestal Technologies to the CLIENT, upon conclusion of new Order by the same CLIENT when the previous license to use said design has expired upon the termination of a former agreement between Avidestal Technologies and the CLIENT. Avidestal Technologies reserves the right to revoke such service.
Avidestal Technologies grants the CLIENT a non-exclusive license to use Avidestal Technologies’ trade name, service marks, logo, domain name and other brand features solely in connection with the use of the Services and in accordance with this Agreement. Avidestal Technologies may revoke this license to use these trade and service marks at any time.
INTELLECTUAL PROPERTY RIGHTS OF CLIENT
Avidestal Technologies acknowledges that title in and rights to the custom design created wholly or partially by CLIENT for the front-end of Software, or a Third Party employed by the CLIENT, remain exclusively with CLIENT, or the Third Party which has granted CLIENT the right to use the custom design. This paragraph 1 of this Article shall not be deemed to apply to any design templates made available to the CLIENT by Avidestal Technologies before the installation of custom design created or otherwise arranged by the CLIENT.
For the convenience of and upon request by CLIENT, Avidestal Technologies may store the custom design, created or otherwise arranged wholly or partially by the CLIENT, for a default period of 12 months, unless requested otherwise by CLIENT. Due to the nature of data back-ups performed in favour of the CLIENT during the term of this Agreement, all design data, including any necessary documentation, files and graphic logos, cannot be completely destroyed earlier than 30 calendrical days of the date of termination of Agreement.
CLIENT hereby acknowledges that Avidestal Technologies shall assume no responsibility for the maintenance, adaptability and/or suitability of, or any changes in the design, in the execution of these Terms or general Services development of any other kind.
Avidestal Technologies may include, upon permission, the CLIENT's name and brand features in presentations, marketing materials, customer lists and financial reports.
Each party may have access to information that is confidential to the other party.
Avidestal Technologies’ confidential information shall include, but not be limited to, the Services, documentation, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, CLIENT names, prospective CLIENT names, the terms and pricing under this Agreement, provided that it is clearly identified in writing at the time of disclosure as confidential and all information which CLIENT ought reasonably to regard as confidential.
Confidential information of any or both of the parties shall not include information that:
3.1. is or becomes a part of the public domain through no act or omission of the other party;
3.2. was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
3.3. is lawfully disclosed to the other party by a Third Party without restriction on disclosure; or
3.4. is independently developed by the other party without use of or reference to the other party's confidential information.
This Article will not be construed to prohibit the disclosure of confidential information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that the responding party shall first have given notice to the other party and shall have made a reasonable effort to obtain a protective order requiring that the confidential information so disclosed be used only for the purposes for which the order was issued.
The parties agree, unless required by law, not to make each other's confidential information available in any form to any Third Party (except third parties who are Users as defined hereunder) or to use each other's confidential information for any purpose other than in the performance of an Agreement. Each party agrees to take all reasonable steps to ensure that confidential information is not disclosed or distributed by its employees or agents in breach of the Agreement.
The parties agree to hold each other's confidential information in confidence during the term of the Agreement and for a period of 2 years thereafter. Each party acknowledges and agrees that, due to the unique nature of confidential information, there can be no adequate remedy at law for breach of this Article and that such breach would cause irreparable harm to the non-breaching party. Therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under an Agreement.
Avidestal Technologies hereby ensures that the obligations of confidentiality, as laid down in this Article, shall be agreed upon by any and all third parties to be involved in the performance of this Agreement. Avidestal Technologies shall, upon request by the CLIENT, provide a list of any such third parties upon entering into this Agreement with the CLIENT.
LIMITATION OF LIABILITY
CLIENT shall indemnify and hold Avidestal Technologies harmless against any and all liability to third parties relating to use of the Software and/or the Services.
Avidestal Technologies’ liability arising from this Agreement or the termination of this Agreement shall be strictly limited to the total aggregate amount paid to Avidestal Technologies by the CLIENT pursuant to the agreement during a period of 12 calendrical months preceding the event causing liability. This limitation of liability is cumulative and not per incident.
Avidestal Technologies shall not be liable for any indirect, incidental, special or consequential damages, however, caused and on any theory of liability, arising out of the Agreement, including but not limited to loss of anticipated profits, even if Avidestal Technologies has been advised of the possibility of such damages. This paragraph 3 of this Article does not limit liability for bodily injury inflicted on a private individual.
If a Claim is raised by a Third Party against Avidestal Technologies for any loss or damage for which the CLIENT is liable under this Agreement, the CLIENT shall fully indemnify Avidestal Technologies in this respect.
The liability of Avidestal Technologies for any shortcomings under the Agreement only arises if the CLIENT puts Avidestal Technologies into default without delay and by written notice, specifying therein a reasonable period for curing the identified shortcomings, and Avidestal Technologies keeps on failing imputably in the fulfilling of its obligations also after this period. The notice of default shall contain a detailed description of the shortcoming so that Avidestal Technologies will be able to respond adequately.
Any right to compensation only arises under the condition that the CLIENT informs Avidestal Technologies of the loss or damage immediately after the loss or damage has been sustained.
CLIENT shall be aware that Software and Services, bound by these Terms, may contain measurement, algorithmic or visualization errors, and shall not hold Avidestal Technologies responsible for said errors nor for misinterpretation of the (visualized) data by the CLIENT.
If during the term of the Agreement circumstances arise or become known of which Avidestal Technologies was not aware, nor ought to be aware of, as a result of which Avidestal Technologies is unable to (timely) fulfill its obligations with respect to the CLIENT, Avidestal Technologies shall not be in default and shall be entitled to suspend its obligations.
If Avidestal Technologies remains unable to comply with the performance as a result of the aforementioned circumstances, it shall be entitled to request that this Agreement is changed in such a way that the performance thereof remains possible unless such a change cannot reasonably be required from the CLIENT in the given circumstances and dissolution is justified. In the latter case, this Agreement shall be dissolved within 10 business days after the first request, without the CLIENT being able to assert any right to compensation.
The aforementioned circumstances include any and all circumstances beyond the control of Avidestal Technologies preventing the fulfillment of the Agreement either permanently or temporarily, as well as the following circumstances in so far as these are not yet included therein: war and the threat of war, riots, industrial actions, disasters and natural disasters, incidents, government measures, delayed supply or non-supply of sub-contractors of Avidestal Technologies, including fuel, power and water, transport problems, fire and breakdowns affecting the company of Avidestal Technologies.
With the Agreement Avidestal Technologies shall grant the CLIENT the License to use the Software made available to the CLIENT, including additions and new versions as defined by Avidestal Technologies, with due observance of the stipulations of these Terms.
CLIENT acknowledges that any and all Licenses are for use of CLIENT only and are not transferable to or usable by partners, colleague offices, clients or any other parties unless Avidestal Technologies has given its express permission. Any office that accrues data collected by the Software and/or uses the Services of Avidestal Technologies is hereby obliged to acquire its own License.
Clients are not entitled to issue any sub-licenses for use of the Software by partners, colleague offices, clients or any other parties, whether paid or unpaid.
For this License, CLIENT shall pay Avidestal Technologies a periodic License fee as referred to in the Agreement in its entirety.
For the purpose of Software maintenance, examples of which shall include Software fixes, error elimination and continuous development, Avidestal Technologies shall, upon the release of new versions of the Software, make these releases available to the CLIENT. Avidestal Technologies reserves the right to determine and/or modify the frequency, timing, extent and scope of such new releases.
In a particular case of Avidestal Technologies Cloud services, Avidestal Technologies shall provide the CLIENT with access to the control panel that enables one to perform these updates, in which case the CLIENT is responsible for (timely) update execution. CLIENT hereby acknowledges that (timely) update execution is crucial for proper maintenance of Software and shall not claim any damages arising from any errors, malfunctioning or decrease in functionality or performance stemming from failure to carry out said updates in a timely manner. Software versions older than 3 months are not supported.
Avidestal Technologies reserves the right, at all times, to perform updates without notice when Avidestal Technologies considers this necessary.
The amount of disk space to be covered by the License shall depend on a particular Order concluded between Avidestal Technologies and CLIENT. A default amount of disk space as specified on Avidestal Technologies’ pricing page shall be provided unless otherwise explicitly agreed between Avidestal Technologies and the CLIENT prior to Order Confirmation.
Additional disk space may be purchased at any time. If at any time, CLIENT’s used disk space exceeds the set limits, upon Avidestal Technologies’ written notice to CLIENT (email permitted), CLIENT shall have ten (10) business days to reduce or offset such excess, either by purchasing additional disk space or by purchasing a higher plan at the applicable pricing set forth herein, or by deleting Content. For the avoidance of doubt, Avidestal Technologies may require the CLIENT to execute additional documentation (e.g. Order Forms) to effectuate such additional purchases, and in the event that the CLIENT remains in excess of the associated limits after ten (10) business days and CLIENT has not yet executed and returned such documentation, Avidestal Technologies reserves the right to process a prospective Add-on or Upgrade Order Form for the additional Limits or new Plan at the then current list price via Avidestal Technologies’ billing system, with no signature required; provided, that CLIENT’s execution of this Order Form shall be deemed acceptance of such Add-on Order Form, which will be non-cancelable until the Contract End Date listed therewith.
CLIENT shall not be entitled to transfer disk space to any partners, colleague offices, clients or any other parties, whether paid or unpaid.
Avidestal Technologies shall take sufficient measures, including but not limited to email notifications, to educate and inform CLIENT about the state of disk space in use, disk space still available and management thereof.
Should the CLIENT exceed the limit of disk space provided, Avidestal Technologies shall be entitled to add additional disk space on behalf or at the expense of the CLIENT, without notice. In addition to that, the CLIENT hereby acknowledges that exceeding the disk space may result in and or all of the following implications:
5.1. Stability and reachability of the Software may be in jeopardy and possibly at risk of causing a server crash. CLIENT shall take full responsibility for such consequences and bear any and all costs necessary for the recovery of Services, including any and all damages caused to Avidestal Technologies;
5.2. Avidestal Technologies may temporarily disable the functionality of the Services to limit the non-essential growth to the extent that allows for enough disk space to be made available again. Examples of such include but are not limited to suspending Software updates, platform activation, platform creation, and possible other functionalities.
The member limit, Concurrent Users limit (CCU) and API rate limit (ARL) covered by the License shall depend on a particular Order concluded between Avidestal Technologies and CLIENT. Unless stated otherwise, a default of 100 members, 100 CCUs and an ARL of 200 shall be provided.
If at any time, CLIENT’s bandwidth exceeds the set limits, upon Avidestal Technologies’ written notice to CLIENT (email permitted), CLIENT shall have ten (10) business days to reduce or offset such excess, either by purchasing additional bandwidth or by purchasing a higher plan at the applicable pricing set forth herein, or by removing members, web traffic or API calls. For the avoidance of doubt, Avidestal Technologies may require the CLIENT to execute additional documentation (e.g. Order Forms) to effectuate such additional purchases, and in the event that the CLIENT remains in excess of the associated limits after ten (10) business days and CLIENT has not yet executed and returned such documentation, Avidestal Technologies reserves the right to process a prospective Add-on or Upgrade Order Form for the additional Limits or new Plan at the then current list price via Avidestal Technologies’ billing system, with no signature required; provided, that CLIENT’s execution of this Order Form shall be deemed acceptance of such Add-on Order Form, which will be noncancelable until the Contract End Date listed therewith.
SOFTWARE AS A SERVICE (SAAS) AND HOSTING
Avidestal Technologies shall provide to the CLIENT, upon entering into this Agreement concluded between Avidestal Technologies and CLIENT, for the term of the Agreement, a non-exclusive and non-transferable right of access to the Services for the User’s use. This shall also include a non-exclusive, non-transferable right to use any new releases, upgrades, modifications and/or changes of the functionality of the Software which are governed by this Agreement.
UPGRADING AND DOWNGRADING
CLIENT shall be entitled to upgrade the combination of Services ordered from Avidestal Technologies at any moment in the execution of the Agreement. Service upgrades shall be processed by Avidestal Technologies as soon as it is possible with respect to specific Services requested. CLIENT shall be aware of the additional costs and/or change in regular costs caused by such upgrade.
CLIENT shall only be entitled to downgrade the combination of Services after the initial term of Agreement has ended.
SERVICE LEVEL AGREEMENT
Availability, accessibility and quality of the Software and Services shall be governed by a Service Level Agreement (SLA) made available to the CLIENT. This SLA shall apply to all Software and Services ordered by the CLIENT.
Unless otherwise expressly stated in a relevant SLA, Avidestal Technologies reserves its obligation as stated under these Terms and shall not be held liable by the CLIENT for any of the following:
2.1.unrestricted, undisturbed and uninterrupted access to and use respectively of the Software and Services;
2.2.correct and undamaged data transmission;
2.3.full reliability against hacking of the Software and Services.
ACCESS AND IDENTIFICATION CODES
Avidestal Technologies shall assign access and/or identification codes to the CLIENT only. The access and identification codes are strictly personal and are only to be used by the User(s), whether assigned by the CLIENT or the CLIENT itself.
CLIENT shall treat the access and identification codes confidentially and with utmost care.
Avidestal Technologies shall never be liable for damage or expenses resulting from the misuse of access and identification codes.
Avidestal Technologies has the right to temporarily deny CLIENT access to the Software at the moment:
4.1.Avidestal Technologies has detected or reasonably expects that unauthorized third parties are using or are able to use the access or identification codes that grant access to the Software; or
4.2.CLIENT has informed Avidestal Technologies by any means of the (possible) unauthorized use of the Software.
Avidestal Technologies shall inform CLIENT as soon as possible of the (possible) unauthorized use of the Software and the temporarily denying of access to the Software. Avidestal Technologies shall provide CLIENT with substitute access and/or identification codes as soon as possible after denying the access to the Software.
If the unauthorized use of the Software is attributable to the CLIENT, CLIENT shall duly reimburse Avidestal Technologies of:
6.1. all technical and administrative costs Avidestal Technologies has made;
6.2. all costs for the unauthorized use of the Software will be calculated according to the number of (extra) datasets that have been processed.
OWNERSHIP OF DATA
Avidestal Technologies acknowledges that CLIENT retains ownership of all data to be processed and hosted as a result of the provision of Services. Both parties shall acknowledge their rights and obligations under stipulations regarding confidentiality and intellectual property laid out in these Terms. Upon completion or termination of the contract, the CLIENT can download data.
QUALITY OF DATA
Avidestal Technologies shall not be held responsible for, and hereby declares that it can only do its utmost best to ensure, the reliability, accuracy, unambiguity and/or completeness of data collected by means of using the Software and Services provided by Avidestal Technologies.
OBLIGATIONS OF CLIENT AND USER
The CLIENT shall be responsible at all times for every single episode of use, including unauthorized use, made in its name of the Software and Services, and the rights of use and access rights granted to CLIENT. CLIENT shall hereby adopt the attitude of and shall behave as may be expected from a reasonable and careful User of software and online applications.
CLIENT shall hereby be responsible to properly instruct and advise all Users about reasonable and careful use of the Services, including but not limited to password strength and appropriateness of Content.
CLIENT shall hereby be responsible, on own behalf and on behalf of all Users, for the following:
3.1. Users shall inform CLIENT as soon as possible in writing of any changes in relevant data concerning themselves;
3.2. Users shall comply with instructions, guidelines and requirements of technical or other nature provided by or in the name of Avidestal Technologies regarding acceptable use of Software and Services;
3.3. Users shall refrain from hindering and causing damage to the proprietary Software of Avidestal Technologies. Users shall be prohibited from initiating any processes, programs, applications or other means, through the Software or otherwise, which may, knowingly or by reasonable expectation of the User, hinder or cause damage to Software, Services, Avidestal Technologies in its entirety or clients of Avidestal Technologies;
3.4. Users shall be prohibited from use of Software and Services for acts, actions or purposes in conflict with applicable statutory provisions, self-regulation or this Agreement, including these Terms;
3.5. Users shall be prohibited from transferring or making available their user name and password and/or other rights arising from this Agreement to any third parties unless explicitly permitted by Avidestal Technologies in writing. Users shall remain responsible at all times for acceptable use of and any damages arising from the transfer of their user names and passwords;
3.6. Users shall arrange any hardware, software, terminal equipment and/or connections necessary for proper use of the Services in so far as Avidestal Technologies does not provide such facilities.
Avidestal Technologies hereby strictly prohibits usage of demo products for purposes other than promotion, sales or project setup, and/or removal, adjustment or deletion of indicatory demo banners from demo products, should any such product be delivered to CLIENT upon execution of this or any additional Agreement. Upon failure by the CLIENT to conform with this prohibition, Avidestal Technologies shall hold the right to terminate this Agreement and/or to suspend the Services.
CLIENT shall inform Avidestal Technologies of any extensive, in terms of data and/or Users, use of the Software and Services. Extensive use shall include, inter alia, chat sessions, marketing campaigns and bulk emails. Avidestal Technologies reserves the right to amend the Agreement in the event of excessive use. Upon failure by the CLIENT to inform Avidestal Technologies of the extensive use, Avidestal Technologies shall hold the right to terminate this Agreement and/or to suspend the Services. CLIENT shall be obliged to cover any damages arising from said failure to inform Avidestal Technologies.
If CLIENT is using Avidestal Technologies Cloud, they shall be responsible for keeping all Cloud platforms up to date with the latest Software version made available by Avidestal Technologies in the control panel of Avidestal Technologies Cloud. Platforms running on a version that is 2 or more versions older than the currently available Software version are not covered by Avidestal Technologies’ SLA.
If CLIENT is using the custom design feature (CSS) in a platform, they shall be responsible for keeping the CSS code, imagery, fonts, and everything related to design up to date with any breaking design changes that are part of Software updates. Avidestal Technologies shall not be held responsible for CSS-based design that breaks as part of Software updates except when Avidestal Technologies authored the complete custom CSS code and no changes have been made to that code by CLIENT.
COLLECTION, PROCESSING AND STORAGE OF PERSONAL DATA
The processing of personal data by Avidestal Technologies as a result of the performance of the Agreement, an Order and provision of the Services, shall take place on the basis of a data processor agreement.
Avidestal Technologies shall ensure adequate security of Software and Services as defined in the SLA, however without releasing the CLIENT from there, being responsible for the adequate security of their systems, data and other information.
Avidestal Technologies shall not be liable for any loss or damage caused by suspension, termination and/or restriction of the Services or the use thereof, access or the rights of use as referred to in these Terms.
The CLIENT shall be responsible and possibly liable for any and all use of the Services and other services and/or goods delivered or provided by Avidestal Technologies utilized by the User.
CLIENT is not allowed to conduct system penetration tests or any other type of test or ask a 3rd party to perform these tests without the written permission of Avidestal Technologies.
ACCEPTABLE USE POLICY
No Illegal, Harmful, or Offensive Use or Content: CLIENT may not use or encourage, promote, facilitate or instruct others to use the Services for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available Content that is illegal, harmful, or offensive. Prohibited activities or Content include:
1.1. Illegal Activities. Any illegal activities, including advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography.
1.2. Harmful or Fraudulent Activities. Activities that may be harmful to others, Avidestal Technologies’ operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices.
1.3. Infringing Content. Content that infringes or misappropriations of the intellectual property or proprietary rights of others.
1.4. Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including Content that constitutes child pornography, relates to bestiality or depicts non-consensual sex acts.
1.5. Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
No Security Violations. CLIENT may not use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a “System”). Prohibited activities include:
2.1. Unauthorized Access. Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System.
2.2. Interception. Monitoring of data or traffic on a System without permission.
2.3. Falsification of Origin. Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. This prohibition does not include the use of aliases or anonymous remailers.
No Network Abuse. CLIENT may not make network connections to any users, hosts, or networks unless CLIENT has permission to communicate with them. Prohibited activities include:
3.1. Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.
3.2. Denial of Service (DoS). Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.
3.3. Intentional Interference. Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
3.4. Operation of Certain Network Services. Operating network services like open proxies, open mail relays, or open recursive domain name servers.
3.5. Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.
No E-Mail or Other Message Abuse. CLIENT will not distribute, publish, send, or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements. CLIENT will not alter or obscure mail headers or assume a sender’s identity without the sender’s explicit permission. CLIENT will not collect replies to messages sent from another internet service provider if those messages violate this Policy or the acceptable use policy of that provider.
Monitoring and Enforcement. Avidestal Technologies reserves the right but does not assume the obligation, to investigate any violation of this Policy or misuse of the Services. Avidestal Technologies may:
5.1. investigate violations of this Policy or misuse of the Services; or
5.2. remove, disable access to or modify any Content or resource that violates this Policy or any other agreement Avidestal Technologies has with CLIENT for the use of the Services.
5.3. Avidestal Technologies may report any activity that Avidestal Technologies suspects violate any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Avidestal Technologies’ reporting may include disclosing appropriate customer information. Avidestal Technologies also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Policy.
SUBSCRIPTION ACCOUNT INFORMATION
For as long as CLIENT remains the Account Owner and is in compliance with the Agreement, CLIENT has the right to access and use the Services. This right is non-transferable, and the CLIENT agrees not to disclose their Account information to any Third Party. CLIENT is solely responsible for all activities that occur within their Account. If CLIENT becomes aware of any unauthorized use of the Account or Profile Information, CLIENT is responsible for notifying Avidestal Technologies immediately. It is the CLIENT’s responsibility to update or change any Account or Profile Information, as needed or desired.
For online Subscriptions, billing information can be updated from within the CLIENT’s Account and may only be changed by the Account Owner. Avidestal Technologies disclaims all liability where Account ownership is disputed and will not participate or play any role in such disputes. Avidestal Technologies will automatically charge the credit card on file; should the billing information be changed, the new credit card will be charged. If an updated credit card is under a different name, the owner of the updated card becomes the Account Owner. Avidestal Technologies will not change CLIENT’s billing information for CLIENT under any circumstances and will not be held responsible if an unauthorized party accesses CLIENT’s Account or changes their billing details.
SUBSCRIPTIONS FEES & RENEWAL
CLIENT agrees to pay all Subscription fees. Unless otherwise specified in a Subscription, such fees will be billed in advance for each month and are non-refundable. CLIENT agrees that they may not be refunded or credited for partial months of service, or for periods in which CLIENT Account remains open but CLIENT does not use the Services. If CLIENT exceeds any usage or fee thresholds set forth in CLIENT’s Subscription, Avidestal Technologies may charge CLIENT for such overages on their next invoice.
Avidestal Technologies reserves the right to modify billing rates at any time upon thirty (30) days written notice by posting these fee changes to the Site or by notifying CLIENT via email. Should CLIENT continue to use the Services after these changes go into effect, CLIENT will be responsible for paying the new Subscription/billing rate.
By entering a credit card number, CLIENT agrees that Avidestal Technologies, and Third Party service providers, may store CLIENT’s payment card information. After CLIENT one (1), 14-day free trial expires, CLIENT expressly authorizes Avidestal Technologies to charge them, where applicable:
(i) Subscription Fees, to be billed during a Subscription Period
(ii) other fees for Services purchased, including, but not limited to, Add-Ons
(iii) charges for use of the Services in excess of limitations, and
(iv) taxes connected with CLIENT’s use of the Services.
CLIENT agrees to reimburse Avidestal Technologies, where applicable, for all collection costs and interest for any overdue amounts. If the payment card CLIENT provides expires and CLIENT does not update their payment card information or cancel their Subscription, CLIENT authorizes Avidestal Technologies to suspend their Account until the billing details have been updated. After an Account suspension, CLIENT agrees that Avidestal Technologies may re-attempt payment processing upon receiving updated billing details.
SUBSCRIPTIONS TERM & RENEWAL
CLIENT’s paid Subscription is valid for either a monthly or an annual Subscription Period. CLIENT’s Trial Account is valid until such time as the trial expires, CLIENT activates their Plan, or requests Account deletion (by contacting firstname.lastname@example.org from the email address on file and requesting deletion).
If CLIENT upgrades to a higher-level Subscription during the Subscription Period, CLIENT will have immediate access to those higher-level features. CLIENT agrees to pay Avidestal Technologies the difference between CLIENT’s original Subscription fee and the cost of the upgrade.
If CLIENT downgrades to a lower-level Subscription during the Subscription Period, CLIENT’s Plan will be downgraded at the end of the current subscription period. Until that time, the CLIENT can keep using the features associated with the current plan.
Changes to Subscriptions will be reflected in the CLIENT’s next invoice. No credits or refunds will be issued for downgrading.
CLIENT’s Subscription will automatically renew for an additional Subscription Period unless CLIENT cancels (see “Cancellation and Termination” below).
SUBSCRIPTIONS CANCELLATION & TERMINATION
CLIENT may cancel their Monthly Subscription at any time, either from within their Account or by sending an email to email@example.com from the email address affiliated with the Account. CLIENT should contact Support to request assistance with Subscription Cancellation or account deletion. Avidestal Technologies reserves the right to verify CLIENT’s identity by asking for the last four (4) digits of the credit card on file, the type of card, and the billing address.
To cancel over the phone, CLIENT must verify the last four (4) digits of the credit card on file, the type of card, and the billing address.
Changes to Annual Subscriptions, including Cancellations, go into effect at the end of the Annual Subscription Period. No refunds or credits shall be issued for Annual Subscription Cancellations or downgrades, or from switching from an Annual to a Monthly Subscription before the end of the Annual Subscription Period.
Cancellations must be completed at least one (1) day prior to the end of CLIENT’s then-current Subscription Period, whether Monthly or Annual; otherwise, billing for the next month or year will be processed automatically. Cancellations performed after billing are not entitled to refunds, in whole or in part.
CLIENT is responsible for all charges accrued on their Account up to the time of Cancellation, including all fees within the Subscription Period in which CLIENT cancels. Upon Subscription Cancellation, Avidestal Technologies may delete that CLIENT’s Account from Avidestal Technologies systems, either at CLIENT’s request or if CLIENT is an Inactive User. Account deletion permanently removes all Content, as well as the CLIENT’s email address and other Personal or Sensitive Information. Avidestal Technologies is not responsible for any Content lost as a result of Account deletion. 90 days after Account deletion, all Account Information, including but not limited to lead data, landing pages, Personal Information, billing details, and all Content, is permanently removed from Avidestal Technologies backup databases. Avidestal Technologies reserves the right to change data storage and processing capabilities and procedures at any time, without notice or liability.
Avidestal Technologies reserves the right to terminate this Agreement at any time, for any reason, and at Avidestal Technologies’ sole discretion, without liability. A reason for such termination may be but is not limited to failure to comply with these Terms. Avidestal Technologies reserves the right to modify, suspend, or discontinue the Site and/or Services, or any portion thereof, at any time and for any reason, with or without notice.
The sections “GOVERNING LAW AND REMEDIES”, “LIMITATION OF LIABILITY”, “CONFIDENTIALITY”, “INTELLECTUAL PROPERTY RIGHTS OF AVIDESTAL TECHNOLOGIES”, “INTELLECTUAL PROPERTY RIGHTS OF CLIENT” will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect.
GOVERNING LAW AND REMEDIES