Terms & Conditions
This is a binding legal agreement between the natural person or legal person (“Licensee” or “you”) agreeing to these terms of service (“Agreement”) and Asset Vantage Inc. (“Company” “us,” or “we”). This Agreement along with any other terms and policies referenced herein, and are incorporated herein by reference form an integral part hereof, as amended from time to time and constitute a legally binding agreement as of the Effective Date (as defined below). This Agreement is between the Company and you, either individually, or on behalf of your employer or any other entity which you represent (“you” or “your”). In case you represent your employer or another entity, you hereby represent that (i) you have full legal authority to bind your employer or such entity (as applicable) to this Agreement; and (ii) after reading and understanding this Agreement, you agree to the terms of this Agreement on behalf of your employer or the respective entity (as applicable), and this Agreement shall bind your employer or such entity (as the case may be). Please note that you are deemed as an Authorized User (defined below) representative of your employer or an entity (as applicable) if you are using your employer or an entity’s email address in registering into the service.
You acknowledge that this Agreement is binding, and you affirm and signify your consent to this Agreement, by either: (i) clicking on a button or checking a checkbox for the acceptance of this Agreement; or (ii) subscribing/registering for using or accessing the service, sites or any of our mobile application, whichever is earlier (the “Effective Date”).
If you do not agree to comply with, and be bound by, this Agreement or do not have authority to bind your employer or any other entity (as applicable), please do not accept the terms under this Agreement or access or use the service or the sites or any of our mobile application.
- Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Authorized Users” means the individual persons who are officers, employees or advisors to the Licensee (or who are Families or CPAs to Families) expressly authorized to use the Software by the Licensee pursuant to the license granted under this Agreement, provided that a User License may be reassigned from time to time by Licensee to a new Authorized User who is replacing a former Authorized User who is no longer permitted to use the Software.
“Confidential Information” Confidential Information shall include, but not be limited to:
- any information provided by one Party to the other Party, or developed by one Party for the other Party within the framework of this Agreement, including credentials supplied by the Company to the Licensee to access the Software Platform;
- all improvements, research, data, materials, products, technology, specifications, manuals, plans, samples, procedures, know-how, concepts, teaching or development techniques, intellectual property, pricing methods, formulas, other information not generally known outside of the Party and its affiliates, and other ideas related to the Party whether existing tangibly or intangibly in oral, written, electronic or other forms;
- data collected during any sales effort;
- names, identifying information, or other information regarding a Party’s customers, employees, independent contractors or other associates;
- information generated or obtained in connection with the Parties’ pricing, proposals or contracts (including the provisions of this Agreement);
- the Parties’ procedures, programs, guidelines or policies;
- information designated in writing as “confidential”;
- anything that any court or law of any jurisdiction governing the objects of this clause deems confidential or privileged, or
- anything that, upon disclosure, could be detrimental to the interests of a Party or any of a Party’s clients, members, or employees, whether or not the Company identifies the information as confidential or privileged. Each Party acknowledges that the Confidential Information of the other Party constitutes valuable confidential and proprietary information.
However, neither Party’s Confidential Information shall include any information that:
- was known by the receiving Party at the time of disclosure to it by the disclosing Party, or that is independently developed or discovered by the receiving Party, after disclosure by the disclosing party, without the aid, application or use of any item of the disclosing Party’s Confidential Information, as evidenced by written records;
- is now or subsequently becomes, through no act or failure to act on the part of the receiving Party, generally known or available;
- is disclosed to the receiving Party by a third party authorized to disclose it; or
- is required by law or by court or administrative order to be disclosed; provided, that the receiving Party shall have first given prompt notice to the other Party of such required disclosure.
“Documentation” means user manuals, technical manuals and any other materials made available by Company, in electronic or other form, that describe the operation, use or technical specifications of the Software.
“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.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Software” means The AV Pro platform procured by the Licensee as software as a service (SaaS) and all modifications thereto from the Company. This includes any technical documentation, instructions, etc., regarding the software. The software also includes a series of instructions, rules, routines, or statements that allow or cause the software to perform a specific operation or series of operations, the recorded information comprising viewing design details, algorithms, processes, flow charts, formulas, related material that would enable the computer program to be produced or created, graphical interface, images, design materials, and scheme design.
“Term” has the meaning set forth in Clause 9 of this Agreement.
“Third Party” means any Person other than Licensee or Company.
- Scope and Grant of License.
- Subject to Licensee’s compliance with all terms and conditions set forth in this Agreement and regular payment of the License Fee, the Company hereby grants to the Licensee a non-exclusive, non-transferable, non-sub-licensable and revocable limited license during the Term to use, solely by and through its Authorized Users, the Software along with the Documentation (“Software Platform”), solely as set forth in this Clause 1. This license grants Licensee the right, to use and access the Software Platform in accordance with this Agreement and the Documentation. By entering into this Agreement, the Licensee agrees to be legally bound by its terms and conditions.
- The Licensee acknowledges and agrees that pursuant to the license, the Licensee shall not acquire any ownership interest in the Software Platform or any other rights thereto other than to use the Software Platform in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Further, the Licensee acknowledges and agrees that the Company has only granted the Licensee the license to use the Software Platform as per the terms of this Agreement and the Software Platform is not being sold to the Licensee.
- License Fee.
Licensee agrees to pay for the Software Platform a [monthly/annual] fee as set out in the Appendix I (“License Fee”) for the Term.
- Use Restrictions.
- Licensee shall not, and shall ensure its Authorized Users do not, either directly or indirectly:
(a) provide any other Person, other than Authorized Users, with access to or use of the Software Platform;
(b) modify, amend, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software Platform or any part thereof;
(c) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(d) reverse engineer, disassemble, decompile, decode, modify, amend or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(e) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software Platform, including any copy thereof;
(f) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software Platform, or any features or functionality of the Software Platform, to any Third Party (other than Authorized Users) for any reason;
(g) use the Software Platform in violation of any law, regulation or rule;
(h) use the Software Platform for purposes of developing or assisting a third party in developing a competing software or platform, product or service or any other purpose that is to the Company’s commercial disadvantage.
(i) use the Software for purposes of competitive analysis or the development of a competing software product or service or product having the same and/or similar function as the Software Platform.
- This Agreement does not grant the Licensee any rights whatsoever in relation to the Company’s trademarks or service marks; and
- The Licensee shall not use the Software Platform into any country in violation of any export control laws or regulations.
- Responsibility for Use of Software.
- The Licensee is responsible and liable for all uses of the Software Platform through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, the Licensee shall at all times be responsible and liable for all actions and omissions of the Authorized Users. If the Company at any time determines that the Licensee’s use of the Software is in contravention to the Documentation, then:
(a) The Licensee shall, within thirty (30) days following the date of Company’s written notification thereof, pay to Company the additional License Fees for such contravention.
In determining the License Fee payable pursuant to the foregoing, unless Licensee can demonstrate otherwise by documentary evidence, all previously unknown excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement and the rates for such licenses shall be determined without regard to any discount to which the Licensee may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement); and
(b) The Company reserves the right to forthwith terminate this Agreement and initiate the legal proceedings against the Licensee for breach of terms of this Agreement and recovery of the amounts due.
- The Licensee shall use commercially reasonable efforts to safeguard the Software Platform from infringement, replication in any form, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify the Company if Licensee becomes aware of any violation of Company’s Intellectual Property Rights in the Software Platform.
- Support Services.
- Subject to Clause 6.1, during the Term of this Agreement, the Company may provide basic software support services described in Clause 5.3 and as set out in Appendix I.
- The Company shall have a right to stop providing support services if the Licensee and/or any of it Authorized Users:
(a) breach any of the terms of this Agreement; or
(b) use the Software Platform in excess or not in accordance with the Documentation
- The Company may provide updates and maintenance on the Software at its sole discretion, including but not limited to the following:
- Company shall provide timely, skillful and professional software support services for the benefit of Licensee consistent withindustry standards for similar services, using personnel with the requisite skill, experience, and qualifications, and will devote adequate resources to meet its obligations under this Agreement;
- all updates, bug fixes, enhancements, maintenance releases, new releases, new versions, and other improvements to the Software, that the Company provides at no additional charge to its other similarly situated customers;
- all such services and repairs as are required to maintain the Software or are ancillary, necessary, or otherwise related to Licensee’s access to or use of the Software, so that the Software operates properly in accordance with this Agreement.
- The Company shall fix all errors/glitches and respond to and resolve all support requests raised by the Licensee.
- Collection and Use of Information.
- Licensee acknowledges that Company may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is used or through which it otherwise is accessed and used, through the provision of support services.
- Licensee agrees that the Company may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:
(a) improving the performance of the Software; and
(b)verifying Licensee’s compliance with the terms of this Agreement and enforcing the Company’s rights, including all Intellectual Property Rights in and to the Software.
- Confidential Information.
- In connection with the performance of the Parties’ obligations under this Agreement, each Party may provide to the other Party, and the other Party shall have access to, the first Party’s Confidential Information. Notwithstanding any other content of this Clause 7, Licensee hereby permits the Company to use the Licensee’s name in the Company’s marketing material to the limited extent of identifying the Licensee as a customer that uses the Software Platform.
- Each Party shall exercise due care to prevent the unauthorized use or disclosure of the other Party’s Confidential Information, and shall not, without the other Party’s prior written consent:
(a) use the other Party’s Confidential Information for any purpose other than performing its obligations under this Agreement; or
(b) disclose or otherwise make available, directly or indirectly, any item of the other Party’s Confidential Information to any person or entity other than those employees, independent contractors, agents or investigators of such Party and/or its affiliated entities (collectively, “Representatives“) who reasonably need to know the same in the performance of such Party’s obligations under this Agreement, or in order to make decisions or render advice in connection therewith. Each party shall protect the confidentiality of the Confidential Information of the other party with the same degree of care, as such party uses to protect its own Confidential Information, and in no event, less than reasonable care. For the convenience of the Parties, each Party acknowledges that unless precluded in writing by the other Party, Confidential Information may be transmitted to a Party and/or its Representatives via the Internet.
- In the event of an actual or threatened breach of the above confidentiality provisions, the non-breaching Party shall have no adequate remedy at law and shall be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
- Intellectual Property Rights.
Licensee acknowledges and agrees that the Software Platform is provided by the Company under a non-exclusive, non-transferable, non-sub-licensable, revocable limited license. The Licensee shall not have any interest in the Software Platform including but not limited to any ownership interest in the Software Platform or any other rights thereto other than to use the same in accordance with the terms of this Agreement. The Company reserves and retains its entire right, title and interest in the Software Platform and all Intellectual Property Rights arising out of or relating to the Software Platform. The Licensee shall use all efforts to safeguard the Software Platform from infringement, misappropriation, theft, misuse or unauthorized access. The Licensee shall promptly notify the Company if the Licensee becomes aware of any violation of the Company’s Intellectual Property Rights in the Software Platform and fully cooperate with the Company in any legal action taken by Company to enforce its Intellectual Property Rights. The Licensee acknowledges and agrees that the Licensee, and not the Company, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim or suit, or any other harm or damages resulting from Licensee’s misuse of or access to the Software Platform.
- Term and Termination.
- This Agreement and the license granted hereunder shall remain in effect for the term set forth in the order form as set out in Appendix I. The license is valid for a period of 12 months from the Subscription Start Date (“Term”) unless otherwise indicated in the order form as set out in Appendix I. This Agreement will renew automatically on payment of License Fees for another twelve-month period at the expiration date (“Extended Term”) unless the Licensee provides a written notice of termination sixty (60) days prior to the date of expiry of the License.
- Without prejudice to any other rights or remedies and notwithstanding anything contained in Clause 9.1 above, the Company shall have an unfettered right to terminate this Agreement at any time upon Licensee’s failure to comply with all the terms and conditions of this Agreement.
- Company may terminate this Agreement, effective immediately, if the Licensee files itself, or any other Person has filed against the Licensee (and fails to obtain a dismissal within sixty (60) days thereof), 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.
- Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy (to the extent reasonably practicable) all copies of the Software Platform. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Clause 9.3.
- Limited Warranties, Exclusive Remedy and Disclaimer/Warranty Disclaimer.
- The Company warrants that, during the Term, the Software will substantially contain the functionality described in the Documentation, and when properly accessed and used on a computer (as per requirements specified in the Documentation) and operated in accordance with the Documentation the Software shall substantially perform in accordance therewith. However, the Company does not represent or warrant that any and/or all errors will be corrected and that any and/or all incidents will be prevented or corrected.
- The warranties expressly set forth in this Clause will not apply and will become null and void (i) if Licensee breaches any provision of this Agreement, and/or (ii) if Licensee and/or any Authorized User and/or any other Person to whom access to the Software is provided , whether or not in violation of this Agreement:
- uses the Software Platform on or in connection with any hardware or software not specified in the Documentation, provided that the warranties in this Section shall continue to apply to Software that is installed or used on any hardware, software, configuration or operating system in accordance with the Documentation; or
- misuses the Software, including any use of the Software other than as specified in the Documentation.
- During the Term of this Agreement, if the Software fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to Clause 10.1, the Company will, at its sole option, use commercially reasonable efforts to repair the Software, provided that Licensee provides Company with all information which the Company requests to resolve the reported failure, including sufficient information to enable the Company to recreate such failure. Provided further that, the Licensee shall within 5 days after such failure has occurred, notify in writing to the Company informing about the failure. The Licensee acknowledges and agrees that the Software Platform may produce inaccurate results because of a failure or fault within the Software Platform for reasons not attributable to the Company or failure by Licensee to properly use and/or deploy the Software Platform. The Licensee assumes full and sole responsibility for any use of the Software Platform and bears the entire risk for failures or faults within the Software Platform on account of reasons not attributable to the Company. Licensee agrees that regardless of the cause of failure or fault or the form of any claim, the Company’s obligation if any shall be governed by this Agreement. Further, the Licensee acknowledges that the remedies set forth in this Clause 10.3 are Licensee’s sole remedies and Company’s sole liability with respect to the warranties provided in this Clause 10.
- The software and documentation are provided to licensee on an “as is where is” basis and with all faults and defects without warranty of any kind other than as expressly set forth in this Clause 10. The Company, on its own behalf and on behalf of its affiliates expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the software and documentation, including all implied warranties of merchantability, fitness for a particular purpose, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the licensed Software Platform will meet the Licensee’s requirements, achieve any intended results, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
- The Licensee represents and warrants that it has due authorizations to enter into this Agreement and perform its obligations. Further, the Licensee represents and warrants that its is not barred under law, contractually or otherwise to enter into this Agreement and perform its obligations.
- Limitation of liability.
- The Company and its affiliates, shall not be liable to the Licensee or to any third party for any use, interruption, delay or inability to use the software, 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 the Licensee was advised of the possibility of such damages.
- In no event will the Company’s and its affiliates’, 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 total amount paid to the Company under this agreement for immediately preceding three month period.
- Export Regulation.
The Software Platform may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export or release the Software Platform to, or make the Software Platform accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Licensee 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 Platform available outside the US.
Licensee hereby agrees to indemnify the Company and its officers, directors, employees, agents, and representatives (“Indemnified Person”) from each and every demand, claim, loss, liability, or damage of any kind, including actual attorney’s/legal fees, whether in tort or contract, that may incur by reason of, or arising out of, any claim which is made by either the Licensee and/or any third party against the Indemnified Person with respect to any breach or violation of this Agreement by the Licensee or any claims based on Licensee’s and/or its client’s use of the Software Platform.
- Governing Law: This Agreement is governed by and construed in accordance with the internal laws of United States of America without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction. Any disputes arising from or related to this Agreement or any Company Software or service shall be subject to the exclusive jurisdiction and venue of the courts situated in New York, and both Parties hereby consent to such jurisdiction and venue.
- Force Majeure: The Company will not be responsible or liable to the Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is lockdowns, due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, pandemic, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or any other circumstances caused beyond the Company’s reasonable control (“Force Majeure Event”). It is hereby clarified that the Licensee’s payment obligation shall continue during the Force Majeure Event.
- Notices: All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
- Entire Agreement: The terms and conditions of this Agreement, including its exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof, and merges and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions. Neither of the parties shall be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. No oral explanation or oral information by either party hereto shall alter the meaning or interpretation of this Agreement. No amendments or modifications shall be effective unless in a writing signed by authorized representatives of both parties. These terms and conditions will prevail notwithstanding any different, conflicting or additional terms and conditions which may appear on any purchase order, acknowledgment or other writing not expressly incorporated into this Agreement.
(a) Licensee 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 Company’s prior written consent, which consent Company may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Company’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Clause 14.5 is void. The Company may 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 Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(b) 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.
- Amendment and Waiver: This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. Failure or neglect by the Company to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of the Company’s rights hereunder nor in any way affect the validity of the whole or any part of this License nor prejudice the Company’s rights to take subsequent action.
- Reservation of Rights and Remedies: The Company reserves all of its rights to proceed to enforce its rights in connection with all rights not expressly granted to the Licensee in this Agreement.
- Severability: 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 shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
- Interpretation: For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Independent Development: This Agreement does not preclude the Company from evaluating, acquiring from third parties not a party to this Agreement, independently developing or marketing similar technologies or products, or making and entering into similar arrangements with other companies. The Company is not restricted by this Agreement to make such products or technologies available to third parties.
- Disclaimer: The Software Platform is subject to the Disclaimer set out in Appendix.