The Services referenced in this Agreement ("Service(s)" or "Software") are offered to Customer ("Customer" or "You") by PC Open Inc. ("AvertX"). This Agreement between AVERTX and Customer sets forth the legal rights and obligations governing AvertX's offer, provisioning and delivery of Services, and Customer's receipt and use thereof.
Customers shall contract for, and order multi-period Subscription Services on a supplemental AvertX Software Licensing Agreement. Such supplemental Software Licensing Agreement is only applicable when customer shall be contractually obligated to make Subscription Service Agreement payments over a multi-period term.
(1) Software Licensing Agreement (multi period subscription contract if applicable);
(3) Supplemental Product Terms and Conditions (https://licensing.avertx.com).
a. "Primary Account" means an AvertX customer account established in the Service.
b. "Secondary Account" means an end user account established in the Service and nested below a Primary Account. A Secondary (end user) Account cannot exist in the Service without association to a Primary Account.
c. "Primary User" is the person responsible for the creation and ongoing administration of a Primary (service provider) Account.
d. "Service" or "Services" or "Web Service" or "Software" means the complete suite of cloud enabled services, web portals, client software, application software, and the AvertX-provided operating system environment when applicable.
6. Subscription, Billing, Cancellation
i. Ongoing Subscription. Customer's Service subscription including all Secondary end user accounts will continue month-to-month unless and until the Service is canceled by Customer or terminated by AvertX.
ii. Differing Subscriptions. AvertX may offer several Service plans, with differing options, features, conditions and limitations. AvertX reserves the right to modify, terminate or otherwise amend its Service plan offerings.
b. Billing and Cancellation
i. Recurring Billing. By initiating a Service subscription and providing or designating a Payment Method, Customer authorizes AvertX to charge Customer a recurring Service fee at the rate specified in the applicable Software Licensing Agreement, or if no Software Licensing Agreement exits, at the then-current rate. Customer acknowledges that the amount billed each recurring period may vary for reasons that may include differing amounts due to changing/adding a Secondary Account plan or changing/adding additional Services, and Customer authorizes AvertX to charge its Payment Method for such varying amounts, which may be billed monthly, quarterly, or annually in one or more charges based upon the applicable Software Licensing Agreement.
iii. Billing Cycle. The subscription fee for the Service will be billed at the beginning of Customer's Service term and each recurring period thereafter unless and until the Service is canceled. AvertX will automatically bill Customer's payment method each recurring period on the calendar day corresponding to the commencement of the Service unless an alternate arrangement has been agreed to in writing. Service fees are fully earned upon payment. AvertX reserves the right to change the timing of its billing, in particular, as indicated below, if Customer's payment method has not successfully settled. In the event the Service began on a day not contained in a given recurring period, AvertX may bill the payment method on a day in the applicable period or such other day as AvertX deems appropriate. For example, if Customer's subscription started on January 31st, the next payment date is likely to be February 28th (unless on a quarterly or annual payment plan). Customer shall pay AvertX, in advance, a monthly or annual service charge for any subscription-based service, beginning on the date on which such Customer's account for such service is activated by AvertX. With respect to the 24/7 subscription Service, Customer shall pay AvertX, in advance, a monthly or annual service charge for using or having access to the 24/7 Service beginning on the first day of the calendar month following the Installation Grace Period. As used herein, the "Installation Grace Period" is equal to one calendar month plus the number of days remaining in the month in which Customer's service is activated by AvertX regardless of when the service is deployed by Customer. A purchase order processing fee equal to one month of service shall be invoiced when Customer submits a monthly Service 24/7 access request by purchase order (a purchase order processing fee does not apply to annual subscriptions or to monthly subscriptions when activated through the Admin Portal). The final month in which such service is provided shall be paid in full, in advance by Customer, and no refunds will be issued should the account be terminated mid-month or year. Service plan changes that result in a higher monthly or annual service charge will be billed, and shall be paid, in arrears during the next billing cycle. Service plan changes that result in a lower monthly service charge will become effective in the subsequent month and will not be pro-rated during the month in which the change is made.
iv. Payment. Customer agrees to pay all Service fees in the manner specified when invoiced. Service fees are exclusive of, and Customer agrees to pay all taxes and similar surcharges. Except for amounts disputed in good faith and in accordance with this section, fees not paid in full within thirty (30) days of the date of invoice will be past due and subject to a 1.5% per month interest fee or the maximum rate permitted by law, whichever is less, and Customer will be liable for any costs of collection. If Customer is in default of its payment obligations, AvertX may immediately suspend any and all Services provided to Customer. If Customer has not cured such non-payment within thirty (30) days of Service suspension, Customer will be deemed to have terminated its Service and any applicable early termination fees shall become payable to AvertX immediately. Customer acknowledges that during any account suspension and upon termination Customer and its Secondary accounts will no longer have access to data warehoused in the Service or to any other Service provided. If Customer disputes any fees in good faith, Customer may withhold payment of that charge so long as Customer makes payment of all undisputed charges and notifies AvertX in writing within the applicable payment period. If a disputed amount is determined to be a legitimate charge, it may be deemed overdue and interest may be charged on the unpaid balance. No charges may be disputed more than one hundred twenty (120) days after the invoice date and, if not disputed within that time, such charges will be deemed undisputed. Payment will not prejudice Customer's right to dispute charges, so long as they are disputed in the manner and within the time specified in this Section.
v. No Refunds. Service payments are non-refundable and there are no refunds or credits for partially used periods. Following any cancellation, however, Customer will continue to have access to the Service through the end of the current billing period. At any time, and for any reason, AvertX may provide a credit, discount, or other consideration to some or all of its subscribers ("credits"). The amount and form of such credits, and the decision to provide them, is at AvertX's sole and absolute discretion. The provision of credits in one instance does not entitle Customer to credits in the future for similar instances, nor does it obligate AvertX to provide credits in the future, under any circumstance.
vi. Cancellation. Customer may cancel its Service or its Secondary Account Services at any time. Upon Service cancelation, Services will automatically cease to function at the end of the current billing period. AvertX will retain any data for a period of 90 days or until the items are deleted by a routine deletion process, whichever comes first. Some Service features may continue to operate but not in the same manner they did with the paid Service.
c. Taxes. All Service amounts invoiced are exclusive of taxes and Customer is responsible for all applicable federal, state, local use, excise, sales, privilege taxes, duties, withholding, value added taxes or similar liabilities imposed by operation of law. Depending on Customer's location, AvertX may invoice such taxes and shall remit them on Customer's behalf. If Customer is exempt from any taxes, Customer may provide AvertX with the applicable certificate demonstrating its eligibility for exemption.
7. Resale of Services
a. Customer is the customer-of-record for all Service(s) acquired under this Agreement and may resell such Services to Secondary Account holders. In doing so, Customer will not make any representations or warranties, whether written or oral, to any third parties (including, without limitation, Customer's Secondary Account holders / end users) concerning the Services. Customer will be solely responsible for interfacing with its Secondary Account holders with respect to all matters pertaining to the Service provided including, without limitation, Service provisioning, billing and collection, dispute resolution and crediting. Customer is responsible for the payment of all charges for Services furnished to Customer and its Secondary Account holders / end users. This responsibility is not diminished or otherwise affected by any: (1) use, misuse, fraud or abuse by Customer, its employees, its end users, or Customer-provided systems, equipment, facilities or services interconnected to Service; or (2) Customer inability to collect payments or charges from its Secondary Account holders/end users.
b. Customer is responsible for applying and enforcing all applicable provisions of this Agreement on its Secondary Account holders. If AvertX discontinues providing Service to Customer for violation of Customer's obligations under this Agreement, Customer will be solely responsible for furnishing any required notice to its affected Secondary Account holders.
c. AvertX will have no obligation to interact with Customer's Secondary Account holders, nor will AvertX incur any liability to Secondary Account holders for its performance under this Agreement.
8. General Service Provisions
a. AvertX continually updates the Services, which include various aspects of the Service, such as the website, user interfaces, Service plans, client software, application software, and AvertX-provided operating system environments. AvertX may, in its sole discretion, make changes from time to time and without notice to its Services including how its Services are delivered, operated, and updated.
b. Customer agrees, and will ensure that each end user agrees:
i. to use the Services, including all features and functionalities associated therewith, in accordance with all applicable laws, rules and regulations, or other restrictions on use of the Service or content therein;
ii. not to: use any robot, spider, scraper or other automated means to access the Service; insert any code or product or manipulate the content of the Service in any way; or, use any data mining, data gathering or extraction method;
iii. not to upload, post, e-mail or otherwise send or transmit any material designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Service, including any software viruses or any other computer code, files or programs;
iv. not to upload, post, e-mail or otherwise send or transmit any material that You do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements);
v. not to register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any products or services except when expressly authorized by such party to do so;
vi. not to delete any author attributions, legal notices or proprietary designations or labels that You upload to any communication feature;
vii. not to upload or transmit any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party;
viii. not to upload or transmit any unsolicited advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes" or any other form of solicitation, commercial or otherwise;
ix. not to violate any applicable local, state, national or international law;
x. not to probe, scan, test the vulnerability of or breach the authentication measures of, the Services or any related networks or systems;
xi. not to harvest or otherwise collect information about others, including e-mail addresses;
xii. not to attempt to gain any unauthorized access to the Services or any associated content, including computer systems, software, or networks;
xiii. to provide information to AvertX in connection with the use of its Services that is true, accurate, and complete, to the best of Customer's knowledge, ability, and belief.
d. Some devices utilized in conjunction with the Service may from time to time stop functioning as intended. If AvertX deems the non-functioning device to be disruptive to the Service (such as sending information to the Service at an increased rate), AvertX reserves the right to deactivate the device without warning.
9. Passwords & Account Access
a. Any end user who has administrative access to the Primary Account will be considered the Account Owner. The Account Owner has full access and administrative control over the account. The Account Owner's control is exercised through use of the Account Owner's password and therefore to maintain control, the Account Owner should not reveal the password to anyone. Customer is responsible for updating and maintaining the truth and accuracy of the information provided to AvertX relating to its account.
b. Customer should always access sensitive account information by going directly to the Service website and not through a hyperlink in an email or any other electronic communication, even if it looks official. AvertX reserves the right to place any account on hold anytime with or without notification to the end user in order to protect itself, its partners, and the Service from what it believes to be fraudulent activity.
10. Data Collected by AvertX
i. Heartbeat notices. Application software running on devices send the Service frequent heartbeat notices. These are used to determine if each device is online. This information is used to generate alert emails and reports for You.
ii. Health Metrics. Health information is collected from devices connected to the Service. This information includes, but is not limited to, online status of each camera, hard drive failure warnings and video storage retention values. This information is used to generate alert emails and reports for You.
iii. Connection Information. Information about the user, and devices used to connect to the Service, is collected. This includes, but is not limited to, type of device used to connect and login name of the user. This information is used to generate reports for You.
iv. Sensor and Motion data. Sensor and motion event data may be sent to the Service. This information is used to generate alert emails and reports for You.
v. Event and Camera Images. Images and metadata from events (such as motion, sensor, access control or intrusion, video analytics, and point of sale transactions) are sent to the Service. These images and event data are included in alert emails and reports provided to You.
11. Disclaimers of Warranties and Limitations on Liability
a. THE SERVICE AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE SERVICE, ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND AND SUBJECT TO THE FOLLOWING LIMITATIONS OF LIABILITY. AVERTX DISCLAIMS ALL WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INTERFERENCE, NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED BY A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. AVERTX AND/OR OUR THIRD PARTY SUPPLIERS OR LICENSORS DO NOT GUARANTEE, REPRESENT, WARRANT OR COVENANT THAT THE SERVICES ARE OR WILL BE ACCURATE, CURRENT, COMPLETE, FREE OF TECHNICAL AND TYPOGRAPHICAL ERRORS, SECURE, RELIABLE, OR APPROPRIATE FOR ANY PARTICULAR USE TO WHICH CUSTOMER OR ANY THIRD PARTY MAY CHOOSE TO PUT THEM, THAT THE SERVICES ARE OR WILL BE AVAILABLE ON AN UNINTERRUPTED AND ERROR-FREE BASIS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER DISABLING DEVICES OR HARMFUL COMPONENTS. AVERTX PERIODICALLY AMENDS, CHANGES, ADDS, DELETES, UPDATES, OR ALTERS THE SERVICES WITHOUT NOTICE. FURTHER, AVERTX ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE SERVICES. AVERTX SPECIFICALLY DISCLAIMS ANY DUTY TO UPDATE THE CONTENT, OR ANY OTHER INFORMATION ON THE SERVICES. AVERTX MAY, AT ITS SOLE DISCRETION, SUSPEND OR DISCONTINUE SERVICE AT ANY TIME UPON PROVIDING REASONABLE ADVANCE NOTICE.
e. Any cause of action or claim Customer may have with respect to the Service, or any other aspect of Customer's relationship with AvertX, must be commenced within one (1) year after the claim or cause of action arises.
12. Confidentiality. As used in this Agreement, "Confidential Information" means information not generally known to the public, and maintained by the disclosing party as confidential, whether of a technical, business, pricing or other nature that relates to the Service and that should reasonably have been understood by the receiving party, because of (i) legends or other markings, (ii) the circumstances of disclosure or (iii) the nature of the information itself, to be proprietary and confidential to the disclosing party. Confidential Information may be disclosed in written or other tangible form (including information in computer software or held in electronic storage media) or by oral, visual or other means. The receiving party shall not disclose the disclosing party's Confidential Information to anyone without the disclosing party's prior written consent and will (i) restrict access, possession, knowledge, development and use of Confidential Information to (a) its employees, agents, subcontractors, consultants, advisors and entities controlled by it ("Personnel"); (b) who have a need to know Confidential Information of the other party; and (c) who are bound by confidentiality obligations substantially similar to those contained herein; and (ii) be responsible for its Personnel's compliance with this Agreement. Further, use of Service by Customer does not constitute, nor should any use be construed to constitute, a "disclosure" or "receipt" of Customer's Confidential Information, such that AvertX would be or become a recipient, data processor or handler on behalf of Customer or others.
13. Intellectual Property
b. No Reverse Engineering. Customer agrees not to copy, modify, create a derivative work from, decompile, reverse engineer or disassemble, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in or access to the Service including all related software or other products or processes accessible through or connected to the Service.
c. Trademarks. AvertX Web Services (AvertXConnect) is a registered trademark of AvertX.
15. US Law and Export. Customer is solely responsible for compliance with the Laws where Services are accessed by Customer or its Secondary Account holders. Additionally, Customer's use of the Services may be subject to U.S. export laws and regulations and that any use or transfer of the Confidential Information or Customer Materials or access and use of Services by Customer or its Secondary Account holders outside the U.S. must be authorized under those laws and regulations and that compliance with such transfer or use is Customer's sole responsibility.
16. Use of Information Submitted. AvertX is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication Customer may send to us ("Feedback"), including responses to questionnaires or through postings to the Service, including the website and user interfaces, worldwide and in perpetuity without further compensation, acknowledgement or payment to Customer for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Service. In addition, Customer agree not to enforce any "moral rights" in and to the Feedback, to the extent permitted by applicable law. Should Customer send any unsolicited materials or ideas, Customer does so with the understanding that no additional consideration of any sort will be provided, and Customer is waiving any claim against AvertX and its affiliates regarding the use of such materials and ideas.
17. Typographical Errors. The Services could include technical inaccuracies or typographical errors. AvertX shall have no liability in connection with any such inaccuracies or errors, nor shall AvertX have any obligation to identify and/or correct any such inaccuracies or errors.
18. Links to Other Websites. For Customer's convenience, certain hyperlinks may be provided on the Services that link to other websites or social media platforms which are not under the control of AvertX (the "Linked Websites"). AvertX does not endorse or sponsor any Linked Websites and is not responsible for the availability, accuracy, content, or any other aspect of the Linked Websites. AvertX disclaims all liability for such websites, for all access to and use thereof, and for use of the links to such websites. AvertX also disclaims all liability, and makes no representations or warranties, with respect to any products or services made available, sold, or provided to You by any third party. Customer's use of Linked Websites and any purchases of products or services from such Linked Websites are subject to the terms and conditions of such other websites. Customer agrees that Customer will bring no suit or claim against AvertX arising from or based upon any such use of any Linked Websites. Hyperlinks to such Linked Websites on the Services do not imply that: (a) AvertX is affiliated or associated with any Linked Website; (b) AvertX is legally authorized to use any trademark, trade name, logo, or copyright symbol displayed in connection with or accessible through such links; or (c) any Linked Site is authorized to use any trademark, trade name, logo, or copyright symbol of AvertX.
19. Links to the Websites. Neither Customer nor any other website may link to the Services without the permission of AvertX. In any event, without our express, prior, written permission, it is expressly prohibited to: (a) "deep link" to any page of the Services other than the home page; (b) "frame" the Services or any content or otherwise cause the Services or any content to appear in a window with any other material that does not constitute content; (c) cause the hyperlink to the Services to be displayed in any way that is disparaging to AvertX or any entity that is affiliated or associated with AvertX; or (d) otherwise imply or state that any type of relationship or special arrangements exist with AvertX and any other entity. Customer agrees that Customer will promptly remove any hyperlink to the Services upon the written request of AvertX. In no event will Customer use any logo or trademark of AvertX as a hyperlink "button", or in any other manner, without AvertX's express written consent.
20. Disclaimer of Third Party Information. To the extent that any information, material, or functionality on the System and Services is provided by third party content providers ("Third Party Materials"), AvertX has no editorial control or responsibility over such Third Party Materials. Therefore, any opinions, statements, products, services or other Third Party Materials are those of the applicable third party. AvertX does not represent or endorse the accuracy or reliability of any opinion, statement or other information provided by any third party (including any Submissions), or represent or warrant that Customer's use of any Third Party Materials will not infringe rights of third parties not owned by or affiliated with AvertX.