These Terms of Service (the “Terms”) are a binding legal agreement between you and Adverity GmbH (”Adverity” or “we,” “our” or “us”), regarding your use of our websites (adverity.com), our software and services (the websites, software, and services are collectively referred to as the “Service”). Please read these Terms carefully. The term “you” shall also include your employees or other authorized users to the extent applicable and permitted under your subscription of the Service.
By creating an account with Adverity, you agree to be bound by the Terms and Policies (as defined below) and become a party to this agreement. If you do not agree to the terms of this agreement, do not create your account and stop using the Service immediately. In addition, when using certain features of the Service you also may be subject to the guidelines, terms, and agreements applicable to such features (“Policies”). All such Policies are incorporated by reference into these Terms. If these Terms are inconsistent with any Policy, the terms of the Policy will control. We may periodically make changes to these Terms and Policies or introduce new provisions, terms or conditions governing the use of the Service. We will notify registered users of changes by posting updates to www.adverity.com and/or by newsletters.
By using the Service, you accept these Terms and Policies and any modifications that we may make to these Terms and Policies from time to time. It is your responsibility to review the most recent version of the Terms and Policies frequently and remain informed of any changes to it. If you continue to use the Service after we modify the Terms and Policies, you will be deemed to have consented to such modified terms for your use of the Service as of the date of the modification. If you do not agree to any provision of these Terms or Policies, you must not use the Service.
Adverity provides software applications (the “Software”) called (1) Adverity Datatap and (2) Adverity Insights as a “software as a service platform” accessible via the Internet. The Software enables the Client to collect, process and provide data from various sources and allows to analyse, report and visualize the data
The Service is not intended for users that are consumers (being an individual acting primarily for purposes other than a trade, business or profession) and the applicability of consumer protection legislation is therefore excluded. You must be 18 years of age or older to enter into this agreement and use the Service. You represent and warrant that any information you submit is true and accurate and that you are 18 years of age or older and are fully able and competent to enter into, and abide by these Terms.
3. Account Registration
You must register to use certain features of the Services. When you register, you agree to (a) provide accurate, current and complete information about you as may be prompted by registration forms on the Service (“Registration Data”); (b) maintain the security of any logins, passwords, or other credentials that you select or that are provided to you for use on the Service; (c) maintain and promptly update the Registration Data, and any other information you provide to us, and to keep all such information accurate, current, and complete; and (d) notify us immediately of any unauthorized use of your account or any other breach of security by emailing us at firstname.lastname@example.org.
4. Free Trial
We may at our sole discretion offer you free trials for selected features of the Service or a limited time trial period of the entire Service. Once your free trial period ends, your ability to access the Service will terminate. Adverity reserves the right to determine if you are eligible for a free trial and to discontinue any free trial without notice at our sole discretion.
With the purchase of a license according to the agreement, the Client will receive the technical means and the permission to access the Software, which is hosted by a hosting provider, through the Internet and use the Software in accordance with this Agreement. The Client will receive for the term of this Agreement after payment of the agreed license fee, a non-exclusive, personal, non-transferable and non-sublicensable right to use the Software in the manner set forth herein. To the extent that Adverity provides updated versions of the licensed Software during the term of this agreement, the aforesaid right of use will apply accordingly. Adverity will always provide the latest Software version on an “as is” basis. The monthly license fee will be invoiced at the beginning of each month and is due for payment within 14, 30 or 60 days, depending on the contract. All sums payable under this license are exclusive of VAT or any relevant local sales taxes, which shall be charged in accordance with the relevant local regulations in force at the time of making the relevant taxable supply and shall only be payable by the Client after receipt of a valid VAT or local sales tax invoice.
6. Use Restrictions and third party
The Client licenses the Software for its own use and shall not enable access to any 3rd party, either against payment or free of charge. The Software may not be copied or modified in any manner by the Client other than in accordance with the License Agreement. For such purposes a separate Reselling Agreement or an extension of the license to include “External Business User Accounts” for Adverity Insights is necessary and can be provided. Nothing shall prevent the Client from making any data and information obtained from the Software available to 3rd parties via the data provisioning features of Adverity Datatap or the dashboard sharing and export functionalities of Adverity Insights as this is intended and proper use of the Software.
7. Third-party services, data and content
The Service allows you to gather data from multiple third-party data sources and services, including various third-party websites. The third-party services from which the data can be gathered are selected by Adverity at its sole discretion and Adverity reserves the right to select, discontinue and change such available sources at any time. Adverity assumes no liability whatsoever for the data or other content collected from third-party services. You are solely responsible for ascertaining that you have the right to use the Service for gathering and processing any such data by using the Service, and you must obtain any such consents and authorisations as may be needed from time to time in relation to such data or other content and their processing by using the Service. The Service may be used as an add-on to various third-party services and software. We do not assume any liability for such third-party services or software, and you are exclusively responsible for obtaining any necessary licences or consents needed for their use. You must familiarise yourself with the applicable terms and conditions, including any restrictions on use, in relation to any such third-party services and you agree to comply with such third-party terms and conditions in addition to these Terms and the Policies. Furthermore, the Service may contain links to Web pages and content of third parties as a service to those interested in this information. We do not monitor, endorse, or adopt, or have any control over, any third-party content. We undertake no responsibility to update or review any third-party content and can make no guarantee as to its accuracy or completeness. Additionally, if you follow a link or otherwise navigate away from the Service, please be aware that these Terms will no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any third-party content or service provider to which you navigate from the Service. You access and use third-party content at your own risk. The Service may contain advertisements and promotions from third parties. Your business dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party.
8. Modifications to the Service
Adverity reserves the right to modify, discontinue, and restrict, temporarily or permanently, all or part of the Service without notice at our sole discretion. Neither we nor our suppliers or licensors will be liable to you or to any third party for any modification, discontinuance, or restriction of the Service.
9. Termination and Renewal
Your account and subscription of the Service remains in effect unless you cancel it or unless Adverity terminates your account as provided by these Terms. The license period shall be extended automatically in increments of twelve (12) months if not terminated in writing at least one (1) month prior to the end of the current license period. To fulfil the need of testing, the Client has the right to terminate this agreement within the first 30 days of the initial license period for any reason and without any penalty. Adverity has the right to suspend the account when payment is 30 days overdue without further notice.
Any materials, including but not limited to comments, suggestions, ideas, or other information, provided by you in the form of email or other submissions to us (excluding material that you post on the Service in accordance with these Terms) (collectively “Feedback”), are non-confidential and you hereby grant to us and our subsidiaries and affiliates a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use your Feedback for any purpose without compensation or attribution to you.
Adverity, the Adverity logos, and any other product or service name or slogan contained on the Service are trademarks or registered trademarks of Adverity and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of the applicable trademark holder. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship, or recommendation thereof by us, or vice versa.
12. Ownership and intellectual property rights
We, our affiliates, and our suppliers and licensors own all right, title, and interest, including all intellectual property rights, in and to the Services, and any services available in connection with the Service. Except for those rights expressly granted in these Terms, no other rights are granted, either express or implied, to you. All copying, distribution or other use of the Service or any third party services or content except as expressly permitted hereunder is prohibited without the prior written consent of the relevant rights holders.
The confidential information to be disclosed under the Agreement (“Confidential Information”) can be described as and includes: Technical and business information relating to proprietary ideas, patentable ideas and/or trade secrets, existing and/or contemplated products and services, research and development, production, costs, profit and margin information, finances and financial projections, customers, clients, marketing, and current or future business plans and models, regardless of whether such information is designated as “Confidential Information” at the time of its disclosure. Product information of Adverity platforms as well as data transferred via the platforms. In addition to the above, Confidential Information shall also include, and the Parties shall have a duty to protect, other confidential and/or sensitive information which is (a) disclosed as such in writing and marked as confidential (or with other similar designation) at the time of disclosure; and/or (b) disclosed by in any other manner and identified as confidential at the time of disclosure and is also summarized and designated as confidential in a written memorandum delivered within thirty (30) days of the disclosure.
You will defend, indemnify and hold harmless Adverity, its subsidiaries, affiliates, partners and third-party advertisers and their respective directors, officers, agents, employees, licensors, and suppliers from and against any costs, damages, expenses, and liabilities (including, but not limited to, reasonable attorneys’ fees) arising out of or related to your use of the Service, your violation of these Terms or any Policies, or your violation of any rights of a third party or applicable legislation.
15. Disclaimer of Warranties
Your use of the service, including, without limitation, your use of any content accessible through the service and your interactions and dealings with any service users, is at your sole risk. The service, and all content available on and through the service are provided on an “as is” and “as available” basis. Adverity and its suppliers and licensors expressly disclaim all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Adverity does not warrant uninterrupted use or operation of the service or your access to any content. No advice or information, whether oral or written, obtained by you from the service will create any warranty regarding Adverity that is not expressly stated in these terms.
16. Limitation of Liability
Neither Adverity nor its suppliers or licensors will be liable for any indirect, incidental, special, consequential, or exemplary damages, including, without limitation, damages for loss of profits, goodwill, use, data, or other intangible losses (even if Adverity or any supplier or licensor has been advised of the possibility of these damages), arising out of or relating to your access to or use of, or your inability to access or use, the Service or any content. Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks under these terms between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these terms. The limitations in this section will apply even if any limited remedy fails of its essential purpose.
17. Consent to Electronic Communications
By using the Service, you consent to receiving electronic communications from us. These communications may include notices about your account and information concerning or related to the Service. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
18. Governing law and dispute resolution
These Terms shall be governed and construed in accordance with the laws of Austria, without giving effect to principles of conflicts of law or to the Convention on Contracts for the International Sale of Goods. Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Austrian Chamber of Commerce. The seat of arbitration shall be Vienna, Austria. The number of arbitrators shall be one. The language of the arbitration shall be German.
19. Other terms
Our failure to act in a particular circumstance does not waive our ability to act with respect to that circumstance or similar circumstances. Any provision of these Terms that is found to be invalid, unlawful, or unenforceable will be severed from these Terms, and the remaining provisions of these Terms will continue to be in full force and effect. The section headings and titles in these Terms are for convenience only and have no legal or contractual effect. Any provision in these Terms that by its nature should survive the termination of your license to access the Service or any termination of these Terms (including, without limitation, provisions governing indemnification, limitations on liability, disclaimers of warranty, and ownership of intellectual property) will continue to remain in full force and effect after any such termination. These Terms, including all Policies, constitute the entire agreement between you and Adverity concerning the Service. These Terms supersede all prior agreements or communications between you and Adverity regarding the subject matter of these Terms.
20. Questions & Contact Information
If you have any questions or concerns about the Service, or these Terms, you may contact us at email@example.com