Please read these Terms of Service ("Terms") carefully. These terms are a binding contract for the use of Auragan LLC d/b/a Advection ("Advection") services. By accessing or using Advection services you are accepting these terms (on behalf of yourself or the entity that you represent) and you represent and warrant that you have the right, authority, and capacity to enter into these terms. If you do not agree to be bound by all of the provisions of these terms, do not use Advection’s services.
- Advection will make the services available to Customer according to one or more online or written ordering documents (a "Work Order").
- Advection shall comply with all laws and governmental regulations applicable to the services.
- Advection will be responsible for the performance of its personnel (including employees and contractors) and their compliance with the agreement.
- Advection will maintain the security measures consistent with industry standard practices.
- As between Advection and Customer, Customer is responsible for Customer data and the provision of Customer data to the services according to the agreement.
- Customer shall be responsible for the performance of its personnel (including employees and contractors) in compliance with the agreement. Customer enters into the agreement on behalf of its aliates that make use of the services.
- Customer may choose to use services not provided by Advection ("non-Advection services") with the services and in doing so grants Advection permission to interoperate with the non-Advection services as directed by Customer or the non-Advection services. Unless specified in a Work Order: (a) Advection does not warrant or support non-Advection services, (b) as between Advection and Customer, Customer assumes all responsibility for the non-Advection services and any disclosure, modification or deletion of Customer data by the non-Advection services and (c) Advection shall have no liability for, and Customer is not relieved of any obligations under the agreement or entitled to any refund, credit, or other compensation due to any unavailability of the non-Advection services or any change in the ability of Advection to interoperate with the non-Advection services.
- Customer shall comply with the Advection’s acceptable use policy (“AUP”) available at https://advection.net/acceptable-use.html
Term and termination.
- These terms are effective during the term of any Work Order that incorporates them. The term of a Work Order shall be specified in the Work Order. Work Orders shall renew for successive terms, unless Customer gives Advection at least sixty (60) days notice of nonrenewal at the end of the applicable term.
- Either party may terminate a Work Order if the other materially breaches this Agreement and such breach continues unremedied for thirty days following notice or such other period designated herein. Advection may immediately suspend all Work Orders for payments not received within thirty days of payment due date.
- Customer acknowledges that the fees set forth in the Work Order are committed for the Term and will become payable regardless of actual use of Services. Except for a termination by Customer as expressly permitted hereunder, if Work Order is terminated prior to end of the Term for any reason (including if Customer ceases use of the Services prior to expiration or termination of the Term), such a termination shall constitute a material breach of the Agreement. Because it is very difficult to accurately estimate the harm caused by this breach or any other material breach of the Agreement by the Customer, the parties agree that as compensation and not as a penalty Advection shall be entitled to invoice, and Customer agrees to pay, the committed fees outstanding for the remainder of the then-current Term, in addition to all other fees outstanding at the date of termination.
Fees and payment.
- Customer will pay all fees specified in Work Orders and provide accurate and updated billing contact information. Minimum commitments/plans in Work Orders are (a) based on services purchased and not actual usage; (b) non-cancelable; and (c) cannot be decreased during the specified term. Fees paid for minimum commitments/plans and actual usage (should a Customer agree to pay overages) are not refundable.
- Advection will invoice Customer either monthly or according to the billing frequency stated in the Work Order. Invoices to be paid by credit card are due on the invoice date, all other invoices are due net 15 days from the invoice date. If any invoiced amount is not received by Advection by the due date, then without limiting Advection’s rights or remedies: (a) those charges may accrue late interest at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and (b) Advection may require shorter payment terms on future Work Orders. If Customer is paying for services by credit card, Customer will provide Advection with valid credit card information and promptly notify Advection of any changes necessary to charge the credit card. The provision of credit card information to Advection authorizes Advection to charge the credit card for all services specified in a Work Order, and any renewal subscription.
- Invoices remaining unpaid more than 15 days past the due date will be subject to suspension of the Service. As a courtesy to avoid unnecessary Service interruption, Advection may notify Customer prior to Service suspension for non-payment. Services will be reinstated within two (2) business days after the overdue payment is received. You will continue to be charged during the suspension period until the Order is terminated. You will not be entitled to any credits under an SLA for any period of suspension.
- Advection will not exercise any rights to suspend services, accelerate payments, impose late charges or change payment terms with respect to an overdue amount for so long as Customer is disputing the overdue amount in good faith. The parties shall cooperate diligently to resolve the dispute.
- If Customer terminates the agreement in accordance with section 3.2 (termination for cause), Advection will not refund any prepaid fees covering the remainder of the term of all Work Orders after the effective date of termination. If the agreement is terminated by Advection in accordance with section 4.2 (termination for cause), Customer will pay any unpaid fees covering the remainder of the term of all Work Orders. In no event will termination relieve Customer of its obligation to pay any fees payable for the period prior to the effective date of termination.
- Fees for services do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes assessable by any jurisdiction whatsoever (collectively, "taxes"). Customer is responsible for paying all taxes associated with its Work Orders. If Advection is obligated by law to pay or collect taxes for which Customer is responsible, Advection will invoice Customer and Customer will pay that amount unless Customer can provide a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will provide Advection any information Advection reasonably requests to determine whether Advection is obligated to collect taxes.
- Advection may increase its fees for services. Advection will notify Customer of such an increase via its website, https://advection.net/. Customer is entitled to terminate this Agreement during a thirty (30) day period following such an increase. If Customer does not give a written notice of non-renewal, Customer shall be deemed to have accepted the new fees.
- "confidential information" means all information about the relationship created by the agreement disclosed by a party to the other party, whether orally or in writing, that is designated as confidential or, given the nature of the information and the circumstances of disclosure, should be understood to be condential. Condential information of each party includes the terms and conditions of the agreement and all Work Orders, including pricing, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed in connection with the agreement. Confidential information does not include information that (a) becomes generally known to the public; (b) was known to the recipient with no obligation of confidentiality prior to disclosure, as proven by records of recipient; (c) is disclosed to recipient by a third party who did not directly or indirectly obtain the information subject to any confidentiality obligation; or (d) is at any time independently developed by recipient.
Licenses and proprietary rights.
- Customer data. Customer grants Advection a worldwide, nonexclusive, revocable, and limited license during the term of Customer’s use of the services to store, copy, transmit, and display Customer data, and to interoperate with any non-Advection services as necessary in order for Advection to provide the services in accordance with the agreement. Subject to this limited license, Advection acquires no right, title, or interest from Customer under the agreement in or to Customer data.
- Customer grants to Advection worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer.
- Advection hereby grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes anything developed by Advection for Customer and delivered by Advection to Customer in connection with support or professional services ("deliverables"). Subject to Customer’s ownership of its proprietary and confidential information disclosed to Advection under section 5 (confidentiality) Advection shall retain all ownership rights to the deliverables.
- The services and the documentation are the proprietary information of Advection. Subject to the limited rights expressly granted in the agreement, Advection and Advection’s licensors reserve all right, title, and interest in and to the services and the documentation, including all related intellectual property rights. No rights are granted to Customer except as expressly set forth in the agreement. No rights are granted to Advection except as expressly set forth in the agreement.
Limitation of liability.
- A party's liability with respect to any single incident arising out of or related to the agreement will not exceed the amount paid by Customer hereunder in the 12 months preceding the incident, provided that in no event will a party’s aggregate liability arising out of or related to the agreement (regardless of the number of individual incidents giving rise to liability) exceed the total amount paid by Customer hereunder. The above limitations will apply whether an action is in contract or tort and regardless of the theory of liability. However, the above limitations will not limit Customer’s payment obligations under section 4 (fees and payment) or either party’s indemnification obligations under section 9 (indemnification).
- Advection warrants that during the term of each Work Order that: (a) the services will perform materially as set forth in the documentation, (b) the features, functionality and performance of the services will not be materially decreased, (c) the overall effectiveness of the security measures will not be decreased and (d) Customer’s obligations will not be materially increased as a result of an update to the documentation or the AUP.
- The support and professional services specified in the applicable Work Order will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards. Customer’s exclusive remedies for breach of the warranty in this section shall be either (a) re-performance of the support or professional services by Advection; or (b) to claim the credits set forth in the applicable SLA.
- Advection shall defend, indemnify and hold Customer harmless from and against any claim made, or any suit or proceeding brought against Customer, but only to the extent it is based on an allegation that a Service furnished hereunder directly infringes an issued patent or other intellectual property right under the laws of a country in which the Service is actually provided to Customer. If a Service is held to infringe and the use enjoined, Advection shall have the option, at its own expense, to procure for Customer the right to continue using the Service; or replace same with a noninfringing service; or modify such Service so that it becomes noninfringing. If Advection is unable to provide one of the foregoing remedies, Customer may terminate the applicable Service without termination charge upon written notice to Advection. Advection shall have no liability for any infringement of patents, copyrights, or other intellectual property rights resulting from Customer Content (as defined below), use of the Service other than as specified in relevant Advection documentation, the use or combination of the Service with any hardware, software, products, applications, data or other materials not specified or provided by Advection, or to the extent the claims arise from products or services not supplied by Advection.
- Customer is solely responsible for all content and applications, including any third party content or applications, provided to Advection for delivery via the Advection network (“Customer Content”). Customer retains all right, title and interest in its Customer Content, and Customer Content shall not be deemed part of any Service by virtue of being located on or served from Advection servers. Customer acknowledges that Advection does not assume and should not be exposed to the business and operational risks associated with Customer’s business or any aspects of the operation or contents of Customer’s web site(s). Customer shall defend, indemnify, and hold Advection harmless as a result of any claim by a third party against Advection with respect to any Customer Content, operation of Customer’s web site(s) (including without limitation any activities or aspects thereof or commerce conducted thereon), or misuse of a Service or the Advection network.
- The indemnified party shall (a) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, and (b) allow the indemnifying party solely to control the defense of any claim, suit or proceeding. The indemnifying party shall not enter into any settlement that imposes liability or obligations on the indemnified party without obtaining the indemnified party’s prior written consent.
Governing law and jurisdiction.
- The governing law of New York and controlling United States federal law will apply in any lawsuit arising out of or in connection with the agreement and the federal or state courts located in New York, New York, USA have exclusive jurisdiction over any such lawsuit.