Terms of Service
This Terms of Service Agreement (“Agreement”) is entered into by and between Advanced Analytixs, Inc., a Florida corporation, DBA VenueCube (“VenueCube”) and the entity that will be using the Services described herein (“Customer”).
VenueCube agrees to provide Services (as defined below) to Customer and Customer agrees to pay VenueCube for Services subject to and in accordance with the following terms and conditions:
1. TERM, RENEWAL, AND TERMINATION: This Agreement shall be for an initial term as specified by the Customer when payment information was submitted by Customer. This Agreement shall be automatically renewed for the same term, unless terminated by either party by giving thirty (30) days notice to the other party.
2. FEES AND PAYMENTS: Fees shall be paid by Customer to VenueCube in accordance with the payment terms agreed to by Customer and VenueCube. All fees paid by Customer under this Agreement are non-refundable. If Customer is using Services pursuant to a free or trial subscription, fees shall become due upon expiration of the free or trial period and upon Customer’s continued use of the Services beyond the free or trial period.
3. SERVICES PROVIDED:
3.1 Application Hosting. Subject to and in accordance with the terms and conditions of this Agreement, VenueCube shall host the Services and hereby grants Customer a limited, non-sublicensable, nontransferable license for application level access to the Services for Customer’s own internal use only in connection with Customer’s operation of its business. Customer may not access Services for any purpose other than its own internal business use, and for the avoidance of doubt, Customer may not access the Service for purposes of creating a competitive product, monitoring availability, performance or functionality or for any other benchmarking or competitive purposes. Access to appropriate Services is provided via an internet URL together with a UserID and password. No direct access to server hardware, operating system, server software or other system resources shall be provided to Customer.
3.2 Services. The “Services” are defined as VenueCube’s proprietary software platform designed to provide dynamic data management solutions that collect, manage and display business information. Services include, if and as selected by Customer, one or more of the following applications: ActivityCube, MarketingCube, ParkingCube and/or IncidentCube. Services are further described at www.venuecube.com and Customer acknowledges and agrees that the scope, features and offering of Services (including the discontinuation of one or more Services) may be modified by VenueCube at any time during the term of this Agreement; however, current descriptions of the Services may be found at www.venuecube.com.
3.3 Proprietary Rights; Restrictions on Use. All right, title and interest in and to the Services (including all intellectual property rights therein) is retained by VenueCube and Customer receives only the limited right to use and access the Services in accordance with and during the term of this Agreement. Customer may not reverse engineer, disassemble, decompile, or translate the Services, or otherwise attempt to derive the source code of the Services, or authorize any third party to do anyof the foregoing. Customer may not rent, lease, loan, resell for profit, distribute, sublicense or use in a time-sharing or service bureau arrangement the Services, or any part thereof
3.4 No Warranties; Support. The Services are provided on an “as is” basis with no representations or warranties of any kind. VenueCube specifically disclaims any and all representations and warranties, implied in law or otherwise, including but not limited to warranties of noninfringement and fitness for a particular purpose. VenueCube does not represent that the Services will be uninterrupted, timely or error free. VenueCube shall provide support to Customer with respect to access and use of the Services in accordance with VenueCube’s support policy in effect at the time of the support request, which policy is available at venuecube.com.
3.5 Limitation of Liability. IN NO EVENT SHALL VENUECUBE BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUSTAINED OR INCURRED IN CONNECTION WITH THIS AGREEMENT AND/OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. In no event shall VenueCube’s total, aggregate liability to Customer for any claim under or related to this Agreement, including but not limited to claims of loss of data, breach of contract and failure of performance, exceed the fees paid by Customer to VenueCube under this Agreement.
4. HOSTED SERVICES: Subject to and in accordance with the terms and conditions of this Agreement, VenueCube agrees to provide Customer with access to and use of the Services for the level of activity and number of users paid for by the Customer. Customer may subscribe for additional access at the prevailing rate.
5. AUTHORIZED USAGE:
5.1 Customer Usage. Customer agrees that access to Services shall be restricted to Customer employees or authorized agents, not to exceed the total number of users paid for by Customer. Customer shall use commercially reasonable efforts to protect User IDs and passwords. Customer shall designate one Administrative Contact as the contact person for VenueCube in respect of this Agreement.
5.2 VenueCube Usage. VenueCube shall have the right to anonymize and aggregate Customer’s stored data with the data of other customers and may freely disclose and use such aggregated data. Any other use of Customer’s stored data by VenueCube shall be for purposes of providing the Services and performance under this Agreement and/or as otherwise specified in VenueCube’s privacy policy available at www.venuecube.com.
6. MINIMUM END-USER SYSTEM REQUIREMENTS: Customer acknowledges that use of the Services requires certain minimum hardware and software requirements. These requirements are described at www.venuecube.com/support and by accepting the terms of this Agreement, Customer acknowledges that it has reviewed these requirements and has a system which complies with these minimum requirements. It is Customer’s responsibility to ensure that its system complies with the minimum requirements then in effect and VenueCube has no obligation to ensure that certain systems, even if once supported by VenueCube, will continue to be supported by VenueCube or otherwise be able to operate the Services.
7. SUPPORT: Technical support is offered for subscription customers. By accepting the terms of this Agreement, Customer acknowledges that it has reviewed the support requirements, and accepts the terms of support.
8. CUSTOMER REPRESENTATIONS: Customer represents and warrants, on an ongoing basis, to VenueCube that (i) Customer and its users shall use the Services in compliance with all applicable laws and without limiting the foregoing, Customer shall not (and shall not allow its users to) provide data to VenueCube or the Services which data Customer does not have a legal right to provide, and (ii) Customer is responsible for all activities undertaken by any person or entity using any username allocated to Customer and all such activities shall be in compliance with the terms and conditions of this Agreement and VenueCube’s privacy policy available at www.venuecube.com. Customer shall indemnify, defend and hold harmless VenueCube from any and all losses, damages, liabilities and costs (including settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) with respect to any claim from any person or entity based on or relating to any alleged breach of the foregoing representations or other breach of this Agreement by Customer.
9. PUBLICITY; FEEDBACK: Customer hereby agrees that VenueCube may use Customer’s name and/or logo in print or web advertising materials so that VenueCube may identify the Customer as a customer of VenueCube or user of Services. Customer is free to provide feedback on Services and suggestions for improving Services to VenueCube; however, (i) VenueCube has no obligation to address or implement any such feedback or suggestions; (ii) Customer hereby grants VenueCube a royalty-free, non-terminable, worldwide, perpetual, sublicensable, transferable license to use, modify and implement any such feedback and/or suggestions; and (iii) Customer shall have all rights necessary to provide such feedback or suggestions to VenueCube and grant to VenueCube the license set forth in (ii) above.
10. MODIFICATIONS: The provisions of this Agreement, including pricing, are subject to change by VenueCube upon prior notice, via written notice, email or through VenueCube’s website, to the Customer. If any modification is unacceptable to you, you may terminate your access to the Service in accordance with the provisions set forth in Section 1. If you continue to use the Services, you acknowledge that you have accepted the modified terms and conditions.
11. SEVERABILIY: If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision shall be deemed amended to achieve as nearly as possible the same effect as the original provision and the remaining provisions of this Agreement shall in no way be affected or impaired.
12. COMPLETE AGREEMENT: This Agreement is the complete and exclusive statement of the agreement between VenueCube and Customer which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.
13. ARBITRATION – CHOICE OF FORUM AND VENUE: Any dispute, controversy or claim arising out of or relating to this Agreement shall be settled by arbitration in Santa Clara County California, by a single arbitrator in accordance with the American Arbitration Association (“AAA”) rules. The arbitrator shall be empowered to award only those damages which are permitted in this Agreement, subject to any disclaimers of damages and liability limits set forth herein. The award rendered by the arbitrator shall include costs of the arbitration and reasonable costs for attorneys’ fees, experts and other witnesses. Judgment on the award may be entered in any court having jurisdiction. Nothing in this Agreement shall be deemed as preventing either party from seeking provisional relief from any court of competent jurisdiction, if expedited review is necessary to prevent irreparable harm to that party’s name or proprietary rights. The award of the arbitrator shall be final and binding upon the parties without appeal or review except as permitted by California law.
14. DATA: If the Service allows Customer to upload data (i.e., images, documents, etc.) to VenueCube’s servers, Customer may be subject to storage limits. In addition, Customer shall ensure that that any uploaded data does not contain any viruses or malware. VenueCube shall have no responsibility to ensure that Customer uploads of data are free of viruses and/or malware and VenueCube is not responsible for any viruses or malware that may infect Customer’s data while stored on VenueCube’s servers. Upon any termination or expiration of this Agreement (or termination or expiration of a free trial where a subscription services in not initiated), Customer’s data may be deleted by VenueCube at any time following fourteen (14) days after such termination or expiration. If Customer desires to export its data prior to such deletion, Customer must contact VenueCube within seven (7) days after termination or expiration and pay the requisite fees for such export.
15. GOVERNING LAW: This Agreement and the legal relations between the parties arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California exclusively, in the same manner as such laws apply to contracts between California residents performed entirely within California. The Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
The individual accepting this Agreement represents and warrants to VenueCube that it has all requisite authority to bind the Customer to this Agreement.