Terms of Use

These TERMS OF USE (“Terms of Use”) are an incorporated within the Access Application Agreement (the “Agreement”) entered into by and between Aduvo, LLC, an Arizona limited liability company (“Aduvo”, “we”, or “us”), and “Client” or “You”. In consideration of Client’s right to use the Aduvo Application and the Aduvo Site pursuant to this Agreement, Client agrees to these following additional Terms of Use:

1. Definitions.

All terms defined elsewhere in the Agreement shall have the same meaning in these Terms of Use. In addition to the other terms defined elsewhere in the Agreement, the following terms have the following meanings:

“Aduvo Rules & Templates” means any and all pre-existing and newly created templates of Aduvo (including, without limitation, its work flow, email and marketing templates) developed by Aduvo from time to time and at any time and which are included or otherwise used in the Aduvo Application or Aduvo Site.

2. Access Right; Conditions of Use.

2.1 Access Right.

Subject to all of the terms and conditions of your respective Agreement with us and these Terms of Use, Aduvo hereby grants to Client a non-exclusive, revocable, and limited right to access and use the Aduvo Application via the Aduvo Site in strict compliance with this Agreement (“Access Right”). Notwithstanding the foregoing Access Right, Aduvo also has the right to change, suspend, or discontinue any (or all) aspects of the Aduvo Application or the Aduvo Site at any time, and from time to time, including the availability of content or features provided therein. Access Right granted to Client pursuant to this Agreement will immediately terminate upon the expiration, cancellation or termination of this Agreement for any reason.

2.1.1 Other Services (Beyond Access Rights) and Other Fees. In the event Client seeks any additional services beyond the Access Rights provided pursuant to this Agreement, including, without limitation, any installation services or any maintenance services (the “Other Services”) then the Client and Aduvo must sign a written statement of work (“Statement of Work”) which identifies the scope of the Other Services and the Other Fees for such same. It is agreed that: (a) the signed Statement of Work will be deemed an addendum to this Agreement and by this reference incorporated herein; (ii) all remunerations to be paid to Aduvo by the Client pursuant to the Statement of Work shall be deemed to be, and shall be governed as, “Other Fees” and, as applicable, “Fees” pursuant to this Agreement; and (iii) in the even any provision of this Agreement and the Statement of Work conflicts, then the provisions of this Agreement shall govern unless the parties explicitly stated in the Statement of Work that a particular provision in that Statement of Work shall govern over a conflicting provision in this Agreement.

2.2 Types of Accounts.

We offer two types of accounts: Limited User Account and Premium User Account. All Clients are required to have at least one Premium Account.

2.2.1 Limited User Account. The “Limited User Account” is a free version of the Aduvo Application and the Aduvo Site. A Limited User Account has restricted access to certain features of Aduvo Application and the Aduvo Site (“Limited User Account Services”). Limited User Accounts may experience changes during their use of Limited User Account Services. IF CLIENT REGISTERS FOR A LIMITED USER ACCOUNT AND PURSUANT TO SUCH, CLIENT THEREBY RECEIVES LIMITED USER ACCOUNT SERVICES FOR FREE, THIS AGREEMENT GOVERNS THAT LIMITED USER ACCOUNT. Limited User Account Services are available to Client free of charge until the earlier of (a) the completion of the Limited User Account Services, or (b) the start date of a Premium User Account (defined below). Additional terms and conditions may appear on the registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA CLIENT ENTERS INTO THE LIMITED USER ACCOUNT, AND ANY CUSTOMIZATIONS MADE TO THE LIMITED USER ACCOUNT BY OR FOR CLIENT, DURING CLIENT’S LIMITED USER ACCOUNT MAY BE PERMANENTLY LOST UNLESS CLIENT PURCHASES A PREMIUM USER ACCOUNT. IF CLIENT PARTICIPATES IN A LIMITED USER ACCOUNT, ADUVO SHALL HAVE NO RESPONSIBILITY OR MAKE ANY REPRESENTATION OR WARRANTY RELATED TO THE LIMITED USER ACCOUNT SERVICES UNDER THIS AGREEMENT. DURING THE LIMITED USER ACCOUNT, THE LIMITED USER ACCOUNT SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

2.2.2 Premium User Account. The “Premium User Account” is a paid version of the Aduvo Application and the Aduvo Site. A Premium User Account has access to all available features of Aduvo Application and the Aduvo Site. ALL CLIENTS ARE REQUIRED TO HAVE AT LEAST ONE PREMIUM ACCOUNT ON FILE WITH ADUVO. THIS MANDATORY MINIMUM APPPLIES TO ALL CLIENTS, WITH NO DIFFERENTIATION BETWEEN COMPANY-PAID OR INDIVIDUAL-PAID CLIENTS.

2.3 Conditions of Use.

Client’s Access Right is further, and explicitly, subject to the following terms and conditions:

2.3.1 Client shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to or access the Aduvo Application or the Aduvo Site, including, without limitation, Internet connections, modems, hardware, software, and long distance or local telephone service.

2.3.2. As a condition of Client’s use of the Aduvo Application or the Aduvo Site, Client hereby agrees that:

(i) Client will not use the Aduvo Application or the Aduvo Site for any unlawful purpose or for any purpose that is prohibited by this Agreement;

(ii) Client will not use the Aduvo Application or the Aduvo Site in any manner that could damage, disable, overburden, or impair the Aduvo Site or any of its Servers, or interfere with any other party’s use and enjoyment of the Aduvo Application via their access to the Aduvo Site;

(iii) Client will not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Aduvo Application via the Aduvo Site; and

(iv) Client will not violate or attempt to violate any security features or protocols associated with the Aduvo Application and the Aduvo Site, including, without limitation, (a) accessing data not intended for the Client or logging into a server or account which Client is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any other users, host, or network.

2.3.3. Without limiting the generality of the foregoing, Client further agrees that Client will not provide any Client Content for distribution or other use through via the Aduvo Application or the Aduvo Site if the distribution or use of such Client Content (i) would be libelous, defamatory, an invasive of privacy or publicity rights, or otherwise violate the rights of any party; (ii) without limiting the foregoing, would infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party anywhere; (iii) would otherwise violate any local, state, federal or international law; or (iv) would otherwise create any liability for Aduvo.

2.3.4. Without limiting the generality of the foregoing, to the extent Client or its Users (including End Users and Permitted Users, as defined in the Agreement) provide any Client Content for distribution or other use via the Aduvo Application or the Aduvo Site, Client hereby represents and warrants to Aduvo that Client has the lawful right to distribute and use the Client Content. Also, Client is solely responsible for its conduct (and the conduct of its Users) while using the Aduvo Application and the Aduvo Site, including, but not limited to, all Client Content in any folders, web pages, or any other interactions Client or Client’s Users generate, transmit, or maintain via the Aduvo Application and the Aduvo Site. Aduvo takes no responsibility for any such online distribution, publication or use by Client, any of its Users, or by any other party.

2.3.5. In addition to any other right to suspend, revoke or terminate this Access Right or this Agreement, Aduvo hereby has the absolute right to immediately suspend, revoke and/or terminate, without warning, the Access Right and this Agreement of the Client if Aduvo believes, in its sole discretion, that Client or any of its Users have violated or otherwise breached any provision of this Agreement or of the Aduvo Rules & Templates.

2.3.6. Aduvo also reserves the right to suspend, revoke and/or terminate this Access Right and this Agreement without cause, upon notice to Client, provided, however, if said suspension, revocation or termination by Aduvo is not based, in any part, on a claim by Aduvo that Client or any of its Users have violated or otherwise breached any provision of this Agreement or of the Aduvo Rules & Templates, then Aduvo will provide a pro-rata refund to the Client of only the Access Fees (as such Access Fee is identified and defined in the Aduvo Standard Pricing Schedule) for that billing cycle already paid by Client pursuant to Section 4 hereof.

2.3.7 CLIENT AGREES AND ACKNOWLEDGES THAT CLIENT IS SOLELY RESPONSIBLE FOR ALL AUTHORIZED USERS’ ACTS AND OMISSIONS AND WILL INFORM ALL AUTHORIZED USERS OF THIS AGREEMENT’S APPLICABLE PROVISIONS AND REQUIRE THEM TO COMPLY.

2.4 Other Permitted Users Through Client; User Accounts.

2.4.1 Client shall restrict use of the Access Right solely to End Users who (i) have been issued a Client Account, a Permitted User Account or an End User Account by Aduvo; and (ii) have consented to Aduvo’s then current Agreement binding that Client User to terms and conditions of use similar to those set forth in this Agreement.

2.4.2 With regard to each of the End Users, the Client agrees that each of the End Users shall only access and use the Aduvo Application and Aduvo Site as expressly permitted by this Agreement. Client hereby agrees that: (i) Client will be responsible for all uses of the Aduvo Application and Aduvo Site by Client and all of its End Users; (ii) when Client allows End Users to use the Applications, each End User will have access to all data and the ability to modify or delete any or all data; and (iii) without limiting the foregoing, Client shall be responsible for compliance by End Users with this Agreement Client shall indemnify, defend and hold harmless Aduvo from (a) all damages arising from any misuse of the Aduvo Application or Aduvo Site by any employees, contractors or other agents of Client (including, without limitation, all End Users) or any other uses by any such person or persons that are otherwise not in compliance with this Agreement or the End User Agreement.

2.5 Authorized Requesters.

As a condition to the provision of the Aduvo Applications, Client must identify to Aduvo the Authorized Requester. Aduvo is only required to take instructions from an Authorized Requester on behalf of the Client with regard to any rights and obligations of Client under this Agreement and with regard to any other matters related to or arising out of this Agreement. Without limiting the generality of the foregoing, Client agrees that only Authorized Requesters have the right to supply Aduvo with the following information, and Aduvo is only required to accept the following information from an Authorized Requester: (i) the names of any End Users that will be added or deleted; (ii) personal identifiable information about any End User. The Authorized Requesters must provide Aduvo with all information about Users that is requested by Aduvo in order to allow Aduvo to establish the user accounts as contemplated in these Terms of Use.

3. Marketing and Third Party Service Providers.

3.1 Marketing.

Client agrees that Aduvo may contact Client by telephone, text messages (including by an automatic telephone dialing system), or email at any of the phone numbers and email addressed provided by Client or on Client’s behalf in connection with an Aduvo account, including for marketing purposes. Client understands that Client is not required to provide this consent as a condition of purchasing any property, goods or services. Client also understands that Client may opt out of receiving text messages from Company at any time, either by texting the word “STOP” in reply to any text message using the mobile device that is receiving the messages and Client may opt out of receiving email messages by selecting the unsubscribe link.

3.2. Name and Logo.

Client hereby grants Aduvo a non-exclusive, nontransferable, non-sublicensable, royalty-free, worldwide license during the Term, as defined below, to use Client’s name and logo on Aduvo’s customer list, website, and marketing materials. The goodwill associated with such use shall benefit both Client and Aduvo.

3.3. Third Party Service Providers.

The Aduvo Application and Aduvo Site uses third party service providers (the “Third Party Service Providers”) to provide services to Aduvo and its customers, including collecting and maintaining end user identifying information, marketing capabilities, and to provide information related to account status. The Third Party Service Providers are responsible for collecting and maintaining all end user consents, including the consent to receive text and email messages.

4. Copyrights and Other Intellectual Property Rights; Reservation of Rights.

4.1 Must Respect Intellectual Property Rights of Others.

Aduvo’s policy is to respect the copyright and intellectual property rights of others. Aduvo has the absolute right to (i) immediately terminate, without warning, the accounts of Client and any End Users who, in Aduvo’s sole opinion, infringe upon the copyright or intellectual property rights of others, and (ii) remove any Content from the Aduvo Application and Aduvo Site that, in Aduvo’s sole opinion, may infringe the copyright or other intellectual property rights of any third party.

4.2 Reservation of Rights by Aduvo.

4.2.1 Aduvo or its licensors, solely and exclusively own all rights, title and interest in and to all inventions, patents, trademarks/service marks, logos, images, graphics, content, reports, analysis, data, formulae, processes, techniques, software, website designs, all other copyrights, and all other intellectual property rights provided in, made available by using, or otherwise contained in or arising out of, the Aduvo Application, the Aduvo Rules & Templates (including, without limitation, all Aduvo Rules & Templates which Aduvo may develop while providing the Aduvo Application to Client and any End User), and the Aduvo Site, or which is otherwise provided in furtherance of this Agreement (collectively, “Aduvo IP Assets”). Except for the limited Access Right, this Agreement shall not be interpreted to transfer any rights in any intellectual property rights in any Aduvo IP Assets from Aduvo to Client or any other End User.

4.2.2 Except as expressly granted in this Agreement, Aduvo IP Assets may not be used by any End User (including, without limitation, the Client or any other End Users) without the prior written permission from Aduvo, and then only with proper acknowledgement. Any rights not expressly granted herein are reserved to Aduvo. In addition to any other conditions on the Access Right set forth in this Agreement, the Access Right of every End User is subject to the following additional conditions: (i) End User shall not modify, disassemble, decompile or reverse translate or create derivative works from any of the Aduvo IP Assets or otherwise attempt to derive any source code of the same or let any third party do the same; (ii) no copyrighted material, content, or any other Aduvo IP Assets may be modified, copied, displayed, transferred, distributed, sold, published, broadcast or otherwise used except as expressly stated herein, in such material or in this notice without the express prior written permission of Aduvo (which Aduvo may or may not grant in its sole discretion); (iii) End Users shall not remove, alter, cover or obscure any copyright notices or other proprietary rights notices of Aduvo or any other party placed on or embedded in the Aduvo IP Assets and shall otherwise retain all such notices on all copies of the same; and (iv) use of the Aduvo IP Assets is expressly prohibited by an End User unless it/he/she is a Permitted User or End User pursuant to Section 2.3 herein and this Agreement. Unauthorized use is a violation of copyright and other intellectual property rights and is actionable under law.

4.2.3 For purposes of clarity, the Aduvo IP Assets do not include Client Content as such term is defined herein.

4.3 Survival.

Client also acknowledges and agrees that the terms and conditions of this provision shall survive the cancellation, expiration or termination of this Agreement for any reason.

5. General Obligation to Control Users of Client.

5.1 Client is responsible for maintaining the confidentiality of all Client Content, all other information about Client and any other End Users, including all Client Accounts, Permitted User Accounts, and End User Accounts of all of its Users. Client shall be responsible for all uses of all of such Accounts, regardless of whether the actual uses are authorized by Client. Client agrees to promptly notify Aduvo of any unauthorized use, access or disclosure of any of such Accounts.

5.2 Without limiting any of the foregoing, Client is responsible for all access to and use of the Aduvo Application and Aduvo Site by all of its End Users, and shall assure compliance with this Agreement (and any applicable Aduvo Agreement consented to by that End User) by each such End User provided access to the Aduvo Application and Aduvo Site through Client. Any act or omission by any such third party user shall be deemed to be committed by Client for purposes of this Agreement.

6. Survival.

All provisions of this Agreement that by their nature or understanding reasonably should survive the termination or expiration of this Agreement shall survive such termination or expiration.

7. Disclaimer of Warranties; Limitation and Disclaimer of Liability.

7.1 DISCLAIMER OF REPRESENTIONS AND WARRANTIES:

EXCEPT FOR THE SPECIFIC SERVICE LEVEL COMMITMENT SET FORTH IN SECTION 3 OF THE TERMS AND CONDITIONS OF THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW THE ADUVO APPLICATION, ADUVO SITE, AND ANY OTHER ADUVO IP ASSETS MADE AVAILABLE BY ADUVO ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND THE ENTIRE RISK AS TO USE, SATISFACTORY PERFORMANCE, ACCURACY AND EFFORT IS WITH CLIENT.

EXCEPT FOR THE SPECIFIC SERVICE LEVEL COMMITMENT SET FORTH IN SECTION 3 OF THE TERMS AND CONDITIONS OF THE AGREEMENT, ADUVO EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED OR OTHER WARRANTIES: (A) OF CLIENTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, VALIDITY, WORKMANLIKE EFFORT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, RELIABILITY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS, OR SYSTEM INTEGRATION; (B) OF CONFORMANCE TO ANY DEMONSTRATION OR PROMISE BY ADUVO; (C) ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, OR (D) THAT ACCESS TO OR USE OF THE ADUVO APPLICATION OR THE ADUVO SITE WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE. ADUVO ALSO MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD PARTY SOFTWARE PRODUCTS, THIRD PARTY SERVICE PROVIDERS, OR INFORMATION CONTENT THAT MAY BE USED OR PROVIDED FOR USE UNDER THIS AGREEMENT. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT IN SECTION 3 OF THE TERMS AND CONDITIONS OF THE AGREEMENT.

7.2 LIMITATION OF LIABILITY:

7.2.1 Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ADUVO, NOR ANY OF ITS SUPPLIERS OR LICENSORS, SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY USE OF, OR ACCESS TO, THE ADUVO APPLICATION, ADUVO SITE OR ANY OTHER ADUVO IP ASSETS (OR ANY COMPONENT OF ANY OF THE FOREGOING) EVEN IF ADUVO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2.2 Limitation of Damages.

ADUVO’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, ANY LIABLITY ARISING OUT OF A FAILURE BY ADUVO OF THE SPECIFIC SERVICE LEVEL COMMITMENT SET FORTH IN SECTION 6.1 HEREIN) SHALL BE LIMITED AS FOLLOWS AND SUBJECT TO THE FOLLOWING:

(A) TO CLIENT’S DIRECT DAMAGES ACTUALLY INCURRED BUT ONLY UP TO THE AMOUNT OF COVERAGE OF ADUVO’S ERRORS AND OMMISSIONS INSURANCE COVERAGE. RECOVERY OF DAMAGES UP TO SUCH AMOUNT SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY; AND

(B) IN THE CASE OF ANY SECURITY BREACH (INCLUDING, BUT NOT NECESSARILY LIMITED TO, ANY “SYSTEM SECURITY BREACH” AS SUCH TERM IS CONTEMPLATED BY SECTION 7.6 IN THE TERMS AND CONDITIONS OF THIS AGREEMENT) OF ANY CLIENT CONTENT, OR OF ANY OTHER CONFIDENTIAL INFORMATION OR OTHER PERSONAL IDENTIFIABLE INFORMATION OF CLIENT, ITS USERS, OR THEIR CUSTOMERS, SUBJECT ONLY TO ADUVO INFORMING THE CLIENT OF SUCH SYSTEM SECURITY BREACH PURSUANT TO THE PROVISIONS OF SECTION 7.6(A) IN THE TERMS AND CONDITIONS OF THIS AGREEMENT, ADUVO’S SOLE AND TOTAL AGGREGATE LIABILITY FOR SUCH SYSTEM SECURITY BREACH SHALL NOT EXCEED ADUVO’S AMOUNT OF COVERAGE UNDER ITS DATA SECURITY BREACH INSURANCE POLICY.

7.2.3 Application. THE LIMITATIONS IN THIS SECTION 6 SHALL BE DEEMED TO APPLY TO ALL CAUSES OF ACTION AND ALL LEGAL THEORIES (INCLUDING FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS, AND ANY OTHER CAUSES OF ACTION, HOWEVER STATED). THE LIMITATIONS AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS SECTION ARE INDEPENDENT OF THE EXCLUSIVE REMEDY SET FORTH IN THIS SECTION, AND SHALL SURVIVE IF SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED TO BE UNENFORCEABLE.

8. MISCELLANEOUS

8.1 Non-Solicitation.

Client acknowledges that Aduvo invests significant resources into the training of its technical support representatives in order to provide Client with service. Client shall not, except with the prior written consent of Aduvo, solicit or hire the employees of Aduvo for the Term of this Agreement and for a period of one (1) year following the termination of this Agreement. If Client hires an employee of Aduvo in violation of this provision, Client shall pay Aduvo a lump sum finder’s fee of 25% of the employee’s annual salary.

8.2 Independent Contractor Status.

It is expressly agreed that the parties are acting as independent contractors and not as partners or joint ventures, and under no circumstances shall any of the employees of one party be deemed the employees of the other for any reason or purpose. This Agreement shall not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other.

8.3 Confirmation Of User’s License Status

Client understands and agrees that Aduvo has the right to regularly contact our software partners to confirm the license status of each User being hosted by our software partners. Client further understands and agrees that Aduvo regularly sends reports to our software partners which includes installation and other usage data of each User being hosted by our software partners.