End User Service Agreement

End User Service Agreement (Prior Versions)

Date of Last Revision: December 1, 2023

Welcome to Avetta, a SaaS supply chain and worker/workforce management platform that connects the world’s leading organizations with qualified professional suppliers, contractors, and vendors. Except as specifically described below, the Avetta Services are owned and/or operated under license by Avetta and are provided through various web pages and/or mobile apps (collectively, the "Site"). Your use of the Avetta Services is governed by this End User Service Agreement (this "Agreement"). The Avetta Services are offered to You conditioned on Your acceptance without modification of the terms, conditions, and notices contained herein.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SITE OR AVETTA SERVICES. THIS AGREEMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, INCLUDING VARIOUS LIMITATIONS AND EXCLUSIONS OF LIABILITY, YOUR OBLIGATION NOT TO UPLOAD ANY SENSITIVE DATA WITHOUT THE DATA SUBJECT’S PRIOR WRITTEN CONSENT, A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW AND WHERE DISPUTES WILL BE RESOLVED, AS WELL AS A CLASS ACTION ARBITRATION WAIVER.

BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) USING THE AVETTA SERVICES, YOU ARE SIGNIFYING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (“CUSTOMER” AS FURTHER DEFINED HEREUNDER), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE AVETTA SERVICES.

1. DEFINITIONS

As used herein, or with any document associated with this Agreement:

2. FEES AND CHARGES

avetta’s billing, refund and renEwal policy, attached hereto as Attachment 1 and INCORPORATED herein by reference, SETS forTH THE TERMS AND CONDITIONS GOVERNING THE billing, refundS and renewalS FOR THE AVETTA SERVICES.

3. AVETTA SERVICES

The Avetta Services are provided to You through the Site or otherwise. The Avetta Services are an online subscription service providing its Clients and Suppliers with access to a variety of services related to supply chain risk management.

Avetta provides prequalification checks as part of the Avetta Services based on the parameters provided by Clients. You acknowledge and agree that a portion of such prequalification checks are carried out in an automated manner.

You acknowledge and agree that the Site, among other things, stores information pertaining to compliance, competency and worksite attendance of individual users. Clients may have specific rules for individual users regarding compliance, competency and attendance for worksites for which they are owners/operators. If You are using the Avetta Services to access a worksite, You should ensure You are familiar with these rules. If the Site assesses a failure to comply with rules for any worksite registered with the Avetta Services, one of the possible ramifications may be that You are made an inactive user for one or more worksites (meaning You will be denied access to those worksites until any contravention of a worksite rule has been rectified), which can be verified by Avetta through the Site.

You expressly agree that as part of the Avetta Services, Avetta will carry out Audits, which are objective evaluations of a Supplier’s procedures and practices to assess the Supplier’s compliance with relevant regulatory standards, industry best practice, or other criteria or parameters requested by Clients. You acknowledge and agree that any Audit performed by Avetta is for the purpose of gathering the required documentation for review by Clients.

The Avetta Services are offered through a variety of subscription plans at varying price levels, including special promotional plans or subscriptions with limitations. If You have purchased any online courses within the Pegasus Learning Management System, please note that all purchases are final, and any courses not completed within 6 months of purchase will automatically expire without refund. Additional product specific terms and conditions (available at https://www.avetta.com/product-specific-terms) may also apply to particular portions or features of the Avetta Services. All such additional terms and conditions that are applicable to the Avetta Services Customer has subscribed to are hereby incorporated by this reference into this Agreement. In the event of any conflicts between the product specific terms and this Agreement, the product specific terms shall prevail.

Avetta may perform any or all of its obligations hereunder through its subcontractors, and Avetta shall be responsible for the acts and omissions of such subcontractors relating to this Agreement as though they were those of Avetta.

Avetta strives to enhance Your experience and may, at times, need to make adjustments to the Site or Avetta Services. We aim to communicate any material modifications with a 30-day advance written notice.

4. THIRD PARTY SERVICES

In addition to the Avetta Services, Avetta may make available third party services that are not owned or controlled by Avetta to You through the Avetta Services (“Third Party Services”). Use of Third Party Services is governed by the terms of the providers of the Third Party Services. Avetta assumes no liability or responsibility whatsoever for Third Party Services You elect to use. You may not install or use any Third Party Services in a manner that creates any obligations for Avetta.

5. USE OF THE AVETTA SERVICES

Customer is granted a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Avetta Services for which Customer has a valid subscription which may only be exercised strictly in accordance with this Agreement and solely for Customer’s legitimate internal business purposes. You must be an Authorized User of Customer to access and use the Avetta Services, and Customer shall be responsible for all actions taken under its account. You may not use login credentials to access the Avetta Services from outside the country for which Your credentials were issued. You are responsible for keeping Your login credentials confidential and shall promptly notify us about any unauthorized access to Your login credentials. Your login credentials may restrict Your access to certain materials otherwise available through the Avetta Services. Use of or access to the Avetta Services other than as specifically authorized herein, without the prior written permission of Avetta, is strictly prohibited and will cause the license granted herein to be terminated or suspended immediately. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. All rights not expressly granted herein are reserved by Avetta.

The license to access and use the Avetta Services is subject to the following restrictions and prohibitions: You may not (a) copy, print (except for Your own archival purposes in connection with Your authorized use of the Avetta Services), republish, display, distribute, transmit, sell, rent, lease, loan or otherwise make available in any form or by any means all or any portion of the Avetta Services or any Content obtained through the Avetta Services; (b) use the Avetta Services or any Content obtained through the Avetta Services to develop, or as a component of, any information, storage and retrieval system, database, information base, or similar resource (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism; (c) create compilations or derivative works of any Content available through the Avetta Services; (d) use any Content obtained through the Avetta Services in any manner that may infringe any copyright, intellectual property right, proprietary right, or property right of Avetta or any third parties; (e) remove, change or obscure any copyright notice or other proprietary notice or terms of use contained in the Avetta Services; (f) make any portion of the Avetta Services available through any timesharing system, service bureau, the Internet or any other technology now existing or developed in the future; (g) remove, decompile, disassemble or reverse engineer any Avetta Services or Avetta software or use any network monitoring or discovery software to determine the Avetta Services architecture; (h) use any data mining, robots, scraping or similar data gathering or extraction methods, or any automatic or manual process to harvest information from the Avetta Services; (i) use the Avetta Services for the purpose of gathering information for or transmitting (1) unsolicited commercial email; (2) email that makes use of headers, invalid or nonexistent domain names, or other means of deceptive addresses; or (3) unsolicited telephone calls or facsimile transmissions; (j) use the Avetta Services in a manner that violates any applicable law, rule or regulation including without limitation, those regulating email, facsimile transmissions or telephone solicitations; and/or (k) export or re-export the Avetta Services or any portion thereof, or any software available on or through the Avetta Services, in violation of export control laws or regulations of the United States or any other country.

When You use the Avetta Services, You agree not to:

6. CONTENT

Content may be provided through the Avetta Services or on the Site, by Avetta, Clients, Suppliers, and/or third party vendors. You understand that all Content, whether publicly posted or privately transmitted, is the sole responsibility of the party from whom such Content originated. Avetta does not control any Content posted or provided by Clients, Suppliers, or third party vendors and, as such, does not guarantee the accuracy, integrity or quality of such Content. Information received via the Site is not intended for consumer use and should not be relied upon for personal, medical, legal or financial decisions. Under no circumstances will Avetta be liable in any way for any Content posted or provided by Clients, Suppliers or third party vendors, including, but not limited to, any errors or omissions in such Content, or any loss or damage of any kind incurred because of the use of such Content posted, emailed, transmitted or otherwise made available on the Site or through the Avetta Services.

Avetta and its designees reserve the right (but not the obligation), in their sole discretion, to pre-screen Content, and may refuse to post or transmit, or remove any Content that is available on the Site or through the Avetta Services in circumstances where that Content violates this Agreement, or is false, misleading, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, discriminatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or otherwise objectionable. You agree and acknowledge that You must evaluate, and bear all risks associated with, the use of any Content posted or provided by Clients, Suppliers, or third party vendors, including any reliance on the accuracy, completeness, or usefulness of such Content.

You acknowledge and agree that Avetta may access, retain, store and disclose Your account information and Content if required to do so by law or based on Avetta’s good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third parties; (d) respond to Your requests for customer service, or (e) protect the rights, property or safety of Avetta, its users and the public. Avetta reserves the right to investigate complaints or reported violations of this Agreement and to take any action Avetta deems appropriate, including but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to Your profile, account information, email addresses, usage history, posted materials, IP addresses and traffic information.

7. CUSTOMER CONTENT

As between Avetta and Customer, Customer owns all rights, title and interest in and to Customer Content. You hereby grant to Avetta a non-exclusive, transferable, fully-paid up, worldwide, irrevocable license and right to use, modify, copy, reproduce, transmit, sub-license, index, model, aggregate, publish, display and distribute Customer Content as necessary for Avetta (a) to provide, operate, manage, maintain, and improve the Avetta Services, including but not limited to adding new features to enhance user experience and investigating and addressing security or integrity issues related to the Avetta Services, (b) to develop new technologies and services for Avetta consistent with this Agreement, (c) to operate and administer award programs, rankings, and related marketing activities, including but not limited to selecting or identifying candidates or awardees, badging, and promoting and publicizing the awards or badges, and (d) to fulfill Avetta’s obligations and exercise its rights under this Agreement, in each case without affecting Your confidentiality or privacy rights as set forth in Sections 13 and 15, respectively.

In addition, Avetta may collect and compile usage and operations data (“Usage Data”) to create statistical analysis and for research and development purposes. Avetta may make Usage Data publicly available in compliance with applicable law, provided that such Usage Data does not identify You or any Confidential Information.

If You are a Supplier and have submitted any Customer Content (including any data submitted by Your Workers and other Authorized Users), You acknowledge and agree that: (a) Customer Content includes Limited Access Data and General Access Data; (b) General Access Data will be used to assist Clients and Suppliers who are searching for potential bidders; and (c) General Access Data is not public data, but is password protected and shared only with Avetta Clients and Suppliers that are part of the Avetta Network and in limited circumstances, with potential Avetta Clients. You further acknowledge and agree that:

Avetta will use commercially reasonable efforts to accurately record, store and provide access to Customer Content. Upon logging in or by request, You will be provided with a completed copy of any Audit that Avetta has performed on You as it will appear to Your connected Clients. It shall be Your responsibility to review such completed Audits and verify that the information contained therein is and remains complete and accurate. You further agree to promptly notify Avetta of any errors or omissions in the Content pertaining to You contained on the Site or available through the Avetta Services.

You understand that the technical processing and transmission of the Site, including Customer Content, may involve (a) transmissions over various networks and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

Avetta is not responsible for record retention with respect to Your records or any information You provide to Avetta in connection with Your use of the Avetta Services after the termination of this Agreement. Unless, prior to Avetta’s disposal of any of Your information, You specifically request Avetta in writing to have any of Your documentation returned to You, Avetta has the right to dispose of such information without returning such information to You.

8. AVETTA PROPRIETARY RIGHTS

Avetta (and its licensors, where applicable) own all right, title and interest, including all related intellectual property rights, in and to the Avetta Services (and all underlying technology, software and analytics), any Content provided by Avetta, and any models, methods, algorithms, discoveries, inventions, modifications, customizations, enhancements, extensions, derivatives, materials, ideas and other work product that is conceived of, originated or prepared in connection with the Avetta Services or related to the provision of the Avetta Services pursuant to this Agreement.

All trademarks, logos, and service marks displayed through the Avetta Services are registered and unregistered trademarks of Avetta, its affiliates, licensors or other third parties. All of these trademarks, logos and service marks are the property of their respective owners. You may not use such marks without the prior written permission of Avetta or the owner of the marks. Avetta reserves all rights not expressly granted in and to the Avetta Services and all the Content provided by Avetta. The Avetta Services and all of the Content provided by Avetta, including but not limited to text, design, graphics, interfaces and code, and the selection and arrangement thereof, are owned by Avetta and its licensors and are protected by U.S. and international copyright laws.

9. FEEDBACK

In the event that You provide Avetta with any comments, suggestions, or other feedback with respect to the Avetta Services (“Feedback”), Avetta is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. You hereby irrevocably transfer and assign to Avetta all right, title, and interest in, and Avetta is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. You hereby forever waive and agree never to assert any and all “moral rights” You may have in the Feedback. Avetta will be the exclusive owner of any modifications, enhancements, or derivative works of the Avetta Services resulting from Avetta’s use of such Feedback.

10. BETA OR TESTING FEATURES

From time to time, Avetta may make certain products or features (“Beta Services”) available to You for testing purposes only. Beta Services are made available “AS IS” without warranty of any kind and without any performance obligations, and Avetta shall have no liability for any harm or damage arising out of or in connection with the Beta Services. You may choose to use such Beta Services at Your sole discretion. 

11. YOUR REPRESENTATIONS AND WARRANTIES

You represent, warrant, and covenant that:

12. INTERNATIONAL TRADE COMPLIANCE

You agree, in connection with any business transactions involving Avetta, and Avetta agrees, in connection with any business transactions involving You, not to engage with, or use, directly or indirectly:

Each of You and Avetta represents and warrants that it is not:

Should either You or Avetta become designated a Sanctioned Party, or become associated, controlled or owned by a Sanctioned Party or Embargoed Country, this Agreement will terminate automatically.

13. CONFIDENTIALITY OBLIGATIONS

Avetta Confidential Information is defined as (a) any and all information to which Customer is given access or receives regarding any other Supplier or Client, and (b) any information, including, but not limited to, business and marketing plans, technology and technical information, product plans and designs, and business processes, disclosed by Avetta or revealed as a result of Avetta’s provision of the Avetta Services. Avetta Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to Avetta or any Client or Supplier, (ii) was known by Customer prior to its disclosure by Avetta or any Client or Supplier, (iii) is received from a third party without breach of any obligation owed to Avetta or any Client or Supplier, or (iv) was independently developed by Customer without the use of or reference to Avetta Confidential Information.

You shall not use or disclose any Avetta Confidential Information for any purpose other than for Your legitimate internal business purposes as necessary to realize the benefits of the Avetta Services offered by Avetta to You. You will use the same degree of care that You use to protect Your own confidential information of a like kind (but not less than reasonable care). You will limit access to Avetta Confidential Information to those Authorized Users and personnel who need that access for purposes consistent with using the Avetta Services provided by Avetta to You.

Customer Confidential Information is defined as Customer’s proprietary, non-public information, including, but not limited to, business and marketing plans, technology and technical information, product plans and designs, and business processes, disclosed by Customer to Avetta as a result of Avetta’s provision of the Avetta Services. Customer Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to Customer, (ii) was known by Avetta prior to its disclosure by Customer, or (iii) is received from a third party without breach of any obligation owed to Customer. Avetta will use the same degree of care that Avetta use to protect its own confidential information of a like kind (but not less than reasonable care). Avetta may disclose Customer Confidential Information for Avetta’s legitimate business purposes as necessary to provide the Avetta Services. Avetta will limit access to Customer Confidential Information to those Avetta employees, personnel, and third-party service providers who need access to Customer Confidential Information for purposes of Avetta’s provision of the Avetta Services, and other Clients or Suppliers who have the right to access Customer Content as described in this Agreement.

Notwithstanding the foregoing, Confidential Information (Avetta Confidential Information/Customer Confidential Information) which is required to be disclosed by the receiving party under legal process may be so disclosed, but only to the extent required, and provided that, the disclosing party is given prior notice as promptly as practicable and as allowed by law, and the receiving party compelled to make the disclosure reasonably cooperates with the disclosing party in any efforts to protect the Confidential Information in the context of the proceeding.

14. DATA SECURITY

Avetta will maintain the following minimum security measures: (a) appropriate technical, physical, administrative and organizational controls designed to maintain the confidentiality, security and integrity of Customer Confidential Information, (b) systems and procedures for detecting, preventing and responding to attacks, intrusions, and system failures, and regular testing and monitoring of the effectiveness of such systems and procedures, including, without limitation, through vulnerability scans and penetration testing, (c) a team of employees dedicated to implementation and maintenance of security controls, and (d) annual assessment of risks that could result in unauthorized disclosure, misuse, alteration, destruction or other compromise of Customer Confidential Information, and of the sufficiency of systems and procedures in place to mitigate those risks. The Avetta Services currently operate in third party data centers located in the US, Canada, the UK, Germany, Ireland, or Australia and have been built with high availability, business continuity, and disaster recovery in mind. On request, Avetta will provide to You its SOC 2 Type II independent audit report and ISO/IEC 27001:2013, 27017:2015, 27018:2019, 27701:2019, and/or 22301:2019 certifications, which shall be considered responsive to requests for Avetta security information.

In the event You suspect any security incident, please report the incident immediately to [email protected].

15. DATA PRIVACY

The information Avetta collects on the Site and through the Avetta Services is subject to Avetta’s privacy policy (the “Privacy Policy”) located at: https://www.avetta.com/privacy-policy.

If You are a Supplier, You acknowledge and agree that (i) Avetta will process Personal Data in accordance with the Data Processing Addendum (the “DPA”), which is available at https://www.avetta.com/data-processing-supplier and is incorporated herein by reference, and (ii) You must comply with all Your obligations under the DPA including but not limited to the obligation to have all necessary consents and notices in place to enable lawful transfer of Personal Data to Avetta.

If You are an individual user (e.g. an administrative user, Worker, Visitor, or other types of Authorized User of Customer), You acknowledge and agree that:

YOU EXPRESSLY AGREE NOT TO UPLOAD OR SUBMIT ANY SENSITIVE DATA CONCERNING AN INDIVIDUAL TO AVETTA AND/OR THE SITE IN CONNECTION WITH YOUR USE OF THE AVETTA SERVICES WITHOUT HAVING OBTAINED PRIOR WRITTEN CONSENT, WHICH MUST BE VALID UNDER APPLICABLE DATA PROTECTION LEGISLATION, FROM THE RELEVANT INDIVIDUAL.

You may access, correct or update Your Personal Data; ask questions or express concerns about Avetta’s Privacy Policy or any other matter related to Avetta’s collection, use, protection or disclosure of Your Personal Data; ask questions about the collection, use, disclosure or storage of Personal Data by Avetta’s service providers; or withdraw consent to continued use and disclosure of Your Personal Data, by contacting Avetta using the contact information described in Avetta’s Privacy Policy. For further information about the processing of Your Personal Data and Your rights as a data subject, please consult the Privacy Policy.

Please note that Your Personal Data accessed by Suppliers and Clients using the Avetta Services will be handled by such third parties in accordance with their own privacy policies and procedures. Avetta is not responsible for the actions and omissions of such third parties.

16. INDEMNIFICATION FOR THIRD PARTY CLAIMS

Avetta shall defend Customer, against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of the Avetta Services in accordance with this Agreement infringes or misappropriates such third party’s registered patent, copyright, or trademark right (each a “Claim Against Customer”), and will indemnify Customer from any damages finally awarded against Customer, as well as for reasonable attorney fees and costs incurred as a result of, or for amounts paid by Customer under a settlement approved by Avetta in writing of, a Claim Against Customer, provided Customer (a) promptly gives Avetta written notice of the Claim Against Customer, (b) gives Avetta sole control of the defense and settlement of the Claim Against Customer (except that Avetta may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Avetta all reasonable assistance, at Avetta’s expense. Customer may participate in and observe the proceedings at its own cost and expense with counsel of its own choice. If Avetta receives information about an infringement or misappropriation claim related to the Avetta Services, Avetta may in its discretion and at no cost to Customer (i) modify the Avetta Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Customer’s continued use of the Avetta Services in accordance with this Agreement, or (iii) terminate Customer’s subscription upon 30 days written notice and refund Customer any prepaid fees covering the remainder of the subscription term of the terminated subscription. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Avetta Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Avetta Services or any part thereof with software, hardware, data, or processes not provided by Avetta, if the Avetta Services or use thereof would not infringe without such combination; or (3) a Claim against Customer arises from Content that is not provided by Avetta, a non-Avetta application or Customer’s breach of this Agreement.

Customer shall defend Avetta against any claim, demand, suit or proceeding made or brought against Avetta by a third party arising out of or resulting from (i) Customer’s use of the Avetta Services, including, but not limited to, any third party claim, suit, action or proceeding arising out of such third party accessing the Customer Content, (ii) Customer’s use of or reliance upon any and all Content provided through the Avetta Services, or (iii) Avetta’s sharing of Your Personal Data with its Suppliers and Clients as described above and in Avetta’s Privacy Policy (each a “Claim Against Avetta”), and will indemnify Avetta from any damages finally awarded against Avetta, as well as for reasonable attorney fees and costs incurred as a result of, or for any amounts paid by Avetta under a settlement approved by Customer in writing of, a Claim Against Avetta, provided Avetta (a) promptly gives Customer written notice of the Claim Against Avetta, (b) gives Customer sole control of the defense and settlement of the Claim Against Avetta (except that Customer may not settle any Claim Against Avetta unless it unconditionally releases Avetta of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. Avetta may participate in and observe the proceedings at its own cost and expense with counsel of its own choice. The above defense and indemnification obligations do not apply if a Claim Against Avetta arises from Avetta’s breach of this Agreement.

17. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL AVETTA OR YOU BE LIABLE FOR ANY LOSS OF USE, LOST REVENUE OR PROFIT, OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITH THE EXCEPTION OF LIABILITY FOR INDEMNIFICATION OBLIGATIONS, NEITHER AVETTA’S NOR YOUR AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT SHALL EXCEED THE AMOUNTS ACTUALLY PAID BY OR DUE FROM YOU TO AVETTA IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or special damages, the above limitation may not apply to You. If You are dissatisfied with any portion of the Avetta Services, You agree that Your sole and exclusive remedy is to discontinue using the Avetta Services.

18. FORCE MAJEURE

Notwithstanding anything to the contrary herein, neither You nor Avetta shall be deemed to be in default of any provision of this Agreement, or be liable to each other or to any third party for any delay, error, failure in performance or interruption of performance due to any act of God, war, insurrection, acts of terrorism, riot, boycott, strikes, interruption of power service, interruption of Internet or communications service, labor or civil disturbance, acts of any other person not under its control or other similar causes.

19. NO WARRANTIES

YOU ACKNOWLEDGE AND AGREE THAT AVETTA MAKES NO WARRANTY, GUARANTEE, OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AVETTA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, AND GUARANTEES OR REPRESENTATIONS IMPOSED BY LAW, INCLUDING THOSE RELATING TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, CORRECTNESS, COMPLETENESS OR CORRESPONDENCE WITH DESCRIPTION AND ANY WARRANTY, GUARANTEE, OR REPRESENTATION ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ALL SERVICES PROVIDED BY AVETTA HEREUNDER ARE PERFORMED AND PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

You also acknowledge and agree that Your use of the Avetta Services does not guarantee Your hiring or acceptance by any Client or Supplier of Avetta. You are solely responsible for Your interactions with other members of the Avetta Network. Avetta is not responsible for and hereby disclaims any responsibility or liability regarding interactions or disputes between or among You and any Avetta Clients or Suppliers.

20. DISCLAIMER REGARDING COMPLIANCE INFORMATION

Avetta may provide Compliance Information to You when implementing and providing the Avetta Services. Such Compliance Information is offered for informational purposes only and Avetta does not warrant the accuracy, legality or completeness of the Compliance Information in any way. Avetta has no duty to update You on any changes to the Compliance Information or any legal or regulatory changes. Compliance Information may vary by jurisdiction. You agree (a) to assume full responsibility for confirming the accuracy, legality and jurisdictional applicability of all Compliance Information before You use such Compliance Information; (b) that Avetta shall have no liability with respect to any Compliance Information; and (c) to use of or reliance upon any Compliance Information is at Your own risk.

21. COMPLIANCE WITH LAW

You shall at all times comply with all applicable laws, regulations, ordinances, rules, and orders, including all applicable anti-slavery and human trafficking laws, statutes, regulations from time to time in force. You shall not engage in any activity, practice or conduct that would constitute an offence under the UK Modern Slavery Act 2015, the Australian Modern Slavery Act 2018 (Cth), or Division 270 or Division 271 of the Australian Criminal Code Act of 1995 (Cth) if such activity, practice or conduct had been carried out in England, Wales, or Australia. You represent and warrant that You have not been convicted of any offence involving slavery and human trafficking or been the subject of any investigation, inquiry or enforcement proceedings regarding any offence or alleged offence of or in connection with slavery and human trafficking.

22. NOTICES, PERMISSIONS, AND APPROVALS

All legal notices (e.g., claimed breach or termination of Agreement), permissions and approvals provided hereunder shall be sent by electronic mail to the email address provided by the other party for such purposes and shall be deemed given when sent. Notices to Avetta shall be sent to [email protected]. Notices to You shall be sent to the email address You provide to Avetta in Customer’s profile. If You fail to provide or maintain a valid email address, Avetta may provide notices hereunder by any means reasonably calculated to provide You with actual notice thereof.

23. MODIFICATIONS AND CHANGES

Avetta reserves the right, in its sole discretion, to modify this Agreement (including any document incorporated into this Agreement by reference) at any time by posting an updated version on this page. Avetta will use reasonable efforts to notify Customer of the changes via email or a notice displayed on the Site. The updated version will be deemed accepted and become effective 30 days after such notice unless Customer gives Avetta written notice of rejection of the changes. In the event of a rejection or if no notice is timely provided by Avetta, the current version shall continue to be in effect, and the updated version shall become effective for Customer upon renewal of the then-current subscription term or when You upgrade or subscribe to additional services after the updated version is posted. Your continued use of the Avetta Services after the aforementioned effective date of any such changes constitutes Your acceptance of the updated Agreement.

24. GOVERNING LAW AND VENUE; ARBITRATION

The law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where You are domiciled:

 

If You are domiciled in:	Governing law is:	Courts with exclusive jurisdiction are:
Anywhere globally except for Australia, Brazil, or New Zealand	Texas and controlling United States federal law	Houston, Texas, U.S.A.
Australia or New Zealand	New South Wales, Australia	New South Wales, Australia
Brazil	Federative Republic of Brazil	Sao Paulo, Brazil

 

Avetta and You agree to the applicable governing law above without regard to the choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above. The United Nations Convention on Contracts for International Sale of Goods is hereby expressly excluded. The Uniform Computer Information Transactions Act shall not apply to this Agreement. YOU EXPRESSLY WAIVE ANY RIGHT TO INVOKE OR CLAIM APPLICATION OF ANY OTHER LAW TO GOVERN THE CONCLUSION, PERFORMANCE, FAILURE TO PERFORM, TERMINATION OR EXPIRATION OF THIS AGREEMENT.

IN THE EVENT OF A DISPUTE BETWEEN YOU AND AVETTA ARISING UNDER OR RELATING TO THE AVETTA SERVICES, EXCEPT WHERE PROHIBITED BY LAW, YOU OR AVETTA MAY CHOOSE TO RESOLVE THE DISPUTE BY BINDING ARBITRATION, AS DESCRIBED BELOW, INSTEAD OF IN COURT. ANY CLAIM (EXCEPT FOR A CLAIM CHALLENGING THE VALIDITY OR ENFORCEABILITY OF THIS ARBITRATION AGREEMENT, INCLUDING THE CLASS ACTION WAIVER) MAY BE RESOLVED BY BINDING ARBITRATION IF EITHER SIDE REQUESTS IT. THIS MEANS IF EITHER YOU OR WE CHOOSE ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION.

25. ENGLISH LANGUAGE

The official text of this Agreement shall be the English language, and such English text shall be controlling in all respects, notwithstanding any translation hereof required under the laws or regulations of another country.

26. MISCELLANEOUS TERMS

You and Avetta are independent contractors of each other. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between You and Avetta. You may not assign or delegate Your rights or obligations under this Agreement without the prior written consent of Avetta. Avetta may assign its rights under this Agreement including without limitation, in connection with the sale of Avetta, whether by merger, asset sale, stock sale or otherwise. Further, Avetta may perform any or all of its obligations through an affiliate or a third-party contractor. Any provisions of this Agreement which are intended by their nature to survive termination or expiration shall so survive termination of this Agreement, including without limitation, Your indemnification obligations, limitations on liability, confidentiality obligations, and the governing law and venue provisions. The titles or captions used in this Agreement are for convenience only and will not be used to construe or interpret any provision hereof. This Agreement is the entire agreement between You and Avetta regarding Your use of the Avetta Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter; however, if You are a Client, the agreement executed between You and Avetta shall control in the event of any conflict. Any provision of this Agreement that is held to be wholly or partially invalid, illegal or unenforceable will be deleted from this Agreement to the extent that it is invalid, illegal, or unenforceable and the remaining provisions will continue in full force and effect. This Agreement will not be more strongly construed against either party, regardless of who is more responsible for its preparation.

27. JURISDICTION SPECIFIC PROVISIONS

The jurisdiction specific provisions set forth on Attachment 2 attached hereto and incorporated herein by reference, are specific to the local law requirements for the specific jurisdiction indicated only.

28. COMMENTS AND CONCERNS

All legal notices (e.g., claimed breach or termination of Agreement or Sales Orders), permissions and approvals provided hereunder shall be delivered as set forth in Section 22.

All notices of copyright infringement claims should be sent to the copyright agent designated in our Copyright Policy in the manner and by the means set out therein.

For all other feedback, comments, requests for technical support, and other communications relating to the Avetta Services, please contact us here.

ATTACHMENT 1

BILLING, REFUND AND RENEWAL POLICY

This Billing, Refund and Renewal Policy is applicable to Suppliers only.

FEES AND CHARGES FOR AVETTA SERVICES; RENEWAL

WHEN YOU INITIALLY SUBSCRIBE TO THE AVETTA SERVICES, AVETTA CHARGES AN ACTIVATION FEE AND A SUBSCRIPTION FEE.

UNLESS YOU HAVE TERMINATED YOUR SUBSCRIPTION, YOUR ACCOUNT WILL BE AUTOMATICALLY CHARGED IN EACH OF THE FOLLOWING CIRCUMSTANCES:

At any time You can remove Your account from a Client’s approved “Supplier List” by contacting Avetta, in which case the Client will be notified that You requested to be removed from such Client’s approved Supplier List. Notwithstanding the foregoing, You acknowledge and agree that any of Avetta’s Clients that are part of the Avetta Network may add Your account to such Client’s approved Supplier List. This generates a notification email to Your primary user, stating which Client added You to its approved Supplier List and when. If You do not wish to connect Your account with that Client, You may remove Your account from their approved Supplier List by notifying Avetta, in which case the Client will be notified that You requested to be removed from such Client’s approved Supplier List. If You do not notify Avetta to remove You from a Client’s approved Supplier List within 30 days of Your receipt of such notification, Your account will be automatically charged as described above.

If You are subscribed to one of Avetta’s worker products (“Worker Platform”), Avetta will charge You annually for the seats in the Worker Platform. Each seat allows one Worker to access the relevant Worker Platform. If seats are added to the Worker Platform during a subscription term by You or a connected Client, Avetta will charge You a prorated amount based on the remainder of such subscription term. You are able to adjust the number of seats at each annual renewal of the subscription and the subscription fee will be adjusted accordingly. In addition to the fees for seats, certain features of the Worker Platform may require additional fees or licenses to use.

PAYMENT

Unless otherwise approved by Avetta, You shall provide to Avetta valid, up-to-date and complete credit card or bank account information (“Payment Account”) and any other relevant valid, up-to-date and complete contact and billing details. Payments made with a credit card (or in Australia with a debit card) may be subject to a card processing fee. This fee will not be charged to other payment methods (ACH, bank wires, or debit cards (except in Australia)) or where prohibited by law. By law, we cannot profit from this fee so the fee will be less than our costs associated with accepting credit card payments. YOU HEREBY AUTHORIZE AVETTA TO CHARGE YOUR PAYMENT ACCOUNT AUTOMATICALLY, OR INITIATE ELECTRONIC DEBIT OR CREDIT ENTRIES THROUGH THE ACH SYSTEM TO YOUR PAYMENT ACCOUNT, WHICHEVER IS APPLICABLE, FOR THE FEES SET FORTH ABOVE ON THE DATE SUCH FEES ARE INCURRED, AND YOU ACKNOWLEDGE AND AGREE THAT AVETTA MAY RETAIN YOUR PAYMENT ACCOUNT INFORMATION.

IF YOUR PAYMENT ACCOUNT INFORMATION CHANGES, YOU MUST CONTACT AVETTA TO UPDATE YOUR PAYMENT ACCOUNT INFORMATION.

Avetta may, in its sole discretion, issue invoices to You, in lieu of automatic billing, for the amounts due, and You shall pay each invoice within 30 days after the date of such invoice.

If Avetta is unable to charge Your Payment Account or Avetta has not received payment within 30 days after the due date in the event an invoice is issued, without prejudice to Avetta’s other rights and remedies, Avetta, may, (i) without liability to You, disable Your password, account and access to all or part of the Avetta Services and Avetta shall be under no obligation to provide any or all of the Avetta Services while the balance due remains unpaid; and (ii) charge interest on any such unpaid amounts at a rate of 1.5% per month or the maximum amount permitted under applicable law, whichever is lower, from the date such payment was due until the date paid. Additionally, You shall be responsible for all costs Avetta incurred in collecting any late payments, including, without limitation, attorneys' fees.

CLIENT PROGRAM

Avetta offers a program in certain instances in which a Client opts to pay or obtains discounts on Supplier registration and subscription fees for its connected Suppliers (“Client Program”). Avetta commits to upholding the terms established with Clients; however, please note that the Client Program is made available solely at the election of a Client, for the term such Client selects, and for any or all Suppliers on such Client’s Supplier List as determined by such Client.

WITHHOLDING OF TAXES

The fees for the Avetta Services do not include taxes. You are responsible for paying all taxes associated with the subscription payments (such as sales tax, use tax, GST, VAT, consumption tax, or other similar taxes). If Avetta has a legal obligation to pay or collect taxes for which You are responsible under this section, Avetta will invoice You and You will pay that amount unless You provided Avetta with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes shall not be deducted or withheld from payments to Avetta, except as required by applicable law, in which event it is Your obligation to provide Avetta a copy of the appropriate tax receipt to substantiate that tax payments have been properly settled on behalf of Avetta.

Any failure on Your part to withhold or submit tax payments to the relevant tax authorities that leads to any subsequent penalty, surcharges or disallowance of a tax deduction claim shall be Your sole obligation, and You shall indemnify Avetta for any and all costs, expenses, and penalties it incurs due to such failure.

Notwithstanding the foregoing, Avetta is solely responsible for taxes assessable against Avetta based on its income, property and employees.

REFUND POLICY

Except as otherwise set forth below, Supplier is entitled to a refund of its subscription fees only if Supplier's Payment Account is improperly double charged or charged in error. For example, Supplier will be entitled to receive a refund of one subscription fee if Supplier submits payment twice for the same membership, or if Supplier pays for membership with a Payment Account and also sends a check to Avetta for membership.

Subscription fees are refundable if Supplier cancels its Subscription and notifies Avetta in writing of such cancellation within 7 days of initially subscribing to the Avetta Services. Activation fees are non-refundable.

No refunds are provided after payment of a renewal subscription fee, and if You are subscribed to a Worker Platform, the number of seats in the Worker Platform cannot be decreased during the relevant subscription term. It is Supplier's responsibility to contact Avetta and request to deactivate membership before the Membership Subscription Renewal Date -- listed on the Edit Account page -- should Supplier choose not to renew its subscription to the Avetta Services.

Supplier is responsible for ensuring Supplier’s contact email is accurate and current.

Refunds will be paid using the same method that Supplier used to pay - For example, if Supplier used a credit card to pay, then any refund (as applicable) will be issued to that same credit card.

ATTACHMENT 2

JURISDICTION SPECIFIC PROVISIONS

Australia

If You are domiciled in Australia, Section 19 “No Warranties” of this Agreement is replaced with the following:

19. WARRANTIES

NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY CONDITION, WARRANTY, RIGHT OR LIABILITY IMPLIED IN THE AGREEMENT OR PROTECTED BY LAW (INCLUDING ANY APPLICABLE GUARANTEES UNDER AUSTRALIAN CONSUMER LAW) TO THE EXTENT SUCH EXCLUSION, RESTRICTION OR MODIFICATIONS WOULD RENDER THE AGREEMENT OR ANY PROVISION OF THE AGREEMENT VOID, ILLEGAL OR UNENFORCEABLE (NON EXCLUDEABLE RIGHTS). SUBJECT TO ANY NON EXCLUDEABLE RIGHTS, ANY CONDITION, WARRANTY, GUARANTEE, REPRESENTATION, RIGHT OR LIABILITY WHICH WOULD OTHERWISE BE IMPLIED IN THE AGREEMENT OR PROTECTED BY LAW IS EXCLUDED.

You also acknowledge and agree that Your use of the Avetta Services does not guarantee Your hiring or acceptance by any Client or Supplier of Avetta. You are solely responsible for Your interactions with other members of the Avetta Network. Avetta is not responsible for and hereby disclaims any responsibility or liability regarding interactions or disputes between or among You and any Avetta Clients or Suppliers.

Western Australia, Australia

If You are domiciled in Western Australia, Avetta provides the following notice with respect to the performance of manual Audits:

Brazil

If You are domiciled in Brazil, the Avetta entity entering into this Agreement is Avetta Do Brasil Tecnologia da Informação Ltda., and Avetta’s Billing, Refund and Renewal Policy is replaced with the following:

Germany

If You are domiciled in Germany, Section 17 “Limitation of Liability” of this Agreement is replaced with the following:

17.1  Unlimited Liability. The parties shall be mutually liable without limitation:

17.2  Liability for Breach of Cardinal Duties. If cardinal duties are infringed due to slight negligence and if, as a consequence, the achievement of the objective of this Agreement is endangered, or in the case of a slightly negligent failure to comply with duties, the very discharge of which is an essential prerequisite for the proper performance of this Agreement, the parties’ liability shall be limited to foreseeable damage typical for the contract. In all other respects, any liability for damage caused by slight negligence shall be excluded.

17.3  Liability Cap. Unless the parties are liable in accordance with “Unlimited Liability” section above, in no event shall the aggregate liability of each party together with all of its affiliates arising out of or related to this Agreement exceed the total amount paid by Customer hereunder for the services giving rise to the liability in the 12 months preceding the first incident out of which the liability arose. The foregoing limitation will not limit Your payment obligations under the “Fees and Charges” section above.

17.4  Scope. With the exception of liability in accordance with the “Unlimited Liability” section, the above limitations of liability shall apply to all claims for damages, irrespective of the legal basis including claims for tort damages. The above limitations of liability also apply in the case of claims for a party’s damages against the respective other party’s employees, agents or bodies.

India

If You are domiciled in India, the Avetta entity entering into this Agreement is Avetta India Private Limited.

Japan

If You are domiciled in Japan, then You represent and warrant that Customer, and its officers, directors, and material shareholders, are not: (a) Anti-Social Forces (defined below), and have not been for at least the last five years; and (b) involved with Anti-Social Forces, including, without limitation, involvement by management, utilization, or provision of funding or favors. Avetta may immediately terminate this Agreement for cause in the event of a breach of any of these representations and warranties. For the purposes of this section "Anti-Social Forces" means, collectively, an organized crime group (bouryokudan) or a member or affiliate thereof, a corporate racketeer (soukaiya), a rogue person or group advocating a social or political movement, or any other anti-social forces.

New Zealand

If You are domiciled in New Zealand, Your payment is processed through the secure Fat Zebra system. Any credit card details stored for recurring payments are done so on the Fat Zebra system. No credit card information is stored by us.

Spain

If You are domiciled in Spain, in the event of any conflict between any statutory law in Spain applicable to You and the terms and conditions of this Agreement, the applicable statutory law shall prevail.