Your use of our online services (referred to collectively as the “Service” in this document and excluding any professional services or other items provided to you by us under a separate written agreement) is subject to the terms of this legal agreement between you and us, as amended from time to time (the “Terms”). The term “You” or “you” means the person or entity who or which is acquiring the right to use the Service under these Terms; “we” or “us” means envVisual, Inc., a Delaware corporation, and “both of us” means both you and us.
To access the Service, you may be required to provide information about yourself (such as identification or contact details). You promise that any registration information you provide will always be accurate, correct and up to date. We will take commercially reasonable steps to preserve the confidentiality of such information.
You are responsible for maintaining the confidentiality of passwords associated with your Service account. Accordingly, you will be solely responsible to us for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, please notify us immediately.
The initial Service Period for the Service shall be extended for additional periods (each, a “Renewal Period”), subject to your payment of the applicable renewal fee, provided, however, that we reserve the right to terminate the Service at the end of a Service Period, including any Renewal Period, upon 60 days prior written notice to you. Renewal Periods shall be of the same length as the original Service Period (but not more than 12 months each). Your failure to pay any applicable renewal fee by not later than the designated payment date shall result in the automatic termination of your right to access and use the Service.
Scope of Use Rights.
You are granted the worldwide, non-assignable and non-exclusive right to use the Service for the number of Plan Views and time period specified in the Registration Form. You may use the Service solely for (i) your internal business purposes, and (ii) use in connection with persons who are also authorized users of the Service, even if they are part of a different organization. You may not use the Service to process information, or to generate output data for the any other business entities or organizations, such as is done by data processing or similar organizations.
In clarification of the foregoing, (i) you may permit your employees, consultants or other third-party service providers (collectively, “Personnel”) to access and use your account on your behalf; provided that you shall be responsible for ensuring that your Personnel comply with these Terms and [(ii) you may also permit access by Personnel of your designated customers to access and use the Service under your account in connection with the intended use of the Service.]
You promise to use the Service only for purposes, and in a manner, permitted by (a) these Terms and (b) any applicable law, regulation or ordinance. In addition, you hereby assure us that you will not export directly or indirectly technical data to any country for which a validated license is required under United States law without first obtaining a validated license. Further, you represent and warrant that you are not a national of, or under the control of, any country upon which the United States has then currently imposed an embargo of goods or services.
You promise not to access (or attempt to access) the Service by any means other than through the interface(s) that are provided by us. You also promise not to interfere with or disrupt the Service or take any steps to interfere with or in any manner compromise any security measures with respect to the Service.
We will make available to you, at no additional charge, all error correction updates and maintenance modifications to the Service which we make generally available to our customers. In addition, we will make available to you, at no additional charge, all functionality improvements to the Service which we make generally available to our customers at no extra charge. We reserve the right to charge you for significant functionality improvements.
We will investigate reported potential reports that the Service is not performing correctly, and will make commercially reasonable attempts to substantiate the existence of the problem, evaluate the seriousness of the problem’s effect on you and provide a workaround or resolution within a commercially reasonable time frame. In addition, we will provide reasonable telephone consultation to assist in the investigation of potential Service errors during our standard support hours, 9:00am to 5:00pm, Eastern time, Monday-Friday, exclusive of observed holidays.
Requests for support shall be made by email to support@envVisual.com
We have the right, in our sole and absolute discretion, at any time or from time to time to change or modify the Service or any part or component contained therein and deliver error corrections, modifications, enhancements, updates and/or new versions of the Service.
Payment for Services.
We may prospectively change rates or institute new charges with the following notice: changes to periodic subscription rates may not apply to the then-current Service Period (or Renewal Period) but shall only be made by notice to you not less than 60 days prior to the expiration of the then current Service Period if it is annual or 30 days prior to the expiration of the then current Service Period if it is monthly; changes to other rates may be made at any time upon 30 days prior notice. You promise to pay all charges, recurring fees, applicable taxes and other charges (collectively herein “Charges”) incurred by you (or anyone who is using an authorized user account that you have caused to be created or for which you have otherwise indicated your agreement to be responsible for payment) at the rates in effect for the billing period in which those charges are incurred. Charges may include among other things, setup fees, administrative fees, access fees (whether based on usage of the Service or otherwise), upgrade fees, additional services fees and/or maintenance fees. Unless otherwise indicated, (i) all invoices are due and payable within 30 days of our date of invoice, (ii) interest shall be payable at the rate of 1.5% per month or at the maximum rate permitted by law, whichever is less, on all overdue and unpaid invoices until paid in full; and (iii) all fees are denominated and to be paid in United States Dollars and are exclusive of any applicable taxes.
You shall pay, indemnify and hold us harmless from all sales, use, value added or other taxes of any nature, other than personal property or taxes on or measured by our net or gross income, including penalties and interest, and all government permit or license fees assessed upon or with respect to any fees.
You must inform us of any billing problems or discrepancies within 90 days after they first appear on your account statement. If you do not bring them to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies. If your account is delinquent, we may, at our sole discretion, suspend or cancel your account (and accordingly your use of the Service). If your account is suspended, regular charges will continue to accrue until you cancel your account.
We (or our licensors) own all legal right, title and interest in and to the Service (including the Software, as defined below), including any intellectual property rights which subsist in the Service. The Service may contain information which is designated confidential by us and you shall not disclose such information without our prior written consent.
You may not (and you may not permit anyone else, on your behalf of otherwise, to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the software used to provide the Service (the “Software”) or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by us, in writing.
The use of the Service may require that you download or use elements of our software (“Software”). In that we provide you with Software (such as a plug-in or similar item), we grant you a personal, non-transferable and non-exclusive right and license to use the object code version of the Software on the single computer to which it is provided in connection with your access to the Service; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You may not modify the Software in any manner or form, or use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You may not rent, lease, loan, sell, distribute or create derivative works based on the Software, in whole or in part.
We obtain no right, title or interest from you (or your licensors) under these Terms in or to any information (such as data files, written text, floor plans, architectural drawings, photographs, videos or other documents or images) (collectively, “Content”) that you or third parties transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content; provided, that the provisions below under “Rights to End User Data” apply to any materials described therein which might otherwise be considered “Content”.
You may not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Service. In using the Service, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos. Nothing in these Terms gives you a right to use any of our trade names, trade marks, service marks, logos, domain names, and other distinctive brand features without obtaining, in each instance, our prior written consent.
You retain copyright and/or any other rights you already hold in the Content which you submit, post or display on or through, the Service. By submitting, posting or displaying such Content you give us an irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Service, all as may be reasonably necessary for us to enable you to use the Service. You acknowledge and agree that, in the course of performing the technical steps required to provide the Service to our users, we may (a) transmit or distribute your Content over various public networks and in various media for the purpose of fulfilling our obligations under these Terms; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media for the purpose of fulfilling our obligations under these Terms. You represent and warrant to us that you have all the rights, power and authority necessary to grant the above license. You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any Content that you create, transmit or display or permit to be created, transmitted or displayed while using the Service and for the consequences of such actions (including any loss or damage which we may suffer) by doing so.
We may or may not pre-screen Content, but that we and our designees shall have the right (but not the obligation) in our sole discretion to pre-screen, refuse, or remove any Content that is available via the Service. Without limiting the foregoing, we and our designees shall have the right to remove any Content that violates these Terms or is otherwise objectionable. You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
The Service (and any advertising on the Service, if applicable) may include links to third-party content or resources (“External Resources”) including, without limitation, web pages. Similarly, we may, from time to time, inform you of External Resources that can be used by you in connection with the Service, and you may opt to use these or other third-party services in connection with the Service. We may have no control over External Resources. Your use of any External Resources in connection with the Service or otherwise, and any terms, conditions, representations and/or warranties associated with such use, are solely between you and such third-party service provider. We expressly disclaim any responsibility for the availability of any External Resources. We make no representation or warranty with regard to any External Resources, even if the provider of such is certified by us or selected as a premier provider (or similar designation) by us, and we shall not be responsible to you or any other person in any manner for any such External Resources. We expressly disclaim any responsibility for any inaccuracy in any information or other materials contained in any External Resources and any defective products or services provided by, or advertised on, any External Resources, or the fact that use of External Resources may result in access to and use of your and End User’s data by third parties.
You acknowledge that we may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that Content will be retained by the Service, the maximum number and size of postings that may be made through an account on the Service, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time..
rights to end user data.
You agree that to the full extent permitted by applicable law: (a) you authorize us to use End User Data internally to provide the Service during the Service Period, and (b) you authorize us to have the right at all times during and after the Service Period to use, sell, license, reproduce, distribute and disclose Aggregated Non-Personal Information.
“End User Data” means Registration Information, Customer Service Communications or Log Information. “Registration Information” is any information provided when voluntarily registering for use of the Service, including, but not limited to, username and password and email address, and which may include Personal Information. “Customer Service Communications” is any information that is reported to us about the operation of the Service, including bug reports or requests for enhancements. “Log Information” is information servers automatically record relating to the usage of the system which may include information such as end user messages, Internet Protocol address, other addressing information, the date and time of requests and authentication tokens used to validate the identity of a user.
“Aggregated Non-Personal Information” is information that about users (which may be derived from End User Data) and collected or combined in such manner so that it no longer reflects or references you or any individually identifiable user.
“Personal Information” is information that you or an end user provides to us which personally identifies an individual, such as by name, email address or billing information.
We will make reasonable attempts to backup data. However, because the success of this process depends on equipment, software and services over which we have at best limited control, you agree that we have no responsibility or liability for the deletion or failure to store any data or other Content or communications maintained or transmitted by the Service. We take reasonable steps to secure Content and other data. However, we cannot guarantee that the Content and data transmitted by you will remain secure.
The Service and software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by us and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
Term; Ending your Relationship with Us.
You may use the Service, and these Terms shall be effective and shall govern such use, from the date that you accept these Terms until the last-to-expire Service Term specified in the Registration Form with respect to the Service terminates or expires.
We may, at any time, stop (permanently or temporarily) providing the Service (or any features within the Service) to you or to users generally at our sole discretion, and/or terminate these Terms or all or some of your rights under these Terms if:
- you (or your Personnel) have breached any provision of these Terms, or have acted in a manner which clearly shows that you or your Personnel do not intend to, or are unable to comply with the provisions of these Terms, and we shall have no obligation to refund to you any fees already paid; or
- there is an attack on the Service, the Service is accessed or manipulated by a third party without your consent, or there is another event for which we reasonably believe that the suspension of your access to the Service is necessary to protect our network or our other customers; or
- we are required to do so by law (for example, where providing you or your Personnel access to the Service may be, or become, unlawful).
In addition, all of your rights to access the Service under these Terms shall automatically terminate in the event of an unauthorized assignment. If we disable access to your account, you may be prevented from accessing the Service, your account details or any files or other Content which is contained in your account.
Upon any termination of these Terms, your right to use the Service and any Software that we have provided terminates, but the provisions under “Proprietary Rights“, “Exclusion of Warranties“, “Indemnification“, Limitation of Liability“ and “General Legal Terms“ continue to apply to both of us even after termination. Fees for services are earned at the commencement of the applicable Service Period. Early termination of the Service shall not relieve your of your obligation to pay these amounts.
Exclusion of Warranties
THE SERVICE (INCLUDING ANY ADVERTISING DISPLAYED THEREON, IF APPLICABLE) AND ANY SOFTWARE OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SERVICE (THE “MATERIALS”) IS MADE AVAILABLE “AS IS, AS AVAILABLE”. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICE OR THE MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE DO NOT PROMISE THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE, AND YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR PRIVACY AND CONFIDENTIAL INFORMATION.
YOU ALONE SHALL BEAR THE RISK AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM USE OF THE SERVICE OR ANY MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
You promise to indemnify, hold harmless and defend us and our subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, at your expense, against any and all third party claims or demands, actions, proceedings and suits and all related liabilities, damages, settlements, penalties, fines costs and expenses (including, without limitation, reasonable attorney’s fees and other dispute resolution expenses) incurred by us, due to or arising out of data or content that you or your Personnel submit, post to, transmit or communicate through the Service, your or your Personnel’s use or misuse of the Service, your or your Personnel’s violation of these Terms, or your or your Personnel’s violation of any rights of another.
You acknowledge that an essential purpose of the exclusion of warranties and limitation of liability provided in these Terms is allocation of risks between both of us, which allocation of risks is reflected in the applicable fees and other arrangements between both of us in these Terms. OUR AGGREGATE LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF (OR INABILITY TO USE) THE SERVICE SHALL NOT EXCEED THE GREATER OF THE SUM OF ALL AMOUNTS RECEIVED BY US FROM YOU DURING THE PREVIOUS SIX (6) MONTHS. IN NO EVENT SHALL WE (OR ANY OF OUR SUPPLIERS OR LICENSORS) BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, TORT OR ANALOGOUS DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF (OR INABILITY TO USE) THE SERVICE, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
General Legal Terms
The Terms constitute the whole legal agreement between both of us and governs your use of the Service (but excluding any services which we may provide to you under a separate written agreement), and completely replace any prior agreements between both of us in relation to the Service.
These Terms and your rights under these Terms are personal to you and do not include the right to sublicense your rights under these Terms to any third party. You may not transfer or assign, by operation of law or otherwise, these Terms or your license to any third party without our prior written consent, which may be withheld in our sole discretion for any reason or for no reason. Any assignment or attempted assignment in violation of these Terms shall be of no effect, and shall constitute a breach of these Terms and result in the immediate and automatic termination of your usage rights under these Terms.
All notices, demands, requests or other communications that may be or are required to be given, served or sent by any party pursuant to these Terms will be in writing (and shall be deemed to have been duly given upon receipt), will reference these Terms and shall be mailed by first class, registered or certified mail, return receipt requested, postage prepaid, or transmitted by express courier or hand delivery or fax transmission or email transmission, addressed (if to us) at 56 Roland Street, Boston, MA 02125 and (if to you) at the address on your Registration Form. Each of us may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Each notice that is mailed, delivered or transmitted in the manner described above shall be deemed sufficiently given, served, sent and received for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt or the affidavit of messenger or courier being deemed conclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation. With respect to notice given by email or fax transmission, the recipient shall be obligated to confirm such notice by equivalent means promptly (and in no even less than one business day); in the event that such confirmation has not been received by the sending party within such one business day period, the sending party may thereafter provide notice by the other means permitted hereunder (physical mail/delivery) with reference to email/fax transmission, and such notice shall (upon delivery in accordance with the above procedures) be deemed to have been given on the date on which such original email or fax transmission was sent.
You agree that if we do not exercise or enforce any legal right or remedy which is contained in these Terms (or which we have the benefit of under any applicable law), this will not be taken to be a formal waiver of our rights and that those rights or remedies will still be available to us.
If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from these Terms without affecting the rest of these Terms. The remaining provisions of these Terms will continue to be valid and enforceable.
The Terms, and your relationship with us under these Terms, shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. You and we agree to submit to the exclusive jurisdiction of the federal and state courts located within Suffolk County, Massachusetts to resolve any legal matter arising from these Terms.
No modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
Accepting these Terms
You may not use the Service and may not accept the Terms if (a) you are not of legal age (either under the laws of the Commonwealth of Massachusetts or the laws of the jurisdiction of which you are a resident or from which you use the Service) to form a binding contract with us, or (b) you are a person barred from using the Service under the laws of the United States or other countries including the country in which you are resident or from which you use the Service.
Any individual under the age of 18 years (“Minor”) must have a parent or guardian accept the Terms in order for such Minor to use the Service. A parent or guardian who accepts the Terms on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with the Terms, including any payment obligation. A parent or guardian who accepts the Terms on behalf of a Minor will continue to be primarily liable for the obligations mentioned in the Terms even when the Minor has attained the age of 18, unless the parent or guardian obtains the Company’s express written consent to the contrary.
If you are entering into these Terms on behalf of a company or other organization, you must have the authority to bind your company or organization to these Terms and commit funds on its behalf. Titles that typically carry that authority include, without limitation: Chairman, Principal, President, Officer, Vice President, Director, Controller, Finance Manager or Purchasing Manager. We may reject these Terms if we determine, in our sole discretion, that you do not have the appropriate authority. In any case, if you are entering into these Terms on behalf of a company or other organization, you represent that you have the authority to bind it to these Terms and commit funds on its behalf, and the terms “you” and “your” will refer to that company or organization.
In any of the above cases, case, you represent that you satisfy all of the above eligibility conditions. If you do not satisfy the above conditions, or if you do not agree with these Terms, you may not use the Service or any portion thereof; in that case we may also terminate these Terms and your use of the Service immediately without liability to you.
You acknowledge that your electronic submissions constitute your agreement and intent to be bound by these Terms. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, you hereby agree to the use of electronic signatures, contracts, orders and other records and to electronic delivery of notices, policies and records of transactions initiated or completed through the Service. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.