END USER LICENSE AGREEMENT, last updated June 6, 2017
AvidXchange, Inc. and its affiliated companies (collectively, “AvidXchange”) require that all users of its software platform and other technology and any related content or documentation, and/or the AvidXchange websites (collectively, or with respect to any portion thereof, the “AvidXchange Platform”) agree to the terms and conditions of this End User License Agreement (this “EULA”) as a condition of using the AvidXchange Platform. By accessing or using the AvidXchange Platform, you acknowledge and agree to be bound by this EULA. The term “you” or “your” as used herein means any business entity whose employees, contractors or other persons on behalf of such entity use or access the AvidXchange Platform. This EULA is a legally binding contract between you and AvidXchange. If you do not agree to this EULA, you should immediately stop using the AvidXchange Platform and notify your administrator and AvidXchange to terminate your access. All notices and questions regarding this EULA should be sent to AvidXchange at: [email protected] and will be deemed delivered upon receipt.
Limited License and Access
- The AvidXchange Platform is provided for business use only by commercial or non-profit organizations; any use for personal, consumer or individual transactions is prohibited. AvidXchange grants you a personal, non-exclusive, limited, non-transferable, and revocable license to use and access the AvidXchange Platform solely for your internal business purposes, subject to your compliance with this EULA.
- You are responsible for providing all necessary telephone lines, internet connections, equipment, software (including a compatible web browser), and telecommunications services to effectively access and use the AvidXchange Platform. You are also responsible for upgrading and configuring your internal systems (e.g., network or Intranet settings, internet routing, fire walls, and web browsers) to be and remain compatible with and optimize the performance of the AvidXchange Platform. You acknowledge that the availability and performance of the AvidXchange Platform may be subject to interruption or delay due to causes beyond the reasonable control of AvidXchange.
Confidentiality
- In the course of using the AvidXchange Platform, you may disclose certain information concerning your business (collectively, “User Data”). You represent that the User Data is true and correct and that you are the owner of, or have all necessary rights and authority to use and disclose, the User Data in connection with the AvidXchange Platform. You acknowledge and agree that AvidXchange may rely upon the User Data to provide the AvidXchange Platform and may use and disclose User Data: (i) to provide the AvidXchange Platform (including to third parties on a similar confidential basis); (ii) as may be required by law or regulation or in connection with a criminal investigation (with notice to you and your administrator, if such notice is permitted by law); and (iii) to maintain security controls for the AvidXchange Platform. You have sole responsibility for the accuracy, quality, integrity and legality of the User Data. You will promptly notify AvidXchange if you discover or suspect that any User Data provided is incorrect or has been compromised.
- The term “Confidential Information” means any non-public information disclosed in any way by you to AvidXchange or by AvidXchange to you that is either identified as confidential or proprietary or that a reasonable person would believe to be confidential by the nature of the information and/or the circumstances under which it was disclosed. Without limiting the generality of the foregoing, Confidential Information expressly includes the User Data and the AvidXchange Platform, subject to Subsection 2(c) below. The recipient of Confidential Information shall use reasonable efforts to protect it from unauthorized use or disclosure and may use the Confidential Information only to the extent and as permitted under this EULA. The recipient will promptly notify the discloser in writing of any misuse or misappropriation of the discloser’s Confidential Information that comes to the recipient’s attention and will reasonably cooperate with the discloser in investigating such misappropriation and in mitigating any damages caused.
- Confidential Information shall not include information that: (i) was already in the lawful possession of the recipient prior to receipt thereof, directly or indirectly, from the discloser; (ii) becomes available to recipient on a non-confidential basis from a source other than discloser that is not under an obligation to keep such information confidential; (iii) is generally available to the public other than as a result of a breach of the Agreement by recipient or its representative(s); or (iv) is independently developed by or for recipient without reference to the Confidential Information. In addition, a recipient shall not be considered to have breached its obligations by disclosing Confidential Information of the discloser as required to satisfy any request of a competent governmental body, provided that promptly upon receiving any such request, and to the extent that it may legally do so, recipient advises the discloser of the request prior to making such disclosure so that the discloser may object to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.
- Neither party shall have any rights in the other party’s Confidential Information and shall return or destroy all such Confidential Information upon termination of your access to the AvidXchange Platform. Notwithstanding the foregoing, the recipient shall not be required to return to the discloser or destroy those copies of Confidential Information residing on the recipient’s backup, disaster recovery, or business continuity systems and the obligations hereunder with respect to such Confidential Information shall survive until it is destroyed from such systems by the recipient and for such additional period specified below in Subsection 2(f).
- Recipient acknowledges that discloser shall have the right to take all reasonable steps to protect its Confidential Information including, but not limited to, injunctive relief and any other remedies as may be available at law or in equity in the event the recipient breaches its obligations under this Section.
- The terms and conditions of this Section shall survive termination of your access to the AvidXchange Platform for a period of three (3) years; provided, however, with respect to any Confidential Information that may require a longer survival period by applicable law or with respect to discloser’s Confidential Information concerning the infrastructure or security of its computing network, these terms and conditions shall continue until such information is no longer protected as Confidential Information by applicable law or by the discloser, as the case may be.
Intellectual Property Rights of AvidXchange and Use Restrictions
- Except for the limited license granted to you in Section 1 of this EULA, AvidXchange and its third-party licensors retain all right, title and interest, including all intellectual property rights, relating to or embodied in the AvidXchange Platform and any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating thereto offered by you or any other party. This EULA does not convey to you any rights of ownership in or related to the AvidXchange Platform or any other intellectual property rights of AvidXchange or any third party. AvidXchange’s name, logos and the product names are trademarks or service marks of AvidXchange or third parties, and no right or license is granted for you to use them. All aggregated user data available from the AvidXchange Platform is owned exclusively by AvidXchange, provided that no such aggregated data can be used to identify you.
- You agree that you will not (i) license, sublicense, sell, resell, rent, transfer, assign, distribute or otherwise commercially exploit or make available the AvidXchange Platform to any third party in any way; (ii) copy, modify or make derivative works of the AvidXchange Platform; (iii) create internet links to the AvidXchange Platform or frame or mirror any content on any other server or wireless or internet-based device; (iv) reverse engineer the AvidXchange Platform; (v) alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice used with respect to the AvidXchange Platform; (vi) access or use the AvidXchange Platform in order to build a competitive product or service or a product using similar ideas, features, functions or graphics; (vii) monitor the availability, performance or functionality of the AvidXchange Platform or for any other benchmarking or competitive purposes; or (viii) copy any ideas, features, functions or graphics of the AvidXchange Platform. You further agree that you will not access or use the AvidXchange Platform to: (a) engage in any unlawful or illegal behavior, (b) send spam or otherwise duplicative or unsolicited messages in violation of applicable law; (c) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (d) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (e) interfere with or disrupt the integrity or performance of the AvidXchange Platform; or (f) attempt to gain unauthorized access to the AvidXchange Platform or any related systems or networks.
4. Warranty Disclaimer
The AvidXchange Platform is provided, and you hereby accept it, on an “as is, as available” basis. AvidXchange disclaims all warranties of any kind, express and implied, including, but not limited, to any implied warranties of merchantability, fitness for a particular purpose and non-infringement. Without limiting the generality of the foregoing, AvidXchange makes no warranty that (i) the AvidXchange Platform will meet your requirements; (ii) the AvidXchange Platform will be uninterrupted, timely, secure or error-free; (iii) the results obtained from use of the AvidXchange Platform will be accurate or reliable; (iv) the quality of any products, services, information or other material purchased or obtained by you through the AvidXchange Platform will meet your expectations; and (v) any errors associated with the AvidXchange Platform will be corrected. Any material downloaded or otherwise obtained through use of the AvidXchange Platform is accessed at your own discretion and risk, and you are solely responsible for any damage to or loss of data that results from the download of any such material.
5. Limitation of Liability
To the fullest extent permitted by applicable law, neither AvidXchange nor any of its officers, directors, employees, agents, licensors, contractors or other representatives will be liable for any damages, whether direct, punitive, special, cover, exemplary, incidental, consequential or indirect damages of any type or kind (including, for example, loss of goodwill, data, revenue, profits, savings, use or economic advantage), or claims of third parties arising out of, or relating to, your use of or access to the AvidXchange Platform or any content or information made available or provided via the AvidXchange Platform, howsoever caused, whether based on breach of contract, tort (including negligence), proprietary rights infringement, product liability or otherwise; and you hereby waive any and all related claims against AvidXchange and its officers, directors, employees, agents, licensors, contractors and representatives.
Your sole and exclusive remedy against AvidXchange with respect to your use of the AvidXchange Platform is to stop using the AvidXchange Platform.
6. Third Party Sites
The AvidXchange Platform may contain links to websites controlled, offered or maintained by third parties. Unless expressly stated otherwise, AvidXchange is not affiliated with these sites and AvidXchange makes no representation and is not responsible for these sites or the contents contained therein. Your access and use of these sites is at your own risk. AvidXchange is not responsible for the privacy practices or the content of such websites.
7. Modifications, Suspension or Termination
AvidXchange reserves the right to modify or remove any functionality provided by the AvidXchange Platform and any information or materials available via the AvidXchange Platform and to modify or amend this EULA at any time and without notice to you. Your continued use of the AvidXchange Platform after implementation of these changes constitutes your acceptance thereof. You may not modify this EULA in any manner whatsoever.
AvidXchange may discontinue or terminate any website or any portion thereof at any time and without notice. AvidXchange may also suspend or deactivate your access to any website or any portion thereof or any user account or password, which may include blocking your IP address, at any time and without notice to you.
8. General
Use of the AvidXchange Platform, the interpretation of this EULA and any related express or implied agreements will be deemed made in, and governed by the laws of, the state of North Carolina without regard to any conflicts of law provisions of any jurisdiction. You and AvidXchange agree that any claims will be resolved on an individual basis without resort to any form of class action and will not be consolidated with the claims of any other parties. Each party hereby waives its right to a jury trial with respect to any dispute or claim of any nature arising from this EULA. If any provision hereof is held by a court of competent jurisdiction to be invalid or unenforceable, they shall be modified to reflect the intent of the invalid or unenforceable provision to the greatest possible extent, with all other provisions remaining in full force and effect. You and AvidXchange are independent contractors, and no joint venture, partnership, franchise, employment or agency relationship exists between you and AvidXchange as a result of this EULA or your use of the AvidXchange Platform. The failure of a party to enforce any right or provision herein shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. No waiver shall be deemed a continuing waiver or waiver in respect of any subsequent breach or default, whether of similar or different nature, unless expressly stated in writing. AvidXchange may assign this EULA in whole or in part in connection with a corporate reorganization or a sale of its business, and may transfer your Confidential Information as part of any such transaction. AvidXchange may use third party service providers to perform all or any part of the AvidXchange Platform, but shall remain responsible to you for work performed by such third-party service providers to the same extent as if AvidXchange itself had performed such work.
