Last Updated: March 12, 2025
This Master Terms of Service Agreement ("Agreement") is entered into by and between Avery Intelligence Inc ("Avery," "we," "us," or "our") and the entity or person placing an order or accessing our Service ("Customer" or "you"). This Agreement consists of the terms below as well as any Order Forms and the Data Processing Addendum (where applicable).
By using our Service, executing an Order Form, or clicking to accept these terms, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms.
3.1 Provision of Service. During the Subscription Term, Avery will make the Service available to Customer pursuant to this Agreement and the applicable Order Form. Customer's access and use of the Service is limited to the subscription parameters specified in the Order Form, including the number of Authorized Users.
3.2 Access Rights. Subject to the terms of this Agreement, Avery grants Customer a limited, non-exclusive, non-transferable right to access and use the Service during the Subscription Term solely for Customer's internal business purposes. Customer may permit Authorized Users to use the Service for this purpose and is responsible for compliance with this Agreement by its Authorized Users.
3.3 Usage Restrictions. Customer shall not (a) make the Service available to anyone other than Authorized Users; (b) sell, resell, license, sublicense, distribute, or otherwise make the Service available to any third party; (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material; (d) use the Service to store or transmit material in violation of third-party privacy rights; (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein; (f) attempt to gain unauthorized access to the Service or its related systems or networks; (g) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit; (h) reverse engineer or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service; or (i) use the Service for any purpose prohibited by law.
3.4 User Accounts. Customer shall be responsible for (a) ensuring that all Authorized Users comply with this Agreement; (b) maintaining the confidentiality of all user IDs, passwords and other access credentials; and (c) all activities that occur under Customer's user accounts. Customer shall promptly notify Avery of any unauthorized use of any user credentials or accounts of which it becomes aware.
4.1 Customer Data Ownership. As between Customer and Avery, Customer owns all Customer Data. Customer grants Avery a non-exclusive, worldwide, royalty-free license to access, use, process, copy, distribute, perform, export and display Customer Data, only as reasonably necessary (a) to provide, maintain and update the Service; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has all rights, permissions and consents necessary to submit the Customer Data to the Service and to grant the rights granted to Avery herein.
4.2 Avery Ownership. As between Customer and Avery, Avery owns all right, title and interest in the Service, including all improvements, enhancements, and modifications thereto, and all intellectual property rights therein. Avery may use Derived Data to operate, improve, and support the Service and for other development, diagnostic and corrective purposes, and as otherwise permitted in the Privacy Policy. Nothing in this Agreement shall be deemed to restrict Avery's right to use generalized knowledge, ideas, concepts, know-how, or techniques that are not uniquely identifiable as Customer Data or Confidential Information of Customer.
4.3 AI Training. Customer agrees that Avery may use aggregated and anonymized Customer Data to train, develop, and improve its machine learning models and algorithms. Avery will ensure that any Customer Data used for this purpose is thoroughly de-identified and aggregated such that it cannot be attributed to Customer or any individual users. Customer may opt-out of having its data used for AI training purposes by contacting its account representative.
4.4 Security Measures. Avery implements and maintains physical, technical and administrative safeguards designed to protect Customer Data from unauthorized access, destruction, use, modification, or disclosure. Avery's current security program includes: (a) network protection using firewalls, intrusion detection/prevention systems, and encrypted communications; (b) access controls including multi-factor authentication, role-based permissions, and regular access reviews; (c) secure development practices including code reviews and security testing; (d) regular security assessments and penetration testing; (e) security incident response procedures; (f) physical security measures; and (g) employee security awareness training.
4.5 Security Breach Notification. Avery will notify Customer of any unauthorized access to, or use of, Customer Data within 72 hours of Avery's discovery of such unauthorized access or use ("Security Incident"). Avery will promptly investigate any Security Incident and take reasonable steps to mitigate the effects of such Security Incident. Avery will provide reasonable assistance to Customer in the event that Customer is required to notify any regulatory authority or affected individuals of a Security Incident.
4.6 Compliance. Avery complies with all laws applicable to it as a provider of the Service. Avery maintains a comprehensive security program designed to ensure the confidentiality, integrity and availability of Customer Data and has obtained third-party certifications including SOC 2 Type II.
5.1 Definition. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer's Confidential Information includes Customer Data; Avery's Confidential Information includes the Service, and the terms and conditions of this Agreement and all Order Forms.
5.2 Protection. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party may disclose Confidential Information of the Disclosing Party only to its employees, agents, or contractors who need to know such information to perform under this Agreement and who are bound by confidentiality obligations at least as protective as those herein. The Receiving Party will not disclose Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party.
5.3 Exceptions. Confidential Information excludes information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.
5.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
5.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section, the Disclosing Party shall have the right, in addition to any other remedies available, to injunctive relief to stop such acts, it being acknowledged by the parties that any other available remedies are inadequate.
6.1 Fees. Customer shall pay all fees specified in Order Forms. Except as otherwise specified in an Order Form, (a) fees are based on Services purchased and not actual usage, (b) payment obligations are non-cancelable and fees paid are non-refundable, and (c) quantities purchased cannot be decreased during the relevant Subscription Term.
6.2 Invoicing and Payment. Fees will be invoiced in advance according to the billing frequency stated in the applicable Order Form. Unless otherwise stated in the Order Form, fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Avery and notifying Avery of any changes to such information.
6.3 Overdue Charges. If any invoiced amount is not received by Avery by the due date, then those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If any amount owing by Customer is 30 or more days overdue, Avery may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full.
6.4 Taxes. Customer is responsible for paying all taxes associated with its purchases hereunder other than taxes based on Avery's net income or property. If Avery has the legal obligation to pay or collect taxes for which Customer is responsible under this section, Avery will invoice Customer and Customer will pay that amount unless Customer provides Avery with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.5 Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Avery regarding future functionality or features.
7.1 Term. This Agreement commences on the date you first accept it and continues until all Subscription Terms of all Order Forms have expired or been terminated.
7.2 Subscription Term. The Subscription Term shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other written notice of non-renewal at least 30 days before the end of the relevant Subscription Term.
7.3 Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days' written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.4 Effects of Termination. Upon termination or expiration of this Agreement: (a) all rights granted to Customer under this Agreement will immediately terminate; (b) Customer will immediately cease all use of the Service; and (c) Customer will pay Avery any unpaid amounts that have accrued prior to termination.
7.5 Customer Data Retrieval. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Avery will make Customer Data available to Customer for export or download in a standard industry format. After such 30-day period, Avery will have no obligation to maintain or provide any Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
7.6 Survival. Provisions that by their nature should survive termination or expiration of this Agreement will do so, including, without limitation, Sections 5 (Confidentiality), 6 (Fees and Payment), 7.4 (Effects of Termination), 7.5 (Customer Data Retrieval), 9 (Warranties and Disclaimers), 10 (Indemnification), 11 (Limitation of Liability), and 13 (General Provisions).
8.1 Service Availability. Avery will use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, with a targeted uptime of 99.9% measured on a calendar month basis ("Service Availability"), excluding: (a) planned downtime (which Avery shall schedule to the extent practicable during weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday, Pacific Time, or between 6:00 p.m. and 3:00 a.m. Pacific Time on weekdays); (b) any unavailability caused by circumstances beyond Avery's reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks; and (c) any unavailability caused by Customer or its Authorized Users.
8.2 Service Credits. If the Service Availability during any calendar month falls below 99.9%, and Customer notifies Avery within 30 days of the end of such month, Avery will issue a credit to Customer based on the monthly subscription fees for the affected Service according to the following schedule:
8.3 Credit Application. Service Credits will be applied to the next invoice following the month in which the credit is issued. Service Credits may not be exchanged for, or converted to, monetary compensation. The aggregate maximum Service Credits to be issued by Avery to Customer for all downtime that occurs in a single calendar month shall not exceed 50% of the amount due from Customer for the Service for the applicable month.
8.4 Exclusive Remedy. The Service Credits specified in this Section 8 are Customer's sole and exclusive remedy for Avery's failure to meet the Service Availability commitments.
8.5 Support Services. Avery will provide Customer with technical support services in accordance with Avery's standard support policy in effect at the time that the Services are provided. Enterprise customers receive priority support with a target initial response time of two (2) business hours for critical issues.
9.1 Mutual Warranties. Each party represents and warrants that: (a) it has the legal power and authority to enter into this Agreement; and (b) it will comply with all applicable laws in its performance of this Agreement.
9.2 Avery Warranties. Avery warrants that: (a) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (b) the Service shall perform materially in accordance with the Documentation; (c) Avery owns or otherwise has sufficient rights to the Service to grant to Customer the rights granted herein; (d) to Avery's knowledge, the Service does not infringe the intellectual property rights of any third party; and (e) Avery has implemented and will maintain appropriate technical and organizational measures designed to protect Customer Data as described in Section 4.4.
9.3 Customer Warranties. Customer warrants that: (a) it has all necessary rights to provide the Customer Data to Avery; (b) to Customer's knowledge, the Customer Data does not infringe the intellectual property rights of any third party; and (c) Customer has obtained all necessary consents, permissions, and authorizations to allow Avery to process Customer Data as described in this Agreement.
9.4 Warranty Remedies. As Customer's exclusive remedy and Avery's sole liability for breach of the warranty set forth in Section 9.2(b), Avery shall use commercially reasonable efforts to correct or provide a workaround for the reproducible error or malfunction that caused the breach of the warranty. If Avery is unable to correct or provide a workaround within a reasonable time, Customer may terminate the affected Service and Avery will refund any prepaid fees for the remainder of the Subscription Term. This warranty shall only apply if the applicable Service has been utilized in accordance with the Documentation and this Agreement.
9.5 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10.1 Avery Indemnification. Avery shall defend, indemnify and hold Customer harmless from and against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates such third party's intellectual property rights (an "IP Claim"), and shall indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Avery in writing of, an IP Claim.
10.2 Customer Indemnification. Customer shall defend, indemnify and hold Avery harmless from and against any claim, demand, suit or proceeding made or brought against Avery by a third party alleging that Customer Data, or Customer's use of the Service in breach of this Agreement, infringes or misappropriates such third party's intellectual property rights or violates applicable law, and shall indemnify Avery from any damages, attorney fees and costs finally awarded against Avery as a result of, or for any amounts paid by Avery under a settlement approved by Customer in writing of, such a claim.
10.3 Mitigation. If the Service becomes, or in Avery's opinion is likely to become, the subject of an IP Claim, Avery may, at its option and expense: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service to make it non-infringing while maintaining substantially equivalent functionality; or (c) if neither (a) nor (b) is commercially practicable, terminate this Agreement and refund to Customer any prepaid fees for the remainder of the Subscription Term.
10.4 Procedure. Each party's indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless it unconditionally releases the indemnified party of all liability); and (c) providing to the indemnifying party, at the indemnifying party's cost, all reasonable assistance.
10.5 Exclusions. Avery will have no obligation under this Section 10 for any infringement or misappropriation to the extent that it arises out of or is based upon: (a) use of the Service in combination with data, software, hardware, equipment, or technology not provided by Avery or authorized by Avery in writing; (b) modifications to the Service not made by Avery; (c) Customer Data; or (d) any third-party software or services.
10.6 Exclusive Remedy. This Section 10 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section 10.
11.1 Limitation of Liability. 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 AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES' PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT).
11.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY'S OR ITS AFFILIATES' REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11.3 Exceptions to Limitations. THE LIMITATIONS AND EXCLUSIONS IN SECTIONS 11.1 AND 11.2 DO NOT APPLY TO: (A) A PARTY'S INDEMNIFICATION OBLIGATIONS; (B) A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS (EXCEPT FOR CUSTOMER DATA, WHICH REMAINS SUBJECT TO THE LIMITATIONS AND EXCLUSIONS IN SECTIONS 11.1 AND 11.2); (C) CUSTOMER'S USE OF THE SERVICE IN BREACH OF SECTION 3.3 (USAGE RESTRICTIONS); OR (D) A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.
12.1 Modifications to the Service. Avery may modify the features and functions of the Service from time to time. Avery will notify Customer of any material changes to the Service at least 30 days prior to implementing the change. If any change materially diminishes the features or functionality of the Service, Customer may terminate the affected Service and receive a refund of any prepaid fees for the remainder of the Subscription Term by providing written notice to Avery no later than 30 days after the change.
12.2 Modifications to the Agreement. Avery may modify this Agreement from time to time. If Avery makes a material change to this Agreement, it will notify Customer by email at least 30 days prior to the change taking effect. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must notify Avery within 30 days of receiving notice of the change. If Customer notifies Avery as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Subscription Term. If the Subscription Term is renewed, it will be renewed under Avery's then-current Agreement.
13.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.2 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party's consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section shall be void.
13.3 Publicity. Neither party may issue press releases, or other forms of publicity, relating to this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Avery may include Customer's name and logo in its customer lists and promotional materials without Customer's prior written consent, subject to any logo usage guidelines that Customer may make available.
13.4 Notices. All notices under this Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email.
13.5 Force Majeure. Neither party shall be liable to the other party for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
13.6 Export Compliance. The Service and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it is not named on any U.S. government denied-party list. Customer shall not permit Authorized Users to access or use the Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
13.7 Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Avery's employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
13.8 Compliance with Laws. Both parties will comply with all applicable laws and regulations with respect to its activities under this Agreement.
13.9 Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
13.10 Dispute Resolution. Any dispute arising out of or relating to this Agreement shall be settled by binding arbitration in San Francisco, California, in accordance with the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator(s).
13.11 No Class Actions. All claims and disputes within the scope of this arbitration agreement must be arbitrated on an individual basis and not on a class basis, and claims of more than one customer or user cannot be arbitrated jointly or consolidated with those of any other customer or user.
13.12 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
13.13 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.14 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior communications, agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
14.1 Enterprise Support. Enterprise customers receive additional support benefits including:
14.2 Custom Agreements. Enterprise customers may request custom terms through an agreed-upon Master Service Agreement (MSA) which will supersede these standard Terms of Service where applicable.
14.3 Implementation Services. Enterprise customers may purchase professional implementation services, including integration assistance, data migration, custom configuration, and training. Such services will be detailed in a separate Statement of Work.
14.4 API Usage. Enterprise customers have access to Avery's API, subject to the API documentation and reasonable usage limits. Avery reserves the right to limit API calls that place undue burden on Avery's infrastructure.
Avery may make Beta Services available from time to time. Beta Services are provided "AS IS" without warranty of any kind. Avery may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Avery will have no liability for any harm or damage arising out of or in connection with a Beta Service.
If you have any questions about these Terms, please contact us:
Avery Intelligence Inc
San Francisco, California
United States