Ava & Montague reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time, in its sole discretion, by posting changes at https://www.avaandmontague.com/ or such other URL that Ava & Montague may provide from time to time). Your continued use of any part of the Services (as defined below) following the posting of such changes or modifications will constitute your acceptance of such changes or modifications.
In this Agreement, the following words have the meanings set out below:
"Account" refers to Your Account for the Service, which You will receive when You create or sign up for a Ava & Montague account;
"Documentation" means any accompanying proprietary documentation made available to You by Ava & Montague for use with the Service, including any documentation available online or otherwise;
"Party" means a party to this Agreement and shall be a reference to You or Ava & Montague, as the context requires and "Parties" shall mean both Ava & Montague and You collectively;
"Software" means the proprietary Ava & Montague website and all upgrades to such, which is hosted by Ava & Montague on the Servers;
"Servers" means the servers controlled by Ava & Montague (or its wholly owned subsidiaries) or a third party appointed by Ava & Montague upon which the Processing Software and data are stored;
"Service" shall have the meaning described in section 4.1 below;
Description of service
Ava & Montague provides services including but not limited to content for entertainment and educational purposes, advertisements and/or sponsored content, sale of goods and merchandise, various software applications and other resources (the "Service").
You understand and agree that the Service is provided "AS-IS" and that Ava & Montague assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service.
Fees and services
Ava & Montague may at its sole discretion change its fees and payment policies for the Service from time to time and Ava & Montague shall provide You notice of the changes to the fees or payment policies at https://www.avaandmontague.com/ (or such other URL as Ava & Montague may nominate for this use from time to time) and your continued use of the Service following such notification shall be deemed to be acceptance of such change.
Account, password, and security
To register for the Service, You must complete the registration process by providing Ava & Montague with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You represent that You are of legal age to form a binding contract.
You shall protect the confidentiality of the passwords and username issued to you by Ava & Montague and take full responsibility for Your own, and third party, use of Your password or Account. From time to time, Ava & Montague (or its wholly owned subsidiaries') support staff may log in to the Service under Your password in order to maintain or improve the Service, including to provide You assistance with technical or billing issues. You hereby acknowledge and consent to such access.
Ava & Montague hereby grants You a limited, revocable, non-exclusive, nontransferable licence (without the right to sublicence) to use the Service for Your own use. Ava & Montague also grants you the right to remotely access, view and download related resources. Your use of and access to the Service (which includes, without limitation, the Software, Documentation and other resources) is conditional upon Your compliance with the terms and conditions of the Agreement.
You will not, nor will You allow any third party to
copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation;
reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, except to the extent applicable laws specifically prohibit such restriction;
rent, sublicense, lease, sell, assign or otherwise transfer rights (or purport to do any of the same) in or to the Software, the Documentation or the Service;
remove any proprietary notices or labels on the Software or which are otherwise placed by the Service;
use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software. Subject to Clause 7.3, You will use the Software, Service and resources solely for Your own internal use, and will not make the Software or Service available for time sharing, application service provider or service bureau use. You will comply (and shall ensure that any third parties to whom You grant access to the reporting functions of the Software comply) with all applicable laws and regulations relating to the use of and access to the Documentation, Software, Service and resources
You may not provide access to the Software to third parties. However, You may (at Your own risk) provide access to the reporting functions of the Software to third parties (a "Third Party") as long as You do not directly or indirectly charge a service fee for granting such access and provided that You remain responsible for such Third Parties' use of any information or other material You provide.
The licence granted above and your right of use of the Service will terminate immediately if You fail to comply with the terms of this Agreement and the provisions of Clause 15 will apply.
For the purposes of this Agreement, "Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information or any allowed usage by Ava & Montague of information as described in this Agreement.
Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information.
You must not circumvent any privacy features (e.g., an opt-out) that are part of the Service.
The data collected by Ava & Montague may without limitation be used for the purposes of carrying out our Service. The data may however not be used for marketing purposes including direct marketing towards the end user or/and device owner.
You agree to indemnify Ava & Montague and, its agents, affiliates, directors, officers, employees and partners against any loss, liability or cost arising out of:
Your violations of any applicable laws, rules or regulations in connection with Your use of the Service;
any breach of the provisions of this Agreement by any third party to whom You provide access to Your Account or the reporting functions of the Software;
any claim against Ava & Montague made by any such third party in connection with the third party's access to Your Account or the Service.
Use by third parties
If You provide access to Your Account or any portion thereof to any third party or use the Service to collect information on behalf of any third party, whether or not You are authorized to do so by Ava & Montague or its wholly owned subsidiaries, the terms of this Clause 11 shall apply.
If You use the Service on behalf of any third party, you hereby represent and warrant to Ava & Montague that You are fully authorised to act on behalf of such third party and to bind such third party to this Agreement.
Without prejudice to Clause 11.2, You shall ensure that each such third party complies with the terms of this Agreement as if it were a party hereto in substitution for You. Any information of any such third party that is considered confidential shall be treated as confidential by You and shall not be disclosed to any other third party.
Disclaimer of warranties
Ava & Montague may make improvements and/or changes in the Service or Software at any time, with or without notice. The Service, the Software and resources are provided "AS IS" and Ava & Montague gives no warranties with respect to any of them. Without limiting the generality of the foregoing, Ava & Montague does not represent or warrant that:
the use of the Service or the Software will meet your requirements or be uninterrupted, secure or error-free;
that defects will be corrected;
that the Service, the Software or any other software on the Server are free of viruses or other harmful components;
that the use of the Service and any information available through the Service (including the resources) will be correct, accurate, timely or otherwise reliable.
Limitation of liability
Nothing in this Agreement shall exclude or limit either Party's liability for:
death or personal injury resulting from the negligence of either Party or their servants, agents or employees;
fraud or fraudulent misrepresentation;
breach of any implied condition as to title or quiet enjoyment;
misuse of confidential information.
Nothing in this Agreement shall exclude or limit either Party's liability: for breach of Clause 8 (Confidentiality) or for infringement of the other Party's intellectual property rights.
Subject to Clauses 13.1 and 13.2, neither Party shall be liable in contract, tort (including, without limitation, negligence) or otherwise arising out of or in connection with this Agreement for:
any economic losses (including, without limitation, loss of revenues, profits, contracts, data, business, anticipated savings or cost of substitute services);
any loss of goodwill or reputation;
any special, indirect or consequential losses; whether or not such losses were within the contemplation of the Parties at the date of this Agreement.
Subject to Clauses 13.1 and 13.2, You agree that Ava & Montague and its wholly owned subsidiaries shall not be responsible for or have any liability in relation to unauthorised access to or alteration of Your data.
Ava & Montague shall have no liability for any error, defect, failure or delay in the Services. Without prejudice to the generality of the foregoing, Ava & Montague shall have no liability for any failure or delay in the Services; any special, indirect or consequential losses; whether or not such losses were within the contemplation of the Parties at the date of this Agreement; caused by outages to any public internet backbones, networks or servers; any special, indirect or consequential losses; whether or not such losses were within the contemplation of the Parties at the date of this Agreement; caused by any failures of Your equipment, systems or local access services; due to previously scheduled maintenance.
Subject to Clauses 13.1 and 13.2, Ava & Montague's (and its wholly owned subsidiaries') total cumulative liability (whether in contract, tort (including negligence) or otherwise) to You under or in connection with this Agreement shall not exceed EUR 100.
Proprietary rights notice
Ava & Montague shall own all right, title and interest, including without limitation all intellectual property rights in the Service, (and any derivative works or enhancements thereof) which includes but is not limited to the Software and the Documentation, all rights in and to the Service (including the Software and the Documentation) not expressly granted to You in this Agreement are hereby expressly reserved and retained by Ava & Montague and its licensors.
Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to)
use the trademarks, service marks, trade or business names, logos, domain names, other distinctive brand features or any other copyrighted material or other proprietary rights owned by Ava & Montague and which are associated with the Service without the express written consent of Ava & Montague;
register, attempt to register or assist any third party to register or attempt to register any trade mark, service mark, trade or business name, logo, domain name, other distinctive brand feature or any other copyrighted material or proprietary right associated with the Service or with Ava & Montague, otherwise than in the name of Ava & Montague and with Ava & Montague express prior written consent;
remove, obscure or alter any notice of copyright, trademark or other proprietary right notice appearing in or on any item included with the Service.
Term and termination
This Agreement shall commence on the date when you accept these terms and conditions as specified above and shall remain in force unless terminated by either Party at any time, for any reason.
Upon any termination or expiration of this Agreement:
any outstanding balance for any part of the Service rendered through the date of termination, and other unpaid payment obligations during the remainder of the term of this Agreement will be immediately due and payable in full.
all of Your historical report data will no longer be available to You unless You and Ava & Montague enter into a written agreement for the exchange and transfer of such data.
Miscellaneous; applicable law and venue
This Agreement will be governed by and construed in accordance with the Laws of Malta, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any dispute arising out of or in connection with this Agreement, including any disputes regarding the existence, validity or termination thereof, shall be settled by simplified arbitration in accordance with the rules of simplified arbitration in force at the time when such proceedings are commenced.
Notwithstanding the foregoing, you agree that Ava & Montague shall have the right to seek injunctive remedies (or an equivalent type of urgent legal relief) in any court of competent jurisdiction.
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