Effective Date: May 2018
THESE TERMS EXEMPT AVOCA AND OTHER PERSONS FROM LIABILITY OR LIMITS THEIR LIABILITY AND CONTAINS OTHER IMPORTANT PROVISIONS THAT YOU SHOULD READ.
All Providers placing content on Diligent are independent contractors and are not employees, subcontractors or agents of Avoca. Avoca has no responsibility to any Provider employees or contractors as an employer. Avoca is not involved with nor does it have any control over the actual performance of any services by Providers, nor does it guarantee the timeliness or quality of those services. Users who agree to have another user perform services should make an independent determination regarding whether all applicable laws and regulations are being met. Use of Diligent is done at user discretion and at their own risk. Avoca is not responsible for any harm that may result or arise out of any service connected via Diligent. Avoca is under no obligation to facilitate, become involved with or negotiate a resolution in any dispute between users.
It is the user’s responsibility to ascertain and obey all applicable local, state, federal and international laws in regard to the receipt and use of any service or information obtained via Diligent.
The term “Authorized Master User” refers to Consumers or Providers employee or representatives who is authorized by Consumers or Providers to use the platform and has been supplied user credentials. The “Authorized Master User” will have permissions and rights assigned within the platform that allows the “Authorized Master User” to create additional “Authorized Users” (or “Client Child Users” as defined within the platform) of Consumers or Providers for access to the Platform. The term “Authorized User” refers to Consumers or Providers employees who have been authorized by Consumers or Providers to use the platform and have been supplied user credentials by the Consumers or Providers “Authorized Master User”. The “Authorized Master User” assumes all responsibilities for managing the Consumers or Providers user community. These responsibilities include but are not limited to user account creation, user password assignment, user profile content maintenance, profile content maintenance and user rights and permissions assignments (including without limitation assigning user permissions to enable the release or request of information to or from any other user, Consumer or Provider). All acts and omissions of the Authorized User community for Consumers or Providers shall be deemed acts or omissions of Consumers or Providers. Users are solely responsible for any use of Diligent that is enabled by means of their access information, even if it is unauthorized. If a user suspects unauthorized activity or a security breach, they must notify Avoca immediately.
Users represent that they are not located in a country that is subject to a US Government embargo or that has been designated by the US Government as a terrorist supporting country and that they are not listed on any US Government list of prohibited or restricted parties.
Accuracy, Completeness and Timeliness of Information
Although Avoca makes reasonable efforts to ensure that all information included on Diligent is correct, accuracy cannot be guaranteed and Avoca does not assume any responsibility or obligation for the accuracy, completeness, timeliness, or authenticity of information on Diligent. Information obtained via Diligent should not be relied upon or used as the sole basis for making significant decisions without consulting primary or more accurate, complete or timely sources of information.
Use of the Diligent Platform
The content included on Diligent, such as text, design, graphics, logos, icons, images, audio clips, downloads, interfaces, code, software, any intellectual property, and the selection and arrangement of any of these, are the exclusive property of Avoca, its affiliates, its licensors and/or its content providers and is protected by copyright, registered trademark, and other applicable laws.
Materials on Diligent or obtained through Diligent may be used only for internal business purposes and not as part of any service offerings to third parties. Improper use of information and improper use of any hardware or software with the intent to damage or interfere with the proper working of Diligent or to surreptitiously intercept any system, data or personal information from Diligent, is strictly prohibited. Users may not interrupt or attempt to interrupt the operation of Diligent in any way and Avoca reserves the right, in its sole discretion, to terminate access to or use of Diligent at any time without notice. Termination of access or use of Diligent will not waive or affect any right or relief to which Avoca may be entitled at law or in equity.
Users may not provide false e-mail addresses or impersonate any person or entity, or otherwise provide misleading information in connection with their use of Diligent. Each user entity must designate an employee or agent to act as the contact person for receiving and managing all communications related to Diligent. The contact person may be changed upon written notice to Avoca.
All remarks, suggestions, ideas, graphics, or other information communicated to Avoca through or in relation to Diligent (other than personally identifiable information or trademarked or confidential information of service providers) will forever be the property of Avoca. Avoca will be entitled to use such submissions for commercial or other purpose without compensation, credits or notice to the submitter or to any other person. Avoca will not incur any liability as a result of any similarities that may appear in its future business operations, services or products. By submitting unsolicited submissions to Avoca the submitter waives the right to make any claim against Avoca relating to the submission.
Avoca may from time to time develop patches or fixes or may find it necessary to install updates, upgrades and other modifications to Diligent. These may from time to time be automatically installed without providing any additional notice or receiving any additional consent and users consent to this automatic update. If a user fails to install any software updates or other required item, use of Diligent may be compromised.
Avoca respects the intellectual property rights of others and may remove content that it believes may infringe the intellectual property rights of others. If you believe that Diligent has infringed your intellectual property rights, please notify Avoca and provide the following information:
- An identification of the intellectual property claimed to have been infringed, including copies of registration certificates, if available.
- A detailed description of the material that you claim is infringing, so that Avoca may locate it.
- Your address, telephone number, and email address.
- A statement by you that you have a good faith belief that the allegedly infringing use is not authorized by the intellectual property rights owner, its agent, or the law.
- A statement, made under penalty of perjury, by you that the above information is accurate and that you are authorized to act on behalf of the owner of the intellectual property rights involved.
Please send the foregoing to the following address:
The Avoca Group, Inc.
179 Nassau St, Suite 3A
Princeton, NJ 08542
USE OF DILIGENT IS AT THE USER’S SOLE RISK. DILIGENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AVOCA RESERVES THE RIGHT TO RESTRICT OR TERMINATE ACCESS TO DILIGENT OR ANY FEATURE OR PART THEREOF AT ANY TIME. AVOCA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES THAT MATERIALS ON DILIGENT ARE NONINFRINGING, AS WELL AS WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING; THAT ACCESS TO DILIGENT WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DILIGENT WILL BE SECURE; THAT DILIGENT WILL BE VIRUS-FREE; OR THAT INFORMATION ON DILIGENT WILL BE COMPLETE, ACCURATE, TIMELY, OR AUTHENTIC. USERS ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THEIR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR UPLOAD OF ANY MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AVOCA OR THROUGH OR FROM DILIGENT SHALL CREATE ANY WARRANTY OF ANY KIND. ALL THIRD PARTY PRODUCTS PROVIDED IN CONNECTION WITH DILIGENT ARE PROVIDED AS IS. ANY WARRANTY THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW IS LIMITED IN DURATION TO 30 DAYS FROM THE EVENT GIVING RISE TO THE WARRANTY.
LIMITATION OF LIABILITY
DILIGENT USERS HEREBY ACKNOWLEDGE THAT ANY INFORMATION SENT OR RECEIVED MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OBTAINED BY UNAUTHORIZED PARTIES. IT IS UNDERSTAND AND ACKNOWLEDGED THAT FULL RESPONSIBILITY FOR USE OF DILIGENT IS AT THE USER’S SOLE RISK AND DISCRETION.
AVOCA, ITS AFFILIATES OR BUSINESS PARTNERS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO DILIGENT OR WITH THE DELAY OR INABILITY TO USE DILIGENT, OR FOR ANY INFORMATION OR SERVICES ADVERTISED IN OR OBTAINED THROUGH DILIGENT, OR OTHERWISE ARISING OUT OF THE USE OF DILIGENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF AVOCA OR ANY OF ITS AFFILIATES OR BUSINESS PARTNERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND REGARDLESS OF THE EXISTENCE OF NEGLIGENCE. THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, ANY LOSS OF PROFITS, THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OF USE OF ANY RECORD OR DATA, ASSAULT, BATTERY, OR ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
USERS OF DILIGENT SPECIFICALLY ACKNOWLEDGE AND AGREE THAT AVOCA AND ITS BUSINESS PARTNERS SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, ILLEGAL, OR OTHERWISE INAPPROPRIATE OR OBJECTIONABLE CONDUCT OF ANY USER. THE MAXIMUM AMOUNT OF DIRECT DAMAGES RECOVERABLE FOR ALL EVENTS, ACTS OR OMISSIONS HEREUNDER OR OTHERWISE, EXCLUDING EVENTS INVOLVING A PARTY’S FRAUD OR WILLFUL MISCONDUCT, SHALL NOT EXCEED THE TOTAL CASH AMOUNT PAYABLE BY A USER TO AVOCA UNDER THE AGREEMENT SIGNED IN RELATION TO THE SERVICES PROVIDED. IN NO EVENT WILL THE MEASURE OF DAMAGES INCLUDE, NOR WILL A PARTY BE LIABLE FOR, ANY AMOUNTS FOR LOSS OF INCOME, PROFIT OR SAVINGS, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY PARTY, INCLUDING CLAIMS OR DAMAGES OF THIRD PARTIES, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES.
USER’S OF DILIGENT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO DILIGENT MUST COMMENCE WITHIN SIX MONTHS (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES OR THE CAUSE OF ACTION IS PERMANENTLY BARRED. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR SHORTENING OF THE STATUTE OF LIMITATIONS PERIOD, ALL OR A PORTION OF THE ABOVE LIMITATIONS MAY NOT APPLY. Nothing in this Section precludes a party from seeking specific enforcement, injunctive relief or other equitable remedy. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted by applicable law.
Third Party Products
Any software, services, goods or other products or technology that are provided by a third party, or that are provided by Avoca but are: (i) identified by Avoca with a brand name or logo that is not an Avoca brand name or logo, or (ii) provided subject to a user’s agreement to the third party’s legal terms and conditions (“Third Party Products”) are subject to the terms of the license and other agreement terms of the third party. Specifically, but without limitation, the operating system, virtualization and other general systems software may be a Third Party Product subject to separate licensing terms, conditions and restrictions of the third party providers. Users may be required to accept the end user license and other terms of the third party providers as a condition to use of the Third Party Products.
The privacy of all users must be protected at all times. Avoca will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Diligent. Upon request, Avoca will provide a description of its security measures for Diligent (the “Security Documentation”). Users acknowledge that the Security Documentation is sensitive confidential information of Avoca and agree not disclose the Security Documentation to any third party or use the Security Documentation for any purpose other than evaluating the security of Diligent. Users are responsible for deciding if Avoca’s security measures meet the user’s requirements in light of the business goals and any laws or regulations applicable to the user’s business. Users agree that Avoca is not responsible for any harm as a result of a security incident arising from use of Diligent unless the incident resulted from Avoca’s failure to properly implement and maintain the security measures described in its Security Documentation.
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