Terms of Service

Please read the following terms of service ("Terms of Service") carefully before using Augmentecture Services or Software. These terms of service are a legally binding contract between Subscriber and Augmentecture (as defined below) and govern all use of Augmentecture services, software and any associated documentation, both online and offline.
By clicking 'I agree', registering with Augmentecture or using Augmentecture Services or Software, Subscriber agrees to all of the terms and conditions set out in these Terms of Service. Subscriber can then proceed to the Augmentecture secure server to complete the registration and submit payment details. If Subscriber does not agree to any of these Terms of Service, subscriber is prohibited from the use of Augmentecture Services, Software, Server Software or Web Site Software, and any associated documentation.
1. Definitions
"Account" means the account established with Augmentecture and located upon the Infrastructure, created and maintained by Subscriber in order to access the Services.
"Device" or "Devices" means Windows® or non-Windows servers, workstations, computers or any mobile devices upon which or through which the Services or any Software are used and / or installed.
"Augmentecture" means Augmentecture Incorporated, registered in the state of Delaware in the United States of America.
"Augmentecture Affiliates" means the affiliated entities within the Augmentecture group of companies, its employees and third party suppliers and licensors.
"Infrastructure" means the technical systems, hardware and all connected devices of Augmentecture or its third party suppliers, including but not limited to the technical systems, hardware and/or connected devices utilized to support www.augmentecture.com.
"Virus or Malware" means programming or software code designed to damage, destroy or otherwise interfere with programs, software, and/or devices, including, but not limited to: Trojan horses; any Windows temporary files of any kind (including, without limitation, any *.p or ~*.* files); worms, and / or corrupted files.
"Order" means the agreement to purchase Services as between Subscriber and Augmentecture or Subscriber and / or authorized reseller of Augmentecture.
"Services" means the various services and components thereof, the Software, the Server Software or Web Site Software, any associated documentation both on and offline, as well as any modifications, derivatives, updates or upgrades as may be offered by Augmentecture from time to time, and/or which are subscribed to by the Subscriber via a Subscription. A Subscriber may choose to subscribe to one or more Services under his or her Subscription as may be offered by Augmentecture from time to time. Services may include but are not limited to registration, account profile creation, uploading of Subscriber models, storage of Subscriber models, creation of unique identifiers for Subscriber models, creation of links and/or markers for Subscriber models, creation of proprietary AUG file related to Subscriber models., utilization of Revit and/or Drop Box plug-ins or add-ons to assist in upload of Subscriber models, viewing and accessing of Subscriber account information and status thereof. Services may be updated from time to time by Augmentecture.
"Software" means any downloadable client software ( which is provided solely for the purpose of accessing the Services.
"Server Software" or "Web Site Software" means any software and/or executable instructions stored in one or more memory devices of Infrastructure and executable by one or more processors of the Infrastructure.
"Subscriber" or "You" means an individual or entity (including that entities' parent or affiliated companies) to which Services are provided by and as agreed to by Augmentecture.
"Subscription" means the non-exclusive, non-transferable right to use the Services, as ordered by Subscriber pursuant to an Order, subject to the terms of these Terms of Service and the full and timely payment of the Subscription Fees.
"Subscription Fees" means the fees payable in respect of a Subscription.
2. Subscription
Subject to these Terms of Service, Subscriber may use the Services only in accordance with any written communication by Augmentecture to Subscriber, including the Subscription and any then-current product documentation as posted on www.augmentecture.com from time to time. Augmentecture shall make commercially reasonable efforts to provide the Services to Subscriber. These Terms of Service apply to the Subscriber that uses the Services or that installs, otherwise uses or permits the installation of the Software on one or more Devices as owned, operated or overseen by them to facilitate the provision of monitoring, reporting, or any other Services provided to Subscriber by Augmentecture. Throughout the Subscription period, unless terminated in accordance with the terms herein, Augmentecture grants Subscriber the rights to use the Services as set forth herein but only if Subscriber complies with all of these Terms of Service.
Subscriber grants permission to Augmentecture to download files from any Device monitored by the Services as part of Subscriber's Subscription to Infrastructure. Subscriber understands that the operation of the Services will involve repeated access by the Services to any Device monitored as part of Subscriber's Subscription.
3. Account, security
Augmentecture respects our customers' privacy and the terms of Augmentecture's Privacy Policy can be found at www.augmentecture.com/privacypolicy.html. To access and use the Services, Subscriber must create an Account that is protected by a username and password and Subscriber must keep any passwords and other Account details secret. Subscriber agrees that Subscriber is responsible for maintaining the confidentiality of your Account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. This site does not sell or provide services to children and thus, if you are under 18, you may only utilize the Services with the involvement and/or consent of a parent or guardian. Subscriber agrees to provide Augmentecture with accurate and complete information when registering for an Account and at all times thereafter. Augmentecture must be promptly notified if changes to Subscriber's information occur.
Subscriber acknowledges and agrees that it is responsible for providing the following:
(I) all equipment, such as a computer and modem, necessary to access the Internet;
(II) its own access to the Internet;
(III) any backup and file retention of any files submitted to Infrastructure as part of the Services and
(IV) payment of all telephone or other fees associated with such access.
Subscriber is solely responsible for access to, content in or sharing and use of its Account. Augmentecture shall not be liable for any loss or damage arising from any access to, or sharing and use of Subscriber's Account. In the event that Subscriber believes or suspects there has been any unauthorized access to the Account, Subscriber must notify Augmentecture immediately by email to Support@augmentecture.com.
4. Payment terms
The Service is a Subscription service is billed in advance on a monthly or yearly basis and is non-refundable. There will be no refunds or credits for partial months or years of service, upgrade/downgrade refunds, or refunds for months or years unused by an Account. ??? Services/Service
For any upgrade in plan level, Subscriber will be charged the prorated amount till next billing cycle and the new full rate on Subscriber's next billing cycle.
For any downgrade in plan level, Subscriber will be charged the new rate commencing upon Subscriber's next billing cycle.
Downgrading Subscriber's Subscription Service may cause the loss of content, features, or capacity of your Account. Augmentecture does not accept any liability for such loss.
Augmentecture reserves the right to change the prices for the Services and any connected extra services at any time.
The Subscription begins at the time the Subscriber's Subscription is activated by Augmentecture (other than on a trial basis) and thereafter continues in effect until the date of termination as set forth hereinafter. A Subscription may terminate in whole or in part, due to
(I) Subscriber's cancellation, or breach of any of these Terms of Service - including non-payment of any Subscription Fees when due; or
(II) upon expiration of the respective Service term subscribed to by Subscriber in the relevant Order and receipt by Augmentecture of a written notice of non-renewal from Subscriber at the latest 7 days prior to end of the respective Service term. If Augmentecture receives no written non-renewal notice from Subscriber within the period set forth above, the Service will automatically renew for an additional Service term. Subscription Fees are non-refundable if Subscriber cancels or the Subscription is terminated for cause. As of the effective date of cancellation or termination and the expiration of a period of 14 days thereafter, Subscriber shall no longer be able and shall have no further right to access or use the particular Services which have been cancelled or terminated. All licenses granted hereunder shall be term licenses for the term set forth in the relevant Order.
5. Grant of right of use
During a Subscription period, and subject to the due payment by Subscriber and receipt by Augmentecture of all due and payable Subscription Fees, Augmentecture grants Subscriber a revocable, limited, non-transferable, non-exclusive license to access the Services and use of the Software pursuant to these Terms of Service. Subscriber may install multiple copies of the Software on different Devices for the sole purpose of
(I) installing them on Devices to be monitored in the course of the provision of the Services and
(II) in accordance with a Subscriber's permitted usage. These Terms of Service cover any updates, new releases or enhancement(s) of the Services and / or Software, which Augmentecture may make available to Subscriber from time to time in its sole discretion. Subscriber may make 1 (one) copy of the Software for back-up or archival purposes only. If you want, I can add in information forbidding data mining, utilizing hidden text, framing, linking or robot searching.
Electronic Communications – When Subscriber visits Augmentecture.com or send emails (or electronic communications) to Augmentecture, Subscriber consents to receive communications from Augmentecture electronically. Augmentecture may communicate with Subscribers by e-mail, other electronic communications or by posting notices in conjunction with Services or on Infrastructure. Subscriber agrees that all agreements, notices, disclosures and other communications that Augmentecture provides to Subscriber electronically satisfies any legal requirements that such communications be in writing.
Subject to the terms and conditions of these Terms of Service, Augmentecture shall use commercially reasonable efforts to provide the Services twenty-four (24) hours a day, seven (7) days a week throughout the Subscription term of the applicable Order. Subscriber agrees that from time to time the Services may be inaccessible or inoperable for various reasons, including
(I) equipment malfunctions;
(II) periodic maintenance procedures or repairs which Augmentecture may undertake from time to time; or
(III) causes beyond the control of Augmentecture or which are not reasonably foreseeable by Augmentecture, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively "Downtime"). Augmentecture shall use commercially reasonable efforts to provide twenty-four (24) hour advance notice to Subscriber in the event of any scheduled Downtime.
6. Termination
Subscriber is responsible for properly cancelling Subscriber's account. An email or phone request to cancel Subscriber's account can be considered in case of using payment methods other than PayPal or other electronic payments. For payments using PO (checks and wire transfers); Subscriber should notify Augmentecture regarding cancellation at least 2 weeks before Subscriber's renewal date otherwise the full payment should be made for the next cycle. Subscriber can cancel Subscriber's Account at any time by logging in to Subscriber's account but no refunds will be provided for any prepaid amounts.
All of Subscriber's content will be immediately deleted from the Services upon cancellation. This information cannot be recovered once Subscriber's Account is cancelled.
If Subscriber cancels the Services before the end of Subscriber's current paid up month or year, Subscriber's cancellation will take effect immediately and Subscriber will not be charged again.
Augmentecture reserves the right to refuse provision of Services, terminate a Subscriber Account, remove or edit content of a Subscriber Account and/or cancel a Subscriber Account.
7. Support
During a Subscription period, Augmentecture will provide Subscriber with the support described in this paragraph ("Support") on a local office hour's basis. In Augmentecture's sole determination, Support shall consist of:
(I) telephone or electronic support to Subscriber in order to help Subscriber locate and, on Subscriber own, correct problems with the Services and / or
(II) supplying extensions, enhancements and other changes that Augmentecture may make to the Services from time to time and which is made publicly available, without additional charge, to other Subscribers of the Services that are enrolled in Support. Once the Subscriber terminates the subscription, no ongoing services will be available to the Subscriber.
8. Subscriber's conduct, content of data
Subscriber must comply at all times with any and all applicable local, state, federal international laws and treaties laws.
Subscriber warrants that it has obtained sufficient consent and rights
(I) to access any third party's or end user's systems or networks, and
(II) to access, use and store all data and files on the Infrastructure or otherwise use via the Services such data and information. You shall not upload or otherwise provide and Augmentecture reserves the right, with or without notice to you, to remove any data and files from its Infrastructure that Augmentecture, in its sole discretion, believes or suspects is:
(a) Virus or Malware, 
(b) illegal, libelous, abusive, threatening, harmful, vulgar, pornographic, obscene or otherwise objectionable in any kind of nature, 
(c) used for the purpose of: spamming, chain letters or the use or dissemination of objectionable material of any kind or nature,
(d) used in such a manner as to cause offense, defame or harass,
(e) encourages conduct that could constitute a criminal offense;
(f) gives rise to civil claims of liability or otherwise violate any applicable local, state, national or international law or regulation; or 
(g) used to infringe the intellectual property rights or any other rights of any third party.
9. Consent to use data
Subscriber's privacy is important to Augmentecture and Augmentecture shall abide by its Privacy Policy, which can be found at www.augmentecture.com/privacypolicy.html. However, Augmentecture reserves, in its sole discretion, the right to
(I) monitor and access the Account and / or remove any data or content of data or files stored on its Infrastructure, and
(II) suspend or terminate the Account and / or Subscriber's access to the Services in the event that Augmentecture believes or suspects that any of the terms of the preceding paragraph or any of these Terms of Service have been breached or contravened.
Augmentecture and Augmentecture Affiliates collect, process and use your data for the implementation and processing of the contractual relationship with you, in particular for successfully providing the Services to you. Beyond that, Subscriber's data will not be used without prior consent, in particular, for advertising purposes. Non-personal data may be collected automatically to offer Subscriber first-class service, especially to facilitate and improve the provision of software updates, Support, Content and other services to Subscriber.
10. Data protection
Each party shall comply with its respective obligations under applicable data protection laws ("DPL"). Neither party shall do any act that puts the other party in breach of its obligations as per this Section, nor shall anything in these Terms of Service be deemed to prevent any party from taking any action it reasonably deems necessary to comply with DPL. Subscriber agrees that during the course of these Terms of Service:
(I) in respect of data Subscriber collects, accesses or otherwise uses, Subscriber alone shall determine the purposes for which and the manner in which personal data is, or will be, processed;
(II) Subscriber is the data controller in respect of all personal data which the Subscriber may process; and
(III) Subscriber consents and, in the event Subscriber processes any third party data, has obtained the consent from such third party, to send its personal data to Augmentecture in countries outside the USA or European Union. Augmentecture agrees that, with Subscriber's express consent, it is the data processor in respect of the personal data processed as provided by Subscriber. Subscriber warrants and undertakes that any instructions given by Subscriber to Augmentecture will at all times be in accordance with the requirements of DPL. Subscriber shall fully indemnify Augmentecture against any loss, damages, liability and costs (including attorneys' fees) incurred by Augmentecture as a result of any breach of DPL by Subscriber.
Augmentecture shall comply with requests for information from legitimate judicial, legal or regulatory authorities or pursuant to any court order or a subpoena, discovery request or other lawful process that Augmentecture receives. Augmentecture may comply with these subpoenas or court orders with or without notice to Subscriber. Subscriber agrees that Augmentecture may disclose any information held about Subscriber or via Subscriber to legitimate or legal authorities. For more information regarding how Augmentecture uses your data, please see Augmentecture privacy policy, which can be found at www.augmentecture.com/privacypolicy.html.
11. Restrictions/fair usage
Except as otherwise expressly provided under these Terms of Service, Subscriber shall have no right and Subscriber shall not permit any third party to:
(I) harm, disrupt or otherwise engage in activity that diminishes the Augmentecture brand, Services, or Infrastructure;
(II) use the Services in a manner that results in excessive bandwidth or storage or exceeds the permitted usage, as solely determined by Augmentecture,
(III) transfer, assign or sublicense the limited rights granted to Subscriber in these Terms of Service to any other person, or entity, or use the Services other than as authorized; any such attempted transfer, assignment, sublicense or unauthorized use shall be void;
(IV) make error corrections to or otherwise modify or adapt the Service or decompile, decrypt, disassemble, reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Services or of any files contained or generated using the Services by any means whatsoever or otherwise reduce the Services to human-readable form, except to the minimum extent expressly permitted under applicable law notwithstanding this restriction;
(V) use or permit the Services to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Augmentecture; or
(VI) attempt to alter, circumvent or provide the method or means to circumvent any disabling mechanism in the Services; or
(VII) use the Services in any manner not expressly authorized herein; or
(VIII) alter, remove or fail to reproduce any proprietary notices from the Services; or
(IX) misrepresent any person or entities' identity, impersonate any person or attempt to gain access to any Account, the Infrastructure or the networks or property of any third person, without authorization.
Fair Usage  - Augmentecture reserves the right to impose any and all limitations and restrictions as Augmentecture deems necessary, at its sole discretion, if it deems that a User's activity on the Augmentecture Infrastructure and utilization of Services, is in excess of expected fair usage of the Services and may cause a degradation of Services to other users.
12. Service updates
The Services may include certain communications from Augmentecture, such as service announcements, administrative messages and newsletters. Subscriber understands that these communications shall be considered part of using the Services and that Subscriber will not be able to opt out of receiving them. Further, Augmentecture reserves the right to send electronic mail to Subscriber, informing you of changes or additions to the Terms of Service.
13. Intellectual property rights
The Services are protected by (not accurate unless you have filed for these IP protections) copyright, trademark, patent and other intellectual property laws and treaties and belong to Augmentecture, its licensors and any applicable Augmentecture Affiliate. Subscriber acknowledges that
(I) rights in the Services are licensed (not sold) to Subscriber, and
(II) that Subscriber shall have no rights or title in, or to, the Services other than the right to use them in accordance with the terms of these Terms of Service and
(III) Open Source and / or third-party software may be incorporated into the Services. Augmentecture, its licensors and any applicable third parties, own all title, copyright, and other intellectual property rights in and to the Services. All content included in Infrastructure and/or the Services, such as text, graphics, logos, button icons, images, audio and video files, digital downloads, data compilation, data arrangement, Software, Server Software and/or Web Site software is the property of Augmentecture, its licensors and any applicable Augmentecture Affiliate and protected by U.S. and International copyright laws. All trademarks or registered trademarks used on Infrastructure and/or in conjunction with the Services (“Marks”) belong to Augmentecture, its authorized affiliates, and/or licensors and are protected by United States trademark laws. The Marks may not be utilized in connection with any other product or service, without express written consent of Augmentecture. The Marks may not be utilized in any manner that is likely to cause confusion among customers or Subscribers, or in any manner that disparages or discredits the owner of authorized licensee of the Marks. Amy marks not owned by Augmentecture that appear on Infrastructure or in conjunction with Services are the property of their respective owners, who may or may not be affiliated with, connected to or sponsored by NDSI. The Services, in all formats existing, are a trade secret of and/or proprietary to Augmentecture, its suppliers and / or licensors, including but not limited to, the specific internal code, design and structure of individual programs and software, (associated interface information, and online or offline associated documentaiotn. Subscriber shall not disclose the confidential aspects of the Services to third parties.
14. Third party components, open source or Third Party Service Providers
Part of the Services may incorporate third party proprietary software and / or services. If and to the extent such third party services or software are an integral part of the Services, such third parties shall be deemed Augmentecture Affiliates and these Terms of Service shall apply to such Augmentecture Affiliates. If and to the extent Subscriber contracts independently with independent third parties, the terms of such third party contract shall apply to the relationship between Subscriber and such independent contractor and Augmentecture shall have no liability in respect thereof. In addition, part of the Services may incorporate and consist of third party open source software ("Open Source") , which Subscriber may use under the terms and conditions of the specific license under which the open source software is distributed. Subscriber agrees that Subscriber will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s). Any Open Source provided with or contained in the Services is provided by Augmentecture "AS IS" and without any warranty of any kind.(Please note that you need to abide by the Open Source licenses and provide attribution either in source code or somewhere else according to the licenses).
Service Providers - The Services may provide you with opportunities to transfer, receive data or files from, be transferred or link to, third party providers or services, products, advertisements or content (“Service Providers”) that may be accessible through and operate with the Services. Subscriber agrees that Augmentecture is not responsible for the accessibility or unavailability of Service Providers or for any interaction and/or dealings with Service Providers. Augmentecture does not endorse and is not responsible or liable for any content, advertising, products or services available or unavailable from, or through, such Service Providers. Subscriber further agree that if Subscriber uses or relies on such content, advertisement, products or services on, available or unavailable form, or through any such Service Provider, AUGMENTECTURE IS NOT RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH SUCH USE OR RELIANCE.Subscribers dealings with, or participation in promotions of Service Providers, and any other terms, conditions, warranties or representations associated with such dealings, are solely between Subscriber and such Service Providers and do not involve Augmentecture.
15. Service evaluations and freeware
With Augmentecture's consent, Subscriber may evaluate the Services for up to 200 Gigabytes of storage space at no cost. Subscriber may evaluate the Services only to determine whether to license the Services. Augmentecture has no duty to provide Support to Subscriber during any evaluation period or for any Service offered as freeware.
16. Beta testing
Beta versions of Services may be provided to Subscriber. If and to the extent such beta versions are provided to Subscriber, they are provided without warranty of any kind, "AS IS" and subject to the Confidentiality conditions above. Such provision is done only for the purpose of assisting Augmentecture Subscriber provides Augmentecture with truthful, accurate and complete feedback, comments, and analysis in whatever format Subscriber may wish ("Contribution"). Subscriber expressly acknowledges that Subscriber participation in any beta testing is undertaken by Subscriber on a volunteer basis and that Subscriber shall have no right in the beta Services or Contribution, whether in original form (as provided to Subscriber) or in respect of any derivative work (whether or not based upon, in whole or in part, on any participation or feedback Subscriber may make). Notwithstanding the foregoing, Subscriber agrees to grant to Augmentecture a worldwide, irrevocable, royalty - free, perpetual, transferable license to commercially use, exploit and sub-license in Augmentecture's sole discretion, any and all Contributions.
17. Disclaimer of warranties
The services are provided to Subscriber on an "AS IS" and "AS IS AVAILIBALE" basis. To the maximum extent permitted by applicable law, this warranty and the remedies herein are exclusive and in lieu of all other warranties and remedies, whether oral, express, implied or statutory including without limitation, warranties of fitness for a particular purpose, merchantability, warranties for latent or hidden defects. Augmentecture does not warrant that the specifications or functions contained in the services will meet Subscriber's requirements, or that the operation of the services will be uninterrupted or error-free, or that defects in the services will be corrected. Furthermore, Augmentecture does not warrant or make any representations regarding the use or the results of the use of the services provided in respect of its correctness, accuracy, reliability, or otherwise. If this exclusion is not permitted by law, Augmentecture limits any express, statutory or implied warranties as to duration to the extent of this limited warranty and the repair or replacement remedy as determined by Augmentecture in its sole discretion.
18. Limitation of liability
To the maximum extent permitted by applicable law, in no event shall Augmentecture be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the services, the provision of or failure to provide support services, or otherwise under or in connection with any provision of these terms of service, under any theory of law or fault of Augmentecture or any of the Augmentecture agents, and even if Augmentecture or any of the Augmentecture agents has been advised of the possibility of such damages. This limitation shall not apply to death or personal injury claims. Augmentecture excludes any liability for failure to repair any services.
Notwithstanding the foregoing, the maximum cumulative liability that Augmentecture shall incur hereunder, whether arising by statute, contract, tort or otherwise, shall be limited to the actual price paid by subscriber to Augmentecture for the respective service which forms the basis of the claim during the twelve month period prior to the date when the applicable claim arose.
19. Indemnification
Subscriber agrees to indemnify, defend, and hold Augmentecture harmless from and against any and all damages, fines, penalties, assessments, liabilities, losses, costs and expenses (including attorneys' fees, expert fees and out-of-pocket expenses) in connection with
(I) Subscriber's use of the Services in inappropriate, illegal and/or fraudulent matter,
(II) Subscriber's violation of these Terms of Service,
(III) Subscriber's violation of any third-party rights, including any intellectual property rights,
(IV) Subscriber's misuse or fraudulent use of credit and debit cards,
(V) any claims that the Services or any party thereof were exported or otherwise shipped or transported by Subscriber in violation of applicable laws, rules and regulations, or
(VI) any claim of misuse of the Services, including but not limited to any claim that Subscriber is storing illegal files or data in its Account.
20. Modifications
Augmentecture may change these Terms of Service from time to time without prior notice. The current Terms of Service are always available at http://www.augmentecture.com/terms. Upon any change in the terms and conditions of these Terms of Service, Augmentecture will notify you by posting the changes as a start-up screen following your account log-on. If Subscriber agrees to be bound by the changes, Subscriber must again click the "I Accept" button on this start-up screen. If Subscriber does not click the "I Accept" button, the previously accepted version of the Terms of Service shall continue to govern.
21. Effect of termination
Without prejudice to any other rights, Augmentecture may suspend or terminate, in part or in whole, without notice, Subscriber's use of the Services and these Terms of Service if Subscriber does not abide by its terms, in which case Subscriber must cease all use of the Services, destroy all copies (including any components) of the Services, or, at Augmentecture's request, return such copies to Augmentecture. Sections 7, 8, 10, 12, 14, 18, 19, 21, 22 and 31 shall survive any termination of these Terms of Service.
22. Entire agreement
These Terms of Service (as may be amended by time to time) is the entire agreement between Subscriber and Augmentecture relating to the Services and the Support Services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or Support services. To the extent the terms of any policies or programs conflict with the terms of these Terms of Service, the terms of these Terms of Service shall prevail and control. In addition, the terms set out in these Terms of Service shall prevail and control over any and all additional or conflicting terms or provisions contained in any document of Subscriber's, whether set out in a Subscription or alternative license, and any and all such additional or conflicting terms shall be void and shall have no effect. If these Terms of Service are translated into a language other than English and there are conflicts between the translations, the English version shall prevail and control.
23. Governing law
(a) The Terms of Service shall be governed by, subject to and construed in accordance with the laws of the State of California, excluding its conflict of laws provisions and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in the State of California, or
(b) If Subscriber purchased the Services in or is habitually resident elsewhere, these Terms of Service shall be governed by, and construed in accordance with, the laws of the United States and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in the United States, and the parties waive any objection with respect thereto, for the purpose of any action, suit or proceeding arising out of or relating to these Terms of Service or the transactions contemplated hereby.
The parties unconditionally waive their respective rights to a jury trial for any claim or cause of action based upon or arising out of, directly or indirectly, these Terms of Service.
24. Publicity
Subscriber agrees that Augmentecture may refer to the name of Subscriber name or corporation as a customer of Augmentecture, both internally and in externally published media. Subscriber may opt out of this by sending a request to Support@augmentecture.com.
25. Export controls
Subscriber agrees that the Services will not be used, shipped, transferred or exported into any country or to anyone:
(I) which the EU or UN has embargoed goods;
(II) where the national legislation of the relevant EU Member State has embargoed goods;
(III) listed in any enacted Common Position on restrictive measures imposed by the EU;
(IV) on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders; or
(V) in any manner prohibited by the EU Common Foreign and Security Policy, the United States Export Administration Act, or any other export laws or regulations. By using the Services, Subscriber represents that Subscriber is not located in, under the control of, or a national or resident of any such country or on any such list and Subscriber takes full and sole responsibility for such use.
26. Taxes
Any sales, use, value added or other taxes (including applicable withholding taxes), shall be borne by the Subscriber. Accordingly, Subscriber shall pay or (if paid by Augmentecture) reimburse Augmentecture for all such taxes based on these Terms of Service or any fees payable hereunder (but not any taxes based upon Augmentecture's revenues or income), together with any interest on such taxes if not due to Augmentecture's delay.
Bank and credit card charges at Subscriber's expense.
27. U.S. government rights
If Subscriber is obtaining Software on behalf of any part of the United States Government, the Software and any documentation shall be deemed "Commercial Off the Shelf Software" and "Commercial Computer Software Documentation," respectively, pursuant to DFAR Section 227.7202 and FAR 12.212 and 52.227-19, as applicable. Any use, modification, revision, release, performance, display or disclosure of the Software shall be governed solely by the terms of these Terms of Service.
28. Equitable relief
The parties agree that irreparable damage would occur if any provision of these Terms of Service were not performed in accordance with the terms hereof and that Augmentecture shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof (without any requirement to post bond or guarantee), in addition to any other remedy to which Augmentecture are entitled at law or in equity.
29. Miscellaneous
The delay or failure of either party to exercise any right provided in these Terms of Service shall not be deemed a waiver. These Terms of Service:
(I) may not be amended by Subscriber, but Augmentecture may amend these Terms of Service from time to time and shall post any amended Terms of Service on its website at www.augmentecture.com.
(II) constitutes the entire understanding between the parties with respect to the subject matter of these Terms of Service and supersedes all written and oral prior agreements, negotiations and discussions between the parties relating to it, and
(III) is for the sole benefit of Augmentecture and Subscriber and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms of Service.
If any provision of these Terms of Service shall be held to be illegal, void or unenforceable by any court of competent jurisdiction or arbitral tribunal, such provision shall be of no force and effect and shall not impair the enforceability of any other provision of these Terms of Service and the parties agree that the relevant provision shall be deemed replaced by such provision which is binding and enforceable and which differs as little as possible from the non-binding and/or non-enforceable provision, taking into effect the object and purpose of these Terms of Service. Except as expressly set forth herein, the remedies of the parties under these Terms of Service are cumulative and will not exclude any other remedies to which the respective party may be lawfully entitled. All notices must be in writing and shall be mailed by registered or certified mail (effective on the third day following the date of mailing), or sent via email to Support@augmentecture.com (with evidence of effective transmission). Subscriber may not assign, pledge or otherwise transfer these Terms of Service, nor any rights or obligations hereunder in whole or in part to any entity. Paragraph headings are for convenience and shall have no effect on interpretation.