Terms of Service

Valid from: 01 January 2024

The Aqurate Standard Service Terms is a Software-as-a-Service agreement between Aqurate, henceforth called the Company,

and You, the user of the analysis and prediction services, henceforth called the Customer, (each called a “party” and together, the “parties”).

BY CLICKING ON THE “I AGREE” BUTTON, REGISTERING TO USE THE SERVICE, OR USING THE SERVICE, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS, AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS, PERSONALLY AND ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT COMPANY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD NOT USE THE SERVICE.

1. Definitions

1.1. Affiliate: any company or other entity, which directly or indirectly controls, is controlled by or is under joint control with a party of this agreement. For this purpose, a party is deemed to control a company or entity if it (a) owns, directly or indirectly, at least 50 percent of the capital of the other company, or (b) in the absence of such ownership interest, substantially has the power to direct or cause the direction of the management and set the policies of such company or entity.

1.2. Agreement: these Standard Service Terms and any other Aqurate document/material incorporated herein.

1.3. Aqurate: means MACHINE LEARNING SOLUTIONS SRL, with its registered office in Romania, 2-4 Calea Circumvalatiunii, Timisoara, Timis county, Office 210, VIES (VAT) code: RO40330105, EUID ROONRC.J35/4631/2018, as per Section 14 - Contracting party and Specific Legislation.

1.4. Billing Period: the period for which you agree to prepay fees. This has the same length as the Subscription Term.

1.5. Claim: any claim, suit, action, proceeding, losses, liabilities, damages, settlements as per art. 8.1 below.

1.6. Confidential Information: information that may be disclosed or made available by the Disclosing Party to the Receiving Party, including, but not limited to: technical and business information relating to proprietary ideas, patentable ideas and/or trade secrets, existing and/or contemplated products and services, research and development, production, costs, profit and margin information, finances and financial projections, customers, clients, potential clients, marketing strategies, and current or future business plans and models, regardless of whether such information is designated as “Confidential Information” at the time of its disclosure.

1.7. Consulting Services: the professional services provided to the Customer by the Company, which may include training services, installation, integration, or other consulting services.

1.8. Company’s Website: https://www.aqurate.ai, along with all pages and subdomains.

1.9. Disclosing Party: the party or its Affiliates who discloses any Confidential Information.

1.10. End Users: a natural/legal person that is a client or website visitor of the Customer’s and whose data and interaction with the Customer may be provided to the Company through one or more Integrations.

1.11. Integration: a data source such as sales data (e.g., from an eCommerce platform), website traffic data (e.g., from Google Analytics, Aqurate Pixel), or email data (e.g. from Mailchimp, Klavyio) that the Customer authorizes the Company to access and retrieve data in order to provide the Service.

1.12. Paid Subscription: the paid subscription service, as per the prices stated on the Company’s Website.

1.13. Personal Data: any information describing or relating to an identified or identifiable individual (where an identifiable individual is an individual who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that individual).

1.14. Receiving Party: the party or its Affiliates who receives or otherwise obtains any Confidential Information.

1.15. Service: any of the web-based applications, tools, APIs and platforms available as a subscription, developed, operated and maintained by the Company, accessible via https://aqurate.ai or another designated URL, and any ancillary products and services, including cloud hosting, provided to the Customer.

1.16. Subscription Term: means the initial term of your subscription to the applicable Service, and each subsequent renewal term (if any). For Free/Trial Subscriptions, the Subscription Term will be the period during which you have an account to access the Free Services.

1.17. Trial/Free Subscription: means the Service or other products or features made available by the Company to the Customer on an unpaid trial or free basis.

1.18. Developer Subscription: means the Service or other products or features made available by the Company to the Customer for the sole purpose of technical integration or evaluation on a discounted or free basis.

2. Terms of Service

2.1. By using the Service, the Customer agrees to be bound by the latest version of the Standard Service Terms, all applicable laws and regulations, and agrees to be responsible for compliance with any applicable local laws or regulations.

2.2. The Company may update, revise or amend this Agreement and/or any other policies, terms or conditions applicable to the use of the Company's Website and/or our Service, at any time. The Company will notify the Customer of any material changes to this Agreement by posting a notice on the Company’s Website and shall take effect immediately when posted. Continuing use of the Company's Website, or any Aqurate Service signifies the Customer’s agreement to be bound by the current version of such Agreement. The Customer is exclusively responsible and liable for keeping up to date of the latest applicable version of these documents.

2.3. The Company licenses a non-exclusive, non-transferable, non-sub-licensable right of use of its Service to the Customer, conditioned by the compliance with this Agreement.

2.4. The Customer will use the Service only for its own purpose and refrain from reselling, distributing, renting or leasing the Service to third parties. A separate agreement to be executed between the parties is required for the Customer to use the Service in connection with third parties.

2.5. Customers using a Developer Subscription will not use the Service for commercial purposes, and will only use the Service in staging/development environments.

2.6. The Service shall not be used on more domains than included in the Paid Subscription. The default number of included domains is one.

2.7. The Trial/Free Subscription is made available by the Company to Customers subject to the required Integrations, Paid Subscription tier, and other reasonable business considerations of the Company.

2.7. The Service’s analysis and prediction features are not guaranteed to have perfect correctness and are subject to the quality and cleanliness of the datasets provided via Integrations. The Company shall not be liable for any of the Customer’s business decisions and automated business processes resulting from the use of the Service.

2.8. The Customer will not interfere with or disrupt the integrity or performance of the Service.

2.9. The Customer must notify the Company of any defect of the Service immediately after its detection. The Company will use commercially reasonable efforts to repair the defect within a reasonable period.

2.10. The intellectual property over the know-how, the software and design that runs the Service (source code and binaries) belongs exclusively to the Company. All modifications that may be made to it as a result of the cooperation between the parties, even suggestions of improvements made by the Customer, which may be developed by the Company (at the Company’s option) and will belong to the Company. The Customer will have no ownership, not even partial, over the intellectual property in or to the Service, including the algorithms, software and systems of the Service.

2.11. The Company manages and maintains all the servers, including proprietary or third-party software. No direct access to the infrastructure or software is provided to the Customer.

2.12. The Company is entitled to carry out maintenance work that can disrupt the Service. The planned maintenance work may be notified in advance by email (sent to the email address specified in Customer’s account) or by means of a notice on the Company’s Website.

3. Data Privacy

3.1. The Company collects, stores and further processes personal data as a result of, or in the course of, providing the Aqurate products and services hereunder. Please review our Privacy Policy, available here, which regulates how we process personal data. Continuing use of the Aqurate products and/or services shall be considered as agreement to the terms of the Privacy Policy. The Customer is hereby advised that the Company may update or amend the Privacy Policy from time to time to reflect changes regarding information practices. If the Company makes any material changes, the Company will notify the Customer by email (sent to the email address specified in Customer’s account) or by means of a notice on the Company’s Website prior to the change becoming effective. Continuing use of any Aqurate products and/or services shall be considered as consent/agreement to such updated terms of the Privacy Policy.

3.2. The Customer is responsible to obtain the consent to record, store and process data from its End Users, in accordance with the applicable laws and regulations regarding Personal Data, as necessary for Company and its Affiliates to provide the Service.

3.3. The Customer shall not send/transfer/disclose to the Company any sensitive personal information of its End Users. If it is necessary for Customer to share/disclose/transfer such personal information to the Company, it shall always be de-personalised, anonymised and/or otherwise encrypted (or hashed) so as to no longer constitute Personal Data within the meaning of the EU General Data Protection Regulation 2016/679 or any other legislation regarding personal data before disclosure/transfer to the Company.

3.4. If Customer is unable to comply with such pre-disclosure encryption / de-personalisation / anonymisation / hashing requirement and sends the Company personal data of its End Users, the Customer is exclusively responsible to inform about, and to obtain the consent to record, store and process data from its End Users, in accordance with the applicable laws. The Customer hereby undertakes to procure that such End User consent extends also to the Company and its Affiliates, to allow the latter to record, store and process this information on behalf of the Customer. The relationship between Customer, on one hand, and Company on the other hand, in relation to such data processing will be governed by the Data Processing Addendum available here, which shall become an integral part of this Agreement.

3.5. The Company reserves the right to delete any End User data: (i) not legally obtained, or (ii) obtained without the End Users consent, or (iii) legally obtained with the End User's consent, but on the explicit request from the End User.

3.6. The Company may collect information about the Customer’s usage patterns (e.g., when and how you interact with the Service). We may aggregate and anonymize this information and share it with third parties provided that we do not identify End Users.

3.7. The Company may collect and use the Customer and End User data in an anonymised manner to improve its services and products, training AI/ML models, or create new services and products, as well as publish industry reports and analyses.

4. Payment

4.1. The Customer shall pay the Company for the use of the Service a remuneration as per the selected subscription, and all amounts paid are non-refundable except as otherwise provided in this Agreement or required by law. The payment shall be made through a payment platform chosen by the Company. Company may change pricing, subscriptions, and usage plans by publishing the change on the Company's Website; however, if the Customer has an active Paid Subscription in effect, the change will not apply until the next Billing Period.

4.2. For invoicing purposes, the Customer shall also provide the VAT ID (if applicable) or other tax identification as and if requested.

4.3. The Customer shall pay all invoices at the time of issue, unless otherwise agreed with the Company and stipulated on the invoice. For payments delayed more than 15 business days, the Company will charge an additional 0.5% per delayed business day. Failure to pay an invoice for more than 15 (fifteen) business days can lead to Service discontinuation and immediate termination of the Agreement.

4.4. If the Customer participates in a Trial Subscription, it will be automatically converted to the matching Paid Subscription at the end of the trial period, and become subject to that Subscription’s terms, if they provide billing details before trial expiration.

4.5 Upgrades, downgrades and changes of the Paid Subscription shall be done at the beginning of a new Subscription Term, or in a prorated manner within the Subscription Term.

4.6 For volume-based Paid Subscriptions, should the Customer exceed or fall short of the allocated volume (e.g. monthly orders) for two consecutive months, the Paid Subscription shall be upgraded or downgraded, respectively, automatically.

4.7 For Paid Subscriptions in RON currency, the exchange rate to prices in EUR shall be of 5 RON to 1 EUR.

5. Service Commitment & Availability

5.1. THE SERVICE IS PROVIDED AS-IS AND WITHOUT WARRANTY OF ANY KIND; TO THE EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR AN INTENDED PURPOSE, INTEGRATION, AVAILABILITY, NON-INFRINGEMENT, AND PERFECT ACCURACY. However, the Company will use commercially reasonable efforts to make the Service available 99% of the time during each month, with the mention that Company will not be liable for the consequences of any interruptions or errors.

5.2. The Service commitment does not apply to any unavailability, suspension or termination of Agreement, or any other performance issues that result from:

(a) a suspension / termination of this Agreement,

(b) planned maintenance work on the Service, notified 24 hours in advance,

(c) factors outside Company’s reasonable control, including any force majeure event, host provider’s service, or related problems beyond Company’s demarcation point,

(d) any Customer’s actions or inactions or any related third party, or

(e) Customer’s equipment, software or other technology and/or third-party equipment, software or other technology (other than Customer’s infrastructure under Company’s direct control).

6. Customer Support

6.1. The Customer may request technical support, by using the channels provided on the Company’s Website or by emailing support@aqurate.ai.

6.2. The Company does not guarantee any specific response time for technical support, unless otherwise provided for a specific subscription. The Company may limit or deny Customer access to support if it determines, in Company’s reasonable discretion, that the Customer is acting, or has acted, in a way that results or has resulted in misuse of support or abuse of Company’s representatives.

7. Publicity

7.1. The Customer grants to the Company the right to use the Customer’s name and logo on marketing materials (including, but not limited to the Company’s Website and presentations). To object to this use, the Customer can send an email to office@aqurate.ai.

8. Confidentiality

8.1. The Receiving Party shall keep the Confidential Information in strict confidence and shall not use or disclose any of the Confidential Information to any third party in any manner whatsoever other than to perform its obligations or exercise its rights under this Agreement; provided, however, that the Receiving Party may make a disclosure of information contained in the Confidential Information to which the Disclosing Party gives its prior written consent; Company may engage subcontractors and disclose information to them to facilitate the provision of the Service.

8.2. This Agreement imposes no obligation upon the parties with respect to any Confidential Information (a) that was rightfully possessed before receipt; (b) is or becomes a matter of public knowledge through no fault of the Receiving Party; (c) is rightfully received from a third party not owing a duty of confidentiality; (d) is disclosed without a duty of confidentiality to a third party by, or with the authorization of the Disclosing Party; or (e) is independently developed by the other party.

9. Indemnification

9.1. The Customer will indemnify, defend and hold the Company and its Affiliates and successors (and the officers, directors, employees, agents, service providers, licensors) harmless, at Customer’s expense, against any claim, suit, action, proceeding losses, liabilities, damages, settlements which may arise out of or relate to:

(a) unauthorized or illegal use of the Service by the Customer,

(b) Customer’s noncompliance with or breach of this Agreement,

(c) the unauthorized use of the Service by any other person using the Customer’s End User or other information,

(d) the unauthorized disclosure or use of the Personal Data, or

(e) reliance on the Service’s analytics and prediction features to make business decisions and automate business processes.

9.2. The Company will notify the Customer in writing within thirty (30) days of its becoming aware of any such Claim. The Company may give the Customer sole control of the defense or settlement of such a Claim; and may provide to the Customer (at his/her/its expense) with any and all information and assistance reasonably requested by to handle the defense or settlement of the Claim. The Customer shall not accept any settlement that:

(a) imposes an obligation on the Company,

(b) requires the Company to make an admission, or

(c) imposes liability not covered by these indemnifications or places restrictions on the Company without its prior written consent.

9.3. The obligations of the Agreement shall extend to all entities that constitute “Customer,” including all Affiliates, even though each such entity is not specifically named as a party to this Agreement. As such, Customer and its successors and assigns will be and remain liable for all of the obligations of all entities that constitute “Customer” under the Agreement, including all Affiliates, and the Company will look to Customer and its successors and assigns for enforcement of Company’s rights under the Agreement.

10. Force majeure

10.1. The force majeure protects against liability to the extent and for the period that the party is prevented, hindered, or delayed to fulfil its obligation because of the force majeure event. The party that invokes the force major will communicate in writing, to the other party, the proof of the force major event, in maximum 5 days from its appearance. The same procedure of notification will apply in case of cessation of the force majeure event. If due to the force majeure event one of the parties is hindered to fulfil, totally or partially, its contractual obligations for a period longer than 30 (thirty) days, then the other party will have the right, to cancel the Agreement, through a written notification sent to the other party.

11. Term & Termination

11.1. The term of this Agreement is equal to the Subscription Term as stipulated on the Company's Website or otherwise agreed with the Customer. The Subscription Term shall renew automatically with identical periods, unless terminated by either party as follows:

• Customers on a Trial/Free Subscription may notify the Company about the intent to terminate their subscription or the entire Agreement at any time. The termination shall be effective immediately.
• Customers on a Paid Subscription may notify the Company about the intent to terminate their subscription or the entire Agreement at any time. The termination shall be effective from the next Billing Period, provided that the Customer has no unpaid invoices. All amounts paid by the Customer are non-refundable.
• The Company may terminate the subscription or the Agreement with a 30 days’ notice sent by email to the Customer.

11.2. Notwithstanding the above, the Company may automatically suspend and cease providing Service without any notification in the event that the Customer violates, or is suspected of violating, this Agreement.

11.3. Upon termination the Customer is prohibited from using the Service.

12. Limitations of Liability

12.1. IN NO EVENT SHALL THE COMPANY OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, PRODUCTIVITY, OPPORTUNITY OR PROFIT, OR DUE TO BUSINESS INTERRUPTION), UNDER ANY LEGAL THEORY OR CLAIM EVEN IF ADVISED OF THE POSSIBILITY THEREOF, INCLUDING WITHOUT LIMITATION LIABILITY ARISING OUT OF BREACH OF CONTRACT, TORT, OR THE USE, INABILITY TO USE, POOR PERFORMANCE, OR DEFECTS OF THE SERVICE.

12.2. The Company is not liable for any use of the Service by the Customer or End Users in violation of any laws and regulations, including the European Union or U.S. laws, the Customer’s local laws or regulations, or the End Users local laws or regulations.

12.3. In any case, the Company is not liable, per claim or in the aggregate, for an amount greater than the Company was paid by the Customer during the 12 months prior to a claim.

13. Severability

13.1. If any provision of this Agreement shall be held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties hereto and has like economic effect.

14. Contracting Party and Specific Legislation

14.1. The Customer is contracting with MACHINE LEARNING SOLUTIONS SRL and this Agreement shall be governed by the laws of Romania. Both parties’ consent to the exclusive jurisdiction and venue of the courts in Bucharest, Romania, for all disputes arising out of or relating to this Agreement or the use of the Service.