TERMS OF USE

Terms of Service Agreement

This Terms of Service Agreement (the “Agreement”) is entered into by and between Avii™, a division of Net Endeavor, Inc. (“Avii”) and any individual or entity (“Customer”), prior to Customer’s use of the Subscription Service. This Agreement governs the use of the Subscription Service, any Professional Services, and any other products or services provided by Avii to Customer (collectively, the “Services”). If Customer is a direct competitor to Avii, Avii reserves the right to disallow Customer’s access to the Services.

1.
Eligibility. Customer and any Customer User must be at least eighteen (18) years of age to use any of the Services. By agreeing to these Terms, Customer represents and warrants (i) that Customer and any Customer User is at least eighteen (18) years of age; and (ii) that Customer’s subscription to and use of the Services is in compliance with any and all applicable laws and regulations. If Customer is using any of the Services on behalf of an entity, organization, or company, Customer represents and warrants that Customer has the authority to bind such an organization to this Agreement and Customer agrees to be bound by this Agreement on behalf of such an organization.

2.
Services.

2.1
Subscription Service. Subject to this Agreement, and in consideration of the fees set forth on the Fee Schedule, Avii will make the Subscription Service available to Customer throughout the Term. If Customer purchases a subscription to an Add-On, the Subscription Service will be deemed to include such Add-Ons except as otherwise expressly provided herein. Avii hereby grants Customer a worldwide, revocable, non-exclusive, non-transferable right to access and use the Subscription Service during the Term for Customer’s internal business purposes, pursuant to the terms and conditions of this Agreement.

2.2
Professional Services. Subject to this Agreement, and in consideration of the fees specified in any applicable SOW, the parties may agree for Avii to provide Professional Services. The specifications for Professional Services, if any, will be as set forth in a SOW. Avii hereby grants Customer a worldwide, non-exclusive, non-transferable right to access and use Work Product resulting from Professional Services during the Term for Customer’s internal business purposes, pursuant to the terms and conditions of this Agreement.

3
Use of the Subscription Service; Restrictions; Account Information.

3.1
Conditions. Avii’s provision of the Subscription Service is conditioned on Customer’s acknowledgement and agreement to the following:

(a)
Certain types of information included in the Customer Content may be subject to specific laws (e.g., laws regarding personally identifiable information, payment card information, protected health information, etc.). Customer agrees that Customer, and not Avii, is responsible for compliance with any such laws. Without limiting the foregoing, Customer represents and warrants that, if applicable, Customer will provide any required notice to, and obtain any required consent from, individuals and other entities related to the Customer Content and any personal or otherwise protected information included therein.

(b)
All Customer Content stored utilizing the Subscription Service is maintained in encrypted form and Avii does not access Customer Content except: (i) as expressly requested by Customer to enable Avii to (1) provide customer support, (2) change or modify Customer Content, or (3) submit Customer Content provided to Avii by Customer to the Subscription Service; and (ii) as necessary for Avii to (1) comply with applicable law or legal proceedings, or (2) investigate, prevent or act against suspected abuse, fraud or violation of this Agreement. Avii

(c)
The Subscription Service facilitates the sharing of information within Customer’s organization and potentially outside of Customer’s organization. Between Customer and Avii, Customer has exclusive control over the distribution of and access to the Customer Content.

3.2
Login Credentials. Each set of login credentials for the Subscription Service may be used only by a single, individual Customer User. Customer agrees to promptly notify Avii of any unauthorized access or use of which Customer becomes aware. Customer will be responsible for all use and misuse of the Subscription Service that occurs under Customer Users’ login credentials, and for any breach of this Agreement by any Customer Users.

3.3
Prohibited Use. Customer will not, and will cause that Customer Users will not, do any of the following: (a) “frame,” distribute, resell, or permit access to the Subscription Service by any third party other than for its intended purposes; (b) use the Subscription Service other than in compliance with applicable laws; (c) interfere with the Subscription Service or disrupt any other user’s access to the Subscription Service; (d) reverse engineer, attempt to gain unauthorized access to the Subscription Service, or attempt to discover the underlying source code or structure of the Subscription Service; (e) submit to the Subscription Service any malware or any unauthorized feature that is designed to alter any software, program, data, device, system or service, or provide unauthorized access to the Subscription Service; (f) submit to the Subscription Service any Customer Content that is harassing, threatening, infringing, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane, or is otherwise in violation of federal, state, or local laws and regulations; or (g) use any robot, spider, data scraping tool, extraction tool, or similar mechanism with respect to the Subscription Service.

3.4
Usage Limitations. Customer’s subscription is subject to the limits on the number of Licensed Users, the amount of storage available for each Licensed User, and other limitations as set forth on the Site, which may be amended from time to time.

3.5
Account Information. Account Information will be provided to Avii by Customer, or by Customer Users, when configuring Customer’s account. If Account Information is provided by Customer, Customer represents and warrants that: (a) Customer has provided all required notice to Customer Users pursuant to applicable law, Customer policy, etc.; and (b) Customer has all rights, permissions, and consents necessary: (i) to provide the Account Information to Avii; and (ii) for the display of such Account Information within the Subscription Service.

4
Customer Content; Processing of Data.

4.1
Disclosure. The Subscription Service is designed to facilitate collaboration and sharing of Customer Content among Customer Users and, if elected by Customer Users, with third parties. Use of the Subscription Service may also entail disclosure of some Account Information (e.g., name and email address) to other users. Avii will not be responsible for any distribution, publication, display, or other disclosure of Customer Content or Account Information by Customer Users via the Subscription Service.

4.2
Processing. Customer agrees that Avii may (a) process the Customer Content to make the Subscription Service available to Customer; and (b) process the Account Information as necessary to provide the Subscription Service, administer its business relationship with Customer (including for billing, customer support, and product-related communications), and as otherwise set forth in the Privacy Policy.

4.3
Security. Avii will provide and maintain commercially reasonable information security policies and safeguards, which include technical and organizational measures, designed to preserve the security, integrity, and confidentiality of the Customer Content and to protect it against unauthorized access and information security threats.

4.4
Treatment at Termination. Upon termination of this Agreement, Avii has no obligation to retain, and may delete, Customer Content. Accordingly, Customer is encouraged to obtain regular backups of all Customer Content.

4.5
Ownership. As between the parties, Customer retains all right, title, and interest in and to all Customer Content. Customer represents and warrants that it has all rights, permissions, and consents necessary: (a) to submit all Customer Content to the Subscription Service; (b) to grant Avii the limited rights to process Customer Content as set forth in this Agreement; and (c) for any transfer or disclosure of Customer Content among or by Customer Users.

5
Additional Products and Services.

5.1
Connectors. Customer may use Connectors to integrate the Subscription Service with Customer’s accounts or subscriptions to third-party services or applications. In such case, Customer Users may transfer information between the Subscription Service and such third-party services or applications via the Connectors, resulting in the modification of Customer Content or the content and information stored in Customer’s third-party services or applications. Avii will have no liability for modification or deletion of Customer Content or data in third-party services or applications through use of a Connector by a Customer User.

5.2
Community Features. Avii may make public forums, online communities, or bulletin boards (“Community Features”) available to all users of the Subscription Service. Customer Users are granted a worldwide, revocable, non-exclusive, non-transferable right to use the Community Features, pursuant to the terms and conditions herein. Customer Users who use the Community Features: (a) grant Avii a worldwide, perpetual, non-exclusive, royalty-free, transferable right to use content posted by such Customer Users (“Community Content”) to provide the Community Features and improve the Services; (b) acknowledge that Community Content may not be able to be deleted; (c) are responsible for all activity that occurs under their account, including any liability arising from their Community Content; and (d) agree to indemnify Avii, Avii’s corporate affiliates, and their respective directors, employees, and agents and hold them harmless from any claims, demands, proceedings, investigations, or suits brought by a third party regarding such Customer User’s Community Content. Avii reserves the right to remove, edit, or reinstate any Community Content in its sole discretion, and without notice to the originating Customer User. Avii disclaims all liability arising from the Community Content and use of the Community Features, including exposure to content that is potentially offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. Customer acknowledges that use of the Community Features is at Customer’s sole risk and responsibility, and access to the Community Features may be terminated at any time. The Community Features are made available without charge and are not part of the Subscription Service.

5.3
Third-Party Applications. Third-party applications and web services may be available to Customer for use with the Subscription Service. These applications and services are provided by third parties and are not part of the Subscription Service. Third-party applications and services are subject to any end user license agreements that accompany them, and Avii has no liability whatsoever with respect to any third-party applications and services.

6
Fees and Payment.

6.1
Fees. In consideration of the Services, Customer will pay the fees specified at the time of subscription. Avii may amend the fees for the relevant Services from time to time by publishing the revised fees on the Site. Customer will reimburse Avii for reasonable, out-of-pocket expenses incurred by Avii in the course of providing Professional Services. All fees are nonrefundable once paid, except as expressly otherwise provided in this Agreement or the applicable SOW.

6.2
Payment. Customer agrees to promptly notify Avii of any changes to its billing information. If Customer uses a credit card to make payment hereunder, Customer authorizes Avii to charge such credit card on a recurring basis for all applicable fees and taxes. If Customer is invoiced for fees and taxes, all amounts are payable in U.S. dollars net thirty (30) days from the date of the invoice per the invoice instructions unless otherwise specified. Items purchased via SOW shall have the applicable invoicing instructions included in the SOW. Avii reserves the right to correct any billing errors or mistakes that Avii identifies even if Avii has already issued an invoice or received payment. Customer agrees to notify Avii about any suspected billing errors or mistakes within thirty (30) days after the relevant invoice or charge date; failure to do so will result in waiver of Customer’s right to dispute such errors or mistakes. Except as prohibited by law, Avii may charge a late fee of one and one-half percent (1.5%) per month on past due amounts. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Avii to collect any amount that is not paid when due. Avii may accept payment in any amount without prejudice to Avii’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to Avii by Customer may not be withheld or offset against amounts due or asserted to be due to Customer from Avii. Other than income taxes imposed on Avii, Customer will bear all taxes, duties, and all other governmental charges (collectively, “taxes”) resulting from this Agreement. If Customer is exempt from any applicable taxes, Customer will provide evidence reasonably satisfactory to Avii of Customer’s tax-exempt status. If Customer requires a purchase order, vendor registration form, or other documentation, such requirement will in no way affect or delay Customer’s obligation to pay any amounts due hereunder.

6.3
Refunds. If Customer terminates this Agreement for Avii’s uncured breach pursuant to Section 7.3 or pursuant to Section 11.2, Customer will be entitled to a prorated refund of prepaid, unused fees for the Subscription Service. If Customer terminates an SOW for Professional Services pursuant to Section 11.3, Customer will be entitled to a prorated refund of the prepaid, unused fees for the Professional Services.

6.4
Free Access. Customer may be provided with access to the Subscription Service at no charge. In that case, Customer acknowledges that (a) the version available to Customer may not include or allow access to all features and functionality available to paid subscribers; and (b) the Service is made available to Customer on an “as is” basis without any warranty, support, maintenance, or other obligation of any kind. Avii may terminate Customer’s free access to any Service at any time, unless otherwise specified. Any use of a Service at no charge is at Customer’s sole risk and responsibility.

7
Term and Termination.

7.1
Term. This Agreement will commence upon Customer subscribing to any of the Services and remain in effect until terminated by either party upon thirty (30) days’ prior written notice (the “Term”).

7.2
Term of SOWs. Each SOW remains in effect for the period specified therein. If no period is specified, the SOW will have the same term as the Term for the Subscription Service.

7.3
Termination for Cause; Suspension. Either party may terminate this Agreement immediately if the other party breaches any material provision of an applicable SOW or this Agreement and fails to cure that breach within thirty (30) days of written notice from the non-breaching party identifying the breach. In addition, Avii may suspend Customer’s access to the Subscription Service immediately if: (a) Customer fails to make a payment when payment is due; or (b) Customer has (or Avii reasonably suspects that Customer has) breached Section 3.3 or misappropriated or infringed Avii’s intellectual property or proprietary rights.

7.4
Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) all SOWs under this Agreement will terminate; (b) all rights and obligations of the parties hereunder will cease (except as set forth in Section 7.5 below); (c) Customer will remain obligated to pay for Professional Services rendered through the effective date of termination; and (d) Customer will not be entitled to any refund of fees (except as set forth in Section 6.3 above).

7.5
Survival. The following sections will survive termination or expiration of this Agreement: 4.2 (Processing), 4.4 (Treatment at Termination), 4.5 (Ownership), 5.2 (Community Features), 5.3 (Third-Party Applications), 6.1 (Fees) (with respect to amounts that are accrued but unpaid as of the effective date of termination), 6.2 (Payment), 6.4 (Free Access), 7.5 (Survival), 8 (Proprietary Rights), 9 (Confidentiality),11.1 (Authority Warranty), 11.4 (Disclaimer), 12 (Limitation of Liability; Damages Exclusion), 13 (Indemnification), 15 (Non-Solicitation), 1 (Notices), 19 (Entire Agreement), and 20 (General).

8
Proprietary Rights. As between the parties, Avii retains all right, title and interest in and to: (a) the Services, Work Product (except for any Customer confidential information used to develop the Work Product), and the technology and software used to provide them, and all intellectual property and proprietary rights therein; and (b) all electronic and print documentation and other content and data (excluding Customer Content and Account Information) made available through the Services. Except for the licenses as set forth in this Agreement, this Agreement does not convey any of Avii’s intellectual property or proprietary rights to anyone, including Customer. Customer agrees that Avii will have a perpetual right to use and incorporate any feedback or suggestions for enhancement that Customer or a Customer User provides to Avii regarding the Services without any obligation of compensation and that no Customer or Customer User shall have any claim on any of Avii’s intellectual property resulting from Avii incorporating any feedback or suggestion to any of the Services.

9
Confidentiality of Avii Information.

9.1
Avii Confidential Information. “Confidential Information” means all non-public, proprietary business, technical, legal, or financial information disclosed to or learned by Customer in connection with the business relationship between the parties which Avii has identified as confidential at the time of disclosure or that, based on the nature of the information or circumstances surrounding disclosure, Customer should treat as confidential. Confidential Information does not include: (a) information that was generally known to the public at the time disclosed to Customer; (b) information that becomes generally known to the public (other than through a breach of this Section 9 by Customer) after disclosure to Customer; (c) information that was in Customer’s possession free of any obligation of confidentiality prior to disclosure by Avii; (d) information that is rightfully received by Customer from a third party without any restriction on disclosure; or (e) information that was independently developed by Customer without reference to or use of Avii’s Confidential Information. All Confidential Information is provided “AS IS.” AVII MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY OR COMPLETENESS OF ITS CONFIDENTIAL INFORMATION.

9.2
Use and Disclosure of Confidential Information. Customer: (a) will not use Confidential Information for any purpose except in connection with this Agreement; (b) will not disclose, give access to, or distribute any of the Confidential Information to any third party, except to the extent expressly authorized in a separate written agreement signed by Avii; and (c) will take reasonable security precautions (which will be at least as protective as the precautions Customer takes to preserve its own confidential information of a similar nature) to keep the Confidential Information confidential. Notwithstanding the foregoing, Customer may disclose the Confidential Information to those of its employees, directors, affiliates, advisors, agents, contractors, and other representatives (“Representatives”) who need to know such information, provided that each such Representative is bound to protect the Confidential Information by confidentiality obligations substantially as protective as this Agreement. Customer will be responsible for its Representatives’ disclosure or use of the Confidential Information in violation of this Section 9. Customer will promptly notify Avii upon discovery of any unauthorized disclosure or use of the Confidential Information, or any other breach of this Section 9, by Customer or its Representatives. Customer’s (and its Representatives’) obligations under this Section 9 cease to apply to information upon the later of: (i) the termination of this Agreement; or (ii) after three (3) years have passed from the date on which the Confidential Information was first disclosed.

9.3
Return of Materials. Upon written request by Avii, Customer will: (a) either return or destroy all documents and media in its possession or control that contain the Confidential Information; and (b) certify its compliance with this Section 9.3 in writing. Notwithstanding the foregoing, Customer will not be obligated to erase Confidential Information that is contained in an archived computer system backup that was made in accordance with Customer’s security and/or disaster recovery procedures; provided, however, that any such Confidential Information contained in such archived computer system backup will remain subject to this Section 9.

9.4
Intellectual Property; No Obligation to Disclose. Avii retains all rights, title, and interest in and to the Confidential Information, including all intellectual property and proprietary rights therein. The disclosure of the Confidential Information to Customer does not grant or convey any right of ownership of such Confidential Information.

9.5
Required Disclosures. Customer may disclose the Confidential Information to the extent required by law or legal process. In such cases, however, Customer will (except to the extent prohibited by law or legal process from doing so): (a) give Avii prior notice of such disclosure so as to afford Avii a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with Avii, at the Avii’s expense, in Avii’s efforts to ensure that the Confidential Information will be subject to a protective order or other legally available means of protection.

9.6
Injunctive Relief. Customer acknowledges that any actual or threatened breach of this Section 9 may cause irreparable, non-monetary injury to Avii, the extent of which may be difficult to ascertain. Accordingly, Avii is entitled to seek injunctive relief in addition to all remedies available to Avii at law and/or in equity.

10
Privacy. Customer acknowledges and agrees that use of the Services is subject to Avii’s privacy practices, which are described in the Privacy Policy, which are posted on the Site and which may be updated from time to time (“Privacy Policy”). For the avoidance of doubt, the Privacy Policy sets forth how Avii’s handles Customer Content and Account Information.

11
Representations and Warranties; Disclaimer.

11.1
Authority Warranty. Customer represents and warrants that Customer has the necessary authority to enter into this Agreement on behalf of themselves or the entity they are representing, as applicable. If Customer is accepting this Agreement in connection with Customer’s use of the Services on behalf of any entity, Customer acknowledges and agrees that this Agreement will be enforceable against such entity.

11.2
Limited Warranty for Subscription Service. If Customer has paid fees under this Agreement for the Subscription Service, Avii represents and warrants that the Subscription Service will operate substantially as described in the online product descriptions written or created by Avii and made available on the Site. Customer must notify Avii in writing of any alleged failure by Avii to comply with this warranty within thirty (30) days of such failure. Upon receipt of such notice, Avii will either: (a) use commercially reasonable efforts to cure or correct the failure, or (b) terminate this Agreement and issue a prorated refund for the Subscription Services. The foregoing sets forth Customer’s exclusive rights and remedies and Avii’s sole liability for breach of the limited warranty specified herein.

11.3
Limited Warranty for Professional Services. If Customer has paid fees under this Agreement for Professional Services, Avii represents and warrants that the Professional Services will be provided in a competent and workmanlike manner in accordance with the SOW. Customer must notify Avii in writing of any alleged failure by Avii to comply with this warranty within thirty (30) days following delivery of the Professional Services. Upon receipt of such notice, Avii will either: (a) use commercially reasonable efforts to cure or correct the failure, or (b) terminate the Professional Services and issue a prorated refund for the terminated portion of the Professional Services. The foregoing sets forth Customer’s exclusive rights and remedies and Avii’s sole liability in connection with the limited warranty specified herein.

11.4
Disclaimer. Customer acknowledges that the Services may experience periods of downtime, including but not limited to scheduled maintenance. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE IN THIS SECTION 11, AVII MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, AND ANY INFORMATION OR MATERIALS RELATED THERETO OR MADE AVAILABLE THEREFROM, WHETHER EXPRESS OR IMPLIED. AVII SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. AVII DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. AVII MAKES NO REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE THIRD-PARTY APPLICATIONS AND COMMUNITY CONTENT, AND EXPRESSLY DISCLAIMS ALL RESPONSIBILITY THEREFOR.

12
Limitation of Liability.

12.1
Exclusion of Consequential and Related Damages; Cap on Damages. AVII WILL NOT BE LIABLE FOR ANY LOST PROFITS, GOODWILL, OR REVENUES OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE, WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY, ARISING UNDER THIS AGREEMENT, EVEN IF AVII HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES. AVII’S ENTIRE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO AVII FOR THE SUBSCRIPTION SERVICE OR PURSUANT TO ANY SOW TO WHICH THE LIABILITY RELATES DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE.

12.2
General. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the parties. The fees for the Services reflect this allocation of risk and limitation of liability. Customer agrees that these provisions apply even if the remedies are insufficient to cover all of the losses or damages of Customer or fails of its essential purpose.

13
Indemnification.

13.1
By Avii. If Customer has paid fees under this Agreement for the Services, Avii will defend Customer, its directors, officers, employees, and agents (“Customer Indemnified Parties”) from and against any claims, demands, proceedings, investigations, or suits brought by a third party alleging that Customer’s use of the Subscription Service or Work Product in accordance with this Agreement infringes any third party intellectual property rights (each an “Infringement Claim”). Avii will indemnify Customer Indemnified Parties for any damages, reasonable attorneys’ fees, and costs resulting from an Infringement Claim and finally awarded against Customer or agreed to be paid by Customer in a written settlement if such settlement amount has been approved by Avii in writing. Notwithstanding the foregoing, Avii will have no obligation under this Section 13.1 to the extent any alleged infringement arises from: (a) Customer’s use of the Subscription Service or Work Product in combination with technology or services not provided by Avii, if the infringement would not have occurred but for such combination; (b) Customer Content; (c) Avii’s compliance with designs, specifications, or instructions provided by Customer if such infringement would not have occurred but for such designs, specifications, or instructions; or (d) use by Customer after notice by Avii to discontinue use. If Customer is enjoined or otherwise prohibited from using any of the Subscription Service or Work Product or a portion thereof based on an Infringement Claim, then Avii will, at Avii’s sole expense and option, either: (i) obtain for Customer the right to use the allegedly infringing portions of the Subscription Service or Work Product; (ii) modify the allegedly infringing portion of the Subscription Service or Work Product so as to render it non-infringing without substantially diminishing or impairing its functionality; or (iii) replace the allegedly infringing portions of the Subscription Service or Work Product with non-infringing items of substantially similar functionality. If Avii determines that the foregoing remedies are not commercially reasonable, then Avii may terminate the applicable SOW and issue a prorated refund of fees prepaid by Customer for the terminated portion of the Term. This Section 13.1 sets forth Avii’s sole liability and Customer’s sole and exclusive remedy for any actual or alleged infringement by Avii of any third party intellectual property rights.

13.2
By Customer. Customer will defend Avii, Avii’s corporate affiliates, and their respective directors, employees, and agents (“Avii Indemnified Parties”) from and against any claims, demands, proceedings, investigations, or suits brought by a third party arising out of: (a) the Customer Content; or (b) Customer’s use of the Subscription Service or Work Product in violation of this Agreement or applicable law. Customer will indemnify Avii Indemnified Parties for any damages, reasonable attorney’s fees, and costs resulting from a claim that Customer is obligated to defend and finally awarded against Avii or agreed to be paid by Avii in a written settlement approved by Customer in writing.

13.3
Conditions. The indemnifying party’s obligations under this Section 13 are contingent on the indemnified party: (a) promptly providing 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 any settlement unconditionally releases the indemnified party of all liability and does not make any admissions on behalf of the indemnified party or include payment of any amounts by the indemnified party); and (c) providing the indemnifying party, at the indemnifying party’s expense, all reasonable assistance in connection with such claim. The indemnified party may participate in the defense of the claim at its sole cost and expense.

14
Publicity. Unless Customer has specifically notified Avii to the contrary in writing (email notice permitted), Avii may disclose Customer as a customer of Avii and may use Customer’s name and logo on the Site and in Avii’s promotional materials. Avii will request Customer’s prior consent for any other uses; such consent to be deemed given if Customer fails to respond to a request within five (5) business days.

15
Non-Solicitation. During the Term and for a period of one (1) year thereafter, Customer will not: (a) hire or attempt to hire any of Avii’s employees; or (b) solicit, induce, recruit or encourage any of Avii’s employees to terminate their relationship with Avii. Notwithstanding the foregoing, Customer will not be precluded from hiring a Avii employee pursuant to a general solicitation of employment (e.g., posting a job opening) not specifically directed at Avii employees.

16
Federal Government Customers. The Subscription Service is a “commercial item” consisting of “commercial computer software” as defined in FAR 2.101. Avii provides the Subscription Service for federal government end use in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), and for Department of Defense agencies in accordance with DFAR 227.7202 (Commercial Computer Software and Commercial Computer Software Documentation).

17
Notices. Customer agrees to receive all communications, agreements, and notices from Avii electronically, including by e-mail, in-app notifications through the Subscription Service, or by posting them on the Site. Customer further agrees such communications provided electronically will satisfy any legal requirement that such communications be in writing. Except where this Agreement permits notice to Avii via email, all notices provided under this Agreement must be in writing and sent via internationally recognized delivery service or certified U.S. mail. Notices sent via email will be deemed given one (1) business day after being sent, and notices sent via any other authorized delivery method will be deemed given five (5) business days after being sent. Notices to Avii must be addressed as follows: Attn: Legal Department, 2912 W. Executive Pkwy, Suite 260, Lehi, Utah 84043, and for notices permitted to be sent via email, to support@avii.com.

18
Assignment. Either party may assign this Agreement and any SOWs in connection with a merger or similar transaction, or to a company acquiring substantially all of its assets, equity, or business, without any requirement to obtain permission for such assignment; otherwise, neither party may assign this Agreement or any SOWs to a third party without the advance written consent of the other party. This Agreement and any SOWs will bind and benefit the parties, their successors, and their permitted assigns.

19
Entire Agreement. This Agreement and any SOWs represent the entire agreement between Avii and Customer with respect to Customer’s use of the Services. In the event of a conflict between the payment terms in this Agreement and any SOW, the payment terms in the SOW will govern and control. In the event of any other conflict between this Agreement and any SOW, this Agreement will govern and control. This Agreement and any SOWS expressly supersede any other contemporaneous or prior agreements or commitments regarding the Subscription Service or the other subject matter of this Agreement. For the avoidance of doubt, this Agreement will not supersede any non-disclosure agreement entered into by the parties governing information exchanged prior to Customer’s use of the Services or for purposes unrelated to this Agreement. Avii expressly agrees that any end-user agreement governing use of the Community Features by Customer Users will be considered null and void and will not supersede this Agreement.

20
General. Neither party is liable for delay or default under this Agreement if caused by conditions beyond its reasonable control. This Agreement and any SOWs are governed by the laws of the State of Utah, without regard to its conflicts of law rules, and each party hereby consents to exclusive jurisdiction and venue in the state and federal courts located in Salt Lake City, Utah for any dispute arising out of this Agreement or any SOWs. If either party brings an action against the other party to enforce any provision of this Agreement, the prevailing party shall be entitled to an award of reasonable attorney’s fees and costs. Except pursuant to Section 6.1, the waiver of any breach of any provision of this Agreement or of any SOW will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach. If any provision of this Agreement or of any SOW is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this Agreement or the relevant SOW is to remain in effect as written. Notwithstanding the foregoing, if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this Agreement or any SOW, the entire Agreement or the relevant SOW will be deemed null and void.

21
Modifications. Avii reserves the right to modify this Agreement by posting a revised version on the Site. Except in the event of extenuating circumstances, revisions will be effective fifteen (15) days after posting. Continued use of the Services after the effective date of a revision will constitute Customer’s agreement to the modified Agreement. If Customer does not agree to a revision, Customer may terminate this Agreement by providing written notice to Avii. Customer’s termination will be effective upon Avii’s acknowledgement of such termination, and in no event later than thirty (30) days from Avii’s receipt of Customer’s termination notice.

22
Definitions.
“Account Information” means personal information about Customer Users provided to Avii in connection with the creation or administration of Customer User accounts. For example, Account Information includes names, email addresses, and other profile information associated with a Customer User account. Account Information does not include aggregate or de-identified information compiled from Account Information that does not identify Customer, any Customer User, or any other individual.
“Add-Ons” means optional features and applications developed by Avii and purchased and included as part of Customer’s subscription, including Connectors and the other Add-Ons indicated in each SOW.
“Community Content” has the meaning given in Section 5.2.
“Community Features” has the meaning given in Section 5.2.
“Confidential Information” has the meaning given in Section 9.1.
“Connector” means an Add-On developed by Avii that allows for Customer Content to be exported to or imported from Customer’s account or subscription from or to a third-party service or application.
“Customer Content” means data, information, file attachments, text, images, personally identifiable information, and other content that is (a) uploaded or submitted to the Subscription Service by Customer Users or submitted to Avii for uploading to the Subscription Service by Avii at the express request of Customer Users; and/or (b) collected by Customer Users from third parties using “forms” or similar features of the Subscription Service. Customer Content does not include usage, statistical, and technical information related to Customer Content that does not reveal the actual contents of the Customer Content.
“Customer Indemnified Parties” has the meaning given in Section 13.1.
“Customer User” means, collectively, all (a) Licensed Users; (b) System Administrators (regardless of whether they are Licensed Users); and (c) any Non-Licensed Users.
“Fee Schedule” means the schedule of fees Customer shall pay for any services provided under this Agreement, which schedule shall be set forth on the Site and which may be amended from time to time.
“Infringement Claim” has the meaning given in Section 13.1.
“Licensed User” means a user with certain rights to use the Subscription Service on Customer’s behalf. Customer’s System Administrator(s) may designate any user with a registered Avii login as a Licensed User.
“Non-Licensed User” means a user with a Avii login who (a) is not a Licensed User and (b) accepts an invitation to join Customer’s account and have his or her usage managed by Customer’s System Administrator.
“Privacy Policy” has the meaning given in Section 10.
“Professional Services” means implementation, configuration, integration, training, advisory, and other professional services related to the Subscription Service that are specified in an SOW.
“Representatives” has the meaning given in Section 9.2.
“Site” means Avii’s website at www.avii.com.
“Avii Indemnified Parties” has the meaning given in Section 13.2.
“SOW” means a statement of work or similar document that describes Professional Services, establishes the fees for the Professional Services, references this Agreement, and is executed by an authorized representative of each party.
“Subscription Service” means Avii’s internet-delivered work collaboration service.
“System Administrator” means a user with certain administrative control rights over Customer’s subscription plan.
“Term” has the meaning given in Section 7.1.
“Work Product” means all software, code, materials, ideas, deliverables, and items that are conceived, made, discovered, written, or created by Avii’s personnel in connection with providing the Professional Services.