Terms of Service Agreement
This Terms of Service Agreement (the “Agreement”) is entered into by and between Avii, Inc., a
Delaware corporation (“Avii”), and any individual or entity (“Client”), prior to Client’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 Client (collectively, the “Services”). If
Client is a direct competitor to Avii, Avii reserves the right to disallow Client’s access to the Services.
Client and any Client User must be at least eighteen (18) years of age to use any of
the Services. By agreeing to these Terms, Client represents and warrants (i) that Client and any
Client User is at least eighteen (18) years of age; and (ii) that Client’s subscription to and use of
the Services is in compliance with any and all applicable laws and regulations. If Client is using
any of the Services on behalf of an entity, organization, or company, Client represents and
warrants that Client has the authority to bind such an organization to this Agreement and Client
agrees to be bound by this Agreement on behalf of such an organization.
Subject to this Agreement, and in consideration of the fees set forth on the
Fee Schedule, Avii will make the Subscription Service available to Client throughout the Term. If
Client 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 Client a
worldwide, revocable, non-exclusive, non-transferable right to access and use the Subscription
Service during the Term for Client’s internal business purposes, pursuant to the terms and
conditions of this Agreement.
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
Client a worldwide, non-exclusive, non-transferable right to access and use Work Product
resulting from Professional Services during the Term for Client’s internal business purposes,
pursuant to the terms and conditions of this Agreement.
3.Use of the Subscription Service; Restrictions; Account Information.
Avii’s provision of the Subscription Service is conditioned on Client’s
acknowledgement and agreement to the following:
Certain types of information included in the Client Content may be subject to specific laws (e.g.,
laws regarding personally identifiable information, payment card information, protected health
information, etc.). Client agrees that Client, and not Avii, is responsible for compliance with any
such laws. Without limiting the foregoing, Client represents and warrants that, if applicable,
Client will provide any required notice to, and obtain any required consent from, individuals and
other entities related to the Client Content and any personal or otherwise protected
information included therein.
All Client Content stored utilizing the Subscription Service is maintained in encrypted form and
Avii does not access Client Content except: (i) as expressly requested by Client to enable Avii to
(1) provide customer support, (2) change or modify Client Content, or (3) submit Client Content
provided to Avii by Client 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
The Subscription Service facilitates the sharing of information within Client’s organization and
potentially outside of Client’s organization. Between Client and Avii, Client has exclusive control
over the distribution of and access to the Client Content.
Each set of login credentials for the Subscription Service may be used only by
a single, individual Client User. Client agrees to promptly notify Avii of any unauthorized access
or use of which Client becomes aware. Client will be responsible for all use and misuse of the
Subscription Service that occurs under Client Users’ login credentials, and for any breach of this
Agreement by any Client Users.
Client will not, and will cause that Client 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 Client 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.
Client’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.
Account Information will be provided to Avii by Client, or by Client Users,
when configuring Client’s account. If Account Information is provided by Client, Client
represents and warrants that: (a) Client has provided all required notice to Client Users pursuant
to applicable law, Client policy, etc.; and (b) Client 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.
Client and any Client Users will be entitled to support from Avii in accordance with the
support policies set forth on Avii’s website (the “Support Policies”). Due to the nature of and
the hosting of the Subscription Service, the Support Policies may not apply (i) due to factors
outside Avii’s reasonable control (i.e., force majeure events); (ii) that result from the use of
services, hardware, or software not provided by Avii; (iii) caused by Client’s use of the
Subscription Service in a manner inconsistent with Avii’s advice; (iv) that result from Client’s
unauthorized action or lack of action when required, Client’s unauthorized use of the
Subscription Service, or Client’s breach of its obligations under this Agreement; (v) that result
from Client’s or any Client Users’ failure to follow any policies for acceptable use or use of the
Subscription Service in a manner inconsistent with the features and functionality of the
Subscription Service; (vi) that result from faulty input, instructions, or arguments (e.g., requests
to access files that do not exist); and (vii) for licenses reserved, but not paid for, at the time of
any incident. The Support Policies can be found at avii.com/support and may be amended from
time to time, which are subject to the service level agreement applicable to and provided by any
party hosting the Subscription Service, which may also be amended from time to time.
4.Client Content; Processing of Data.
The Subscription Service is designed to facilitate collaboration and sharing of Client
Content among Client Users and, if elected by Client 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 Client Content or Account Information by Client Users via the
Client agrees that Avii may (a) process the Client Content to make the Subscription
Service available to Client; and (b) process the Account Information as necessary to provide the
Subscription Service, administer its business relationship with Client (including for billing,
customer support, and product-related communications), and as otherwise set forth in the
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 Client Content and to protect it against
unauthorized access and information security threats.
4.4Treatment at Termination.
Upon termination of this Agreement, Avii has no obligation to retain,
and may delete, Client Content. Accordingly, Client is encouraged to obtain regular backups of
all Client Content.
As between the parties, Client retains all right, title, and interest in and to all Client
Content. Client represents and warrants that it has all rights, permissions, and consents
necessary: (a) to submit all Client Content to the Subscription Service; (b) to grant Avii the
limited rights to process Client Content as set forth in this Agreement; and (c) for any transfer or
disclosure of Client Content among or by Client Users.
5.Additional Products and Services.
Client may use Connectors to integrate the Subscription Service with Client’s
accounts or subscriptions to third-party services or applications. In such case, Client Users may
transfer information between the Subscription Service and such third-party services or
applications via the Connectors, resulting in the modification of Client Content or the content
and information stored in Client’s third-party services or applications. Avii will have no liability
for modification or deletion of Client Content or data in third-party services or applications
through use of a Connector by a Client User.
Avii may make public forums, online communities, or bulletin boards
(“Community Features”) available to all users of the Subscription Service. Client Users are
granted a worldwide, revocable, non-exclusive, non-transferable right to use the Community
Features, pursuant to the terms and conditions herein. Client Users who use the Community
Features: (a) grant Avii a worldwide, perpetual, non-exclusive, royalty-free, transferable right to
use content posted by such Client 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 Client 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 Client 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. Client acknowledges that use of the Community Features is at
Client’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
Third-party applications and web services may be available to Client 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.
In consideration of the Services, Client 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. Client 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.
Client agrees to promptly notify Avii of any changes to its billing information. If Client
uses a credit card to make payment hereunder, Client authorizes Avii to charge such credit card
on a recurring basis for all applicable fees and taxes. If Client 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. Client 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
Client’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. Client 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 Client may not be withheld or offset
against amounts due or asserted to be due to Client from Avii. Other than income taxes imposed
on Avii, Client will bear all taxes, duties, and all other governmental charges (collectively,
“taxes”) resulting from this Agreement. If Client is exempt from any applicable taxes, Client will
provide evidence reasonably satisfactory to Avii of Client’s tax-exempt status. If Client requires a
purchase order, vendor registration form, or other documentation, such requirement will in no
way affect or delay Client’s obligation to pay any amounts due hereunder.
If Client terminates this Agreement for Avii’s uncured breach pursuant to Section 7.3
or pursuant to Section 11.2 , Client will be entitled to a prorated refund of prepaid, unused fees
for the Subscription Service. If Client terminates an SOW for Professional Services pursuant to
Section 11.3 , Client will be entitled to a prorated refund of the prepaid, unused fees for the
Client may be provided with access to the Subscription Service at no charge. In that
case, Client acknowledges that (a) the version available to Client may not include or allow access
to all features and functionality available to paid subscribers; and (b) the Service is made
available to Client on an “as is” basis without any warranty, support, maintenance, or other
obligation of any kind. Avii may terminate Client’s free access to any Service at any time, unless
otherwise specified. Any use of a Service at no charge is at Client’s sole risk and responsibility.
7.Term and Termination.
This Agreement will commence upon Client subscribing to any of the Services and remain
in effect until terminated by either party upon thirty (30) days’ prior written notice (the “Term”).
7.2Term 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.
7.3Termination 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 Client’s access to the Subscription Service
immediately if: (a) Client fails to make a payment when payment is due; or (b) Client has (or Avii
reasonably suspects that Client has) breached Section 3.3 or misappropriated or infringed Avii’s
intellectual property or proprietary rights.
7.4Effect 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) Client will remain obligated to
pay for Professional Services rendered through the effective date of termination; and (d) Client
will not be entitled to any refund of fees (except as set forth in Section 6.3 above).
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).
As between the parties, Avii retains all right, title and interest in and to: (a)
the Services, Work Product (except for any Client 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 Client 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 Client.
Client agrees that Avii will have a perpetual right to use and incorporate any feedback or
suggestions for enhancement that Client or a Client User provides to Avii regarding the Services
without any obligation of compensation and that no Client or Client 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.
9.1Avii Confidential Information.
“Confidential Information” means all non-public, proprietary
business, technical, legal, or financial information disclosed to or learned by Client 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, Client should treat as confidential. Confidential Information does not
include: (a) information that was generally known to the public at the time disclosed to Client;
(b) information that becomes generally known to the public (other than through a breach of this
Section 9 by Client) after disclosure to Client; (c) information that was in Client’s possession free
of any obligation of confidentiality prior to disclosure by Avii; (d) information that is rightfully
received by Client from a third party without any restriction on disclosure; or (e) information
that was independently developed by Client 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
9.2Use and Disclosure of Confidential Information.
Client: (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 Client takes to
preserve its own confidential information of a similar nature) to keep the Confidential
Information confidential. Notwithstanding the foregoing, Client 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. Client will be responsible for its
Representatives’ disclosure or use of the Confidential Information in violation of this Section 9 .
Client 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 Client or its Representatives.
Client’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.
9.3Return of Materials.
Upon written request by Avii, Client 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, Client
will not be obligated to erase Confidential Information that is contained in an archived computer
system backup that was made in accordance with Client’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 .
9.4Intellectual 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 Client does not grant or convey any right of
ownership of such Confidential Information.
Client may disclose the Confidential Information to the extent required by
law or legal process. In such cases, however, Client 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.
Client 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.
Client acknowledges and agrees that use of the Services is subject to Avii’s privacy
sets forth how Avii’s handles Client Content and Account Information.
11.Representations and Warranties; Disclaimer.
Client represents and warrants that Client has the necessary authority to
enter into this Agreement on behalf of themselves or the entity they are representing, as
applicable. If Client is accepting this Agreement in connection with Client’s use of the Services
on behalf of any entity, Client acknowledges and agrees that this Agreement will be enforceable
against such entity.
11.2Limited Warranty for Subscription Service.
If Client 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. Client 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 Client’s exclusive rights and remedies and Avii’s sole liability for breach of the limited
warranty specified herein.
11.3Limited Warranty for Professional Services.
If Client 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. Client 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 Client’s exclusive rights and remedies and Avii’s sole liability in
connection with the limited warranty specified herein.
Client 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.
12.1Exclusion 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 CLIENT 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.
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. Client agrees that these provisions apply even if the remedies are
insufficient to cover all of the losses or damages of Client or fails of its essential purpose.
If Client has paid fees under this Agreement for the Services, Avii will defend Client, its
directors, officers, employees, and agents (“Client Indemnified Parties”) from and against any
claims, demands, proceedings, investigations, or suits brought by a third party alleging that
Client’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 Client Indemnified Parties for any damages, reasonable attorneys’ fees, and costs
resulting from an Infringement Claim and finally awarded against Client or agreed to be paid by
Client 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) Client’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) Client Content; (c) Avii’s compliance with
designs, specifications, or instructions provided by Client if such infringement would not have
occurred but for such designs, specifications, or instructions; or (d) use by Client after notice by
Avii to discontinue use. If Client 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 Client 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 Client for the terminated portion of the Term. This Section 13.1 sets
forth Avii’s sole liability and Client’s sole and exclusive remedy for any actual or alleged
infringement by Avii of any third party intellectual property rights.
Client 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 Client
Content; or (b) Client’s use of the Subscription Service or Work Product in violation of this
Agreement or applicable law. Client will indemnify Avii Indemnified Parties for any damages,
reasonable attorney’s fees, and costs resulting from a claim that Client is obligated to defend
and finally awarded against Avii or agreed to be paid by Avii in a written settlement approved by
Client in writing.
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.
Unless Client has specifically notified Avii to the contrary in writing (email notice
permitted), Avii may disclose Client as a client of Avii and may use Client’s name and logo on the
Site and in Avii’s promotional materials. Avii will request Client’s prior consent for any other
uses; such consent to be deemed given if Client fails to respond to a request within five (5)
During the Term and for a period of one (1) year thereafter, Client 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, Client
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 Clients.
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
Client 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. Client 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
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.
This Agreement and any SOWs represent the entire agreement between Avii
and Client with respect to Client’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 Client’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 Client Users will be considered null and void and will not supersede this
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.
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 Client’s agreement to the modified Agreement. If Client does not agree to a revision,
Client may terminate this Agreement by providing written notice to Avii. Client’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 Client’s termination notice.
“Account Information” means personal information about Client Users provided to Avii in connection
with the creation or administration of Client User accounts. For example, Account Information includes
names, email addresses, and other profile information associated with a Client User account. Account
Information does not include aggregate or de-identified information compiled from Account Information
that does not identify Client, any Client User, or any other individual.
“Add-Ons” means optional features and applications developed by Avii and purchased and included as
part of Client’s subscription, including Connectors and the other Add-Ons indicated in each SOW.
“Connector” means an Add-On developed by Avii that allows for Client Content to be exported to or
imported from Client’s account or subscription from or to a third-party service or application.
“Client 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 Client
Users or submitted to Avii for uploading to the Subscription Service by Avii at the express request of
Client Users; and/or (b) collected by Client Users from third parties using “forms” or similar features of
the Subscription Service. Client Content does not include usage, statistical, and technical information
related to Client Content that does not reveal the actual contents of the Client Content.
“Client Indemnified Parties” has the meaning given in Section 13.1 .
“Client User” means, collectively, all (a) Licensed Users; (b) System Administrators (regardless of
whether they are Licensed Users); and (c) any Limited Licensed Users.
“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 .
“Deliverables” means any and all templates, forms, reports, downloadable files, models, tools, routines,
documentation, and other works of authorship copies of which are delivered by Avii to Client under this
Agreement or any SOW. Deliverables shall not include any Client Content or Community Content and
data contained therein that can be exported through a feature in the interface of the Subscription
Services. Notwithstanding the foregoing and for the avoidance of doubt, a screen shot of any display of
the Subscription Services shall not constitute exported content and any restrictions set forth in this
Agreement shall apply to any screen shot.
“Fee Schedule” means the schedule of fees Client 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 employees, consultants, and contractors of Client and other persons who are
authorized by Client to access and use the Subscription Service but only as necessary to perform services
for Client. Client’s System Administrator(s) may designate any user with a registered Avii login as a
“Limited Licensed User” means a user who is a representative or employee of a customer of Client
selected by Client to use the Subscription Service for the sole purpose of interacting with Client.
“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 Client’s
“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