TERMS OF SERVICE

Terms of serviCe

Revision: February 18, 2016  

AVANAN TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THE “AVANAN TERMS OF SERVICE” IS AN AGREEMENT (THE “AGREEMENT”) ENTERED INTO BETWEEN THE INDIVIDUAL OR CUSTOMER ENTITY (“CUSTOMER”) IDENTIFIED ON ANY ORDER FOR SERVICES (WHETHER FOR TRIAL OR SUBSCRIPTION SERVICES) REFERENCING THIS AGREEMENT (EACH AN “ORDER”) AND AVANAN, INC., A DELAWARE CORPORATION WITH OFFICES AT 242 WEST 30TH STREET, SUITE 404, NEW YORK NY 10011 (“AVANAN”) RELATING TO THE AVANAN SERVICES.  BY (I) CUSTOMER CLICKING THROUGH THIS AGREEMENT ELECTRONICALLY, (II) THE PARTIES ENTERING INTO AN ORDER REFERENCING THIS AGREEMENT, OR (III) CUSTOMER USING THE SERVICES, CUSTOMER AND AVANAN MUTUALLY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREOF INCLUDING IF APPLICABLE THE UPGRADE NOTICE ABOVE.  EACH ORDER SHALL BE MUTUALLY AGREED TO AND ENTERED INTO BETWEEN CUSTOMER AND AVANAN PROVIDED THAT IF CUSTOMER PURCHASES THE SERVICES THROUGH A AVANAN AUTHORIZED PARTNER (‘RESELLER”), THE ORDER SHALL BE THE ORDER ENTERED INTO BETWEEN AVANAN AND THE RESELLER FOR CUSTOMER’S USE. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICES.

IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN AGENT, EMPLOYEE OR REPRESENTATIVE OF YOUR EMPLOYER, THE TERM “CUSTOMER” MEANS YOUR EMPLOYER AND/OR ANY OTHER PARTY ON WHOSE BEHALF YOU ACT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ACT ON SUCH PARTY’S BEHALF.  IF YOUR ORGANIZATION HAS ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH AVANAN SPECIFICALLY RELATING TO THE DELIVERY OF THE AVANAN SERVICES, THEN THE TERMS OF THAT AGREEMENT SUPERSEDE ANY CONFLICTING TERMS IN THIS AGREEMENT.

1. DEFINITIONS  

Affiliate” means any entity controlled by, controlling, or under common control with a party to this Agreement during the period such control exists, where “control” means the power to direct the operation, policies and management of an entity through the ownership of more than fifty percent (50%) of the voting stock of such entity. “Avanan Use Policy” means Avanan’s policy providing for the acceptable use of the Services detailed in section 2.7 of this document. “Avanan Privacy Policy”means Avanan’s privacy policy detailed in section 3 of this document. “Documentation” means the Avanan Terms of Service, Product User Guide and other user documentation related to the use or operation of the Services, each as made available by Avanan electronically via the Services or otherwise in writing. “Pre-Existing Intellectual Property” means any technical information, content, techniques, ideas, methods, processes, software, interfaces, utilities, data, documents, designs, user interfaces, know-how, patents, copyrights, trade secrets, trademarks, moral rights, intellectual property, information or materials of any kind (regardless of form) which has been or is acquired, created, developed or licensed by a party prior to or outside the scope of this Agreement and any improvement, modification or other derivative works thereof and all intellectual property rights therein. “Services” means the Services described in the Order (including any updates thereto provided by Avanan in its sole discretion); any software and/or systems owned or controlled by Avanan used to provide the Services; and the Documentation; and expressly excludes any third party service provider services or customer provided software or data.

2. SERVICES

2.1 Services License.   Avanan shall provide the Services as described in an Order.  Subject to the terms and conditions of this Agreement and subject to the payment of any applicable fees, Avanan grants Customer, during the subscription term specified in an Order, a non-exclusive, non-transferable license (without the right to sub-license) to access and use the Services for Customer’s internal business purposes in accordance with the Documentation. In connection with such use, Customer shall have the right to allow its employees and contractors (“Authorized Personnel”) to use the Services on Customer’s behalf.  Avanan owns all right, title and interest in its Services and in the Avanan Intellectual Property including without limitation to the Pre – Existing Intellectual Property. Nothing in this Agreement shall be construed to grant Customer any rights in Avanan’s Services beyond those expressly provided for herein.

2.2   License Restrictions. Customer shall not (directly or indirectly) (i) remove any notice of proprietary rights from the Services, (ii) reverse engineer, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of the Services (except to the limited extent applicable laws specifically prohibit such restriction),  attempt to recreate the Services or use the Services for any competitive purpose, (iii) copy, modify, translate or otherwise create derivative works of any part of the Services, or (iv) sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available any of the Services to or for the benefit of any third party. Customer’s authorized use of the Services is subject to (a) the purchased quantities and features set forth in the applicable Order, (b) the Avanan Use Policy and the Avanan Privacy Policy, and (c) any usage guidelines and acceptable use policies applicable to Customer’s usage of the Service and/or any cloud computing services delivered by a third party service provider such as Google, Amazon, Salesforce, etc. (“Cloud Provider”) or a security provider such as Symantec, Check Point, McAfee, etc. (“Security Provider”).

2.3   Customer Access to the Services.  Customer is solely responsible for ensuring that only appropriate Authorized Personnel of Customer have access to the Services, that such Authorized Personnel have been trained in proper use of the Services, and for ensuring proper usage of passwords, tokens and access procedures.  Avanan reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement. Customer agrees to notify Avanan immediately upon learning of any unauthorized use of Customer’s account or any other breach of security relating to Customer’s use of the Services.

2.4   Free or Beta Versions of the Services.  If Customer is using a free trial or proof of concept version of the Services or a beta version of the Services or a beta version of a specific feature within the service, Avanan makes such Services available to Customer until the earlier of (a) the end of the free trial or proof of concept period or beta testing period as communicated by Avanan, (b) the start date of any purchased version of such Services, or (c) written notice of termination from Avanan. Customer is authorized to use a trial or proof of concept version of the Service only for evaluation and not for any commercial or productive purposes. Any data Customer enters into the Services and any customizations made to the Services by or for Customer during the free trial or proof of concept or during the beta testing period will be permanently lost unless Customer (a) has purchased a subscription to the same Services as covered by the free trial or proof of concept or beta version or (b) exports such data before the end of such free period.  There is no guarantee that features or functions of the Service available in a beta version of the Service will be available, or if available will be the same, in the general release version of the Service and Customer should review the Service features and functions before making a purchase.

2.5   Hosting. Customer acknowledges that Avanan’s Services operate on one or more third party cloud computing platforms and that Avanan shall have the right to change or add to the cloud computing platforms on which its Services operate.  Avanan shall ensure that any such third party cloud platform provider(s) are covered by an annual SSAE16 SOC2 Type 2 (or higher standard) audit.

2.6 Third Party Licensing. Customer shall not, directly or indirectly, use the Avanan Services as follows: (1) to disassemble, decompile, reverse engineer, recreate or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service (except and only to the extent these restrictions are expressly permitted by applicable statutory law); (2) to encumber, sublicense, transfer, distribute, rent, lease, time-share or use the Service in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of Avanan; (3) in a manner that imposes or may impose (as determined by Avanan in its sole discretion) an unreasonable or disproportionately large load on the infrastructure of Avanan (or its third party providers) or beyond the limits of licensed usage (including without limitation the Service specific usage limitations below); (4) in a manner that interferes or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (5) to bypass any privacy settings or measures used to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (6) run mail list, Listserv, any form of auto-responder or “spam” on the Service; (7) to use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Service in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Service; (8) for purposes other than its intended use as a cloud security solution or in a manner that is inconsistent with the customary use of the Service; (9) to store or transmit viruses or malicious code; (10) to attempt to gain unauthorized access to the Avanan Service or their related systems or networks; (11) in a manner which interferes with or disrupt the integrity or performance of the Service; (12) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Service in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (13) in any way that is unlawful, illegal, fraudulent or harmful.

If you are in material breach of your obligations as set forth, in addition to any of its other rights or remedies set forth in the Agreement or otherwise available at law or in equity, Avanan reserves the right to immediately suspend use of the Service without liability until such breach is cured.

2.7 Use Policy. Customer shall not, directly or indirectly, use the Avanan Services as follows: (1) to disassemble, decompile, reverse engineer, recreate or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service (except and only to the extent these restrictions are expressly permitted by applicable statutory law); (2) to encumber, sublicense, transfer, distribute, rent, lease, time-share or use the Service in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of Avanan; (3) in a manner that imposes or may impose (as determined by Avanan in its sole discretion) an unreasonable or disproportionately large load on the infrastructure of Avanan (or its third party providers) or beyond the limits of licensed usage (including without limitation the Service specific usage limitations below); (4) in a manner that interferes or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (5) to bypass any privacy settings or measures used to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (6) run mail list, Listserv, any form of auto-responder or “spam” on the Service; (7) to use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Service in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Service; (8) for purposes other than its intended use as a cloud security solution or in a manner that is inconsistent with the customary use of the Service; (9) to store or transmit viruses or malicious code; (10) to attempt to gain unauthorized access to the Avanan Service or their related systems or networks; (11) in a manner which interferes with or disrupt the integrity or performance of the Service; (12) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Service in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (13) in any way that is unlawful, illegal, fraudulent or harmful.

If you are in material breach of your obligations as set forth, in addition to any of its other rights or remedies set forth in the Agreement or otherwise available at law or in equity, Avanan reserves the right to immediately suspend use of the Service without liability until such breach is cured.

3. PRIVACY POLICY

3.1 Data Rights. Customer owns all right, title and interest in all data and/or content created or provided by Customer, and in all data derived therefrom (“Customer Data”) excluding the Non-Identifiable Aggregated Data (as defined below).  Nothing in this Agreement shall be construed to grant Avanan any rights in Customer Data beyond those expressly provided herein. As between Avanan and Customer, Customer shall retain possession of the Customer Data at all times. Avanan shall implement daily backup of the Customer Data for the purpose of service recovery in the case of service unrecoverable failure, except if Customer specifically requests Avanan to disable Avanan’s automatic backup procedure. Backup files will also be considered Customer Data.  Notwithstanding any other restrictions on use of data in this or any other agreement (i) Customer grants Avanan the limited, non-exclusive right to perform an automated content scan of Customer Data stored with Customer’s Cloud Provider solely for the purpose of providing the Services to Customer, (ii) Customer grants Avanan the limited, non-exclusive right to view, modify, collect and use the Customer Data to create meta-data derived from Customer Data (which may include, by way of example, file encryption, file modification dates, audit trails, and the number of times a file has been accessed) (“Customer Meta-Data”), solely for the purpose of providing the Services to Customer (iii) Customer grants Avanan the right to collect and use anonymized generic statistical information derived from such Customer Meta-Data (but not derived from the Customer Data directly) and aggregate it with statistical information from other customers (“Non-Identifiable Aggregated Data”) for Avanan’s business purposes, including without limitation for analyzing customer needs and improving its services, and (iv) Customer agrees that Avanan shall own all right, title and interest in any such Non-Identifiable Aggregated Data.  For purposes of greater clarity, Avanan will not store any Customer Data, except to the extent that it constitutes Customer Meta-Data.  As between Avanan and Customer, Customer is solely responsible for the content, quality and accuracy of Customer Data, for securing any necessary approvals for Avanan’s use of the Customer Data as provided for herein, and for ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations.  Avanan is not responsible for Customer Data once it leaves the Avanan Service, including by way of example, if Customer downloads a report from the Service to a Customer personal computer.

3.2 Data Collection. Portions of the Avanan Service and the Website contain functions for collecting personal information including names and email addresses as well as an individual’s or account’s access history. We may also collect and track other personally identifiable and non-personally identifiable information about you, such as: your IP address, the type of browser you use, and the website you visited before visiting our Website or Avanan’s Services.

Avanan uses technologies such as cookies and scripts. These technologies are used in analyzing usage, administering the site, tracking users’ movements around the site and gathering demographic information about our user base as a whole. We may receive reports based on the use of these technologies by on an individual account as well as aggregated basis.

If you register to use the Avanan Service or express interest in obtaining additional information, we require you to give us your contact information, such as your name, company name, address, and e-mail address. We may also ask for additional personal information, such as title, phone number, department name or additional company information, such as annual revenues, number of employees, or industry. You can opt out of providing this additional information by not entering it when asked.

3.3 Use of Disclosed Information. Avanan uses the information that we collect to set up, administer and provide the Avanan Service for organizations. We may also use the information to contact you to further discuss your interest in our company and the Avanan Service, to send information regarding our company or partners, such as promotions and events, and to respond to your requests for information. At any time, you have the ability to opt out of receiving marketing communications from us, but you may not opt out of administrative emails. We may provide your personal information to companies that provide services to help us with our business activities such as payment processing or offering customer service through our live chat service. These companies are authorized to use your personal information only as necessary to provide these services to us.

If you request to quote or purchase a 3rd party solution on the Avanan platform, Avanan will share with your selected 3rd party or its authorized reseller information required in order to provide such quote or fulfill the purchase of the 3rd party license. Such information may include but not limited to total number of users, total number of files, total amount of data stored, average number of file changes per time period, etc.

Except as otherwise described in this document, your email address and personal information will not be distributed or shared with any third parties outside Avanan.

With your prior express permission, Avanan may log into your Avanan Service account solely to resolve a problem or support issue. In this case, the Avanan personnel investigating the problem would have the same access and abilities that you have when you are logged in to the Avanan Service; however, the Avanan personnel actions are logged in an immutable audit log.

Avanan collects and stores information to monitor and maintain the Avanan Service to you. Such information includes system health and availability, CPU and disk utilization over time, etc. The sole purpose of collecting this data is to monitor the availability of your service and to respond to failures in order to restore the service. Avanan also aggregates anonymized user data, including document and user meta-data, usage and volume statistical information, and other statistics (but not contact information) from our visitors and Users and may provide such anonymous aggregated information to third parties.

In addition to the above, Avanan may in any event use and disclose information disclosed to it or collected by to the extent required by any law, subpoena, legal process, court, judicial, regulatory or governmental authority, or if in Avanan’s reasonable discretion use or disclosure is necessary to investigate fraud or any threat to the safety of any individual, to protect Avanan’s legal rights or to protect the rights of third parties. In the event that Avanan is involved in a merger, reorganization, dissolution, sale of business or assets or similar event, information disclosed to or collected by Avanan may be transferred to Avanan’s successor, or to the purchaser of such assets, as applicable. You will be notified via email and/or a prominent notice on our Website of any change in ownership or uses of your personal information, as well as any choices you may have regarding your personal information.

3.4 Policy Towards Children.  We do not knowingly collect PII from children under the age of 13. If a parent or guardian becomes aware that his or her child has provided us with PII without his/her consent, he or she should contact us. If we become aware that our platform collected PII of a child under the age of 13, we will delete such information from our files.

3.5 Security. We follow generally accepted industry standards to protect the PII submitted to us, both during transmission and once we receive it. However, due to the nature of Internet communications and evolving technologies, unauthorized entry or use, hardware or software failure, and other factors, the security of Customer Data may be compromised at any time. No method of transmission over the Internet, or method of electronic storage, is 100% secure. Therefore, we cannot guarantee the absolute security of PII and disclaim any assurance that such information will remain free from loss, misuse, or alteration by third parties who, despite our efforts, obtain unauthorized access.

 

4. SUPPORT, UPDATES AND MAINTENANCE 

Avanan shall make available to Customers who have paid fees for the service, support, updates, and maintenance in accordance with the Avanan Customer Support Plan and Service Level Agreement located at http://www.avanan.com/customer-support-plan. 

5. FEES

Fees for the Service are due annually in advance net thirty (30) days from date of invoice unless the Order specifies otherwise. Fees do not include sales, use, value added or other excise tax.  Customer is responsible for payment of all such taxes based on fees paid or payable hereunder (but not taxes based on Avanan’s, a 3rd party partner, a Reseller’s gross revenues or net income) together with any interest on such taxes if not due to Avanan’s or the Reseller’s delay.Delinquent payments may be assessed interest at the rate of one-and-one-half percent per month (or the highest rate permissible by law if less) from the payment due date until paid in full. Fees for the Service are based on “normal usage” of the Service in a manner consistent with its intended purposes and as described in the Documentation.  If Customer’s usage is in a manner outside of the intended purposes or otherwise exceeds the quantities listed in the Order or the applicable Service specific usage limits set forth in the Avanan Use Policy, then Avanan reserves the right to require Customer to either comply with such limits or pay an additional mutually agreed fee, not to exceed Avanan’s list price for such additional usage.

TERM AND RENEWAL

6.1  Term and Termination of Agreement. This Agreement shall remain in effect unless or until terminated in accordance with the terms hereof.  Either party may terminate this Agreement, upon thirty (30) days prior written notice, for any reason, in the event that there is no Order then in effect.

6.2   Term of Order.  Each Order shall remain in effect for the term stated in the Order or, in the case of a trial unless otherwise stated in a trial Order, for so long as Avanan determines, unless sooner terminated in accordance with the terms of this Agreement or the Order.

6.3   Renewal of Order.  Customer shall receive an invoice for the applicable fees at least sixty (60) days prior to each then current expiration date of the subscription term of an Order, and the term of the Order shall be automatically renewed at the invoiced price for a successive one (1) year period, unless either party provides written notice of non-renewal to the other at least thirty (30) days prior to the end of the then current subscription term.

6.4   Termination or Suspension of an Order. Either party may terminate an Order upon written notice to the other party if the other party materially breaches this Agreement or the Order and fails to cure such breach within thirty (30) days after receiving written notice of such breach.   Avanan may terminate an Order and/or suspend the Services upon written notice to Customer if Avanan has not received payment for such Services and if such failure is not cured within thirty (30) days after Avanan provides written notice of such failure.

6.5   Effect of Termination.  Upon termination of an Order (i) Customer will have no further right to access or use the Services; (ii)  Avanan will immediately delete any Customer Data; (iii) each party will use commercially reasonable efforts to return any tangible Confidential Information and destroy any electronic Confidential Information of the other party within its possession or control; and (iv) in the event that Customer terminates due to Avanan’s uncured material breach, Avanan will provide a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis.  Customer acknowledges that, prior to termination, Customer is responsible for exporting any Customer Data to which Customer desires continued access after termination. The provisions of Sections 3, 5, 6.5, 7, 8, 9, 10, 11, 13, 14 and 15 shall survive termination.

7. CONFIDENTIALITY

Each party may have access to information that is confidential or proprietary to the other party and/or its Affiliates. For purposes of this Agreement, “Confidential Information” means the confidential information of a party and/or its Affiliates which is made available in connection with this Agreement, whether disclosed in written, oral, electronic, visual or other form, which is identified as confidential at the time of disclosure or should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including without limitation information regarding a party’s business, operations, finances, technologies, current and future products and services, pricing, personnel, customer and suppliers and (i) with regard to Customer, the Customer Data and Customer Pre-existing Intellectual Property, and (ii) with regard to Avanan, the Services and Avanan Pre-existing Intellectual Property. The receiving party will use the disclosing party’s Confidential Information solely as necessary in connection with the performance of this Agreement.  The receiving party shall maintain the confidentiality of the disclosing party’s Confidential Information using at least the same degree of care that such party uses to protect its own Confidential Information of a similar nature, and shall restrict disclosure of the disclosing party’s Confidential Information to its employees, consultants, contractors, agents and representatives who have a need to know such information and are bound by obligations of confidentiality and non-use no less restrictive than those set forth herein; provided, that a party may disclose the disclosing party’s Confidential Information if required by law and provided the receiving party provides prompt notice of such requirement and disclosure to the other party to the extent allowed by law. Confidential Information excludes information to the extent such information (i) is or becomes part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure and was not obtained directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

8. WARRANTIES AND DISCLAIMERS

8.1 Limited Services Warranty. Avanan warrants that the Services will perform in substantial conformity with the Documentation. Customer shall be required to report any breach of warranty to Avanan within a period of thirty (30) days of the date on which the incident giving rise to the claim occurred.  Avanan’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for breach of this warranty will be for Avanan, at its expense, to use reasonable commercial efforts to correct such nonconformity within thirty (30) days of the date that notice of the breach was provided; and, if Avanan fails to correct the breach within such cure period, Customer may terminate the affected Order and, in such event, Avanan shall provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis.

8.2 Compliance with Laws.  Each party shall comply with all applicable, laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.

8.3  Disclaimer. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES GIVEN BY AVANAN WITH RESPECT TO THE SERVICES OR THIS AGREEMENT. AVANAN DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, INCLUDING WITHOUT LIMITATION WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, FREE OF DEFECT OR ERROR, NON-INFRINGING, OR FIT FOR ANY PARTICULAR PURPOSE.  AVANAN DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF THE SERVICES. NOTWITHSTANDING THE EXPRESS WARRANTY SET FORTH ABOVE, AVANAN MAKES NO WARRANTY WHATSOEVER TO CUSTOMERS USING A FREE OR TRIAL OR BETA VERSION OF THE SERVICES (“NONPAYING CUSTOMERS”) OR USING ANY COMPONENT OF THE SERVICE THAT IS IDENTIFIED BY AVANAN AS A SAMPLE OR ANY SAMPLE REFERENCED IN THE DOCUMENTATION, AND PROVIDES SUCH SERVICES TO NONPAYING CUSTOMERS AND ALL SAMPLES “AS IS” AND “AS AVAILABLE.” CUSTOMER UNDERSTANDS THAT IF API’S ARE SUPPLIED WITH THE SERVICE, THEN SUCH APIS ARE SUBJECT TO CHANGE AND ASSUMES THE ASSOCIATED RISKS OF USING API’S FOR DEVELOPMENT PURPOSES. CUSTOMER AGREES THAT ITS PURCHASES HEREUNDER ARE FOR THE CURRENTLY AVAILABLE SERVICES AND ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR DEPENDENT ON ANY ORAL OR WRITTEN PUBLIC COMMENTS MADE BY AVANAN REGARDING FUTURE FUNCTIONALITY OR FEATURES.

9. INDEMNIFICATION

9.1  Services Indemnity.  Avanan shall defend, at its expense, any claim, action or proceeding (“Claim”) brought by a third party against Customer and/or its Affiliates and their officers, directors and employees (the “Customer Indemnified Parties”) arising from an alleged infringement or violation by the Services of a third party’s patent, copyright or trade secret, and shall indemnify and hold the Customer Indemnified Parties harmless against all damages and costs finally awarded against the Customer Indemnified Parties in connection with such Claim; provided that Avanan shall not be responsible for any Claim to the extent arising from (i) use of the Services in violation of the terms of this Agreement, or (ii) use of the Services in combination with software, hardware, systems or data provided or controlled by Customer or a third party to the extent the Claim would not have arisen but for such combination.  If the Services become, or in Avanan’s opinion are likely to become, the subject of a valid claim of infringement or the like under any patent, copyright or trade secret law, Avanan shall have the right, at its option and expense, either to (i) obtain for Customer a license permitting the continued use of the Services, (ii) replace or modify the Services so that they become non-infringing, or (iii) if neither of the foregoing options are available in a timely manner on commercially reasonable terms,  terminate the affected Order and provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis.  The indemnification obligations of Avanan in this Section are not applicable to Nonpaying Customers.

9.2  Customer Data and Use Indemnity. Customer shall defend, at its expense, any Claim brought by a third party against Avanan and/or its Affiliates or their officers, directors and employees (the “Avanan Indemnified Parties”) arising from an alleged infringement or violation by the Customer Data of a third party patent, copyright or trade secret, or Avanan’s use of the Customer Data in accordance with the terms of this Agreement; and Customer shall indemnify and hold the Avanan Indemnified Parties harmless against all damages and costs awarded against the Avanan Indemnified Parties in connection with such Claim.

9.3    Indemnification Process and Exclusivity. The indemnifying party shall have sole control over the defense and settlement of any claim for which it has provided indemnity; provided that the indemnified party shall have the right to provide for its separate defense at its own expense. The indemnified party shall give prompt notice of any claim for which indemnity is sought and shall cooperate in defending against such claim at the indemnifying party’s expense. The rights and remedies set forth in this Section 9 state a party’s sole and exclusive liability and the other party’s sole and exclusive rights and remedies with regard to any third party claim for infringement or violation of a third party’s intellectual property.

10. LIMITATIONS OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, TORT OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF OR DAMAGE TO SOFTWARE OR DATA, LOSS OF PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES FURNISHED HEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT ANY DAMAGES, LIABILITY, LOSSES, COSTS OR EXPENSES INCURRED BY A PARTY WHICH ARE PAYABLE TO A THIRD PARTY AS PART OF AN INDEMNIFICATION OBLIGATION HEREUNDER SHALL NOT BE SUBJECT TO THE FOREGOING EXCLUSION OF LIABILITY.  EXCEPT FOR A PARTY’S IDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY HEREUNDER EXCEED THE TOTAL OF THE FEES PAID AND PAYABLE BY CUSTOMER TO AVANAN FOR THE THEN CURRENT SUBSCRIPTION TERM OF THE ORDER TO WHICH THE CLAIM RELATES.  THE LIMITATIONS OF LIABILITY IN THIS PARAGRAPH APPLY WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER STATUTE OR OTHERWISE.

11. U.S. GOVERNMENT RESTRICTED RIGHTS; EXPORT RESTRICTIONS

If Customer is an agency or contractor of the United States Government, Customer acknowledges and agrees that (a) the Services (including any software forming a part thereof) were developed entirely at private expense, (b) the Services (including any software forming a part thereof) in all respects constitute proprietary data belonging solely to Avanan, (c) the Services (including any software forming a part thereof) are not in the public domain, and (d) the software forming a part of the Services is “Commercial Computer Software” as defined in sub-paragraph (a)(1) of DFAR Section 252.227-7014 or FAR Part 12.212. Customer agrees not to store or process any data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State. Each party represents that it is not named on any U.S. government denied-party list.  Customer shall not permit access to or use of the Services in any U.S. embargoed country or in violation of any U.S. export laws or regulations.

12. PUBLICITY  

Neither party shall use any of the Marks or other trademarks of the other party in any public manner without the party’s prior written consent. Subject to written consent and to the limitations set forth within such consent, either party may use the other party’s name and/or logo (the “Marks”) on its website, customer or vendor list (as applicable) or other marketing materials to refer to the relationship between the parties pursuant to this Agreement. All such use shall be in accordance with the usage policies and guidelines of the party owning the Marks and provided in writing to the other party. If the owner of the Marks objects to any such use or wishes to revoke its permission to use its Marks hereunder, the other party shall cease any such use promptly after receiving notification. Neither party’s use of the other party’s Marks implies or confers any endorsement by either party.  

13. SERVICE SUGGESTIONS

If Customer provides Avanan with ideas or suggestions for improvements or changes to the Service (“Suggestions”), Customer hereby assigns to Avanan ownership of such Suggestions and Avanan will have sole discretion as to whether and how to implement such Suggestions into the Service.

14. MODIFICATIONS

Avanan may make changes from time to time to these Terms of Service, the Avanan Use Policy and/or the Avanan Privacy Policy.  If Avanan makes a material change to any of the foregoing, Avanan will inform Customer by e-mail to the e-mail address(es) noted on the Order (or subsequently designated by Customer in writing as a contact for notifications from Avanan), through a banner or other prominent notice within the Service, and/or through Avanan Support.  If Customer does not agree to the change, Customer must so notify Avanan by e-mail to support@avanan.comwithin thirty (30) days after Avanan’s notice. If Customer so notifies Avanan, then Customer will remain governed by the most recent terms of service, Avanan Use Policy or Avanan Privacy Policy applicable to Customer until the end of the then-current year of the Services term and the updated terms shall not apply until commencement of the subsequent year of the Services term. In such case, Customer’s sole remedy shall be to terminate the Service effective as of the end of the then-current Services year by providing Avanan written notice thereof at least ten (10) days prior to the commencement of such subsequent year.

15. GENERAL PROVISIONS

15.1  Notices.  All notices under this Agreement shall be made in writing and delivered to each party at the address under its signature hereto. Notices shall be deemed delivered (i) upon personal delivery with signature required, (ii) one Business Day after they have been sent to the recipient by reputable overnight courier service (charges prepaid and signature required), or (iii) upon successful transmission of an email containing such notice if sent between 9 a.m. and 5 p.m., local time of the recipient, on any Business Day, and as of 9 a.m. local time of the recipient on the next Business Day if sent at any other time, or (iv) three Business Days after deposit in the mail.  “Business Day” as used in this Section 15.1 shall mean any day other than Saturday, Sunday or a day on which banks are required or authorized by law to be closed in the city of New York, New York.

15.2  Entire Agreement.  This Agreement, including all Orders and any exhibits or attachments referenced herein, represent the entire agreement between Customer and Avanan with respect to the subject matter hereof, and supersedes all prior proposals, representations and agreements, whether written or oral, with respect thereto.  This Agreement shall govern with respect to all Orders and forms of purchases, whether submitted through electronic transmissions or otherwise, unless otherwise agreed by both parties in writing. Unless the Order expressly amends this Agreement, the terms and conditions of this Agreement shall take precedence over any conflicting terms in the Order. Any waiver, amendment, or modification of any right or remedy, in whole or in part under this Agreement, or any additional or different terms in any purchase orders, acknowledgments or other documents other than the Order, will not be effective unless expressly agreed to by both parties in writing or electronic form.  If Customer issues a purchase order in connection with an Order, such purchase order shall be solely for Customer’s internal administrative purposes and to facilitate payment.  In no event shall the terms of such purchase order modify or become part of these Terms of Service or become binding on Avanan even if Avanan signs an acknowledgment copy of such purchase order.

15.3  Assignment and Subcontractors.  Except as expressly provided for herein, this Agreement may not be assigned by either party without the prior written consent of the other party, including by reason of a change of control or by operation of law.  Avanan may assign this Agreement, without consent, in whole (but not in part), to a successor in interest to its business including in connection with a change of control, merger, acquisition, sale of all or substantially all of its assets, or similar transaction.  Avanan may use subcontractors in connection with the performance of the Services provided that it shall be responsible for the acts and omissions of its subcontractors to the same extent as it would be responsible hereunder for its own acts and omissions.  The terms of this Agreement shall be binding upon the permitted successors and assigns of each party.

15.4  Governing Law. The terms of this Agreement shall be construed in accordance with the substantive laws of New York State without regard to its principles of conflict of law or the U.N. Convention on Contracts for the International Sale of Goods.  The Uniform Computer Information Transactions Act (“UCITA”) will not apply to this Agreement regardless of when and howsoever adopted, enacted and further amended under the governing state laws.

15.5   Force Majeure.  Neither party shall be liable for any breach of this Agreement to the extent that such breach arises from factors outside its reasonable control.  Customer’s subscription to the Services is predicated on Customer’s use of cloud computing services provided by a third party cloud service provider, and Avanan will not be responsible for the acts or omissions of Customer’s cloud service provider.

15.6   Severability.  It is intended that this Agreement shall not violate any applicable law and the unenforceability or invalidity of any provision (other than the provisions obligating Customer to make payments to Avanan) shall not affect the force and validity of the remaining provisions and such provisions determined to be invalid shall be deemed severed from this Agreement and, to the extent possible, be replaced with terms which as closely as possible approximate the interest and economic intent of such invalid provisions.