Avtex Software Service End User Agreement

AVTEX PROPRIETARY SOFTWARE.

Client acknowledges that the Avtex Services is Avtex’s Intellectual Property and its proprietary Confidential Information. Client agrees that it will:

1. Safeguard the Avtex Services from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information, but in no event less than a reasonable degree of care; and
2. not permit any third party or unauthorized employee to:
   1. access, view, use, copy, modify or prepare derivative works of any part of the Avtex Services or the Documentation, except as expressly authorized in this Agreement;
   2. resell, distribute, rent, lease, sublicense, lend, give, market, commercialize, assign or otherwise transfer rights or usage of all or any part of the Avtex Services or Documentation, except as expressly authorized in this Agreement;
   3. reverse engineer, translate, disassemble, decompile, disable security measures or cause or allow discovery, disclosure or access to the source code (except to the extent that such a restriction would be a breach of applicable law) for any part of the Avtex Services or attempt to do so, except as expressly authorized in this Agreement; or
   4. remove, obscure or alter the copyright, trademark or other proprietary notices affixed to or contained in the Services or the Documentation.

Client agrees that violation of the provisions of this Section 2 might cause Avtex irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Avtex will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

All trademarks, service marks, patents, copyrights, trade secrets and other intellectual property rights in any and all Services hardware, Documentation, Deliverables and any other materials, products or services provided to You or used in providing Services to You (collectively, “Materials”) are and shall remain the exclusive property of Avtex, whether or not specifically recognized or perfected under applicable local law. Avtex reserve all rights not expressly granted in the Agreement and own all rights in all derivative works of the Materials and any copy, translation, modification, adaptation or derivation (including any improvement or development) of the Materials.

MAINTENANCE AND SUPPORT.

1. Maintenance Releases and Patches. Provided this Agreement remains in effect and Client is current on the subscription support payments, Avtex shall make available for use to Client all maintenance releases and patches of the Avtex Services subject to the terms and conditions of the SOW.
2. Support. Support of the Avtex Services shall be detailed in the SOW. An active, compliant SOW is required in order to receive Support Services on the Avtex Services.
3. Maintenance Lapse. If Client fails to pay its subscription fees in accordance to the SOW or the CSA (“Maintenance Lapse”), Avtex may, in its sole right and discretion, suspend the Client’s use of the Avtex Services until all unpaid maintenance amounts and any back maintenance charges are remitted and Client is current on all subscription fees. Any Maintenance Lapse may be subject to back maintenance charges (“Penalties”).

CLIENT DATA.

1. “Client Data” shall mean any electronic data: (i) stored by, or (ii) submitted by you to, for use with the Avtex Services.
   
2. Avtex Data Privacy Polices (“Data Policies”), which are incorporated by reference, are located at https://avtex.com/pages/data-privacy-policy.
3. Client may provide Client Data for use with the Avtex Services, and Client is solely responsible for the content and legal sufficiency of your Client Data. Avtex makes no claim of ownership to Client Data.
4. Client Data will be kept secure and confidential in accordance with the confidentiality section of this Agreement and the Data Policies. Client consents to the use of Client Data to provide the Avtex Services to you, including the use of Azure or AWS for storage of Client Data in accordance with the Azure Policies, located at https://azure.microsoft.com/en-us/support/legal/ or the AWS Policies located at https://aws.amazon.com/aup/ both of which are incorporated into this Agreement by this reference.

SUBSCRIPTION SERVICES WARRANTIES.

1. Avtex warrants that the Avtex Services will function materially as detailed in the SOW (“Documentation”). Client’s sole and exclusive remedy for a breach of warranty shall be either:
   1. allow Avtex to modify the Avtex Services to conform to the service descriptions; or
   2. allow Avtex to provide a workaround solution that will reasonably meet your requirements.

If neither option is commercially reasonable, Avtex may terminate the EUA and refund any pre-paid, unused fees.

1. Avtex warrants to Client that it owns the Avtex Services and the Documentation and has the right to grant the licenses granted hereunder.
2. The Avtex Services and documentation are provided “As Is” without representation or warranty of any kind whatsoever. Without limiting the generality of the foregoing and to the fullest extent permissible under applicable law, Avtex, its affiliates, its licensors and its suppliers make no warranties, express, implied, statutory or arising by course of dealing, including implied warranties of merchantability, fitness for a particular purpose, non-infringement or title, in connection with the software, the documentation or any related products and solutions provided to you hereunder, and all such warranties are hereby disclaimed. Further, Avtex, its affiliates, its licensors and its suppliers do not and cannot warrant the performance or results you may obtain by using the software or the documentation. No employee, agent, dealer or distributor of Avtex is authorized to modify this limited warranty, nor to make any additional warranties with respect to the software or the documentation.

PROVISION OF AVTEX SERVICES.

The Avtex Services will be available 24 hours a day, 7 days a week, except for:

1. occasional planned downtime at non-peak hours (for which you will receive advance notice);
2. any unavailability caused by circumstances beyond our reasonable control, including failure or delay of your Internet connection, misconfiguration by you or any third party, issues on your network, or telecommunications services contracted by or for you, or
3. unavailability as a result of the actions of Azure or AWS, including
   1. any maintenance or planned downtime of the Azure or AWS services,
   2. any fault or failure of the Azure or AWS services, or
   3. Azure or AWS either terminating or suspending the Azure Polices or AWS Policies or your use of Azure or AWS services.

Your use of the Avtex Services is subject to the complete Avtex Software Service Level Agreements (“SLA”), which are provided hereto as Exhibit A.

TERM AND PAYMENT.

This EUA governs use of the Avtex Services starting on the Effective Date listed in the SOW and continues until the end of the Term. The Term shall begin after a period of days intended to allow you to implement the Avtex Services (“Ramp Period”), which shall be defined in the SOW. At the end of the Term, the EUA shall renew on an annual basis, or for a different term agreed to between the per the subsequent SOW entered into with Avtex, unless terminated in accordance with Section 6.

TERMINATION.

1. Termination by Avtex for Non-Payment. In accordance with Section 3C, Avtex may, in its sole option and discretion, terminate or suspend this Agreement immediately if Client fails to pay any amounts due to Avtex under this Agreement or the associated SOW. Upon receipt of the amount owed by Client and any applicable Penalties, this Agreement shall be reinstated
2. Termination by Client for Convenience. Client may terminate this Agreement, and the license granted hereby, on ninety (90) days’ written notice, to discontinue its use of Avtex Services. Any termination shall be effective only at the end of the then-current Term and Client shall owe any amounts due or outstanding to Avtex for the remainder of the Term.
3. Termination for Cause. Either party may terminate this EUA for cause upon written notice and after providing thirty (30) days for the breaching party to cure. The sole remedy for a Termination for Cause by Client will be the refund of any pre-paid, unused fees for the Avtex Services. Client shall have no right to claim a Termination for Cause if Avtex Terminates or Suspends this Agreement pursuant to Section 6C.
4. Effect of Termination. Upon termination of this Agreement, Client shall return to Avtex or destroy all Documentation in its possession, at Avtex’s discretion, and supply an affidavit to Avtex certifying such destruction. Avtex shall revoke all licenses keys to the Avtex Services, as well any custom developed or stock code to the Avtex Services and immediately deactivate the use of the Avtex Software. Any unauthorized use of Avtex Services after termination shall be considered a breach of confidentiality and Avtex shall be entitled to obtain judicially imposed relief.

LIABILITY.

1. Exclusion of Consequential Damages. Except for the gross negligence or indemnification obligations stated herein, in no event shall Either Party, including any respective officers, directors, agents or employees be liable for any loss of profits, loss of use, business or service interruption, cost of cover, or indirect, special, incidental, exemplary, punitive or consequential damages of any kind in connection with or arising out of the performance of this Agreement or the SOW even if the Party or its officers, directors, agents and employees have been advised of the possibility of such damages.
2. Limitation of Liability. Avtex total liability for any loss, cost, claim or damages in connection with the performance or contemplated performance of this agreement, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, will not exceed the fees paid or payable to Avtex in the twelve (12) months preceding the claim for the Avtex Services that actually caused the loss, cost, claim or damage. Client acknowledges and agrees that this limitation on liability forms a fundamental basis of the bargain hereunder, in the absence of which, the economic terms of this agreement would have been different. This section will not apply to damages that cannot be limited or excluded by law (in which event the limitation will be the minimum amount required by law).

INDEMNIFICATION BY CLIENT.

1. Client shall, at its expense, defend, indemnify and hold harmless Avtex from and against any third-party claim, action or lawsuit relating to or arising out of:
   1. Client’s breach of this Agreement;
   2. Client’s violation of law, as stated in Section 9C;
   3. Client’s gross negligence, fraud or willful misconduct;
   4. Client’s use of the Avtex Services with any Third-Party Software or any other property or assets of a third party, or an allegation that any Client application, materials, data, content, other information or use of the Solution or Work Product infringes, misappropriates or otherwise violates any intellectual property, proprietary or other rights of any third party;
   5. Client’s business method(s) or process(es); or
   6. Client’s content or Client Data.

INDEMNIFICATION BY AVTEX.

1. Avtex agrees to defend Client against any claims by a third party that the Avtex Services or the Documentation infringes any property rights of any third party (including, without limitation, any patent, copyright, trademark or trade secret right of such third party) or that Avtex does not own the Avtex Services or Documentation. Client will promptly notify Avtex of any such claim and provide reasonable assistance to Avtex with respect to handling the claim. Client’s failure to provide timely notice or reasonable assistance will relieve Avtex of its obligations under this Section to the extent that Avtex has been actually and materially prejudiced by such failure. Avtex will have the sole right to select counsel, defend, negotiate and settle any such claim; provided that Avtex obtains the prior written approval of Client, which approval will not be unreasonably withheld, before entering into any settlement of a claim if such settlement would cause injunctive or other relief (including, without limitation, damages or payments to any third party) to be imposed against Client.
2. Avtex shall not be obligated to indemnify if the actual or alleged infringement arises from:
   1. incorporation, combination or use of Avtex Services in or with any technology or service not provided by Avtex;
   2. modification of Avtex Services other than by or at the direct written instruction of Avtex;
   3. use of Avtex Services after Avtex’s notice to Client of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights
   4. failure to use corrections or enhancements made available by Avtex;
   5. distribution, marketing or use of the Avtex Services for the benefit of any third party;
   6. failure to follow instructions, specifications or directions provided by Avtex; or
   7. Avtex following the instructions, specifications or directions provided by Client provided that the Avtex Services would not have been infringing but for Avtex following the instruction, specifications, or directions provided.
3. Avtex will not indemnify, defend, or hold harmless the Client, or any of its employees, agents, assigns, or end users, for the use or operation of the Avtex Services that is in or purportedly in violation of any law, whether local, State/Provincial, or Federal, of the United States or any other Country. As Avtex cannot predicate every possible circumstance of how the Client will use the Avtex Services, it is the Client’s responsibility to ensure their use of the Avtex Services is not in violation of any law.
4. Upon notice of an alleged infringement or if in Avtex’s opinion such a claim is likely, or alternatively, if Client’s rights hereunder are restricted by Avtex or a valid court order, then Avtex shall at its option and sole expense:
   1. procure the right for Client to continue using the alleged infringing material;
   2. revise the material with non-infringing material which is equivalent in features, functionality and quality;
   3. modify the material to make it non-infringing while retaining all original features, functionality, and quality;
   4. refund Client fees paid for respective material based on a depreciated value over three (3) years.

CONFIDENTIALITY.

In addition to the Confidentiality Provisions within the MSA that shall apply to this Agreement and govern Confidential Information, Avtex will take reasonable care to prevent other parties from receiving your Client Data. Confidential information may include valuable intellectual property and Client Agrees that information shared with or made available in connection with the use of the Avtex Services is confidential and Client will take reasonable care to prevent other parties from receiving this information. Confidentiality obligations do not apply to any information that (i) is now, or becomes, generally known or available; or (ii) is required to be disclosed by law.

MISCELLANEOUS

1. Similar Materials and Services. Subject to the confidentiality provisions of the MSA, nothing in this Agreement precludes or limits will restrict Avtex' in any way from providing materials or services that are similar to materials or services provided or contemplated in this Agreement or the SOW or developing deliverables or other materials or services that are similar to or compete with any materials or services developed as a result of this Agreement, regardless of their similarity to any Materials, including Deliverables. Avtex is free to use any concepts, processes, techniques, improvements or other know-how developed by Avtex in the course of performance of this Agreement (even if similar to materials, products and services provided hereunder) free from any use restriction or payment obligation. For the avoidance of doubt, but subject to this Agreement, Avtex makes no claim or rights to Client Confidential Information.
2. Survival of Terms. All terms of this Agreement which, by their nature, are intended to survive termination of this Agreement will survive termination.
3. Assignment. Neither party may assign its rights or obligations under the Agreement, either in whole or in part, except:
   1. Avtex shall have the ability to assign this Agreement, upon written notice to Client solely with respect to a sale of substantially all of the assets of its business, merger, or change in the party’s ownership.
4. Compliance with Laws. Each party will comply with all laws, statutes, rules, regulations, ordinances and other pronouncements having the effect of law (collectively “Laws”) as applicable to a party and, in the case of Client, applicable to the Materials and their use. In no event will Avtex be responsible for providing, implementing, configuring, or coding the Materials in a manner that complies with any Laws that apply to Your business or industry, including without limitation, the Communications Act of 2003 as implemented by OFCOM, the UK Anti-Bribery Act, the Foreign Corrupt Practices Act, the FTC or FCC regulations or the Telephone Consumer Protection Act of 1991 (collectively “Client Specific Laws”). You will comply with Client Specific Laws, and in no event will Avtex be liable for any claim or action arising from or related to Client’s failure to comply with any Client Specific Laws it being understood that Client is solely liable for any such failure(s) and resulting claims or actions.
5. Governing Law. This Agreement will be interpreted in accordance with the laws of the State of Minnesota, without regard to principles of conflicts of law. All disputes arising out of or related to this Agreement, and any document issued hereunder, shall be brought in the state or federal courts with appropriate subject matter jurisdiction located in Hennepin County, Minnesota. This venue shall be the sole and exclusive forum and for any litigation and the Parties waive any objection to the exclusive jurisdiction thereof, including Forum Non Conveniens. The Parties hereby waive any and all rights to a jury trial for any dispute. The Parties stipulate that the United Nations Convention for the International Sale of Goods and Article 2 of the Uniform Commercial Code shall not apply to this Agreement. The prevailing Party to any dispute shall be entitled to recovery of costs of the dispute, including reasonable attorney’s fees.

SEVERITY LEVELS.

Severity is defined as the impact an issue has on the Client’s ability to conduct business. Restoration targets are based on the severity level assigned to an incident by Avtex Support.

Priority is defined as the Client -designated level of importance and is used as a weighting factor when defining the severity level of an incident.

Avtex Support prioritizes issues based on the severity level.

The characteristics set forth in the above table are used to identify the criteria for the severity of a customer’s case. The assigned severity level for an issue may be mutually redetermined by both Avtex and the customer during the issue resolution process, but Avtex shall have the final authority as to the actual severity designation.

MEAN TIME TO ACCEPT.

Mean Time to Accept (“MTTA”) is the amount of time in which Avtex is expected to pick up an incident.

MEAN TIME TO RESOLVE.

The Mean Time to Resolve (“MTTR”) is the amount of time in which Avtex is expected to resolve an incident.

UPTIME COMMITMENT.

Avtex will make the Avtex Services available 24 hours a day, 7 days a week, and use commercially reasonable best efforts to provide 100% uptime, except for the following “Uptime Exclusions”:

1. occasional planned downtime at non-peak hours (for which you will receive advance notice);
2. any unavailability caused by circumstances beyond our reasonable control, including failure or delay of your Internet connection, misconfiguration by you or any third party, issues on your network, or telecommunications services contracted by or for you, or
3. unavailability as a result of the actions of Azure or AWS, including
   1. any maintenance or planned downtime of the Azure or AWS services,
   2. any fault or failure of the Azure or AWS services, or
   3. Azure or AWS either terminating or suspending the Azure Polices or AWS Policies or your use of Azure or AWS services.

If Avtex service uptime falls below the following thresholds in any one-month billing cycle (not including any Uptime Exclusions), you may request a credit within thirty (30) days after the month in which the uptime fell below threshold. Please contact your Client Account Manager to request credit.

Upon Client’s valid request, Avtex provide the stated credit against the following month’s invoice.

For annual term contracts, Avtex will provide the applicable credit as credit to Client on any future PSO engagement for Avtex services. All credits must be used with 12 months of issuance and will apply only to Professional Services on a future project.

Avtex Support must be able to reproduce errors in order to resolve them. The Client will cooperate and work closely with Avtex to reproduce errors, including conducting diagnostic or troubleshooting activities as requested and appropriate. Also, subject to the Client’s approval on a support ticket-by-support ticket basis, users may be asked to provide remote access to their Cloud application and/or desktop system for troubleshooting purposes.