The Total Experience Playbook
by Larry Mead, Kate Kompelien and Kurt Schroeder
AVTEX SOFTWARE SERVICE END USER AGREEMENT
This Avtex Software Service End User Agreement (“Agreement” or “EUA”) contains the terms and conditions that govern the use of and grant of a Subscription for the Avtex Proprietary Cloud Software Services (“Avtex Services”). The Agreement is entered into by the parties to the Statement of Work (“SOW”) and will allow you or the entity that you represent (“You,” “Your” or “Client”) to use and purchase Avtex Software from Avtex Solutions, LLC. (“Us,” “We,” “Our” or “Avtex”).
You have previously entered into a Master Sales Agreement or the Avtex Terms of Service (each, the “MSA”) between Avtex and You, which shall govern this Agreement. Any term not defined in this Agreement shall have the definition assigned to in the MSA. If there is any conflict between the sections or terms of this Agreement with the MSA, this Agreement shall prevail solely as it pertains to the Conflict.
RECITALS
You have entered into a SOW whereby You subscribed to Avtex Services and related standard user Documentation (“Documentation”). This Agreement provides for subscription to You of Avtex Services owned by and hosted by Avtex hereunder and Documentation for the Avtex Services. Notwithstanding the foregoing, under the SOW, you may also obtain a license or subscription to software of other Third-Party Providers (the “Third-Party Software”). This Agreement applies only to the Avtex Services and does not apply to any Third-Party Software or its related documentation or other non-Avtex products which may be deliverables under the SOW.
By signing the SOW, you agree to be bound by this Agreement. This shall constitute the entire Agreement between Avtex and You with respect to the subject matter hereof and cancels and supersedes any prior understanding and Agreements between the parties hereto with respect thereto. There are no representations, warranties, forms, conditions, undertakings or collateral Agreements, oral or written, express, implied or statutory, between Avtex and Client other than as expressly set forth in this Agreement.
SUBSCRIPTION SERVICES.
AVTEX PROPRIETARY SOFTWARE.
Client acknowledges that the Avtex Services is Avtex’s Intellectual Property and its proprietary Confidential Information. Client agrees that it will:
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.
CLIENT DATA.
SUBSCRIPTION SERVICES WARRANTIES.
If neither option is commercially reasonable, Avtex may terminate the EUA and refund any pre-paid, unused fees.
PROVISION OF AVTEX SERVICES.
The Avtex Services will be available 24 hours a day, 7 days a week, except for:
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.
LIABILITY.
INDEMNIFICATION BY CLIENT.
INDEMNIFICATION BY AVTEX.
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
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.
Priority Level |
Definition |
1 – Emergency (code red) |
The Client is experiencing a severe problem resulting in an inability to perform a critical business function. There is no workaround. |
2 – High |
The Client is able to perform job functions, but performance is degraded or severely limited. |
3 – Medium |
The Client’s ability to perform job functions is largely unaffected, but noncritical functions or procedures are unusable or hard to use. A workaround is available. |
4 – Low |
Avtex Services is available and operational; trivial impact to Client’s business operations or Client requires information or assistance with Avtex Services capabilities or configuration. |
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.
Severity level |
Standard initial response time |
1 – Emergency (Code Red) |
Severe impact or degradation to the Client’s business operations caused by intermittent disruption of Avtex Services. Acceptance Target: 15 min. (live call) |
2 – High |
Avtex Services is available and operational. The Client can perform job functions, but performance is degraded or severely limited. Acceptance Target: 15 min. (live call); Email or Client Portal, 4 hours next business day |
3 – Medium |
Avtex Services is available and operational. The Client’s ability to perform job functions is largely unaffected, but noncritical functions or procedures are unusable or hard to use. Acceptance Target: 4 hours business day |
4 – Low |
Avtex Services is available and operational. Trivial impact to Client’s business operations or Client requires information or assistance on the Avtex Services capabilities or configuration. Acceptance Target: 4 hours business day |
MEAN TIME TO RESOLVE.
The Mean Time to Resolve (“MTTR”) is the amount of time in which Avtex is expected to resolve an incident.
Severity |
Restoration target |
1 – Emergency (Code Red) |
4 hours |
2 – High |
2 business days |
3 – Medium |
5 business days |
4 – Low |
NA |
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”:
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.
Uptime % |
Credit % |
Below 99.9% |
10% |
Below 99.0% |
20% |
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.