AVO SOFTWARE, INC.
Terms and Conditions
These Terms and Conditions govern your access to and use of the Avo subscription services, on a paid or free trial basis, and is effective as of the earlier of (i) your initial access to the Services (defined below) through our online subscription process or (ii) the Effective Date set forth in the first Services Order referencing these Terms and Conditions. All capitalized terms used in this Agreement have the meanings set forth in these Terms and Conditions below.
- We’ll refer to the Avo website (https://www.avo.app/ or another designated URL and related domains) as the “Avo Website,” and the web application hosted on the Avo Website as the “Web App.”
- We’ll refer to the Web App and its related functionalities collectively as the “Avo Platform.” The Avo Platform includes (a) the machine-readable object code version of the software and the portions of the human-readable source code version of the software that Avo makes available, whether embedded on disc, tape or other media, for use on computer platforms; (b) the documentation that Avo may provide for the Avo Platform from time to time (in any format we may decide in our sole discretion) (the “Documentation”); (c) any Beta Releases (as defined in Section 10.3 (Beta Releases) below); (d) APIs and SDKs Avo provides, custom generated and others; (e) analytics tools; (f) the related corrections, fixes, and revisions that Avo may provide; (g) the related enhancements and updates that Avo may provide; and (h) and all copies thereof.
- We’ll refer to all the services we provide, individually and collectively, in connection with the Avo Platform as the “Services.”
- We’ll refer to these Terms and Conditions as the “Terms,” and any form by which you agree to subscribe to the Services, including the Services Order Form or the information in your online registration confirmation through our online subscription process, as the “Order Form.” We’ll refer to the Terms, Order Forms, and any Exhibits or attachments thereto collectively as the “Agreement.”
- We’ll refer to Avo Software, Inc. as “we,” “us,” or “Avo.”
- We’ll refer to you, the business, organization or other legal entity identified in an Order Form as “you” or “Customer,” or, if you are an individual authorized by a Customer to use the Services, an “you” or “User.”
- In this Agreement, the words “include” and “including” will not be construed as terms of limitation.
The Agreement is a legally binding contract between you and Avo Software, Inc. If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of Customer.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. MODIFICATIONS TO THE TERMS AND SERVICES
Avo may modify the terms and conditions of these Terms (including Service pricing and plans) from time to time. If we materially update any portion of the Agreement, we will notify you, at the email address provided in your Account (defined below) profile, or other reasonable means (for example, by posting a notice on our website) before the date the update becomes effective. We will also post the updated Terms in its original location on the Avo Website. If Customer is on a Free Plan or on a Trial for a Paid Plan (as identified in Customer’s Order Form), then any modifications to Customer’s Order Form, these Terms, or the Services will become effective immediately. If Customer disagrees with the modifications, Customer’s exclusive remedy is to terminate the Agreement and cease using the Services. If Customer has a Paid Plan (as defined in Section 2.2 (Paid Plans) below), Customer must notify Avo in writing within thirty (30) days of notice of the modifications that Customer does not agree to such changes, and Avo (at its option and as Customer’s exclusive remedy) may either: (a) permit Customer to continue under the prior version of this Agreement until expiration of the then-current Subscription Term set forth in Customer’s Order Form (after which time the modified Agreement will apply); or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Service for the terminated portion of the applicable Subscription Term. Your renewal of your Subscription Term after we publish or send a notice about our changes to the Terms means that you are consenting to the updated terms.
2.1 General. The Avo Platform is an application for businesses to define their analytics events, and auto-generate custom APIs that give developers instant feedback of correct implementation. Current Services plans are described at https://www.avo.app/pricing, and Customer’s specific plan will be identified in the Order Form presented when Customer registers, orders or pays for the Service. Customer’s permitted scope of use – such as features available and other usage limits – depends on the plan that Customer selects and will be specified on the applicable Order Form.
2.2 Paid Plans. Services provided for a fee (“Paid Plans”) are provided on a subscription basis for the term designated on the Order Form (“Subscription Term”). Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term (e.g., monthly Paid Plans will automatically roll over month-to-month and annual Paid Plans will automatically renew for additional 12-month periods).
2.3 Trials. If designated on the applicable Order Form, Customer may use the Services in accordance with this Agreement for the limited trial period designated on the Order Form or such other period as may be specified by Avo (the “Trial Period”) (such Services plan, a “Trial”). Trials are permitted solely for your use to determine whether to purchase a Paid Plan. If Customer does not upgrade from a Trial to a Paid Plan at the end of the Trial Period, then Customer’s access to the Services may be limited or suspended (to be determined at our sole discretion) until such time as Customer terminates this Agreement or converts to a Paid Plan. Trials may not include all features or functionality offered as part of Paid Plans, and we reserve the right to add or subtract any features or functionality at any time for such plans. NOTWITHSTANDING ANYTHING TO THE CONTRARY THIS AGREEMENT. WE DO NOT PROVIDE ANY WARRANTY, SUPPORT OR INDEMNIFICATION OF ANY KIND WITH RESPECT TO THE SERVICES DURING THE TRIAL PERIOD.
2.4 Free Plans. Customer may use certain limited features of the Services at no charge (“Free Plans”). Free Plans do not include all features or functionality offered as part of Paid Plans, and we may, from time to time, add or subtract features or functionality for Free Plans. If you register for a Free Plan for such limited Services, we will make such Services available to you free of charge until the earlier of (a) the start date of any subscription to a Paid Plan to which you subscribe to use the Services; or (b) termination of the Free Plan by us in our sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WE DO NOT PROVIDE ANY WARRANTY, SUPPORT OR INDEMNIFICATION OF ANY KIND WITH RESPECT TO THE SERVICES ACCESSED OR OFFERED UNDER A FREE PLAN.
2.5 License. During the Trial Period or Subscription Term, as applicable, we grant you a revocable, nonexclusive, non-sublicensable, non-transferable, limited license to (a) access the Avo Platform to access and use the Services identified in the applicable Order Form solely in accordance with any usage or license limitations set forth in the Order Form; and (b) access any and all Documentation internally and solely in connection with your authorized use of the Avo Platform. The Services and Avo Platform are licensed, not sold, to you. Upon the written agreement of the parties, Avo may also perform additional technical, supplemental, or professional services for Customer at either Avo’s published pricing rates or at rates mutually agreed to in writing between Customer and Avo. The definition “Services” is comprehensive of professional services, technical support, programming, deliverables, training materials, documentation, and other services specific to Avo’s and its affiliates’ products and services. Customer agrees that if you seek assistance from any third party with respect to the use or any modification of the Avo Platform, you shall inform Avo in advance of the fact of such proposed assistance and the identity of such third party and receive written consent from Avo to such use or modification by the proposed assisting party.
2.6 Services Updates. Customer’s use of the Services includes the right to access all functionality available in the product to which Customer subscribed in the Order Form, on the effective date of such Order Form. Avo may enhance and modify the Services and introduce new Services from time to time but will provide Customer with notice pursuant to Section 1 (Modifications to the Terms and Services) above unless such changes are of minor nature with no material effect on Avo’s contractual obligations. To the extent we make available any new or different features, functionality or enhancements to the Services, we will market these separately and may require the payment of additional fees. You agree that we are not liable to you or any third party for any modification of the Services in keeping with this section. The Avo Platform may automatically download and install updates from time to time from Avo (or our licensors). These updates are designed to improve, enhance and further develop the Services, as applicable, and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit us to deliver these to you) as part of your use of the Avo Platform.
2.7 Services Availability. We will make commercially reasonable efforts to keep the Services up and running at all times. However, the Services may occasionally be unavailable for maintenance. In such cases, we will make commercially reasonable efforts to bring the Services down for maintenance during non-business hours. We will also make commercially reasonable efforts to announce routine maintenance with advance notice.
3. YOUR SERVICES ACCOUNT
3.1 Users. Users must register an account with Avo (an “Account”) prior to accessing the Services. Users agree to: (a) not share User’s Account with, or transfer any part of it to, anyone else; (b) provide accurate, current and complete information during the registration process and keep User’s Account up-to-date; and (c) keep User’s account information and password secure and confidential. We reserve the right to refuse registration of, or cancel, passwords that we deem inappropriate. User agrees to notify us immediately of any unauthorized use of User’s Account and is responsible for anything that happens through User’s Account prior to closing it or reporting misuse to us.
3.2 Customer License Administrator. If a User is registering an Account as an administrator of the Services on behalf of a Customer, through the mechanism provided by Avo (a) when User accepts the Agreement, User accepts the Agreement on behalf of all Users authorized by Customer to access and use the Services under Customer’s license, including employees of User’s company and/or its affiliates; and (b) User represents and warrants that it has the authority to legally bind the Customer and to grant Avo all permissions and licenses provided in this Agreement.
3.3 Account Access. Customer is responsible for ensuring that access to and use of the Services comports with any limits stated in the applicable Order Form, including by protecting all authentication keys and access tokens for the Services in accordance with the usage limitations; prohibiting access to or use of the Services by anyone other than Users; and ensuring that the authentication keys or access tokens are used solely as necessary to exercise Customer’s rights granted under the Agreement. Customer is responsible and liable to Avo for all activity that occurs with the authentication keys, access tokens or otherwise through or in connection with Customer’s Users’ Accounts.
3.4 Account Profile. A User may control its Account profile and how it interacts with the Services by changing the settings in its Account. User consents to our using the email address User provides in its Account to send User Services-related notices, including any notices required by law, in lieu of communication by other means such as postal mail. We may also use User’s email address to send User other messages, such as changes to Services features.
4. FEES AND PAYMENT TERMS
4.1 Subscription Fees. All fees for Paid Plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. Except as expressly set forth in Section 13 below (Term and Termination), all fees are non-refundable. Avo reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term.
4.2 Payment Terms. Except as otherwise set forth in the applicable Order Form, all fees for the Services (“Subscription Fees”) are payable by credit card or other payment method permitted by us from time to time, in U.S. dollars (unless otherwise agreed by us in writing), and you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term, at the start of the applicable billing period specified in your Order Form (i.e., monthly or annually). You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. Except as otherwise specified in the applicable Order Form of these Terms, Subscription Fees for the Subscription Term are non-refundable. We reserve the right to charge interest on late payments at the rate of 1.5% per month or 18% per annum, calculated on a monthly basis on the outstanding balance, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any payment is thirty (30) or more days overdue, we may, without limiting our other rights and remedies, suspend your access to the Services until such amounts are paid in full. All amounts payable under this Agreement will be made without setoff or counterclaim. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign (“Taxes”), other than Taxes based on the income of Avo.
4.3 Pro-Rata Billing. Unless otherwise specified on the applicable Order Form, if Customer elects to increase usage within a Subscription Term, such addition will be billed on a pro-rata basis. For monthly subscriptions, the cost will be included in the Subscription Fees for the following monthly billing period. For annual subscriptions, the cost will be billed automatically at the time Customer upgrades.
5. ACCEPTABLE USE OF THE SERVICES
5.1 Prohibited Activities. You shall not use, or encourage, promote, facilitate, permit or instruct others to use the Services for any illegal, harmful or offensive use, including:
- accessing any information (including Personal Information, defined below), text, links, graphics, photos, audio, videos, and all other forms of data or communication on the Services (“Content”) through any technology or means other than those authorized by us on the Avo Platform, such as by robot, spider, scraper or other automated means or manual process, for any purpose not authorized in the Agreement;
- interfering with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Avo Platform, or otherwise causing harm to the Avo Platform, such as attempting to mine information about users of the Services;
- attempting to gain unauthorized access to Accounts;
- removing, circumventing, disabling, damaging or otherwise interfering with security or other preventive features of the Avo Platform;
- using the Services to transmit any computer viruses, worms, defects, Trojan horses, malicious code, spyware, malware or other items of a destructive or harmful nature;
- taking any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
- attempting to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- exporting, re-exporting, importing, or transferring any part of the Services except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable local, state, federal, and international laws, rules, and regulations (“Applicable Laws”);
- commercially exploiting, renting, leasing or sublicensing the Services or otherwise making the Services, or any portion thereof, available to any third party, including for time sharing purposes, other than to Users or as otherwise contemplated by this Agreement;
- accessing the Services for the purpose of building a similar or competitive product;
- using or attempting to use the Services for competitive analysis or benchmarking;
- removing or obscuring any proprietary or other notices contained in the Services (including any reports or data printed from the Services);
- copying, translating, creating a derivative work of, reverse engineering, reverse assembling, disassembling, or decompiling the Services or any part thereof; or
- partaking in any activity that, in our sole judgment, restricts or inhibits any other person from using or enjoying any aspect of the Services or exposes or may expose any users of the Services to harm or liability of any sort.
5.2 Prohibited Content. You shall not transmit, store, display, distribute or otherwise make available any Customer Data (defined below) or other Content through the Services that:
- is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive;
- is defamatory, libelous, harassing, abusive, obscene, sexually explicit, pornographic, vulgar or offensive;
- promotes discrimination, bigotry, racism, hatred, harassment or harm against, or is inappropriate towards any individual or group;
- is violent or threatening or promotes violence or actions that are threatening to any other person or animal;
- promotes illegal or harmful activities or substances;
- you do not have the permission from the Content owner or individuals appearing in the Content to post, free of charge;
- seeks to harm or exploit children by exposing them to inappropriate Content, asking for personally identifiable details or otherwise;
- may constitute or contribute to a crime or tort;
- contains any information or Content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
- creates a risk of any other loss or damage to any person or property; or
- violates any other Avo policy.
6. CUSTOMER DATA
6.1 License to Customer Data. Customer hereby grants to Avo during the term of this Agreement a royalty-free, worldwide, irrevocable (subject to Customer’s rights to terminate this Agreement), non-transferrable (except under Section 17), non-exclusive right and license, with the right to grant and authorize sublicenses as set forth below, to use and exploit any and all Content provided by you to us (subject to Section 8 (Confidentiality) below), including through Third Party Services providers (the “Customer Data”), to perform all acts as may be necessary for Avo to provide the Services in connection with these Terms and the applicable Order Form. Avo may sublicense the rights granted in this Section 6.1 to its contractors and service providers who perform activities for or on behalf of Avo, provided that Avo will be liable for any breach of this Agreement by any such sublicensee.
6.2 Responsibility for Customer Data. Avo does not own any Customer Data, and Customer, not Avo, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. In connection with Customer Data, Customer, and User as applicable, represents and warrants that it: (a) has the written consent of each and every identifiable natural person in the Customer Data, if any, to use such person’s name or likeness in the manner contemplated by the Services and the Agreement; (b) has obtained (and is solely responsible for obtaining) all consents that may be required by Applicable Law to submit any Customer Data relating to third parties; (c) Customer Data and Avo’s use thereof as contemplated by the Agreement and the Services will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and/or privacy rights; (d) Avo may exercise the rights to use Customer Data granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise; and (e) Customer Data is truthful and accurate. Avo expressly disclaims any liability for the data and content transmitted through or intermediately, temporarily or permanently stored on Avo networks or any server and for the actions of omission of Customers or Users.
6.3 Our Right to Remove Customer Data. Avo has the absolute right to remove or disable access to any Customer Data on the Services as needed to (a) operate, secure and improve the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (b) ensure Users’ compliance with the Agreement (or any Avo policy), Applicable Law, or an order or requirement of a court, law enforcement or other administrative agency or governmental body; or (c) as otherwise set forth in this Agreement. If Avo becomes aware of any Customer Data that allegedly violates this Agreement, Avo may investigate the allegation and determine in our sole discretion whether to act, but has no liability or responsibility to User to do so. Customer agrees to cooperate with Avo in good faith, as Avo may reasonably request, in any investigation Avo chooses to undertake.
7.1 No Personal Information. The parties acknowledge and agree that the Services are not intended to be used for the processing of any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household (“Personal Information”) relating to Customer’s clients. You agree to not submit to the Services, or cause to be submitted, any such Personal Information. You acknowledge and agree that you are independently responsible for your own obligations under Applicable Law with regard to Personal Information.
Avo and you agree to maintain the confidentiality of all Confidential Information disclosed to one another under this Agreement, and to only use the Confidential Information as specifically permitted by the terms and conditions of this Agreement. “Confidential Information” is information, in whatever form, not generally known or readily available to the public, and proprietary and confidential to the disclosing party, including, with respect to Avo, the De-Identified Data (defined below) and all non-public features of the Avo Platform; with respect to Customer, Customer Data; and with respect to both parties, the terms and conditions of each Order Form. Confidential Information does not include any information that was previously known to the receiving party. Notwithstanding the foregoing, we reserve the right at all times to disclose any information as necessary to satisfy any Applicable Law, legal process or governmental request.
9.1 Ownership. As between Avo and Customer (a) Customer and its licensors own all right, title and interest in and to (i) the Customer Data; and (ii) Customer’s copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights with respect to Customer’s products and services; and (b) Avo and its licensors own all right, title and interest in and to (i) the Services (including, but not limited to, the Avo Platform, Documentation and any Content that Users can view on, access or otherwise interact with through the Services, with the exception of Customer Data); (ii) De-Identified Data (defined below); and (iii) Avo’s and its affiliates’ copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights with respect to Avo’s and its affiliates’ products and services.
9.2 Feedback. If Customer or a User provides any feedback, comments, questions, suggestions, or the like about the Services or Avo Platform (collectively “Feedback”), then Customer or User, as applicable, hereby assigns to Avo all right, title, and interest in, and Avo is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, including, without limitation, for the improvement, marketing, and promotion of the Services or Avo Platform. Customer agrees that Feedback provided by Customer or its Users is given entirely voluntarily and that Feedback, even if designated as confidential by Customer, will not, absent a separate written agreement, create any confidentiality obligation for Avo with respect to such Feedback.
9.3 De-Identified or Anonymized Data. We may monitor use of the Services by all of our customers and use the data gathered in an aggregate and anonymous manner (the “De-Identified Data”), including to compile statistical and performance information related to the provision and operation of the Services or to support benchmarking or similar features of the Services. You agree that Avo may collect, analyze and use De-Identified Data and/or aggregate data to (a) analyze, improve, market or develop the products and services or new products and services; (b) train predictive models; (c) conduct research; (d) inform our marketing and advertising campaigns. For clarity and without limitation, De-Identified Data shall not be deemed “Customer Data,” and nothing in these Terms shall limit Avo’s right, both during and after the term of the Agreement, to use, store, transmit, modify, copy, display, sublicense and create derivative works from De-Identified Data.
9.4 Reservation of Rights. Each party reserves all rights not expressly granted in the Agreement, and no licenses are granted by either party to the other under the Agreement, whether by implication, estoppel or otherwise, except as expressly set forth herein.
10. WARRANTIES AND DISCLAIMERS
10.1 Warranty. Each party warrants that it has the legal authority to enter into this Agreement. Additionally, we warrant that the Services will materially conform with the relevant Documentation.
10.2 Disclaimers. EXCEPT AS SET FORTH IN SECTION 10.1 (WARRANTY) ABOVE, THE SERVICES AND AVO PLATFORM ARE MADE AVAILABLE TO YOU ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. AS SUCH, YOUR USE OF THE SERVICES AND AVO PLATFORM ARE AT YOUR OWN DISCRETION AND RISK; AND WE HEREBY DISCLAIM ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS, TITLE AND NON-INFRINGEMENT. WE MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, COMPLETENESS, ACCURACY, OR RELIABILITY OF THE SERVICES OR THE AVO PLATFORM, OR THE CONTENT ON THE SERVICES OR AVO PLATFORM. ACCORDINGLY, WE ARE NOT LIABLE TO YOU FOR ANY PERSONAL INJURY, LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE AVO PLATFORM’S INOPERABILITY, DEPLETION OF BATTERY POWER OR OTHER IMPAIRMENT OF DEVICES USED TO ACCESS AVO PLATFORM, SERVICES UNAVAILABILITY, OR SECURITY VULNERABILITIES. YOUR PURCHASE AND USE OF THIRD-PARTY SERVICES IS AT YOUR OWN DISCRETION AND RISK.
10.3 Beta Releases. From time to time, Avo may grant Customer access to “alpha”, “beta”, or other early-stage products (“Beta Releases”). While Avo may provide assistance with Beta Releases in its discretion, notwithstanding anything to the contrary in this Agreement, CUSTOMER AGREES THAT ANY BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH AVO WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CUSTOMER’S SOLE RISK. Avo makes no promises that future versions of a Beta Release will be released. Avo may terminate Customer’s right to use any Beta Release at any time for any reason or no reason in Avo’s sole discretion, without liability.
Customer agrees to indemnify and hold harmless Avo, its affiliates, their affiliates and each of their respective directors, officers, employees, shareholders and agents against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, legal fees and expenses, and any and all costs thereof (including reasonable attorneys’ fees) which arise out of, or relate to, the Agreement, Customer’s use of the Services, Avo Platform, Customer Data, breach of any confidentiality obligation, or any alleged infringement of any trademark, copyright, patent or other intellectual property right.
12. LIMITATION OF LIABILITY
AVO’S (INCLUDING ITS AFFILIATES, OFFICERS, DIRECTORS AND EMPLOYEES) MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT IS LIMITED TO THE GREATER OF (A) THE AMOUNT PAID, IF ANY, BY YOU TO AVO IN CONNECTION WITH THE SUBSCRIPTION TERM IN WHICH THE ACTION GIVING RISE TO LIABILITY OCCURRED, OR (B) $100. TO THE EXTENT PERMITTED UNDER LAW, AVO SHALL NOT BE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF DATA, OPPORTUNITIES, REPUTATION, PROFITS OR REVENUES, RELATED TO THE AVO PLATFORM OR SERVICES. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AVO AND YOU.
13. TERM AND TERMINATION
13.1 Subscription Term and Renewal. The initial Subscription Term for Services specified in an Order Form shall begin on the effective date of your subscription as specified in the Order Form, and extend as set forth therein. If you cancel your subscription, that cancellation will take effect as of the date when the next scheduled renewal otherwise would have commenced, or as set forth in the applicable Order Form.
13.2 Avo Termination. Avo has the right to suspend or terminate an unpaid Free Plan or a Trial at any time for any reason, and may immediately terminate the Agreement at any time, and without liability to Customer, with respect to a Paid Plan (each, an “Avo Termination”) in the event of: (a) Customer’s failure to pay Subscription Fees or other amounts payable to Avo when due; (b) Customer’s or, with respect to an individual User, User’s material breach or violation of any provision of the Agreement (except for Section 5 (Acceptable Use)) that is not cured within ten (10) days of Customer’s receipt of written notice from Avo referencing such breach or violation; (c) Customer’s or User’s material breach or violation of Section 5 (Acceptable Use); (d) Customer ceasing to do business in the normal course, becoming or being declared insolvent or bankrupt, being the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) calendar days, or making an assignment for the benefit of its creditors; (e) Avo is required to do so by law (for example, due to a change to the Applicable Law governing the provision of the Services); (f) the Services rely on data or services provided by a third party partner and the relationship with such partner (i) has expired or been terminated, or (ii) requires Avo to change the way Avo provides the data or services through the Services; or (g) providing the Services could create a substantial economic burden, security risk, or material technical burden, as determined by Avo in its reasonable good faith judgment.
13.3 Customer Termination. Customer may terminate the Agreement with respect to all, and not less than all, of the Services without liability (a) as set forth in the applicable Order Form; or (b) upon the occurrence of a material breach by Avo of its obligations to provide the Services according to the terms of the Agreement that is not cured within thirty (30) business days after Avo’s receipt of written notice from Customer describing such breach in detail is received by Avo (subsection (b), a “Customer Termination for Breach”).
13.4 Effect of Termination. Unless otherwise stated in the Agreement, upon the expiration or termination of the Agreement: (a) all rights and licenses granted by a party to the other party will immediately terminate; (b) Avo will terminate Customer’s and/or User’s access to its Customer Data through the Services; and (c) subject to Section 13.5 (Outstanding Payments; No Refunds) or as otherwise specified in this Agreement, each of the parties will be relieved of their further duties and obligations arising under the Agreement. Notwithstanding the termination or expiration of this Agreement for any reason, Sections 7, 8, 9, 10.2, 10.3, 11, 12, 13.4, 13.5, 14, 15, 16, and 17 shall continue in full force and effect after expiration or termination of the Agreement.
13.5 Outstanding Payments; No Refunds. In the event that the Agreement is terminated by Avo for any reason constituting Avo Termination or by Customer for any reason other than Customer Termination for Breach, all Subscription Fees and any other amounts owing to Avo under the Agreement shall accelerate and be immediately due and payable, including, without limitation: (a) in the case of any Services subscribed to on a month-to-month basis, Subscription Fees through the end of the month in which the Services are terminated; and (b) in the case of any Services subscribed to for other than on a month-to-month basis, Subscription Fees through the remainder of the then-current Subscription Term as applicable. Customer agrees that Avo may charge such unpaid fees to Customer’s credit card or otherwise bill Customer for such unpaid fees. Customer acknowledges that it will not be entitled to any refund or credit hereunder, and Customer hereby waives all rights to any such refund or credit. Set-up fees, monthly service fees and usage fees are non-refundable.
14. CHOICE OF LAW AND VENUE
This Agreement shall be governed by and construed in accordance with the laws of the State California without regard to conflicts of law principles. You agree to exclusive jurisdiction of the federal and state courts located in San Francisco, CA, U.S.A., for any claim or other legal proceeding related to this Agreement or any activities hereunder, and waive any jurisdictional, venue or inconvenient forum objections to such courts.
15. COMPLIANCE WITH LAWS
15.1 Applicable Law. Avo and you recognize that this Agreement is subject to, and intended to comply with, Applicable Law, and agree that the Services addressed in this Agreement do not exceed those which are reasonably necessary to accomplish the commercially reasonable business purposes of this Agreement.U.S. Government Restricted Rights. If the Avo Platform is being licensed by the U.S. Government, the Avo Platform is commercial computer software and documentation developed exclusively at private expense, and (i) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (ii) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
15.2 Export Law Assurances. Customer understands that the Avo Platform is or may be subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE AVO PLATFORM OR SERVICES OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE AVO PLATFORM OR SERVICES NOR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
Customer hereby grants Avo a nonexclusive, royalty-free, transferrable, sublicensable, worldwide license to use Customer’s name, logo, trade names, trademarks, service marks, trade dress, logos and other rights in indicia, as well as any video interviews or case studies featuring or provided by Customer, in Avo’s promotional materials and for promotional purposes, including without limitation any press releases and indications that Avo is providing the Services to Customer issued by Avo and on the Avo Website and Avo’s printed materials.
17. GENERAL TERMS
This Agreement (including each Order Form) contains the entire understanding between Avo and you relating to the subject matter herein and supersedes all prior oral or written agreements between us. We reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. In the event of a conflict between the terms of this Agreement and an Order Form, the terms of the Order Form shall control, but only as to that Order Form. You may not assign or transfer your rights and benefits under this Agreement without our prior written consent, but we may assign or transfer this Agreement without restriction. Except as set forth in this Agreement, nothing in this Agreement shall be deemed to confer any rights or benefits on any third party. No waiver, amendment, modification or addition to this Agreement shall be valid unless in writing and signed by both you and us. In the event any provision of this Agreement is determined to be invalid by a court of competent jurisdiction, such determination shall in no way affect the validity or enforceability of any other provision herein. To the extent allowed by Applicable Law, you agree that you will bring any claim or cause of action arising from or relating to your access or use of the Services within two (2) years from the date on which such claim or action arose or accrued or such claim or cause of action will be irrevocably waived. Avo and Customer are independent contractors, and this Agreement does not create a partnership, joint venture, employment or agency relationship between the Avo and Customer or any User. This is a non-exclusive arrangement.
If you have any questions about this Agreement, please email us at firstname.lastname@example.org.