Terms of Service
EFFECTIVE DAY 25 FEBRUARY 2023
This Avena Technologies, Inc. Subscription Terms of Service ("Agreement") is entered into by and between the Avena Technologies, Inc. entity set forth below ("Avena") and the entity or person placing an order for or accessing any Services ("Customer" or "you"). 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 your company, and all references to "you" or "Customer" reference your company.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Avena pursuant to any Avena ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement includes the Additional Product Terms, incorporated by reference herein, and will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
As used in this Agreement, "Avena" means (a) Avena Technologies, Inc., a California corporation with offices at 2021 The Alameda STE 380, San Jorge, CA 95126, US., if Customer's shipping address on the applicable Order Form is located in the United States of America; if Customer's shipping address on the applicable Order Form is located anywhere else in the world.
Modifications to this Agreement: From time to time, Avena may modify this Agreement. Unless otherwise specified by Avena, changes become effective for Customer upon renewal of Customer's current Subscription Term (as defined below) or entry into a new Order Form. Avena will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If Avena specifies that changes to the Agreement will take effect prior to Customer's next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term, commencing on the date notice of termination was received.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, 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 ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.
"Affiliate" means any entity under the control of Customer where "control" means ownership of or the right to control greater than 50% of the voting securities of such entity.
"AUP" means Avena's Acceptable Use Policy, available at terms and conditions or a successor URL, incorporated into these terms by this reference.
"Beta Offerings" means pre-release services, features, or functions identified as alpha, beta, preview, early access, or words or phrases with similar meanings.
"Contractor" means an independent contractor or consultant who is not a competitor of Avena.
"Customer Data" means any data of any type that is submitted to the Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Services by Customer (including from Third Party Platforms) and (b) data provided by or about People (including chat and message logs) that are collected from the Customer Properties using the Services.
"Customer Properties" means Customer's websites, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the Services to communicate with People.
"Dashboard" means Avena's user interface for accessing and administering the Services that Customer may access via the web or the Avena Apps.
"Documentation" means the technical user documentation provided with the Services.
"Feedback" means comments, questions, suggestions or other feedback relating to any Avena product or service. Feedback does not include any Customer Data.
"Intellectual Property Rights" include all valid patents, trademarks, copyrights, trade secrets, moral rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any state, country or other jurisdiction.
"Laws" means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
"Order Form" means a written or electronic form to order the Services or an online order completed through Avena’s website. Upon execution by the parties (or, in the case of electronic orders, confirmation and placement of the order), each Order Form will be subject to the terms and conditions of this Agreement.
"People" (in the singular, "Person") means Customer's end user customers, potential end user customers, and other users of and visitors to the Customer Properties. People or Person does not include the customers of Customer’s end user customers.
"Permitted User" means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service.
"Sensitive Personal Information" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA") not authorized or covered by a duly executed Business Associate Agreement with Avena; or (iii) any other personal data of an EU citizen deemed to be in a "special category" (as identified in EU General Data Protection Regulation or any successor directive or regulation).
"Services" means Avena's proprietary software-as-a-service solution(s), including the Dashboard, Avena application programming interfaces (APIs), Avena Code and Avena Apps, as described in the applicable Order Form.
"Taxes" means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Avena.
"Third Party Messaging App(s)" means a separate, stand-alone service accessible apart from the generally available Avena Service to which Customer subscribes. A Third Party Messaging App allows Customer to integrate the Avena App provided with Customer's Avena App account(s) (as defined in the “Agreement”) with Customer's Third Party Messaging App services account(s).
"Third-Party Platform(s)" means any software, software-as-a-service, data sources or other products or services not provided by Avena that are integrated with or otherwise accessible through the Services.
2. Avena Services
2.1. Services Overview. Avena's Services are a suite of meal plannings oftware-as-a-service solutions offered through a single platform. The Services are designed to enable Customer to manage patients through the entire lifecycle of their relationship with Customer and to provide a Dashboard for accessing and managing Customer Data regarding those People.
2.2. Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a "Subscription Term"). Customer will purchase and Avena will provide the specific Services as specified in the applicable Order Form.
2.3. Access to Services. Customer may access and use the Services solely for its own benefit (and for the benefit of People) and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form (including without limitation the number of People tracked). Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on Avena's systems, Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will promptly delete such user ID and otherwise terminate such Permitted User's access to the Service..
2.4. AvenaApps. To the extent Avena provides Avena Apps for use with the Services, subject to all of the terms and conditions of this Agreement, Avena grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the Avena Apps internally, but only in connection with Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement.
2.5. Deployment ofAvenaCode. Subject to all of the terms and conditions of this Agreement, Avena grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to copy the Avena Code in the form provided by Avena on Customer Properties solely to support Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement. Customer must implement Avena Code on the Customer Properties in order to enable features of the Services. Customer will implement all Avena Code in strict accordance with the Documentation and other instructions provided by Avena. Customer acknowledges that any changes made to the Customer Properties after initial implementation of Avena Code may cause the Services to cease working or function improperly and that Avena will have no responsibility for the impact of any such Customer changes.
2.6. Contractors and Affiliates. Customer may permit its Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
2.7. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party other than the Customer Properties; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Avena); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the "Powered by Avena" designation that may appear as part of the deployment of the Services on Customer Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.8. AvenaAPIs. If Avena makes access to any APIs available as part of the Services, Avena reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Avena may monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if Avena believes that Customer's usage is in breach of this Agreement or may negatively affect the security, operability, or integrity of the Services (or otherwise impose liability on Avena).
2.9. Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Service (a "Trial Subscription"), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of fourteen (14) days or such other period granted by Avena (the "Trial Period"). Trial Subscriptions are permitted solely for Customer's use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period. Avena has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AVENA WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
2.10. Beta Offerings. Customer may choose to use Beta Offerings in its sole discretion. Beta Offerings may not be supported and may be changed at any time without notice. Beta Offerings may not be as reliable or available as the Service. Beta Offerings are not subject to the same security measures as in the Security Policy. Avena will have no liability arising out of or in connection with Beta Offerings. CUSTOMER USES BETA OFFERINGS AT ITS OWN RISK.
3. Customer Data and Customer Obligations
3.1. Data Processing byAvena. All data processing activities by the Service will be governed by the Terms and Condition of Use.
3.2. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all Intellectual Property Rights) in and to the Customer Data as provided to Avena. Subject to the terms of this Agreement, Customer hereby grants to Avena a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
3.3. Storage of Customer Data. Avena does not provide an archiving service. Avena agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Customer's applicable Subscription Term and expressly disclaims all other obligations with respect to storage.
3.4. Customer Obligations.
- a) In General. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Avena that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting Avena the rights in Section 3.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party Intellectual Property Rights or, publicity, privacy, or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms. Customer further represents and warrants that all Customer Data. Customer will be fully responsible for any Customer Data submitted to the Services by any Person as if it was submitted by Customer.
- b) No Sensitive Personal Information. Except as otherwise expressly agreed between the Parties in writing by entering into a business associate agreement for HIPAA data, Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Avena is not a payment card processor and that the Services are not PCI DSS compliant. Except for Avena’s obligations as a business associate pursuant to this Agreement, Customer shall be responsible for any Sensitive Personal Information it submits to the Service, and Avena will treat such submissions as Customer Data as defined in this Agreement such that Avena is not subject to any additional obligations that apply to Sensitive Personal Information.
- c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other anti-spam laws and regulations.
3.5. Indemnification by Customer. Customer will indemnify, defend and hold harmless Avena from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data, Customer’s use of a Third Party Messaging App, or breach or alleged breach by Customer of Section 3.4 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Avena at Customer's expense. Notwithstanding the foregoing sentence, (a) Avena may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Avena's prior written consent, unless the settlement fully and unconditionally releases Avena and does not require Avena to pay any amount, take any action, or admit any liability.
3.6. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Avena may obtain and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and Avena may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Avena customers. For clarity, this Section 3.5 does not give Avena the right to identify Customer as the source of any Aggregated Anonymous Data.
Avena agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Customer Data, as further described in Avena’s Terms and Condition of Use. However, Avena will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Avena's control.
5. Third-Party Platforms and Third Party Messaging Apps
5.1 Integration with Third Party Platforms. The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Customer authorizes Avena to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that Avena has no responsibility or liability for any Third-Party Platform or Messenger App, or how a Third-Party Platform (including Messenger Apps) uses or processes Customer Data after such is exported to a Third-Party Platform or Messenger App. Avena does not guarantee that the Services will maintain integrations with any Third-Party Platform, and Avena may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer's use of and access to the Services, even if accessed through an integration with a Third-Party Platform.
5.2 Third Party Messaging Apps. Customer represents and warrants that Customer has agreed to the terms of service associated with any Third Party Messaging App(s) and has created, or has authorized Avena to create on Customer's behalf, a Third Party Messaging App account in accordance with such terms and conditions, which govern Customer's use of such Third Party Messaging App account. Avenawill have no liability for and the Third Party Messaging App provider is solely responsible for the Third Party Messaging App’s network, functionality, clients, and APIs.
5.3 Third Party Beta Releases. TO THE EXTENT A CUSTOMER USES FEATURES IN THE SERVICE THAT INTEGRATE WITH A THIRD-PARTY PLATFORM AND A CUSTOMER REQUESTS THAT AVENA INTEGRATE WITH SUCH THIRD PARTY PLATFORM’S BETA OR PRE-RELEASE FEATURES (“THIRD PARTY BETA RELEASES”), AVENA WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH AVENA’S PARTICIPATION IN SUCH THIRD PARTY BETA RELEASES OR CUSTOMER’S USE OF SUCH INTEGRATED FEATURES.
6.1. AvenaTechnology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale" or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Avena or its suppliers retain all right, title and interest (including all Intellectual Property Rights) in and to the Services and all Documentation, integrations with the Services, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "Avena Technology"). Except as expressly set forth in this Agreement, no rights in any Avena Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services, except for Avena Code and the Avena Apps in the format provided by Avena.
6.2. Feedback. Customer, from time to time, may submit Feedback to Avena. Avena may freely use or exploit Feedback in connection with the Service. To the extent Customer submits Feedback related to Third Party Messaging Apps, Customer hereby grants to Avena, if for any reason it is further needed, a perpetual, non-revocable, royalty-free worldwide license to use and/or incorporate such feedback into any Avena product or service at any time at the sole discretion of Avena.
7. Subscription Term, Fees & Payment
7.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
7.2. Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable Order Form. Except as expressly set forth in Section 9 (Limited Warranty) and Section 13 (Indemnification), all fees are non-refundable. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, Avena receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.3. Payment Via Credit Card. If you are purchasing the Services via credit card, debit card or other payment card ("Credit Card"), the following terms apply:
- Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, Customer hereby authorizes Avena (or its designee) to automatically charge Customer's Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicable Order Form. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer's use of the Services and may include subscription fees for the remainder of Customer's applicable billing period and overage fees for the prior month.
- Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer's Credit Card may charge a foreign transaction fee or other charges.
- Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Avena and Avena may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
- Changing Credit Card Information. At any time, Customer may change its Credit Card information by entering updated Credit Card information via the "Settings" page on the Avena Panel.
- Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription Term by sending Avena notice of non-renewal to in accordance with Section 7.1 (Subscription Term and Renewals) or, if Customer's Subscription Term is on a monthly basis (or if otherwise permitted by Avena), by terminating via the "Settings" page on the Avena Panel, with termination effective at the end of the current Subscription Term. As set forth in Section 2.9 (Trial Subscriptions), if Customer does not enter into a paid Subscription Term following a Trial Period, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period and Customer's Credit Card will not be charged.
- Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Avena will charge Customer's Credit Card (or invoice Customer directly) for any outstanding fees for Customer's use of the Services during the Subscription Term, after which Avena will not charge Customer's Credit Card for any additional fees.
7.4. Suspension of Service. If Customer's account is thirty (5) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Avena reserves the right to suspend Customer's access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. Avena also reserves the right to suspend Customer's access to the Services without liability to Customer if Customer's use of the Services is in violation of the AUP.
8. Term and Termination
8.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
8.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Avena Technology) and delete (or, at Avena's request, return) any and all copies of the Documentation, any Avena passwords or access codes and any other Avena Confidential Information in its possession. Customer acknowledges that following termination, it will have no further access to any Customer Data input into any Service, and that Avena may delete any such data as may have been stored by Avena at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 2.9 (Trial Subscriptions), 3.2 (Storage of Customer Data), 3.5 (Indemnification by Customer), 3.6 (Aggregated Anonymous Data), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Credit Card), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 12 (Limitation of Remedies and Damages), 13 (Indemnification), 14 (Confidential Information) and 16 (General Terms).
9. Limited Warranty
9.1. Limited Warranty. Avena warrants, for Customer's benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Avena's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Avena to use commercially reasonable efforts to correct the reported non-conformity, or if Avena determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
9.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL SERVICES ARE PROVIDED "AS IS". NEITHER AVENA NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. AVENA DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES AVENA WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. AVENA SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES. AVENA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS, THIRD PARTY MESSAGING APPS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF AVENA. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10. Availability and Service Credits
The Services are available subject to Avena's Service Level Agreement ("SLA").
During the Subscription Term of each Service, Avena will provide end user support at email@example.com.
12. Limitation of Remedies and Damages
12.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), EACH PARTY’S ENTIRE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO AVENA DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
12.3. Excluded Claims. "Excluded Claims" means any claim arising (a) from Customer's breach of Section 2.7 (General Restrictions); (b) under Section 3.3 (Customer Obligations) or 3.4 (Indemnification by Customer); or (c) from a party's breach of its obligations in Section 15 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service or relating to Customer Data).
12.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 12 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
13. Confidential Information
Each party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Avena Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Avena without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Avena, the subcontractors referenced in Section 16.8 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 14. The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
Avena may, upon Customer’s prior written consent, use Customer’s name to identify Customer as an Avena customer of the Service, including on Avena’s public website. Avena agrees that any such use shall be subject to Avena complying with any written guidelines that Customer may deliver to Avena regarding the use of its name and shall not be deemed Customer’s endorsement of the Service.
15. General Terms
15.1. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
15.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
15.3. Governing Law; Dispute Resolution.
- a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, ("Dispute"), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled "Initial Notice of Dispute," specifically setting forth the precise nature of the dispute ("Initial Notice of Dispute"). If an Initial Notice of Dispute is being sent to Avena it must be emailed to firstname.lastname@example.org and sent via mail to:
Attn: Supporl Department Avena 2021 The Alameda STE 380, San Jose, CA 95126, US.
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties ("Direct Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute may subsequently be resolved in a court of law as set forth below.
- b) Choice of Law and Jurisdiction. FOR ANY CLAIM WHICH IS NOT SUBJECT TO THIS DISPUTE RESOLUTION PROVISION, CUSTOMER AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA. IN ANY DISPUTE, CALIFORNIA LAW SHALL APPLY.
- c) Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH CUSTOMER AND AVENA AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
- d) Injunctive Relief. Notwithstanding the above provisions, Avena may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
15.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
15.5. Amendments; Waivers. Except as provided under “Modifications to this Agreement” and otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
15.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Avena may make changes to the Services, and Avena will update the applicable Documentation accordingly. The support and service level availability terms described in the Security Policy, the Support Policy, and the SLA may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Avena's obligations as compared to those reflected in such terms as of the Effective Date).
15.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
15.8. Subcontractors. Avena may use the services of subcontractors and permit them to exercise the rights granted to Avena in order to provide the Services under this Agreement, provided that Avena remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement,(ii) for the overall performance of the Services as required under this Agreement, and (iii) compliance with the terms of the DPA.
15.9. Subpoenas. Nothing in this Agreement prevents Avena from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Avena will use commercially reasonable efforts to notify Customer where permitted to do so.
15.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent
15.11. Export Control and Economic Sanctions. In its use of the Services, Customer agrees to comply with all export control and economic sanctions and any relevant import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government export control embargo or economic sanctions, (ii) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export control or economic sanction, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations or that is controlled under any Export Control Classification Number (other than EAR99) on the Commerce Control List of the Export Administration Regulations.
15.12. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All Services were developed fully at private expense. All other use is prohibited
15.13. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.