End User Agreement

End User Agreement

Effective: May 24, 2018

IMPORTANT. READ CAREFULLY. This Global ABACUS® End User Agreement (“Agreement”) is a legal agreement between You (an Individual and/or an Entity purchasing, subscribing, licensing and/or using as a Trial) and Avolution Pty Ltd and its Affiliates (collectively “Avolution,” “Us,” “We” or “Our”) governing Your Use of any of the Avolution ABACUS® Software products, ABACUS® Cloud Services, Professional Services and/or other Avolution products and services (collectively, “Products and Services”). Products and Services include computer software, internet-based software services, Documentation and Updates that are made available to You by an Approved Source. You, Avolution and Customer may be referred to herein individually as a “Party” and collectively as the “Parties.”

If You review, access, download, install, activate or otherwise Use (collectively, “Use”) any of the Products and Services on Your own behalf as a User, You are agreeing to the terms of this Agreement on Your own individual behalf and You agree to be legally bound by the terms of this Agreement, in which case “You,” “Your” or related capitalised terms Used herein shall refer to You as an individual User.

If You are entering into this Agreement on behalf of an Entity which is a customer of Avolution (“Customer”), You are agreeing to this Agreement for that Customer and representing to Us that You have the authority to bind such Customer and its Affiliates to this Agreement, in which case the terms, “You,” “Your” or related capitalised terms Used herein, in addition to You in Your Individual capacity, shall also refer to such Customer or its Affiliates, as applicable. To the extent that there is in effect a separate duly executed and in-force software licence agreement, master agreement or agreement of another name with Avolution governing the Customer’s Use of Avolution’s Products and Services (“Other Agreements”), the terms and conditions of this Agreement shall take precedence over those of the Other Agreements in the event of a conflict.

BY USE OF ANY COMPONENT OF ANY OF THE PRODUCTS AND SERVICES, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF AND TO BE BOUND BY THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE ANY THE PRODUCTS AND SERVICES AND MUST IMMEDIATELY CEASE SUCH USE.

1. DEFINITIONS

1.1 Capitalised terms used herein shall have their normal or common meaning, except that, in addition to terms defined at other places in this Agreement, the following terms shall have the following meanings in this Agreement. The words “day,” “month,” “quarter” and “year” mean, respectively, calendar day, month, quarter and year, unless specified otherwise. The word “including” means “including, without limitation.” The terms defined in the Agreement include the plural, singular and derivatives of such terms.

1.2 “Affiliates” means, with respect to a Party, any other Entity that directly or indirectly controls, is controlled by or is under common control with such Party, with “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) in such context meaning the ability, directly or indirectly, to direct or cause the direction of the management and policies of an Entity whether through the ownership of voting shares or other equity rights, by contract, or otherwise.

1.3 “Approved Source” means (i) Avolution or (ii) an Avolution authorised reseller, distributor or systems integrator from whom You acquire Products and Services.

1.4 “Avolution Property” means any work, inventions, discoveries, processes and improvements, algorithms, specifications, code and non-code-based materials, operating instructions, notes, manuals, products and services, marketing and training materials, Intellectual Property Rights, Documentation, other documentation (whether or not any of the foregoing categories are patentable), and derivatives of the foregoing, created by Avolution prior to, during and after this Agreement.

1.5 “Brand Features” mean the names, word marks, copyright notice, trade dress, trade names, trademarks, designs (and all trademarks and trade names derived from it), service marks, logos, logotypes, proprietary notices, symbols, labels, legends, copyrights and other distinctive brand features of a Party or its Affiliates, a Third-Party Provider or any other third party, as the case may be, or of their respective businesses, products and services.

1.6 “Confidential Information” means the tangible and intangible proprietary and confidential data or information of a Party, regardless of whether oral, written, electronic or retained in memory, which is of value to that Party or is not generally known or available to that Party’s competitors, but is known only to that Party, its Affiliates, and their respective Personnel and other representatives, including legal counsel, advisers, consultants and accountants (“Representatives”) to whom it must be confided in order to apply it to the Uses intended, including, without limitation, information regarding that Party’s customers, prospective customers, customer data, research, purchases, contracts, Financial Information (as hereinafter defined), Trade Secrets (as defined below), business plans, products and services and any components or functionality thereof, any information or material derived or generated from the evaluation of the Confidential Information, including notes, summaries, interpolations or synthesis. “Financial Information” means fiscal information of any kind, including, pricing, fees, revenues, expenses, cost estimates, quotes, forecasts, sales targets, markets, commission plans, projections, unpublished financial information, budgets, invoices, profit and loss data. Information does not need to be marked “Confidential” to be deemed Confidential Information under this Agreement. As between the Parties, the provisions of this Section shall supersede any inconsistent legend that may be affixed to Confidential Information by a Party, and the inconsistent provisions of any such legend shall be without any force or effect.

1.7 “Contractor” means a natural person (“Individual”) or Entity hired by a Party to perform on such Party’s behalf certain functions, including consultants, agents and subcontractors (but does not include the other Party), and all employees, contractors, consultants, agents and subcontractors of such Contractors.

1.8 “Customer Data” means any data or information and associated records or files, in any form or medium of Customer or Customer Personnel (i) that is provided to Avolution by Customer; or (ii) that is collected, controlled, created, accessed, entered, generated or processed in, with or in connection with, the Products and Services, all of which is owned in its entirety by Customer.

1.9 “Customer Property” means any and all Customer-owned, leased, Used and third-party provided or owned equipment, software, networks, services and other products needed and/or Used by Customer to install, connect to, access or Use the Products and Services, including, without limitation, modems, servers, SSO Services, computers, operating systems, and Internet, telecommunications and other services.

1.10 “Documentation” means all documents, information and materials (in any name, language, format or medium) that are supplied by Avolution to its customers and clients from time to time, which relate to the installation, use and operation of, and requirements for any Products and Services, and all modifications to such Documentation, including any: (i) server, web client, software, integrator, installation, technical, functional, design, performance, operation, configuration, maintenance, authentication and other customer requirements, specifications, procedures and instructions, release notes, walk-through documents and any “read me” notes; and (ii) training, integration, quick-reference, User and other guides, manuals, courses and information.

1.11 “Entity” means an association, proprietorship, corporation, partnership, limited liability company, association, trust, unincorporated organisation, or other legal entity or organisation, or government body.

1.12 “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, trade, business and domain names, rights in get-up and trade dress, goodwill, moral rights, mask works, the right to sue for passing off or unfair competition, rights in designs, rights in computer software, publicity rights, privacy rights, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for (and rights to apply for and be granted), renewals, extensions or restorations of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

1.13 “Internal Business Purposes” means Your permitted Use of Products and Services, in accordance with the Agreement, Avolution’s standard terms and conditions for such Products and Services and the Documentation. Such purposes expressly do not include or permit (i) any commercial Use by You or the Entity, including for consulting, time sharing, outsourcing, commercial hosting or service bureau purposes; or (ii) any Use by, for or on behalf of any Affiliate or any other Entity, unless expressly authorised by Avolution; or (iii) any Use with or for any third-party data or Excluded Data or Excluded Uses (both as hereinafter defined).

1.14 “Laws” means all national, federal, state, provincial, regional, territorial, municipal and local laws, statutes, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and official releases of or by any legitimate government, authority, department or agency thereof or self-regulatory organisation, including, any relating to privacy, data, Use, export and re-export controls, transfer and sanctions, anti-bribery, anti-corruption, anti-money laundering, and end-user, end-use and destination restrictions, applicable to the Parties, this Agreement or the Products and Services.

1.15 “Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”). A Data Subject is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that Data Subject.

1.16 “Personnel” means the respective owners, directors, officers, employees, partners, advisers and Contractors of a Party and its Affiliates, as applicable, (but does not include the other Party).

1.17 “Third-Party Programs” means certain (i) third-party commercial programs, software, services, technology or other components that are integrated into Products and Services (“Integrated Programs”); (ii) third-party commercial programs, software, services, technology or other components, adapters or integrators, which may be licensed directly by a Third-Party Provider to Customer under separate terms presented to Customer during installation and/or Use; and (iii) third-party open-source software (“OSS”) code and libraries Used in the Products and Services, which may be noted in a binary file or in a third-party notices or similar file in the Documentation or Products and Services, under separate licence directly by such OSS Third-Party Provider to Customer.

1.18 “Third-Party Provider” means any provider of any Third-Party Program.

1.19 “Trade Secrets” means any information of a Party that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other people who can obtain economic value from its disclosure or Use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Trade Secrets include, without limitation, patented and unpatented inventions, confidential computer programs and models/prototypes, performance data, materials, samples, devices, software, designs, processes, know-how, procedures, algorithms, methodologies, formulas, graphs, drawings, improvements, code, online designs and software applications, sales and marketing methods and strategy, whether copyrightable or not. Information does not need to be marked “Trade Secrets” to be deemed Trade Secrets under this Agreement.

1.20 “Updates” mean any additional functionality, new versions, releases, updates, optional add-on services, repairs, fixes, patches and derivatives of any of the foregoing, related to the Products and Services, either released generally or to address a specific issue for an Avolution Customer.

1.21 “User” means each individual Personnel who exercises a right of access to or Uses Avolution’s Products and Services or is authorised by You or Customer to Use Avolution Products and Services.


2. YOUR RIGHTS

2.1 General.

The terms and conditions of this Agreement are applicable during any paid, unpaid or free (i) demo, trial, beta, proof of concept, proof of value or evaluation of any Products and Services, (ii) subscription to and/or Use of ABACUS® Cloud Services (“Cloud Services”) (“Subscription”), (iii) licence of and/or Use of ABACUS® Software (“Software”) (“Licence”), and (iv) Your authorised or unauthorised Use of any other Products and Services before or after, or without a valid Subscription or Licence term.

2.2 Grant of Rights.

Subject to the payment in full of any applicable fees for the Products and Services and Your agreement to and compliance with this Agreement, Avolution grants You the following rights to Use the Products and Services, as applicable, for Your Internal Business Purposes:

(a) Software Licence. A non-exclusive, non-transferable Licence to the Software in accordance with the terms of this Agreement and the Documentation. The Licence shall be perpetual, provided that neither You or the Customer is not otherwise in breach of the Licence or this Agreement, and except as a non-perpetual Licence term may be otherwise have been expressly agreed to by Avolution and Customer in an order (“Customer Order”). Any references to “sale” or “purchase” of Software in any related document or invoice shall be deemed to mean “Licence” in accordance with the terms under this Agreement.

(b) Cloud Services. A non-exclusive and non-transferable Subscription to Use the Cloud Services offerings. The Cloud Services may also include a limited-Use licence to on-premises Software, which You may Use only in accordance with all separate Software Licence terms under this Agreement. Any references to “licence” of Cloud Services in any related document or invoice shall be deemed to mean “Subscription” in accordance with the terms under this Agreement.

(c) Updates. Future Versions. If Avolution offers, and You Use any Updates, Your Use thereof is subject to the terms and conditions of this Agreement. You acknowledge that You have not relied on the availability of any future version of the Products and Services, or any future product or component, in accepting this Agreement.

2.3 Documentation Copies.

You may reproduce and Use the Documentation solely as necessary to support Users’ permitted Use of the Products and Services, provided that the copies shall contain the Brand Features and confidential legends that appear on the Documentation.

2.4 Professional Services.

Avolution may agree to perform certain professional services under this Agreement in connection with training, implementation, customisation, or Use of the Products and Services (“Professional Services”). The terms and conditions governing Avolution’s provision, and Your receipt, of the Professional Services are set forth in this Agreement, a Customer Order and may be further set forth in a Statement of Work (“SOW”).

2.5 Evaluation Licence.

If You receive the Products and Services for evaluation purposes or other limited, temporary use as authorised by Avolution (“Evaluation Product”), Your Use of the Evaluation Product is only permitted for the period limited by the Licence key or otherwise stated by Avolution in writing. If no evaluation period is identified by the Licence key or in writing, then the evaluation licence is valid for thirty (30) calendar days from the date the Products and Services are made available to You. Avolution does not assume any liability of any kind whatsoever arising from any Use of the Evaluation Product. Your Use of the Evaluation Product is subject to the terms and conditions of this Agreement.

2.6 Personal Data. Data Protection.

Avolution will handle Personal Data in accordance with (i) all relevant and applicable Laws relating to the handling of Personal Data (collectively, “Data Regulations”) and (ii) Avolution’s Privacy Policy. During the Term of this Agreement, You may provide certain Personal Data to Avolution in the course of Avolution’s provision of Products and Services under this Agreement and a Customer Order. By Use of the Products and Services, You consent to the handling, retention, processing and transfer of any such Personal Data in connection with, and only to the extent necessary for, Avolution’s performance of its obligations under this Agreement and Customer Orders, all in accordance with Data Regulations and Avolution’s Privacy Policy.


3. YOUR RESPONSIBILITIES

3.1 Restrictions.

(a) You may not Use the Products and Services in any manner or for any purpose other than as expressly permitted by this Agreement and the Documentation. You will not, and will not permit a third party to, directly or indirectly: (i) adapt, make error corrections or otherwise modify, alter, translate, reverse engineer, disassemble, decrypt, decompile, tamper with, reduce all or a portion to a human-readable form, or otherwise attempt to discover the source code, scripts or underlying structure of or for any components of the Products and Services; (ii) distribute, sell, resell, rent, lease, license, relicense, sublicense, share, disclose, publicly display, perform, make unauthorised copies of or otherwise transfer or encumber rights to any of the Products and Services; (iii) remove, alter or fail to display any Brand Features in, on or of any of the Products and Services or Documentation; (iv) Use the Products and Services other than for Internal Business Purposes; (v) download, access, transfer, share or Use the Products and Services in a way intended to avoid incurring fees, or exceeding usage limits, Licence or Subscription limits, or Use the Products and Services by more Users, or on more computers or operating system environments (“OSEs”) (even if the OSEs are on the same physical hardware system) than as set forth in the particular Customer Order; (vi) without prior express Avolution consent, install or Use any terminal software, cloud provisioning or virtualisation technology such as and including without limitation, VMware and/or Citrix XenApp in connection with the Use of the Products and Services in any way that allows Users to circumvent Licence or Subscription limits under Customer Orders; (vii) install or Use non-Avolution software or technology in any way that would subject Avolution’s or a third party’s Intellectual Property Rights to any other licence terms; (viii) access the Products and Services to test or monitor availability, performance, penetration or vulnerability testing or functionality for any benchmarking or competitive purpose; (ix) circumvent the security of the systems of the Products and Services or Use the Products and Services in a manner that violates any Laws or any of Avolution’s Intellectual Property Rights; (x) Use the Products and Services for and with any data, including Customer Data, that infringes the rights of any third party; (xi) Use the Products and Services directly or indirectly in a manner inconsistent with their respective original design and intended purposes; (xii) Use any Third-Party Programs that are provided with the Products and Services independently from the Products and Services; (xiii) work around any technical limitations in the Products and Services or the Documentation; (xiv) implement Avolution’s or a third party’s Intellectual Property Rights themselves in Your or another party’s products, services, software or hardware; (xv) access the Products and Services in order to build a competitive product or service, to build a product or service using similar ideas, features, functions or graphics of the Products and Services, attempt to copy any ideas, features, functions or Brand Features of the Products and Services or to create derivative works; or (xvi) assert, authorise, assist, or encourage any third party to assert, any intellectual property infringement claim regarding any Products and Services.

(b) You agree not to engage in any of the following prohibited activities: (i) Use the Products and Services to post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libellous, obscene or discriminatory; (ii) knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software or element (“Malicious Components”); (iii) establish a link to any of Our websites or social/ professional media sites in such a way as to suggest any form of association, approval or endorsement on Our part where none exists; (iv) Use the Products and Services for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, or sending electronic communications (including email) in violation of applicable Laws; (v) Use the Products and Services for any purpose prohibited by applicable export Laws; (vi) copy, distribute or disclose any part of the Products and Services in any medium, including without limitation by any automated or non-automated “scraping”; (vii) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Products and Services and in a manner that sends more request messages to Avolution servers than a human can reasonably produce in the same period of time by using a conventional online web browser (except that Avolution grants the operators of public search engines revocable permission to use spiders to copy materials from www.avolutionsoftware.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (viii) transmit spam, chain letters or other unsolicited email; (ix) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers supporting the Products and Services; (x) take any action that imposes, or may impose, at Avolution’s sole discretion, an unreasonable or disproportionately large load on Avolution Property or Avolution’s infrastructure; (xi) upload invalid data or Excluded Data or other agents through the Products and Services; (xii) collect or harvest any Personal Data, including account names, from or via the Products and Services; (xiii) impersonate another Individual or otherwise misrepresent an affiliation with an Entity, conduct fraud, or hide or attempt to hide an identity; (xiv) access any content on or of the Products and Services through any technology or means other than those provided or authorised by Avolution; (xv) attempt to Use, or Use the Products and Service, in violation of this Agreement.

(c) New Releases. When the Products and Services are upgraded to a new Update, You shall not Use the new Products and Services Update and the corresponding copy of the previous Products and Services release concurrently, without Avolution’s prior express consent. Under no circumstances shall the previous release be reused or transferred to any other Individual, Entity or device.

(d) Contractors and Permitted Users. Customer may allow the Personnel of Affiliates to exercise User rights granted hereunder on behalf of Customer to the extent strictly necessary for Customer’s Internal Business Purposes, provided that Customer ensures that such Affiliate Personnel Use of the Products and Services is in strict accordance with all the terms and conditions of this Agreement. Customer shall be fully responsible for any failure of its and its Affiliates’ respective Personnel to comply with the terms of this Agreement. The rights granted under and terms of this Section do not constitute and shall not be construed as an Avolution approval of any transfer of the Licences or Subscriptions to a Customer Affiliate. The use of the term “Users” under this Agreement will be deemed to include, for all purposes, any Personnel of Customer’s Affiliates who are permitted Use of Products and Services. Customer will be deemed to have taken any action that any of its or Affiliates’ respective Users takes or is permitted to take related to this Agreement, Customer Data and Use of the Products and Services. Customer will ensure that all Users comply with Customer obligations under this Agreement and that the terms of Customer’s agreement with each User is consistent with this Agreement. If Customer becomes aware of any violation of Customer’s obligations under this Agreement caused by a User, Customer will immediately suspend access to the applicable Products and Services by such Users.

(e) Technical Measures. Avolution may use technical measures, from time to time, to enforce terms that restrict Your Use of certain versions of Product and Services and may verify compliance with those terms as provided in this Agreement and an applicable Customer Order. If Avolution reasonably determines that unauthorised Use of the Products and Services is being undertaken by You or Customer’s Users, Avolution may charge fees to Customer, and Customer shall pay such fees, which will include amounts which should have been paid, interest, and reasonable attorneys’ and audit fees. Some Products and Services are protected by technological measures and require activation or validation, as well as a key, to install or access them. Successful activation or validation verifies that the Product and Services have been correctly installed accessed and accepted, the Products and Services key, as applicable, is not stolen, and that no changes have been made to validation, licensing, or activation functions of the Products and Services. You are not licensed or authorised to continue using the applicable Products and Services if You have unsuccessfully attempted to install, access and activate, and agree to contact Avolution immediately in such an event to seek resolution. If We inform You that a specified activity or purpose is prohibited with respect to the Products and Services, You will immediately cease Use of the Products and Services for such prohibited activity or purpose.

3.2 User Names and Passwords.

Each User name and password may only be Used by one Individual User and may not be shared among Users. You are responsible for all activities that occur under Your User name. You are responsible for the confidentiality, backup, recovery and security of User names and passwords. You agree (i) not to allow a third party to Use Your account or Your User name or passwords at any time; and (ii) to notify Avolution promptly of any actual or suspected unauthorised Use of an account, a User name or password. Avolution reserves the right to terminate any User name or password, which Avolution reasonably determines may have been Used by an unauthorised third party or an Entity other than the User to whom such User name and password was originally assigned. If You Use any “single sign-on” service, identity provider, network authentication and/or validation service, identity or access management or mapping, or any functionally-equivalent product, program or service (collectively, “SSO Services”), You shall be solely responsible for all such usage, management and liability relating to the SSO Services components, excluding those managed by Avolution. Log-in credentials and private keys generated by Avolution or its Third-Party Providers for Your Use of the Products and Services are for internal Use only and You agree that You will not sell, transfer, share or sublicense them to any other Entity or Individual, except that it may disclose them to Customer Personnel performing work on Customer’s behalf.

3.3 Fees.

Your Use of the Products and Services is subject to the payment in full of all applicable fees under and in accordance with the terms of a Customer Order. The Fees are due in advance and are non-refundable, except to the extent otherwise expressly provided for in a particular Customer Order. In addition to any other rights granted to Avolution in this Agreement, Avolution reserves the right to suspend or terminate Your Use of the Products and Services if You, or the Customer which You represent, has not paid any amount of fees when due or is otherwise in breach of this Agreement or the Other Agreements. Customer will continue to be charged for all applicable fees during any period of suspension or termination. Unless otherwise specified in a Customer Order, the Products and Services fees are exclusive of all taxes, levies, duties or similar governmental assessments, including value-added, sales, Use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”).

3.4 Excluded Data. Excluded Uses.

(a) No Health Data. You may not Use or permit the Use of the Products and Services to create any obligations under any federal, national, state, provincial, municipal, local or other Laws of any country or region, as amended and replaced from time to time, relating to health, patient and insurance data, including without limitation, the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (HIPPA and such other regulations collectively, “Health Regulations”). Avolution makes no representations whatsoever, and specifically disclaims, that Avolution’s Products and Services satisfy any Health Regulations. You may not, and will not, Use the Products and Services to store, control and/or process any data in any manner whatsoever involving “protected health information” or such similar term (as defined in any Health Regulations) that would be subject to any Health Regulations (“Health Data”).

(b) No Personal Data. You may not Use the Products and Services, and the Products and Services are not intended, to store or process any data, or for any purpose or in any manner whatsoever (i) that contains any Personal Data (“Health Data” and “Personal Data” are collectively referred to herein as “Excluded Data”).

(c) Excluded Uses. The Products and Services are not intended for, and may not be used for, business critical or high risk uses or applications (“Excluded Uses”).

(d) No Liability. Avolution shall have no liability whatsoever to You, Customer, its Affiliates and their respective Users with respect to, or for (i) Your Use of the Products and Services with Excluded Data or for Excluded Users; or (ii) any failure to provide protection for or confidentiality of Excluded Data.

(e) Customer Data. You acknowledge and agree that Avolution will have no responsibility or liability for the existence, accuracy or content of Customer Data accessed, used, processed or transmitted with or in connection with the Products and Services. You acknowledge and agree that (1) the Products and Services function only as a tool or vehicle used by Customer; (2) Avolution cannot control, and disclaims responsibility for the jurisdictions across which Customer may input, store, control, access, transmit and process (“Control”) of Customer Data; (3) Customer is responsible for compliance with Laws, including Data Regulations, applicable to Customer’s Control; (4) Avolution is not a “data controller” or similar role under any applicable Data Regulations with respect to any Customer Data; (5) Avolution will handle Customer Data to the extent necessary to fulfil its obligations under the Agreement and Customer Orders, in accordance with applicable Data Regulations and Avolution’s Privacy Policy; (6) Customer will not include in Customer Data any Excluded Data and will not Use Products and Services for or with Excluded Data or Excluded Uses, responsibility for which Avolution expressly disclaims.

3.5 Customer Property.

You, or Customer, as applicable, are responsible for (a) obtaining, purchasing, leasing, upgrading, securing and maintaining any and all Customer Property necessary, required or used to connect to, access and otherwise Use the Products and Services; (b) ensuring that such Customer Property (1) is compatible with the Products and Services and (2) complies with all configurations and specifications set forth in the Documentation;(iii) maintaining the security of all of the components of Customer Property, Customer accounts, User names and passwords, files, and for all uses of Products and Services. Avolution is not responsible for any (i) updates, new versions, releases, maintenance or fixes available or necessary for any Customer Property; or (ii) compromise of Customer Data transmitted across or using Customer Property not owned or managed by Avolution.

3.6 Acceptance.

You and Customer acknowledge and agree that (i) Avolution has provided You and Customer with adequate opportunities for You and Customer to test the Products and Services prior to purchasing and Using such Products and Services; and (ii) Your and Customer’s acceptance of the Products and Services is deemed to take place on the Customer Order effective date or Products and Services activation date, whichever is earlier.

3.7 Security, Backup and Retention.

(a) You are responsible for all activities that occur under Your account. Customer is responsible for all activities under all Customer accounts, regardless of whether the activities are authorised by Customer or undertaken by Customer, its Personnel or a third party. Customer is responsible for taking appropriate action to regularly secure, protect, backup and validate the integrity of backups of its accounts and all Customer Data.

(b) Avolution will make available to Customer the Customer Data within Avolution’s possession for a period of sixty (60) calendar days after the effective Termination date (“Retention Period”) for Customer’s own download of such data. If Customer requests, and Avolution agrees to, a non-standard or non-supported format or delivery method for such Customer Data within the Retention Period, Customer may be required to pay additional fees for such delivery method or format. After the expiration of such Retention Period, subject to applicable Laws, Avolution will have no obligation to maintain Customer Data in any form, in any system or in its possession or control, and may destroy and dispose of such Customer Data. During such Retention Period, if expressly requested in writing by an authorised Customer representative, Avolution shall destroy or securely erase Customer Data in Avolution’s possession, subject to applicable Laws.

3.8 Third-Party Programs.

The Products and Services may include Third-Party Programs. Some of these programs may require that You license directly such Third-Party Programs with the respective Third-Party Providers.


4. PROPRIETARY RIGHTS

4.1 Avolution’s Rights.

Avolution warrants that it has sufficient rights to grant the Licence or sell a Subscription, as applicable, to the Products and Services, as contemplated under this Agreement and a Customer Order. If the possession or Use of Products and Services infringes the Intellectual Property Rights of a third party (a “Claim”), Avolution will, at its expense and option:

(a) procure for the Customer the right to continue using the particular Product or Service, as applicable, in the manner contemplated by this Agreement, free from any liability for such infringement; or

(b) modify the Product or Services, as applicable, so that it no longer infringes the Intellectual Property Rights of such third party (provided that any such modification does not materially affect the functionality of the applicable Product or Service); or

(c) terminate this Agreement and applicable Customer Order with no termination fee, immediately on written notice and (without prejudice to Customer’s obligations to pay any fees due up to and including the Termination Date), refund any fees that have been paid in respect of the Products and Services, as applicable, for any unexpired part of the applicable term.

(d) The provisions of this Section shall be Your and the Customer’s sole and exclusive remedy in relation to any Claim and shall survive the termination of this Agreement.

4.2 Exclusions to Claim.

Avolution shall not have any obligation or liability for a claim of infringement or misappropriation to the extent the claim is caused by: (i) modifications made by You or Customer’s Personnel; (ii) Your or Customer’s Personnel’s combination of Avolution’s Products and Services with items not furnished or specified in the Documentation; (iii) Your or Customer’s Personnel’s failure to use corrections or modifications provided by Avolution offering equivalent features, functionality, and performance characteristics; or (iv) work product or Customer Data provided to Avolution by You or Customer Personnel or used by You or Customer Personnel with the Products and Services.

4.3 No Property Rights Conveyed.

Avolution, its Affiliates and the respective Third-Party Providers, as applicable, own or license, and retain all right, title and interest in and to the Products and Services (including but not limited to any images, photographs, animations, video, audio, music, data, text, and “applets” incorporated into the software), the structure, organisation and code, Documentation and all Intellectual Property Rights in the Products and Services. Avolution conveys no interest or ownership whatsoever in the Products and Services, the source code, any derivative works or the Intellectual Property Rights therein to You or Customer under this Agreement, any Customer Order or any other document. All title and Intellectual Property Rights in and to the content, except Customer Data, which may be accessed through Use of the Products and Services is the property of Avolution, its Affiliates and the respective Third-Party Providers, as applicable, and may be protected by applicable copyright, international treaties or other intellectual property Laws. The Licences and Subscriptions granted or sold to Customer, or Used by You, do not convey to You or Customer any rights to use such content, except as part of the permitted Use of the Products and Services under this Agreement. You covenant not to remove or delete, and not to permit the removal or deletion, of any copyright notice or other proprietary legends or marks, which may be endorsed on the Products and Services, Documentation, or any copies thereof.

4.4 Customer Data.

You represent that You have all necessary rights in the Customer Data You use with the Products and Services. Except as otherwise provided herein, Avolution shall obtain no rights in or to Customer Data under this Agreement. You grant to Avolution a non-exclusive, non-transferable, royalty-free licence to use, copy, store, transmit and display Customer Data to the extent necessary to provide the Products and Services.

4.5 Brand Features.

You acknowledge Avolution’s Brand Features and agree not to use Our Brand Features in any manner whatsoever, except as otherwise expressly permitted under this Agreement. You agree not to: remove, fail to display, obscure or alter the Brand Features or other proprietary rights notices or legends of Avolution or any of its Third-Party Providers affixed to, contained within or accessed in, with or through the Products and Services or any Avolution Property. You must maintain Avolution’s copyright notice on any copies of the Documentation in any format for the Products and Services. Except as expressly authorised by Avolution, You may not use, copy, imitate or incorporate any Avolution Brand Feature in any manner whatsoever without Avolution’s prior express consent. You may not use Our Brand Features in any manner that would violate applicable Laws, local custom, or conflict with Avolution’s policies.

4.6 Media Elements and Templates.

Avolution grants You a non-exclusive, non-transferable, terminable licence to copy, distribute, perform and display media elements (e.g. clip art, templates and other forms of content) included with or in the Products and Services in projects, documents and presentations made with the Products and Services, except that You may not sell, license. sublicense or distribute copies of any such media elements by themselves or as a product if the primary value of the product or service is the media elements.

4.7 Third-Party Materials.

The Products and Services may display, include or make available certain content (including web pages, sites, content, information, data, applications and other third-party products, services and materials (“Third-Party Materials”). Avolution does not endorse and is not responsible for any Third-Party Materials, excluding any Integrated Programs, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency or quality.

4.8 Feedback.

Avolution does not agree to treat as confidential any of Your Feedback (as defined below), or Feedback of any Customer Personnel provided to Avolution. You agree that Avolution has the right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting You or Customer; provided, however, that Avolution shall not publicly disclose: (i) any Personal Data associated with such Feedback, or (ii) any Customer Confidential Information, without the prior express written consent of Customer. You hereby grant Avolution a perpetual, irrevocable, royalty-free right and licence to exploit Feedback in any and every way. For purposes of this Agreement, “Feedback” means and includes (i) any suggestions, ideas or feedback on or for improving or otherwise modifying any Products and Services and (ii) any anonymised data about and derived from Your Usage of the Products and Services, problem resolution, troubleshooting, product functionality, enhancements and Updates, of and relating to Products and Services.


5. TERM AND TERMINATION.

5.1 Term.

Your Use of the Products and Services is permitted during and in accordance with a paid-up term for the Software Licence or Cloud Services Subscriptions, as set forth under a Customer Order with a Customer (“Term”), unless suspended or terminated earlier under terms of this Agreement and at law. In the event the term of the Customer Order Term extends beyond the expiration or termination of this Agreement, this Agreement will be deemed coterminous with the final Customer Order, as applicable, and such Customer Order Term will continue to be governed by all of the terms and conditions of this Agreement until the expiration or termination of such Customer Order.

5.2 Termination.

In addition to any other circumstances set forth in this Agreement, Avolution may terminate or suspend the Agreement, a Customer Order and the provision of Products and Services, as applicable, in accordance with the following circumstances, terms and conditions:

(a) Change in Laws. If Avolution can demonstrate that, due to any newly enacted or promulgated Laws, this Agreement or any affected Customer Order poses a material risk of sanction or material adverse change to Avolution.

(b) Material Breach. As of a date specified in a written notice by Avolution to You, if You breach any material term or condition of this Agreement or a particular Customer Order. For avoidance of doubt, any (i) breach or delinquency of Customer’s payment obligations to Avolution or (ii) unauthorised Use of the Products and Services will be deemed a material breach of this Agreement.

(c) Force Majeure. Avolution will not be liable for, or be considered to be in breach of or default under this Agreement or any Customer Order on account of, any delay or failure to perform as required by this Agreement or any Customer Order, as a result of any cause or condition beyond Avolution’s reasonable control, acts of God, acts or omissions of Internet traffic providers, actions or omissions of regulatory or governmental bodies (including the passage of Laws that impact the Products and Services).

(d) Termination Effects. Upon Avolution’s termination of this Agreement hereunder or any Customer Order, Avolution shall be entitled to suspend or terminate Your Use of the Products and Services.

5.3 Temporary Suspension.

Avolution may suspend Your, Customer’s or any Customer User’s right to Use any portion or all of the Products and Services immediately if Avolution determines that You, Customer or any Customer Users Use of the Products and Services: (i) poses a security risk to the Products and Services or any third party; (ii) could adversely impact Avolution’s or a third-party system, programs, Products and Services; (iii) could subject Avolution, its Affiliates, or any third party to liability; (iv) could be fraudulent; (v) is in breach of this Agreement or a Customer Order, including Customer payment obligations; or (vi) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer’s assets, or become the subject of any bankruptcy, reorganisation, liquidation, dissolution or similar proceeding.

Customer will immediately suspend a User’s right to Use any Products and Services in the event that Customer or Avolution determines the occurrence of any of the circumstances set forth herein, and Customer shall immediately notify Avolution of such event.


6. CONFIDENTIAL INFORMATION

6.1 Confidential Information.

You are obligated to comply with the provisions of this Section 6 as a condition of Your Use of the Products and Services. Each Party possesses and shall continue to possess non-public Confidential Information that has been developed or received by it or that has commercial value in its business.

6.2 Obligations.

A Party receiving Confidential Information (“Receiving Party”) shall not disclose, and shall maintain the confidentiality of, all Confidential Information received from a Party, prior to or after the Effective Date, disclosing Confidential Information (“Disclosing Party”), and Receiving Party shall use at least the same degree of care to safeguard and to prevent unauthorised disclosure to third parties as the Receiving Party employs to avoid unauthorised disclosure, publication, dissemination, destruction, loss, or alteration of its own information (or information of its customers) of a similar nature, but not less than reasonable and due care. Receiving Party and its Personnel shall not disclose to any Individual or Entity any Confidential Information received from Disclosing Party for any reason whatsoever, other than on a “need to know basis” and then only: (i) to its Affiliates; (ii) to its Personnel only if all such persons are bound by a written confidentiality agreement with terms no less restrictive than the confidentiality provisions of this Section, or if no such written confidentiality agreement exists, or if such written confidentiality agreement is not as restrictive as the confidentiality provisions of this Section, that Receiving Party agrees to be responsible for the compliance of its Personnel with the terms of this Section; or (iii) as required by applicable Laws or as otherwise expressly permitted by the Agreement. The Receiving Party shall be fully responsible for the acts and omissions of any Individual or Entity to which it discloses Confidential Information and shall ensure that such Confidential Information is not disclosed or used in contravention of the Agreement. Any disclosure to such Entity shall be under the terms and conditions provided herein. As between the Disclosing Party and Receiving Party, Confidential Information shall remain the property of the Disclosing Party except as expressly provided otherwise in the Agreement. Receiving Party shall not:

(a) make any use or copies of the Confidential Information of the Disclosing Party except as contemplated by this Agreement;

(b) acquire any right in or assert any lien against the Confidential Information of the Disclosing Party;

(c) sell, assign, transfer, or lease to third parties, or otherwise dispose of Confidential Information or commercially exploit such information; or

(d) refuse for any reason (including a default or material breach of any portion of the Agreement by the Disclosing Party) to promptly provide the Disclosing Party’s Confidential Information (including copies thereof) to the Disclosing Party if requested to do so.

Upon the earlier of the Termination Date, sixty (60) days after the expiration or termination of a Customer Order (for Confidential Information provided in connection with such Customer Order) or the completion of each Party’s obligations under the Agreement, Receiving Party shall return or destroy, as the Disclosing Party may direct, all documentation in any medium that contains the Disclosing Party’s Confidential Information, and retain no copies thereof. Any obligation to return or delete Confidential Information shall not be deemed or interpreted to require Customer to retrieve and return or delete such Information that is stored on computerised back-up media.

6.3 Exclusions.

The obligations of confidentiality in this Section shall not apply to any particular information which the Receiving Party can demonstrate: (i) is, at the time of disclosure to it, in the public domain; (ii) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of the Receiving Party; (iii) is in the possession of the Receiving Party at the time of disclosure to it; (iv) is received from a third party having a lawful right to disclose such information; or (v) is independently developed by the Receiving Party without reference or access to Confidential Information of the Disclosing Party. In addition, the Receiving Party shall not be considered to have breached its obligations under this Section for disclosure of any Confidential Information of the Disclosing Party as required to satisfy any legal requirement of a competent government body, provided that, promptly upon receiving any such request and prior to making such disclosure, to the extent that it may legally do so, such Party advises the other Party of the Confidential Information to be disclosed and the identity of the third party requiring such disclosure in order that the other Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information. The Receiving Party shall cooperate with the Disclosing Party’s reasonable, lawful efforts to resist, limit or delay disclosure.

6.4 Loss of Confidential Information.

Each Party shall: (i) immediately notify its counterparty of any possession, use, knowledge, disclosure, or loss of counterparty’s Confidential Information in contravention of the Agreement; (ii) promptly furnish to its counterparty all known details and assist the counterparty in investigating or preventing the reoccurrence of such possession, use, knowledge, disclosure, or loss; (iii) cooperate with its counterparty in any investigation or litigation deemed necessary by the counterparty to protect its rights; and (iv) promptly use all commercially reasonable efforts to prevent further possession, use, knowledge, disclosure, or loss of Confidential Information in contravention of the Agreement.

6.5 No Implied Rights.

Nothing contained in this Section shall be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or impliedly, any rights or licence in or to any Confidential Information of such other Party.

6.6 Equitable Relief.

You agree that, due to the unique nature of the Confidential Information, the unauthorised disclosure or use of the Confidential Information or any other breach of any provision of this Section 6 will cause irreparable harm and significant injury to Avolution, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, You agree that, in addition to any other available remedies, Avolution shall have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section without the necessity of posting any bond or other security.


7. LAWS.

7.1 Compliance with Laws.

Each Party agrees that it is fully aware of, and that it will comply with, all applicable Laws that relate to their respective obligations under this Agreement and to the Use of the Products and Services, including Data Regulations and Laws relating to economic sanctions, use, export, re-export, and transfer of the Products and Services. You shall not access or Use the Products and Services if You are located in any jurisdiction in which the provision of the Products and Services, or components thereof, is prohibited under U.S., U.K, Australian or other applicable laws or regulations (each, a “Prohibited Jurisdiction”). You shall not provide access to the Products and Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (i) You are not named on any U.S. government (or other government) list of persons or Entities prohibited from receiving U.S. exports, or transacting with any U.S. Individual or Entity, (ii) You are not a national of, or an Entity registered in, any Prohibited Jurisdiction, (iii) You shall not permit Users to access or Use the Products and Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions. You shall comply with all applicable Laws regarding the transmission of technical data exported from the U.S. and the country in which You and Your Users are located.

7.2 Anti-Corruption Laws.

Each Party represents, warrants and covenants that it is fully aware of and shall comply with, and in the performance of its respective obligations hereunder, shall not take any action or omit to take any action that would cause either Party to be in violation of any applicable international, federal, state, provincial, local and other anti-bribery, anti-corruption and anti-money laundering laws (collectively, “Anti-Corruption Laws”), including without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and section 70.2 of the Australian Criminal Code Act 1995 (Cth).


8. DISCLAIMERS.

8.1 DISCLAIMER OF WARRANTIES.

ANY STATEMENTS, REPRESENTATIONS OR COMMUNICATIONS WITH ANY PERSON OR ENTITY ABOUT THE PRODUCTS AND SERVICES AND THEIR RESPECTIVE FUNCTIONALITY IN ANY COMMUNICATIONS, AVOLUTION WEBSITE INFORMATION, SALES, PRE-SALES OR MARKETING MATERIALS, RFPs, RFIs OR CUSTOMER QUESTIONNAIRE RESPONSES DO NOT CONSTITUTE AN EXPRESS OR IMPLIED WARRANTIES OR GUARANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND SERVICES ARE PRESENTED, LICENSED, SUBSCRIBED, SOLD AND TO BE USED ON AN “AS-IS” BASIS. AVOLUTION AND THE THIRD-PARTY PROVIDERS DO NOT MAKE, AND HEREBY DISCLAIM, ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF: MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, TIMELINESS, AVAILABILITY, CAPACITY, SUITABILITY, ACCURACY, QUALITY, AND SECURITY, ERROR-FREE OR UNINTERRUPTED OPERATION. AVOLUTION AND THE THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OR OPERATION OF THE PRODUCTS AND SERVICES WILL BE ENTIRELY SECURE, FREE OF VULNERABILITY TO INTRUSION OR ATTACK, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, NETWORK OR SYSTEM NOT SPECIFIED BY AVOLUTION, (ii) ANY ERRORS OR DEFECTS WILL BE CORRECTED, OR (iii) THE PRODUCTS AND SERVICES ARE FREE OF ANY MALICIOUS ELEMENT OR OTHER HARMFUL COMPONENTS. THE PRODUCTS AND SERVICES ARE NOT DESIGNED, PRODUCED, INTENDED OR PROVIDED FOR, AND MAY NOT BE USED WITH AND FOR, EXCLUDED DATA AND EXCLUDED USES.

8.2 LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AVOLUTION, NOR ITS RESPECTIVE AFFILIATES AND THIRD-PARTY PROVIDERS SHALL BE LIABLE TO YOU OR THE CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND, HOWEVER CAUSED (WHETHER BY NEGLIGENCE OR OTHERWISE), EVEN IF AVOLUTION KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY, INCLUDING WITHOUT LIMITATION, LOSS, DELAY OR INTERRUPTION OF: PROFITS, REVENUE, CUSTOMERS, OPPORTUNITIES, TIME, USE, PRODUCTION, BUSINESS, CUSTOMER DATA OR FOR ANY CLAIM AGAINST THE OTHER BY ANY THIRD PARTY.

8.3 LIMITATION OF DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, A PARTY’S, AND ITS RESPECTIVE AFFILIATES AND OWNERS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID (EXCLUDING TAXES, REIMBURSEMENTS TO CUSTOMER AND PASS-THROUGH EXPENSES) BY CUSTOMER TO AVOLUTION FOR THE SPECIFIC PRODUCT AND SERVICE, OR CUSTOMER ORDER THAT GAVE RISE TO THE SUBJECT MATTER OF THE CLAIM UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY CLAIM. THIS LIMITATION OF DAMAGES IS CUMULATIVE AND NOT PER-INCIDENT. YOU AND THE CUSTOMER MAY NOT MAKE A CLAIM UNDER THIS AGREEMENT ARISING OUT OF AN EVENT OR EVENTS THAT OCCURRED MORE THAN ONE (1) YEARS AFTER THE EVENT IS, OR SHOULD HAVE BEEN, DISCOVERED BY THE YOU OR THE CUSTOMER MAKING THE CLAIM.

8.4 THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. YOU ACKNOWLEDGES THAT THE FEES, EXCLUSIONS, DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH IN THIS AGREEMENT ARE NEGOTIATED AND AGREED UPON AS ESSENTIAL COMPONENTS OF THIS AGREEMENT AND AVOLUTION WOULD NOT PERMIT YOU THE USE OF THE PRODUCTS AND SERVICES WITHOUT SUCH WARRANTY DISCLAIMERS AND LIMITATIONS ON ITS LIABILITY AND DAMAGES. YOU AND THE CUSTOMER AGREE THAT THESE DISCLAIMERS AND LIMITATIONS ARE NOT UNCONSCIONABLE.


9. OTHER

9.1 Relationship of the Parties.

Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship among the Parties. A Party and its Personnel and Representatives have no authority of any kind to bind the other Party in any respect whatsoever, and the relationship of the Parties is, and at all times shall continue to be, that of independent contractors.

9.2 Location.

The Products and Services are licensed, sold, delivered and provided for Your and Customer’s Use in the country of the Avolution office entering into the particular Customer Order under which You are Using the Products and Services (“Permitted Country”), unless otherwise expressly agreed to in writing by Avolution in the Customer Order. If You Use, or permit Your Users or other third parties to Use, the Products and Services in or from other jurisdictions not agreed to specifically by Avolution, You and Customer do so at Your own volition and liability and are entirely responsible for compliance with all applicable Laws related to such Use. You agree to immediately notify Avolution in writing if You learn or has knowledge or reason to believe that the Products and Services are being or may be Used outside the Permitted Country. Upon learning this, Customer shall immediately prevent any of its Users from Using the Products and Services outside the Permitted Country, unless Avolution has expressly agreed in writing to such use.

9.3 Products and Services Changes.

Avolution may add to, change, remove or discontinue any or all of the Products and Services, or their respective functionality or components, from time to time (“Changes”). Any such Changes are subject to the terms of this Agreement. Avolution will make commercially reasonable efforts to notify Customer of any Changes that would have a material adverse impact on Customer’s Use of the Products and Services.

9.4 Indemnification.

You agree to indemnify, defend and hold harmless Avolution, its Affiliates and their respective Personnel (“Indemnified Parties”) from and against any and all claims made or threatened by any third party (“Third-Party Claim”) against such Indemnified Parties seeking indemnification, and all related losses, expenses, damages, costs and liabilities, including reasonable attorneys’ fees and expenses incurred in investigation or defence (“Damages”), to the extent such Damages arise out of or relate to (a) Your obligation, duty, representation or warranty contained in this Agreement; (b) Your fraud, fault, negligence, or wilful misconduct; and (c) Your failure to comply with applicable Laws in connection with this Agreement.

9.5 Severability.

If any provision of the Agreement is determined to be unenforceable, the remainder of such provision and the rest of the Agreement shall continue in full force, to the extent they are enforceable, and any such unenforceable provision shall be deemed revised in order to provide the Party adversely affected by such determination with the benefit of its expectation, evidenced by the provisions affected by such a declaration, to the maximum extent legally permitted. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of this Agreement is materially impaired for Avolution, as determined by it in its sole discretion, then Avolution may terminate this Agreement by written notice with immediate effect to You.

9.6 Entire Agreement. This Agreement, along with the Customer Orders, SOWs, if any, or other schedules or attachments referred to therein constitute the complete, final and exclusive statement of the Parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and communications of the Parties with respect to such subject matter. If Customer issues a purchase order or other similar unilateral ordering document for Products and Services, such instrument will be deemed for Customer’s internal use only, and any provisions contained therein shall have no effect whatsoever upon or form part of this Agreement.

9.7 Electronic Signature and Disclosure Consent Notice.

You agree to the use of electronic documents and records in connection with this Agreement and all future documents and records in connection with the Products and Services, including this electronic signature and disclosure notice.

9.8 Governing Law.

This Agreement will be construed in accordance with laws of New South Wales, Australia, without giving effect to principles regarding conflict of laws, the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Computer Information Transactions Act or the UK Contracts (Rights of Third Parties) Act 1999, all of which are specifically disclaimed.

9.9 Governing Language.

This Agreement is in the English language and You acknowledge that You fully understands the language and the content of this Agreement. You will, and may, not use any provision of any Laws to attempt to, or to, invalidate this Agreement or any provisions hereof. If You or Customer prepares a version of this Agreement in a second language (“Second Language Version”), such Second Language Version is intended and permitted to be used only as a reference and convenience for You. If any difference in meaning or interpretation occurs between the language versions, the English language version shall prevail and govern in all respects.

9.10 Waiver.

No waiver of any breach of this Agreement shall: (i) be effective unless it is in a writing which is executed by the Party charged with the waiver, or (ii) constitute a waiver of a subsequent breach, whether or not of the same nature. All waivers shall be strictly construed. No delay in enforcing any right or remedy as a result of a breach of the Agreement shall constitute a waiver thereof.

9.11 Survival of Terms.

Any provision of the Agreement that contemplates performance or observance subsequent to a termination date or termination of rights granted hereunder, including those relating to: Your Rights. Restrictions, Proprietary Rights, Disclaimer of Warranty. Limitation of Liability, Limitation of Damages, Confidential Information, Indemnification, Laws, shall continue in full force and effect after an effective termination or expiration of the Agreement and any Customer Orders to the fullest extent necessary to give the Parties the full benefit of the bargain expressed herein.

9.12 Cumulative Remedies.

No right or remedy conferred by the Agreement is exclusive of any other right or remedy conferred herein or by law or in equity; all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time.

9.13 Covenant of Cooperation and Good Faith.

You and Avolution shall act in good faith in connection with this Agreement.

9.14 Covenant of Non-Disparagement.

You agree that You will not disparage, speak ill, write, broadcast in, on or via any medium, or permit any of the same by Your Personnel, if applicable, in any manner that which might possibly have any adverse impact upon Avolution, its Affiliates, or their respective businesses, products and services or Personnel (“Disparagement”). You will take all commercially reasonable steps to prevent, and will not knowingly permit, Disparagement. For purposes of this Section, Disparagement shall include any oral, written, digital, online comments, reviews, feedback, references or communication in any form or kind.

9.15 Further Assurances.

You and Avolution agree that, subsequent to the execution and delivery of this Agreement and without any additional consideration, each party shall execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate the purposes of this Agreement.

9.16 Assignment.

You may not assign, delegate, subcontract or otherwise transfer this Agreement or any of its rights or obligations under this Agreement (collectively, “Transfer”). Any attempt to so Transfer without Avolution’s express written consent shall be null and void.

9.17 Communication from Us. Notices.

We may contact You directly via the email address You have provided to Us to notify You if: (i) You are in violation of this Agreement; or (ii) a specific activity or purpose is prohibited with respect to the Products and Services, so that You immediately cease Use of the Products and Services for such prohibited activity or purpose. All notices to be provided by any Party under this Agreement may be delivered in writing (i) by nationally recognised overnight delivery service (“Courier”) or (ii) electronic mail to the email address provided for each Party. Our address for Your notice to Us in writing is:

Avolution Pty Ltd
110 Pacific Highway
North Sydney, New South Wales 2060
Australia
ATTN: Legal Counsel
Email: general.counsel@avolutionsoftware.com

9.18 Changes to this Agreement.

Avolution reserves the right to modify or update this Agreement, from time to time, at its sole, but reasonable, discretion. In the event that Avolution modifies or updates this Agreement in a material way, Avolution will use reasonable efforts to notify You and provide You the opportunity to opt-out of acceptance of the updated Agreement by terminating this Agreement. Your failure to opt-out of the updated Agreement and terminate this Agreement shall constitute Your acceptance of the updated Agreement.