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Avetta Master Subscription Agreement

This Master Subscription Agreement (“Agreement”) is made and entered into between Avetta, LLC (“Avetta”) and the Client as identified in an applicable Sales Order (“Client”). This Agreement was last updated on December 22, 2021. It is effective between Client and Avetta as of the date of Avetta’s execution of the first applicable Sales Order hereunder (the “Effective Date”).

THIS AGREEMENT GOVERNS CLIENT’S USE OF THE PRODUCTS AND SERVICES ORDERED BY CLIENT UNDER AN APPLICABLE SALES ORDER OR OTHERWISE PROVIDED TO CLIENT OR ONE OR MORE OF ITS AFFILIATES BY AVETTA (THE “SERVICES”). BY (1) EXECUTING THIS AGREEMENT, (2) EXECUTING A SALES ORDER THAT REFERENCES THIS AGREEMENT, (3) CLICKING A BOX INDICATING ACCEPTANCE, OR (4) USING THE SERVICES, CLIENT AGREES TO AND ACCEPTS ALL TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. FOR PURPOSES OF THIS AGREEMENT, AN ENTITY’S “AFFILIATES” SHALL MEAN ANY ENTITY THAT DIRECTLY OR INDIRECTLY CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH ALL TERMS AND CONDITIONS OF THIS AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT OR USE THE SERVICES.

The Services may not be accessed for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.

Avetta’s direct competitors are prohibited from accessing the Services, except with Avetta’s prior written consent.

1.

Order Process.

1.1

 Sales Order. Client may order a subscription for Services by signing a Sales Order. In the event of conflict or inconsistency between the terms of this Agreement and a Sales Order, this Agreement shall take precedence, unless a signed Sales Order expressly references a provision of this Agreement which it is intended to override.

1.2

Purchase Order. If Client’s business practices require a purchase order number be issued prior to payment of any Avetta invoices issued pursuant to a Sales Order, then such purchase order number must be provided to Avetta prior to the effective date of such Sales Order. Client may specify the purchase order number on the Sales Order and forward a copy of the Purchase Order with such Sales Order. AVETTA SPECIFICALLY OBJECTS TO ANY ADDITIONAL TERMS BEING ADDED THROUGH A CLIENT PROVIDED PURCHASE ORDER OR SIMILAR DOCUMENT. THE PARTIES AGREE THAT ANY ADDITIONAL TERMS CONTAINED THEREIN WILL NOT BECOME PART OF THE AGREEMENT BETWEEN THE PARTIES AND, SPECIFICALLY, THAT THE TERMS OF THIS AGREEMENT WILL SUPERSEDE AND REPLACE ANY AND ALL TERMS IN ANY PURCHASE ORDER.

1.3

Client’s Affiliates. Client’s Affiliates shall be permitted to use the Services and Content subject to the terms of this Agreement and the applicable Sales Order, except as specifically limited in the applicable Sales Order. Any rights extended to Client’s Affiliates under this Agreement shall not alter, change, increase or modify in any way Avetta’s duties and obligations under this Agreement. Client shall ensure that each of Client’s Affiliates using the Services or Content as authorized herein agrees to be subject to the terms and conditions of this Agreement. Client shall remain liable for any and all acts or omissions in violation of the terms of this Agreement by any of Client’s Affiliates and shall immediately provide written notice to Avetta of any violation of the terms of this Agreement by any of Client’s Affiliates. Client shall provide Avetta with a written list of Client’s Affiliates prior to permitting Client’s Affiliates to use the Services and Content.

2.

Subscription.

2.1

License to Access and Use the Services and Content. Subject to the terms of this Agreement, Avetta hereby grants Client a subscription to access and use (i) the Services, and (ii) information obtained by Avetta from publicly available sources or third parties, including Client’s contractors and contractor personnel (“Suppliers”), and made available to Client through the Services for Client’s use (“Content”). Content is the sole responsibility of the entity that makes it available to Avetta, and Client acknowledges and agrees that Avetta is not liable for any inaccurate Content submitted by third parties or any inaccuracies in reports or records generated through the Services resulting from inaccurate data provided to Avetta by third parties. The Services and Content may be used solely for Client’s own legitimate internal contractor-management business purposes and, without Avetta’s written permission and, if applicable, the permission of any other applicable parties, neither Client nor any User may copy, reproduce, alter, modify, create derivative works of, disclose outside of Client’s organization, or otherwise use any Content. Avetta reserves all rights not expressly granted to Client under this Agreement or in a Sales Order.

2.2

 Restrictions. Client agrees that neither it nor any of its Affiliates shall (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services, Content, or Avetta’s intellectual property; (ii) modify or make derivative works based upon the Services, Content, or Avetta’s intellectual property; (iii) reverse engineer any portion of the Services, Content, or Avetta’s intellectual property; or (iv) use the Services or Content to: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material; (c) send or store material containing software viruses or other harmful computer code; or (d) interfere with or disrupt the integrity or performance of the Services or the data contained therein. Client also agrees not to permit or enable any third party to do any of the foregoing.

2.3

 Non-Avetta Products and Services. During Client’s use of the Services, Client may correspond with, purchase goods and/or services from, or participate in promotions of, Suppliers or other third parties promoting or making available their goods and/or services through the Services. Any such activity or purchase, and any terms, conditions, warranties or representations associated with such activity or purchase are solely between Client and the applicable Supplier or third-party. Avetta and its Affiliates shall have no liability, obligation, or responsibility for any such correspondence, purchase, or promotion between Client and any such Supplier or third party.

3.

Professional Services. Avetta may make available, and Client may purchase from Avetta, professional services which may include, but are not limited to, implementation services, advisory services, and any additional consultancy or professional services (collectively, “Professional Services”). Avetta may require Client to enter into a statement of work (“SOW”) detailing the Professional Services to be performed. In the event of conflict or inconsistency between the terms of this Agreement and a SOW, this Agreement shall take precedence, unless a signed SOW expressly references a provision of this Agreement which it is intended to override (and in such case, only with respect to Professional Services to be performed pursuant to such SOW). Professional Services may be provided remotely. The completion time for any Professional Services to be performed under a SOW, and any milestones, will be dependent on Avetta’s receipt of all Client assets and specifications necessary for the project, in addition to Avetta receiving a validly signed SOW for processing, as requested by Avetta. The completion deadline will start from the date of delivery of all such assets and specifications, not the date of Avetta’s receipt of a signed SOW. Client acknowledges that delays in providing assets or specifications at the request of Avetta for such Professional Services may delay the completion of the Professional Services. Avetta will not be faulted for delays caused by Client’s failure to reasonably cooperate. Any Professional Service hours purchased pursuant to a SOW will expire upon the expiration or termination of the initial Subscription Term and will not carry over to any subsequent renewal Subscription Term.

4.

Fees and Payments.

4.1

Payment. Client shall pay all fees or charges as specified on each Sales Order (“Fees”). Except as specifically set forth in Section 5.4 (Effect of Termination) and Section 10.1 (Avetta Indemnification), all payment obligations are non-cancelable, and all amounts paid are nonrefundable. Unless otherwise set forth in the applicable Sales Order, payment terms are net 30 days from the date of Avetta’s invoice, without offsets or deductions of any kind. Unless otherwise set forth in the applicable Sales Order, all prices are stated in United States dollars, and all payments are due in United States dollars.

4.2

Taxes and Fees. Avetta’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Client shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Avetta’s income. If Avetta has the legal obligation to pay or collect taxes (including VAT or GST) for which Client is responsible, the appropriate amount shall be invoiced to and paid by Client unless Client provides Avetta with a valid tax exemption certificate authorized by the appropriate taxing authority. If Client believes Client’s bill is incorrect, Client must contact Avetta in writing within 30 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

4.3

Fee Changes. Avetta reserves the right to increase Fees no more than once every 12 months during the Subscription Term by providing Client at least 30 days prior written notice, and the applicable Sales Order will be deemed amended accordingly.

4.4

Suspension for Non-Payment. In addition to any other rights granted to Avetta herein, if any charge owing by Client to Avetta under this or any other agreement is 30 days or more overdue, Avetta reserves the right to accelerate Client’s unpaid payment obligations under such agreements so that all such obligations become immediately due and payable, and suspend Client’s access to the Services until such amounts are paid in full. Delinquent invoices are subject to interest of 1% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date of the delinquency notice, plus all expenses of collection.

5.

Term and Termination.

5.1

Agreement Term. This Agreement shall begin on the Effective Date and shall continue in effect until all Sales Orders with Client have expired in accordance with the terms of such Sales Orders unless this Agreement is sooner terminated as provided herein. Services are deemed to be delivered upon delivery of Client’s access to the Services.

5.2

Sales Order(s) Subscription Term. An applicable Sales Order will begin on the Sales Order Effective Date of such Sales Order and shall continue for the initial Subscription Term specified in such Sales Order. Unless otherwise set forth in an applicable Sales Order, or unless this Agreement is terminated as described in Section 5.3 (Termination), upon expiration of the initial Subscription Term or any subsequent renewal Subscription Term of any Sales Order, such Sales Order(s) will renew automatically for a subsequent renewal Subscription Term of 1 year, unless either party notifies the other party of its intent to terminate at least 30 days prior to the end of the then current Subscription Term.

5.3

Termination. Either party may terminate this Agreement (and any Sales Orders then in effect) (i) if the other party breaches any material term of this Agreement and fails to cure such breach within 30 days after delivery of written notice of such breach; or (ii) immediately upon notice if the other party (A) is in breach of any of its obligations with respect to assignment, confidentiality or misuse or infringement of the intellectual property rights of the other; or (B) is subject to any events of insolvency or entering into a scheme, proceeding, or voluntary arrangement with its creditors for partial discharge of indebtedness.

5.4

Effect of Termination. On termination for whatever reason, all of Client’s rights to use the Services cease. Except as set forth in the following sentence, in no event will termination relieve Client of its obligation to pay any Fees payable to Avetta, including but not limited to, any unpaid Fees for the period prior to the effective date of termination and any Fees owing for the remainder of the Subscription Term. In the event of Avetta’s termination of this Agreement or any Sales Order(s) due to Avetta’s discontinuance of the Services, Avetta shall provide Client with a pro-rated refund of any pre-paid and unused subscription Fees for the Services, and any additional payment obligations for the remainder of the Subscription Term shall be cancelled. Except as set forth in the preceding sentence, in no event shall any amount paid to Avetta hereunder be refunded in the event of termination of this Agreement. Upon Client’s written request received by Avetta within 30 days after the termination of this Agreement, Avetta will deliver to Client a copy of the Client Data in a mutually agreed format at no additional charge. Avetta is not obligated to retain or maintain any Client Data, customized applications, technology, or property for longer than 30 days after termination of this Agreement.

5.5

Survivability of Obligations. All provisions of this Agreement relating to, confidentiality, privacy, nondisclosure, proprietary rights, limitation of liability, warranties, indemnification, payment obligations, and all other obligations in this Agreement that expressly or by their nature should survive termination shall survive the termination or expiration of this Agreement. Termination shall not, in and of itself, relieve any party of its responsibility for the breach of any obligation having accrued before the date of termination.

6.

Responsibilities. Avetta is committed to helping Client use the Services as part of Client’s contractor-management and due diligence processes, but Client alone has the ultimate responsibility for determining which Suppliers to hire and for managing those Suppliers in the course of their performance of services for Client.

6.1

Client Responsibilities. Client is solely responsible for all telecommunication or Internet connections, and associated fees, required to access and use the Service, as well as all hardware and software. Client (i) is responsible for all activity and compliance occurring under Client’s User accounts and for its employees, representatives, consultants, Suppliers, or agents who are authorized by Client (each, a “User”) to use Client’s subscription to access and use the Services and Content; (ii) will ensure User credentials (e.g., usernames and passwords) remain confidential, that Client and Users will not disclose any such credentials to any third party, and will notify Avetta promptly of any unauthorized disclosure of any such credentials; (iii) is responsible for the accuracy, quality, integrity, legality, and intellectual property ownership of, and the right to use, all data provided by Client for use with the Services (“Client Data”), the means by which Client acquired Client Data, Client’s use of Client Data with the Services, and the interoperation of any non-Avetta applications with which Client uses Services or Content; (iv) shall use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Avetta promptly of any unauthorized access or use; and (v) shall use the Services and Content only in accordance with this Agreement and applicable laws and government regulations. Client must ensure that its arrangements with Suppliers and Users include a reference to Avetta and the Services and that such arrangements include an obligation on their part to ensure that their employees, contractors and visitors are made aware of and consent to the scope of the Services and how any data collected from them will be used. Upon any termination of an engagement or deactivation of any User with knowledge of any such credentials, Client will immediately change such credentials and remove access for that User.

6.2

Avetta Responsibilities. Avetta will make the Services and Content available to Client pursuant to this Agreement and the applicable Sales Order. Services and Content furnished under this Agreement may in certain instances by provided by one or more of Avetta’s Affiliates. Avetta may perform any or all of its obligations hereunder through its Affiliates and/or subcontractors, and Avetta shall be responsible for the acts and omissions of such Affiliates and/or subcontractors relating to the Agreement as though they were those of Avetta. Avetta will abide by all applicable laws and government regulations in connection with the operation of the Services.

6.3

Supplier Contact. The Services depend on Client providing Avetta with complete, accurate, and up-to-date information and working with Avetta as part of Client’s contractor-management and due diligence processes. As part of the implementation process, Client may provide Avetta with contact information for Suppliers so that Avetta may assist Client with alerting those Suppliers about the need to subscribe to the Avetta network. By providing Supplier contact information to Avetta, Client is instructing Avetta to use that information to contact Suppliers on Client’s behalf to inform them about the need to subscribe to the Avetta network and provide them with information about setting up their accounts.

6.4

Sanctions Checks. Avetta performs periodic checks on its customers and suppliers against sanctions lists. If Avetta at any time becomes aware that Client is on such a list, then Avetta is entitled to immediately terminate this Agreement and any other contracts that are in place with Client, by serving written notice on Client.

7.

Data.

7.1

Client Data Ownership. Client shall own all Client Data. For the avoidance of doubt, Client Data does not include (i) Content, (ii) data or information related to Client’s use of the Services that is used by Avetta in an aggregate, de-identified, and generic manner, or (iii) any other information reflecting the access or use of the Services by or on behalf of Client or any User. Client shall be responsible for obtaining all consents and permissions for Client’s collection, storage, use and uploading of Client Data to the Services and for taking all measures necessary to comply with applicable privacy laws to ensure that Avetta may lawfully process, use, and disclose Client Data to provide the Services. To the extent applicable privacy laws require an individual’s consent to be obtained prior to or during the course of Avetta’s processing of any Client, Client is responsible for obtaining that individual’s consent to both (i) Avetta processing his or her data for purposes of providing the Services, and (ii) if the individual resides outside of the United States, Avetta transferring his or her data to the United States for processing. Avetta shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Client Data not caused by Avetta.

7.2

Client Data License. Client hereby grants to Avetta a non-exclusive, non-transferable (except as expressly provided herein), fully-paid, worldwide license and right to use, copy, transmit, sub-license, index, model, aggregate, publish, display and distribute the Client Data to provide the Services.

7.3

Aggregated Data. Avetta may also use Client Data in an aggregate, de-identified, and generic manner (“Aggregated Data”) to perform research and development activities and statistical analysis, develop analytic models to develop and provide other products and services, and for other similar purposes. To the extent such Aggregated Data is disclosed by Avetta, it will only be disclosed in a generic or aggregated manner that does not identify Client or any individual. Aggregated Data will not be considered Client Data or Client’s Confidential Information.

7.4

Data Security. Avetta will maintain the following minimum security measures: (a) appropriate technical, physical, administrative and organizational controls designed to maintain the confidentiality, security and integrity of Client’s Confidential Information, including Client Data, (b) systems and procedures for detecting, preventing and responding to attacks, intrusions, and system failures, and regular testing and monitoring of the effectiveness of such systems and procedures, including, without limitation, through vulnerability scans and penetration testing, (c) a team of employees dedicated to implementation and maintenance of security controls, and (d) annual assessment of risks that could result in unauthorized disclosure, misuse, alteration, destruction or other compromise of Client’s Confidential Information, including Client Data, and of the sufficiency of systems and procedures in place to mitigate those risks. Avetta’s Services currently operate in third party datacenters located in the US, Canada, the UK, Germany, or Australia and have been built with high availability, business continuity, and disaster recovery in mind. On request, Avetta will provide to Client its SOC 2 Type 2 independent audit report, ISO/IEC 27001:2013 and 27701 certifications, Standardized Information Gathering (SIG) and Cloud Security Alliance Consensus Assessment Initiative (CSA CAIQ) questionnaires, and summary penetration test reports, which shall be considered responsive to Client requests for Avetta security information.

7.5

Data Privacy. Avetta shall implement processes and maintain procedures designed to comply with applicable laws and shall facilitate Client’s compliance with its obligations for data security and response to individual data subject requests with respect to Client Data that includes information that relates to an identified or identifiable natural person or that reasonably could be used to identify that person, or other data or information defined as personal information under applicable laws (“Personal Information”) in Avetta’s possession or control, to the extent that Client is required to comply with the following: (a) the U.K. Data Protection Act 2018 and the United Kingdom General Data Protection Act; (b) the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (“GDPR”) and any applicable laws enacted by an EU member state implementing the requirements of GDPR; (c) the Australian Privacy Act 1988 and National Privacy Principles; (d) the Canadian Personal Information Protection and Electronic Documents Act; (e) the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. and implementing regulations (“CCPA”); (f) any other existing or newly enacted Applicable Laws regarding privacy; and (g) any amendments and successors to the foregoing. This Agreement constitutes Client’s instructions for processing Client Data, and Avetta shall not process Client Data for any other purpose. If Avetta processes Client Data on behalf of Client for the provision of the Services, the parties acknowledge and agree that Avetta is a “Service Provider” as defined in the CCPA, and Client Data may include personal information, as that term is defined by the CCPA (“CCPA Personal Information”). Avetta does not sell CCPA Personal Information. When Avetta processes CCPA Personal Information for or on behalf of Client, Avetta collects, retains, uses, and discloses such CCPA Personal Information solely for the permitted purposes described in this Agreement, and for no other commercial purpose. Avetta certifies that it understands and will comply with the restrictions set forth in this section. To the extent that Avetta processes Client Data consisting of Personal Information of individuals in the EEA or the United Kingdom, or where Client is established in the EEA or the United Kingdom, Client agrees that Avetta does so on behalf of and under the direction of Client, in Avetta’s role as a data processor for Client. Notwithstanding any of the other terms in this Agreement, any additional issues regarding the governance or compliance of Client Data shall be governed by Avetta’s privacy policy located at https://www.avetta.com/privacy-policy.

7.6

Notices. If Avetta becomes aware of an unauthorized access to or disclosure, loss or alteration of Client Data, Avetta will promptly notify Client, use commercially reasonable efforts to (i) identify the cause of the incident, (ii) to mitigate the incident and preserve forensic evidence, and (iii) remediate the cause of the incident within Avetta’s systems, to the extent such remediation is within Avetta’s reasonable control. Avetta shall provide Client with information regarding such incident as required by applicable laws or as reasonably requested by Client to enable Client to comply with its obligations under applicable laws.

8.

Intellectual Property Ownership.

8.1

 Avetta Rights. Avetta (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Services, Content, and each of the Services’ component modules (and all of the underlying technology, software and analytics), and any data provided by Avetta, as well as any models, methods, algorithms, discoveries, inventions, modifications, customizations, enhancements, extensions, derivatives, materials, ideas and other work product that is conceived, originated or prepared in connection with the Services or related to this Agreement. The names, logos, and product names associated with the Services are trademarks of Avetta and/or its Affiliates, and no right or license is granted to use them.

8.2

Client Rights. Except for the limited rights to access and use the Services and Content expressly granted to Client hereunder, no other rights are granted, and no other use is permitted. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Services, Content, or the intellectual property rights of Avetta.

9.

Warranties.

9.1

Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.

9.2

Warranty. Avetta further represents and warrants that (i) Avetta is authorized to grant rights in the Services as set out in this Agreement, and (ii) Avetta will use reasonable technical means to ensure that the Services do not contain any disabling devices, viruses, Trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots, or other computer programming routines designed to damage, surreptitiously intercept, or expropriate any other software or data. In the event of a breach of this warranty, Client’s sole remedy and Avetta’s sole obligation will be for Avetta to make reasonable commercial efforts to correct the non-conformity within 30 days after Client’s written notice.

9.3

Disclaimer of Warranties. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 9.1 (AUTHORITY) AND SECTION 9.2 (WARRANTY), AVETTA MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. AVETTA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, CORRECTNESS, COMPLETENESS OR CORRESPONDENCE WITH DESCRIPTION AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AVETTA DOES NOT WARRANT THAT THE SERVICES OR ANY COMPONENTS IS OR ARE OR WILL BE ERROR-FREE, WILL MEET CLIENT’S REQUIREMENTS, OR BE TIMELY OR SECURE, OR CONCERNING THE VIABILITY, ENFORCEABILITY, OR COMPLIANCE OF USING THE SERVICES OR CONTENT IN A PARTICULAR COUNTRY. ALL SERVICES PROVIDED BY AVETTA HEREUNDER ARE PERFORMED AND PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS.

9.4

 Internet Delays. Client acknowledges that (A) neither Avetta, nor its third party providers controls Client equipment or the transfer of data over communications facilities (including the Internet); and (B) the Avetta Services may be subject to limitations, interruptions, delays, cancellations, and other problems inherent in the use of the communications facilities (including search engines and social media channels). Avetta, its Affiliates, and its third party providers are not responsible for any interruptions, delays, cancellations, delivery failures, data loss, content corruption, packet loss, or other damage resulting from these problems. Avetta is not responsible for: (a) Client’s access to the Internet; (b) interception or interruptions of communications through the Internet; or (c) changes or losses of data through the Internet.

10.

Mutual Indemnification.

10.1

Avetta Indemnification. Avetta shall defend Client, against any claim, demand, suit or proceeding made or brought against Client by a third party alleging that the use of any Service in accordance with this Agreement infringes or misappropriates such third party’s U.S. or Australian registered patent, copyright, or trademark right (each a “Claim Against Client”), and will indemnify Client from any damages, attorney fees and costs finally awarded against Client as a result of, or for amounts paid by Client under a settlement approved by Avetta in writing of, a Claim Against Client, provided Client (a) promptly gives Avetta written notice of the Claim Against Client, (b) gives Avetta sole control of the defense and settlement of the Claim Against Client (except that Avetta may not settle any Claim Against Client unless it unconditionally releases Client of all liability), and (c) gives Avetta all reasonable assistance, at Avetta’s expense. Client may participate in and observe the proceedings at its own cost and expense with counsel of its own choice. If Avetta receives information about an infringement or misappropriation claim related to a Service, Avetta may in its discretion and at no cost to Client (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Avetta’s warranties under Section 9.2 (Warranty), (ii) obtain a license for Client’s continued use of that Service in accordance with this Agreement, or (iii) terminate Client’s subscription for that Service upon 30 days written notice and refund Client any prepaid fees covering the remainder of the Subscription Term of the terminated subscription. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Client; (2) a Claim Against Client arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Avetta, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Client arises from Services under a Sales Order for which there is no charge; or (4) a Claim against Client arises from Content, a Non-Avetta application or Client’s breach of this Agreement or applicable Sales Order.

10.2

 Client Indemnification. Client shall defend Avetta and Avetta’s Affiliates against any claim, demand, suit or proceeding made or brought against Avetta by a third party alleging that any Client Data or Client’s use of Client Data with the Services infringes or misappropriates such third party’s intellectual property rights, or arising from Client’s use of the Services or Content in an unlawful manner or in violation of this Agreement or applicable Sales Order (each a “Claim Against Avetta”), and will indemnify Avetta from any damages, attorney fees and costs finally awarded against Avetta as a result of, or for any amounts paid by Avetta under a settlement approved by Client in writing of, a Claim Against Avetta, provided Avetta (a) promptly gives Client written notice of the Claim Against Avetta, (b) gives Client sole control of the defense and settlement of the Claim Against Avetta (except that Client may not settle any Claim Against Avetta unless it unconditionally releases Avetta of all liability), and (c) gives Client all reasonable assistance, at Client’s expense. Avetta may participate in and observe the proceedings at its own cost and expense with counsel of its own choice. The above defense and indemnification obligations do not apply if a Claim Against Avetta arises from Avetta’s breach of this Agreement or applicable Sales Order.

10.3

Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

11.

Limitation of Liability.

11.1

 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE 12 MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENTS).

11.2

Limitation on Types of Recoverable Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

12.

Use of Names and Marks.

12.1

Client Name and Mark. In order to facilitate the deployment of the Services to Suppliers for Client’s benefit, during the Subscription Term Avetta will display Client’s name and logo (i) on Avetta’s systems in connection with the Services, and (ii) on documents used to validate the Services with Suppliers. Client hereby grants Avetta a nonexclusive, nontransferable, royalty-free limited license to use Client’s name and logo in connection with providing the Services, provided that such name and logo are used without modification in the form provided by Client, solely in connection with providing the Services and promoting and marketing the Services as contemplated hereunder, and otherwise in accordance with any branding guidelines and requirements provided by Client from time to time.

12.2

Reference. Avetta may include Client’s name and logo in sales and marketing materials, in accordance with any branding guidelines and requirements provided by Client from time to time. Any other use of Client’s name, trademarks or service marks is subject to Avetta’s submission of the proposed use in each instance and Client’s review and written approval of each such proposed use.

12.3

Avetta Name and Mark. Any use of Avetta’s name, trademarks or service marks is subject to Client’s submission of the proposed use in each instance and Avetta’s review and written approval of each such proposed use. Any such approved use of Avetta’s name, trademarks or service marks by Client will be in the form provided by Avetta and in accordance with any branding guidelines and requirements provided by Avetta from time to time.

13.

Confidentiality. Each party (as a “Receiving Party” hereunder) shall not disclose to any third party, any Confidential Information of the other party (as a “Disclosing Party” hereunder) provided to such Receiving Party in anticipation of, or in connection with the performance of, this Agreement. As used herein, the term “Confidential Information” refers to all Client Data, the Services, Content, and all of Avetta’s intellectual property (including, without limitation, all third-party personal identifying information contained therein), Client’s login IDs and passwords, all pricing terms offered to Client under any Sales Order, and, in addition, any other financial, technical, commercial, or other information concerning the business and affairs of the Disclosing Party which (a) is conspicuously designated as “Confidential” when provided as information fixed in tangible form or in writing (e.g., paper, disk or electronic mail), (b) is identified as confidential at the time of disclosure and confirmed in writing to be confidential within 30 days of disclosure if disclosed verbally, or (c) reasonably should be considered confidential given the nature of the information and the circumstances of its disclosure. Confidential Information does not include information which (i) becomes generally available to the public other than as a result of a disclosure by the Receiving party, (ii) was available to a party on a non-confidential basis prior to its disclosure by the other party, (iii) becomes lawfully available to a party on a non-confidential basis from an independent third party, or (iv) is independently developed by the Receiving Party without use or reference to Disclosing Party’s Confidential Information. The Receiving Party shall treat, maintain, and hold all Confidential Information in trust and confidence, using the greater of: (i) the same level of care it uses to protect its own confidential information, and (ii) a commercially reasonable standard of care. The Receiving Party will not use Confidential Information for any purpose other than carrying out its obligations as set forth in this Agreement and shall not disclose Confidential Information to any third party, without the prior written consent of the Disclosing Party and an agreement in writing from the third party that it will adhere to the confidentiality obligations imposed herein. Third parties shall not include agents of the Receiving Party, employees or affiliates of the Receiving Party, attorneys, accountants, and other professional advisors of the Receiving Party, or potential acquirers of Receiving Party, in each case such person or entity must have a legitimate reason to have access to such Confidential Information and must be under a duty to protect such Confidential information which duty is substantially equivalent to the obligations contained herein. Each Receiving Party’s confidentiality obligations with respect to such Disclosing Party’s Confidential Information shall survive the termination or expiration of this Agreement. Confidential Information which is required to be disclosed under legal process may be so disclosed only to the extent required, provided the Disclosing Party is given prior notice as promptly as practicable and as allowed by law, and the party compelled to make the disclosure reasonably cooperates with the Disclosing Party in any efforts to protect the Confidential Information in the context of the proceeding.

14.

Provisions of General Applicability.

14.1

Notices. All legal notices (e.g., claimed breach or termination of Agreement or Sales Orders) required to be provided under this Agreement must be delivered in writing (a) in person (b) by recognized courier service with proof of delivery, or (c) by certified mail (requiring signature) to the other party at the address set forth beneath such party’s signature on the applicable Sales Order. All other notices and billings may be made by e-mail transmitted as specified on the Sales Order. All notices shall be deemed to have been given upon receipt or, in the event of certified mail, at the date of refusal if refused.

14.2

Assignment. Neither party may assign this Agreement to any third party except upon the other party’s prior written consent; provided, however, that no such consent shall be required in the event of an assignment to a successor-in-interest to the business or substantially all of the assets of the assigning party whether by merger, reorganization, consolidation, or sale of all or substantially all its assets or other means. Notwithstanding the foregoing, Client shall not assign this Agreement to any third party which is a competitor to Avetta without receiving Avetta’s prior written consent. Any purported assignment in violation of this section shall be void.

14.3

 Governing Law; Venue. The law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where Client is domiciled:

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14.4

Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above. The parties waive any objection to venue or claim that any such action or proceeding is brought in an inconvenient forum. In any such action or proceeding, each party waives personal service of any summons, complaint, or other process and agrees that service thereof shall be deemed made when mailed registered mail, return receipt requested, addressed to the party at its address set forth beneath such party’s signature on the Sales Order or at such other address as shall have been provided by notice. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement nor any Sales Order or SOW. The Uniform Computer Information Transactions Act shall not apply to this Agreement nor any Sales Order or SOW.

14.5

 Insurance. Avetta will maintain adequate insurance coverages as required by law or regulation, with an insurance carrier or carriers having an A.M. Best rating of A- or better, or an equivalent rating by another rating agency in the following amounts: (a) Comprehensive General Liability – not less than $1,000,000 per occurrence, $2,000,000 general aggregate; (b) Errors and Omissions (including Cyber & Privacy) – not less than $5,000,000 in the aggregate; and (c) Workers Compensation Coverage – as required by applicable laws. Upon Client’s written request, Avetta will furnish a Certificate of Insurance evidencing its insurance coverage to Client.

14.6

International Trade Compliance. The Services, Content, other Avetta technology, and derivatives thereof may be subject to various economic sanctions, export control laws and regulations, and other restrictive trade measures administered by the United States and other applicable governments. Because these laws may have extraterritorial effect, Client will comply with all such measures, where applicable, including, without limitation: (a) the Export Administration Act of 1979, as amended (50 U.S.C. §§ 2401–2420) and the Export Administration Regulations, 15 C.F.R. §§ 730–774; (b) the Arms Export Control Act, 22 U.S.C. § 2778, and the corresponding International Traffic in Arms Regulations; (c) the economic sanctions laws and regulations enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, 31 C.F.R. §§ 500, et seq., and the U.S. Department of State; and (d) the anti-boycott regulations, guidelines, and reporting requirements under the Export Administration Regulations and Section 999 of the Internal Revenue Service Code. Avetta and Client each represents that it is not named on any U.S. government denied-party list. Client will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation. Client further understands and acknowledges that it will not directly or indirectly export, import, sell, disclose, or otherwise transfer any Services to any country or party subject to such restrictions, and that it is solely responsible for obtaining any license(s) to export, re-export, or import the Services that may be required.

14.7

Anti-Bribery and Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

14.8

U.S. Governmental Rights. The software Services consist of commercial items and are commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of any the Department of Defense or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.

14.9

Attorney’s Fees. In any litigation, arbitration or other proceeding arising out of or relating to this Agreement, or any of the transactions or relationships between the parties contemplated hereunder, whether sounding in contract, tort, statute, equity, declaratory relief, or otherwise, and further including any costs of collection, the prevailing party in any such proceeding, action, or appeal thereon, shall be entitled to its attorneys’ fees, costs, and other fees and expenses reasonably incurred.

14.10

Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provisions shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provisions, with all other provisions remaining in full force and effect.

14.11

Independent Parties. No joint venture, partnership, employment, or agency relationship exists between Client and Avetta as a result of this Agreement or use of the Services or Content. In addition, nothing in this Agreement shall obligate Avetta to pursue any of its operations in any specific industry, region or country; it being understood and agreed that any such decision regarding Avetta’s operations shall vest solely in Avetta.

14.12

No Waiver. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

14.13

 Injunctive Relief. Actual or threatened breach of obligations arising under this Agreement with respect to intellectual property rights, privacy, data protection, or confidentiality may cause immediate, irreparable harm that is difficult to calculate and cannot be remedied by the payment of damages alone. Either party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.

14.14

No Third Party Rights. This Agreement shall not confer any rights or remedies upon any person other than the parties hereto and their permitted successors and assigns.

14.15

Force Majeure. Neither party shall be liable for any delay or failure to perform any of its obligations under this Agreement (except for any payment obligations) to the extent that performance is delayed, prevented, restricted or interfered with as a result of any causes beyond its reasonable control, including acts of God, war, terrorism, labor action, fire, explosion, flood, earthquake, pandemic, governmental acts, orders or restrictions, failure of third-party providers, denial of service attacks and other malicious conduct, utility failures or power outages. An affected party shall make all reasonable attempts to perform prior to requesting relief under this provision. The party requesting relief hereunder shall promptly provide notice to the other party of any delay in performance or nonperformance due to such circumstance and shall use its commercially reasonable efforts to remedy such delay or nonperformance.

14.16

English Language. The official text of this Agreement shall be the English language, and such English text shall be controlling in all respects, notwithstanding any translation hereof required under the laws or regulations of another country. All notices, requests, communications, and proceedings under this Agreement shall be in the English language.

14.17

Construction; Headings. No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it. All headings are for ease of reference only and not intended to affect meaning or interpretation.

14.18

Entire Agreement. This Agreement, together with any applicable Sales Orders and SOWs, comprises the entire agreement between Client and Avetta regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, representations, discussions, or agreements.

14.19

Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which constitutes an original and all of which taken together constitutes the same agreement. The parties agree that the electronic signature of a party to this Agreement will be as valid as an original signature of such party and will be effective to bind such party to this Agreement. The parties agree that any electronically signed document (including this Agreement) will be deemed (a) to be “written” or “in writing”; (b) to have been signed; and (iii) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. Such paper copies or “printouts,” if introduced as evidence in any judicial, arbitral, mediation, or administrative proceeding, will be admissible as between the parties to the same extent and under the same conditions as other original business records created and maintained in documentary form. For purposes hereof, “electronic signature” means a manually-signed original signature that is then transmitted by electronic means; “transmitted by electronic means” means sent via the internet as a “.pdf” (portable document format) or other replicating image attached to an email message; and, “electronically signed document” means a document transmitted by electronic means and containing, or to which there is affixed, an electronic signature.

Upcoming Events
January 23-25, 2022
Scottsdale, Arizona
EHS Management Institute (IPMI)
January 25, 2022
A Fireside Chat on Connecting EHS with ESG: How Safety Pros Can Influence Sustainable Change
January 26-29, 2022
St. Pete Beach, Florida
Motorola GLMSS Meeting
January 27, 2022
Fighting Fatigue in the Workplace
January 27, 2022
Virtual
Digital Transformation in Supply Chain
February 02 , 2022
Celebrating Safety! Positive Reinforcement with Validity and Reliability
February 9, 2022
Virtual
With Avetta in 9
February 15-18, 2022
Las Vegas, Nevada
NATE Unite
March 6-8, 2022
Dallas, Texas
SCOPE Summit: Procurement