This Master Subscription Agreement (“Agreement”) is made and entered into as of the Order Form Effective Date of the first Order Form executed between Aviso, Inc. (“Aviso”) and the Customer identified in such Order Form (“Customer”). The terms and conditions of this Agreement shall govern the Services to be provided by Aviso under any Order Form submitted by Customer and accepted by Aviso, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement. A Definitions section is included at the end of this Agreement. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Aviso regarding future functionality or features.
1. License Grant/Limitations/Restrictions
Subject to the terms and conditions of this Agreement, Aviso hereby grants Customer a non-exclusive, non-transferable, non-assignable, worldwide limited license to use the Services provided hereunder solely for Customer’s own business purposes and only for the specific Licensed Unit, and for the time periods as set forth in each fully executed Order Form. Except as otherwise provided in an applicable Order Form, such license is limited to a single production tenant and single sandbox tenant of Customer. The Order Form may contain additional terms regarding use of the Services. All rights not expressly granted to Customer are reserved by Aviso and its licensors. Aviso reserves the right to make changes, modifications and enhancements to the Services from time to time.
2. Limitations on Use
Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the Content in any way; (ii) modify or make derivative works based upon the Services or the Content; (iii) reverse engineer the Services; or (iv) access the Services in order to build a competitive product or service. Additionally, Customer shall not use the Services to: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs: (d) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (e) attempt to gain unauthorized access to the Services or its related systems or networks.
3. Order Process
Customer shall order the Services by completing and signing an Order Form. Each fully executed Order Form shall be deemed to be incorporated herein by reference as if attached and made an integral part of this Agreement. In the event that Customer’s business practices require a purchase order number be issued prior to payment of any Aviso invoices issued pursuant to an Order Form, then such purchase order number must be provided to Aviso prior to the Effective Date of such Order Form. Customer’s execution and return of applicable Order Form to Aviso without designating a purchase order number shall be deemed an acknowledgement that no purchase order number is required for payment of invoices hereunder. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may provide to Aviso or use in connection with the procurement of Services (or any software) from Aviso will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Aviso to object to such terms, provisions or conditions.
4. Customer’s Responsibilities
Customer is responsible for all activity occurring under Customer’s User accounts and shall comply with all applicable laws and regulations in connection with Customer’s use of the Services, including but not limited to those related to data privacy, international communications, the transmission of technical or personal data and export control laws and regulations. Customer warrants and represents that the use by Customer and its Users of the Service will not violate any export control or anti-terrorism laws or regulations. Customer shall: (i) notify Aviso immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Services; and (ii) report to Aviso immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, Aviso Technology, Services or Deliverable that becomes known or suspected by Customer or Customer’s Users.
5. Account Information and Data
Customer, and not Aviso, retains ownership of any Customer Data and shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data. Aviso shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Customer Data not caused by Aviso. Aviso’s use of Customer Data shall be limited to the purpose of providing the Services to the Customer and for Aviso to meet its obligations hereunder. As part of the Services and during the Term, Aviso will make available to Customer the ability to export a file of the Customer Data. Customer agrees and acknowledges that Aviso is not obligated to retain any Customer Data for longer than 90 days after termination.
6. Professional Services
If professional services (such as implementation, training, consulting, etc.,) are included in any Order Form (“Professional Services”), in addition to the provisions in any mutually agreed upon Statement of Work (“SOW”) the following provisions shall apply. Aviso shall retain all ownership rights to any and all Deliverables, excluding any pre-existing technology or materials supplied by Customer for incorporation into such Deliverable. Aviso grants Customer a royalty free, non-exclusive, non-transferable, non-assignable worldwide license to use any Deliverable, to the extent necessary to permit Customer to use the Deliverable in connection with the Services during the Term. Customer acknowledges that nothing in this Agreement shall restrict or limit Aviso from performing similar services for any third party.
7. Intellectual Property Ownership
Aviso alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Aviso Technology, the Content, the Services, including to any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works thereof. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, the Aviso Technology or the Intellectual Property Rights owned by Aviso. The Aviso name, the Aviso logo, and the product names associated with the Services are trademarks of Aviso or third parties, and no right or license is granted to use them. If any Deliverables are developed solely for use by Customer, such Deliverables will be covered under a separate agreement.
8. Indemnity
8.1 Aviso shall indemnify and hold Customer and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) to the extent arising out of or in connection with a claim alleging that use of the Services, Content or Deliverables infringes a copyright, patent, or a trademark of a third party or violates any applicable law or regulation.
8.2 With respect to any indemnity provided under this Agreement, the indemnified party must: (a) promptly give notice of the claim to the indemnifying party; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle such claim unless such settlement unconditionally releases the indemnified party of all liability and does not impose any obligation or restriction on the indemnified party); (c) provide to the indemnifying party all available information and reasonable assistance; and (d) not compromise or settle such third-party claim without the indemnifying party’s prior written consent.
9. Third Party Services
Aviso is not responsible for any third party services or applications containing Customer Data. Customer is responsible to ensure that Aviso has the technical ability and legal authorization to access any Customer Data required to perform the Services, including any Customer Data maintained in any third party services or applications.
10. Fees, Payment Terms, Taxes, Billing Contact
Customer shall pay all fees or charges as specified on each executed Order Form and SOW (“Fees”). Except as expressly provided herein, all payment obligations are non-cancelable and all amounts paid are nonrefundable. Aviso charges and collects in advance for fixed and/or committed fees specified in an Order Form or SOW and in arrears for usage which exceeds such committed amounts as defined on each Order Form. Unless otherwise set forth in the applicable Order Form, payment terms are net thirty (30) days from the date of Customer’s receipt of Aviso’s invoice, without offsets or deductions of any kind, and payment is due in US dollars. In the event that Customer’s use of the Services exceeds the committed Transaction Volume, additional fees shall apply as set forth in the applicable Order Form. Such Fees shall be assessed monthly or on a monthly equivalent basis (for quarterly or annual plans), in arrears. Aviso's Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Aviso's income, provided that all such taxes are included as separate line items on any invoice. If Aviso has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Aviso with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer believes Customer’s bill is incorrect, Customer must contact Aviso in writing within sixty (60) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Customer agrees to provide Aviso with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. Customer agrees to use commercially reasonable efforts to update this information within thirty (30) days of any change to it. Aviso reserves the right to modify its Fees with respect to its Services and to introduce new charges to become effective upon the upcoming Renewal Service Term by providing Customer written notice at least ninety (90) days prior to the end of the then current Service Term. In the event that Customer does not provide notice of termination to Aviso as described in Section 11 below, such Fee changes shall become effective at the commencement of the next Renewal Service Term.
11. Agreement Term, Order Form Term
The Initial Term of this Agreement shall begin on the Order Effective Date of the first Order Form and shall continue in effect until all underlying Order Forms with Customer have expired in accordance with the terms of such Order Form/s, or if this Agreement is terminated earlier, as provided herein. The term of an applicable Order Form will begin on the Order Effective Date of the applicable Order Form and shall continue for the initial term specified in such Order Form (“Initial Service Term”). In the event that an Order Form contains Services added to an existing subscription, such added Services shall be billed on a pro-rated basis and will be coterminous with the Initial Service Term or applicable Renewal Service Term of such existing subscription. A Renewal Service Term will only commence in the event that the parties have executed a mutually agreed Order Form for such renewal.
12. Non-Payment and Suspension
Aviso reserves the right to suspend or terminate this Agreement, any related Order Forms, and Customer’s access to the Services if Customer’s account becomes delinquent due to failure to pay any undisputed payment obligation as set forth in Aviso’s invoice, and such delinquency remains uncured for a period of sixty (60) days following notice of delinquency. Customer will continue to be charged for Fees during any period of Service suspension due to Customer’s delinquency as set forth in this Section 12. If Aviso terminates this Agreement for cause pursuant to Section 13, Customer will be obligated to pay all remaining Fees due for the remainder of the then-current Service Term.
13. Termination for Cause
Either party may terminate this Agreement (and any Order Forms then in effect) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after delivery of notice of such breach. If Customer terminates the Agreement or any Order Form for cause, in addition to any other remedies that may be available to it, Customer will receive an immediate refund of any Fees paid for any unexpended portion of the then current Subscription Term, and any fees paid in advance for any professional services that remain undelivered at time of notice of breach. If Aviso terminates the Agreement or any Order Form for cause, no refunds of any fees previously paid will be provided to Customer. Nothing herein is intended to provide either party with the right to terminate the Agreement or any Order Form for convenience only. In the event of a claim being brought to enforce rights under this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including but not limited to reasonable attorneys’ fees, incurred in the event of breach of this Agreement.
14. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Aviso further represents and warrants that the Services will perform substantially in accordance with the relevant product(s) as found at https://www.aviso.com/platform, under normal use and circumstances. In the event of a breach of this warranty, Customer’s sole remedy and Aviso’s sole obligation will be for Aviso to make reasonable commercial efforts to correct the non-conformity or, if Aviso is unable to correct the non-conformity within ninety (90) days after Customer’s written notice, for Customer to terminate the applicable Order Form and receive a refund on a pro-rata basis of any prepaid unused Fees under such Order Form.
15. Disclaimer of Warranties
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN SECTION 14, AVISO AND ITS LICENSORS MAKE 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. AVISO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AVISO DOES NOT WARRANT THAT THE SERVICES, OR ANY RESULTS, FORECASTS, OR REPORTS GENERATED BY THE SERVICES (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY), ARE OR WILL BE ACCURATE, ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF AVISO TO ANY THIRD PARTY.
16. Internet Delays
AVISO'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. AVISO IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY AVISO.
17. Limitation of Liability
EXCEPT FOR (I) ANY ACTS OF FRAUD OR WILLFUL MISCONDUCT; (II) AVISO’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 8; OR (III) DAMAGES RESULTING FROM AVISO’S BREACH OF ITS OBLIGATIONS UNDER THE DPA, IN NO EVENT SHALL CUSTOMER’S OR AVISO’S OR ITS LICENSORS’ AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING ANY OF THE FOREGOING, AVISO SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY GUIDANCE, PROJECTIONS, FORECASTS OR PREDICTIONS MADE BY CUSTOMER BASED IN WHOLE OR IN PART ON THE SERVICES OR ANY CONTENT.
18. Marketing
Aviso is not permitted to use Customer’s name, mark and/or logo on Aviso’s website, in Aviso marketing materials, or to identify Customer as an Aviso Customer in any form, oral, written or otherwise published, at any time under the Agreement or any Order Form. Customer agrees that “Powered by Aviso” or similar marks may appear in forms, web pages and other outputs of the Services.
19. Notice
All legal notices (i.e. claimed breach or termination of Agreement or Order Form/s) required to be provided under this Agreement must be delivered in writing (a) in person, (b) by nationally recognized overnight delivery service or (c), by certified US mail to the other party at the address set forth in the applicable Order Form or as otherwise communicated to the other party in writing. All other notices from Customer to Aviso may be made by emailing notices@aviso.com and Aviso may give notice by emailing Customer’s billing contact as specified on the order form. All notices shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above. Either party may change its address by giving timely notice of the new address to the other party pursuant to this Section and identifying in such notice the date on which such change is effective.
20. Assignment
Neither party may assign this Agreement to any third party except upon prior written consent of the other party, which consent not to be unreasonably withheld, except that a party may assign this Agreement to an affiliate or to a successor or acquiring entity in the event of a merger, acquisition or consolidation. Any purported assignment in violation of this Section shall be void. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
21. Confidentiality
The parties agree that the Non-Disclosure Agreement (“NDA”) entered into by the parties prior to the applicable Order Effective Date, shall extend to Confidential Information disclosures made under this Agreement, and each party’s confidentiality obligations with respect to such Confidential Information, shall remain in effect for the Term of this Agreement and for a period of three (3) years after the termination or expiration of this Agreement (except with respect to Aviso Technology for which the confidentiality obligations remain in effect unless and until the Aviso Technology is publicly disclosed by Aviso), regardless of any contrary terms in such NDA. For the avoidance of doubt, and without limiting the coverage of the NDA, Confidential Information includes (a) Customer Data, (b) all pricing terms offered to Customer under any Order Form, and (c) the Aviso Technology. In addition, neither party will disclose any pricing terms or other terms of this Agreement to anyone other than its attorneys, accountants, nor other professional advisors under a duty of confidentiality except (i) as required by law, or (ii) pursuant to a mutually agreeable press release. Further, the parties acknowledge and agree that the provisions of the Data Protection Agreement (the “DPA”) signed by the parties and effective as of <effective date> and incorporated by reference hereto, will apply to all Customer Data and other applicable Confidential Information disclosed hereunder.
22. Force Majeure
Neither party will be liable for, or be considered to be in breach of or default under this Agreement (other than with respect to payment obligations) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control (“Force Majeure”), so long as that party uses commercially reasonable efforts to avoid or remove the causes of non-performance. If the force majeure event delays the performance of the Services for a continuous period of more than thirty (30) days, then Customer may terminate this Agreement by giving written notice to Aviso and receive a refund of any payment made for the unexpended portion of the affected Services.
23. General
This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara, California. In any action arising under or relating to this Agreement, the prevailing party shall be entitled to recover all costs and attorney’s fees against the non-prevailing party. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and Aviso as a result of this Agreement or use of the Services. 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. This Agreement, together with any applicable Order Form(s) (including any other documents referenced therein), comprises the entire agreement between Customer and Aviso regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. There are no third party beneficiaries to this Agreement not expressly referenced herein.
24. Definitions
As used in this Agreement and in any Order Form(s) associated herewith:
“Administrator(s)” means those Users designated by Customer who are authorized to submit, whether electronically or in writing, Order Forms and to create Customer accounts and otherwise administer Customer’s use of the Services.
“Aviso Technology” means all of Aviso's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) developed by Aviso and/or made available to Customer by Aviso in providing the Services.
“Content” means the audio and visual information, documents, software, products and services contained in or made available via the Services, including but not limited to any reports, projections, forecasts or other data generated by the Services, other than Customer Data.
“Customer Data” means any data, information or material that Customer or Customer’s Users, subscribers or partners may disclose or submit to Aviso or the Services in the course of using the Services.
“Deliverables” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by Aviso (either alone or jointly with Customer or others) that result from Professional Services included in any Order Form and/or SOW, and provided to Customer hereunder.
“Initial Service Term” means the initial Service Term specified in the applicable Order Form.
“Licensed Unit” means an identifiable Customer application/s, business unit/s, project/s, brand/s or service/s for which the Service is licensed, as set forth in the applicable Order Form.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Order Effective Date” means the date identified in an Order Form as the date on which such Order Form shall be effective.
“Order Form(s)” means the form evidencing the initial subscription order for the Services and any subsequent Order Forms submitted online or in written form, specifying, among other things, the Order Effective Date, Licensed Unit, and/or other services contracted for, the applicable Fees, the billing period, and other charges as agreed to between the parties, each such fully executed Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail).
“Renewal Service Term” means each subsequent Service Term beginning on the expiration of the Initial Service Term or immediately prior Renewal Service Term.
“Service(s)” means Aviso's online revenue forecasting, revenue 1`anagement, data analysis, or other Revenue Center services identified during the ordering process, including Aviso's bookings, renewals, margins, forecasting modules, developed, operated, and maintained by Aviso and accessible via https://www.aviso.com or another designated web site or IP address, or ancillary online or offline products and services provided or licensed to Customer by Aviso, to which Customer is being granted access under this Agreement, including the Aviso Technology, the Content and any product, service or license belonging to a third party that appears on an Order Form.
“Service Term” means the term during which Customer is committed to subscribe to Services (either the Initial Service Term or a Renewal Service Term).
“User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by Customer (or by Aviso at Customer’s request). Any Customer user not having an Aviso license will not be supported in forecast rollup in Aviso or any other part of the Aviso application / platform (this includes deals, activity intelligence, opportunities, conversation intelligence or any other data associated with that employee will not be seen, synced or supported in Aviso past, present or future).