Kuzushi Incorporated dba Ava End User Agreement (“Agreement”)
This Agreement governs Licensee’s subscription to and use of the Service. Ava’s Privacy Statement applies to Ava’s collection and use of personal information through Licensee and its Authorized Users’ use of Ava and is located at: https://drive.google.com/file/d/1IysQQ0kyNaqXGoZ3HnBdqtj2gPcWbsIQ/view.
Definitions.
“Authorized Users” means your Employees that are authorized to access and use the Service.
“Employee” means those under your employment and/or engaged in contract work with you.
“Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, hot fixes, changes, release notes, upgrades and changes to the Service and this Agreement, as developed by Ava and made generally available for use without a separate charge to you.
“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and including Improvements to any of the foregoing, and all moral rights related thereto.
“Malicious Code” means viruses, worms, time bombs, Trojan horses, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another.
“Personal Data” means any information that is related to an identified or identifiable individual and has been provided by you or your Authorized Users, or by the Authorized Users, as Subscriber Data within the Service.
“Subscriber Data” means the electronic data or information submitted by Authorized Users to the Service, which may include Personal Data.
“Third-Party Applications” means applications licensed from third parties which connect with or interoperate with the Service.
1. Parties’ Obligations.
1.1. Ava Obligations. During the Term of this Agreement, Ava shall: (i) make reasonable commercial efforts to make the Service available to Authorized Users in accordance with this Agreement; (ii) not use Subscriber Data except to provide the Service to Authorized Users, to provide you with data and/or metrics on Authorized User utilization of the Service, to prevent or address service or technical problems, to verify Improvements to the Service, and otherwise as expressly in accordance with this Agreement; (iii) not disclose Subscriber Data to anyone other than you, WellSky or Authorized Users, or otherwise as expressly in accordance with this Agreement; and (iv) in Ava’s initial contact with each Authorized User, state that such Authorized User’s use of the Service is entirely voluntary and not required by you in connection with such Authorized User’s employment. Ava reserves the right to deny access to the Service to anyone at any time in the event that Ava, in good faith, believes it is necessary for purposes of ensuring your compliance with this Agreement or to protect the rights, property, and interests of Ava, WellSky or their service providers, licensors, and/or other customers.
1.2. Subscriber Obligations. You may enable access to the Service for use only by Authorized Users solely for your, and your Authorized Users’, internal business purposes in accordance with the terms of this Agreement – not for the benefit of any third parties. You are responsible for all Authorized Users’ use of the Service and compliance with this Agreement. You shall: (a) have sole responsibility for the accuracy, quality, and legality of all Subscriber Data, (b) be responsible for all electronic communications, including those containing business information, account registration, financial information, Subscriber Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service, (c) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, notify Ava promptly of any such unauthorized access or use, and cooperate with and assist Ava in identifying and preventing any unauthorized use, copying, or disclosure of the Service or any portion of the Service, and (d) maintain the confidentiality of all Authorized Users’ Subscriber Data that is not publicly available, not use such information in any manner other than in connection with the Service hereunder, not to disclose such information publicly or to any third party without the express agreement of the applicable Employee.
You shall not: (i) use the Service in violation of any applicable laws or regulations or in any manner that is likely to harm Ava, WellSky or their, service providers, licensors, suppliers, and/or customers; (ii) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) send or store Malicious Code in connection with the Service; (iv) interfere with or disrupt performance of the Service or the related data; (v) directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service; (vi) modify, translate, or create derivative works based on the Service (except to the extent expressly permitted by Ava or authorized within the Service); (vii) breach or attempt to breach the security of the Service, or access or attempt to access data belonging to third parties; or (viii) access or attempt to gain access to the Service or its related systems or networks in a manner not set forth in this Agreement. You shall be liable for the acts and omissions of all of your Authorized Users relating to this Agreement.
You shall be responsible for any equipment and ancillary services needed to connect to, access, or otherwise use the Service
You shall be responsible for ensuring that all Authorized Users promptly download and install all available updates for the Service if and as required by Ava. You hereby acknowledge that the Service may not properly operate should any Authorized User fail use the most up-to-date version of the Service, and that Ava is not liable for any damages caused by a failure to update accordingly.
1.3. Monitoring Use Reporting. WellSky and Ava reserve the right to gather data on usage of the Service to ensure that the Service is being used in accordance with the terms of this Agreement and the type of Service licensed by you. The Service monitors user counts, transaction volumes, resource level utilization, server IP addresses, and other information. You agree not to block, electronically or otherwise, the transmission of data required for the monitoring of compliance with this Agreement.
2. Proprietary Rights.
2.1. Ava IP. As between you and Ava, Ava shall own and retain all right, title and interest in and to: (a) the Service and all Improvements thereto; (b) any software, applications, inventions or other technology developed in connection with the Service or support provided therefor; (c) the Ava Data and any Unsolicited Information provided by you (as each term is defined below); and (d) all Intellectual Property Rights related to any of the foregoing (collectively, the “Ava IP”).
2.2. Aggregated Statistical Information. Ava owns all aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, reports processed in the Service, and the performance results for Authorized Users (the “Ava Data”). Nothing in this Agreement shall be construed as prohibiting Ava or WellSky from utilizing the Ava Data for purposes of providing or improving the Service, benchmarking the Service performance, preparing statistics and system metrics, and marketing; provided, however, that WellSky and Ava’s use of Ava Data will not reveal the identity of an Authorized User, or any Authorized User’s Personal Data, to you or any third party, except as expressly set forth in this Agreement.
3. Limited Warranties; Disclaimer of Warranties.
3.1. Service Limited Warranty. Ava warrants that the performance and functionality of the Service shall, in all material respects, meet the specifications set forth in this Agreement. Ava does not warrant that the Service will be error-free and does not warrant the accuracy of any Subscriber Data provided by the Authorized Users.
3.2. Performance Limited Warranty. Ava shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Ava or by third-party providers, or because of other causes beyond Ava’s reasonable control, but Ava shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
3.3. Disclaimer. NEITHER AVA NOR WELLSKY WARRANTS THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR ANY RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WELLSKY AND AVA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
4. Limitation of Liability.
4.1. Limitation on Damages. AVA AND WELLSKY SHALL HAVE NO LIABILITY TO CLIENT, ITS AUTHORIZED USERS, OR ITS EMPLOYEES, OR TO ANY OTHER THIRD PARTY, FOR ANY DAMAGES, INCLUDING DAMAGES RESULTING OR ALLEGED TO RESULT FROM ANY DEFECT, ERROR, OR OMISSION IN THE SERVICE, OR AS A RESULT OF ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY. UNDER NO CIRCUMSTANCES WILL WELLSKY OR AVA HAVE ANY LIABILITY TO CLIENT FOR, AND CLIENT HEREBY EXPRESSLY WAIVES, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY DESCRIPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING OUT OF WARRANTY OR CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FORESEEABLE BUSINESS LOSSES, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF BUSINESS INFORMATION, AND RELIANCE DAMAGES. CLIENT AGREES THAT UNDER NO CIRCUMSTANCES WILL AVA’S LIABILITY UNDER THIS AGREEMENT FOR ANY CAUSE EXCEED THE TOTAL AMOUNTS PAID BY LICENSEE UNDER ANY ORDER FORM(S) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT WILL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
4.2. Application of Limitations. All limitations on liability, damages and claims are intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
5. Indemnification.
5.1. By Ava. Ava will, at its expense, indemnify and hold you harmless against any claims made by an unaffiliated third party that the Service infringes its Intellectual Property Rights; provided (i) you notify Ava, in writing, not later than twenty (20) days after you receive notice of the claim, (ii) you give Ava sole control of the defense and any settlement negotiations, and (iii) you cooperate with WellSky and Ava in defending against or settling the claim.
Ava’s obligation of indemnification will not apply to the extent that the claim is based on (a) your and/or your Authorized User’s use of the Service after WellSky or Ava notifies you to discontinue use due to such a claim, (b) your combining the Service with non-Ava service, product, data or business process including third-party add-ons or programs, other than the WellSky integration contemplated by your Order Form, , (c) damages attributable to the value of the use of a non-Ava service, product, data or business process, or (d) your use of the Service in violation of this Agreement. You will reimburse Ava for any costs or damages that result from these actions. If Ava receives information concerning an infringement or misappropriation claim related to the Service, Ava may, at its expense, but without obligation to do so, either (y) procure for you the right to continue to use the Service, or (z) modify the Service with a functional equivalent to make it non-infringing. If, as a result of an infringement or misappropriation claim, your use of the Service is enjoined by a court of competent jurisdiction, Ava will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund any prepayments of amounts payable during the terminated period of any Order Form and terminate this Agreement. This Section 5 constitutes your exclusive remedy for third-party infringement and trade secret misappropriation claims.
5.2. By You. You shall indemnify, defend and hold harmless Ava and WellSky from and against any and all claims, proceedings, damages, liability and costs (including reasonable attorneys’ fees) incurred by Ava in connection with any claim arising out of (i) any breach or alleged breach of any of your obligations set forth in this Agreement, and (ii) your or your Authorized Users’ use of the Service, or the use by any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement, regardless of the type or nature of the claim. You shall cooperate as fully as reasonably required in the defense of any claim. Ava and WellSky reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of Ava.
6. Third-Party Applications.
6.1. No Obligation as to Third-Party Application. Ava is not responsible for any aspect of a Third-Party Application that you may purchase, license, subscribe to or connect to through the Service, or any interoperation or other information related to the foregoing.
7. Term; Suspension of the Service; Termination.
7.1. Suspension of the Service. Ava reserves the right to suspend Authorized Users’ access to and/or use of the Service if Ava reasonably determines that Authorized Users are using the Service to engage in denial of service attacks, spamming, or illegal activity, and/or your use of the Service is causing immediate, material and ongoing harm to Ava or others.
7.2. Effect of Termination. Upon any termination of this Agreement, Authorized Users shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the Service and you shall immediately cease accessing and otherwise using any Ava Confidential Information.
7.3. Surviving Provisions. The following provisions of this Agreement shall survive the expiration or termination of this Agreement: Section 2, Sections 4 through 6, Sections 7.3, and all defined terms herein.
