Avionté
Master Services Agreement
This Master Services Agreement (the “Agreement”) is made between Avionté, LLC d/b/a Avionté and WorkN with offices at 4300 Marketpointe Drive Suite 250 Bloomington, MN 55435 (“Avionte”, “we”, “us”, “our”) and the Client identified on the Ordering Document (“Client”, “you”, “your”).
By signing the Ordering Document, you and we agree as follows:
1. Services1.1 We provide various staffing-related solutions via a Software as a Service model and related mobile application (the “Software”), along with associated consulting, development, tax assistance and processing, and other professional services (the “Professional Services”, and collectively, the “Services”). The specific Services to be provided by us or by third parties to you will be identified in written order form(s) (each, an “Order Form”) or through one or more Statement(s) of Work (each, an “SOW”, and each Order Form or SOW an “Ordering Document”) that, upon execution by you and us, will be incorporated into and subject to this Agreement. An Ordering Document may also set forth certain products or services which are provided by third parties and are subject to alternative third-party terms and conditions rather than this Agreement. Additional Ordering Documents may be entered into by you and us to subscribe to additional or different features of the Services. Unless designated as replacing a specific Ordering Document, subsequent Ordering Documents will be considered in addition to currently effective Ordering Documents. Certain Services are governed by additional Service-specific terms and conditions, which are set forth on addenda attached to and incorporated into this Agreement (each an “Addendum”). The Addenda are available at http://info.avionte.com/addenda. Each Addendum specifies the Services to which it applies. In the event of a conflict between the terms of an Addendum, the body of this Agreement, any Order Form, or any SOW the following order of priority shall apply: (i) the Order Form, (ii) the applicable Addendum, (iii) the body of this Agreement, and (iv) the SOW, except that (a) the applicable Addendum and then (b) the body of this Agreement shall govern all terms relating to intellectual property rights, confidential information, warranty, indemnification and limitation of liability.
1.2 A description of the Services provided by us is available at http://info.avionte.com/service-terms (the “Services Descriptions”). We will not begin performance of the Services until we receive all documents necessary to begin the Services and notify you. The delivery date for each separate Service may differ and may not be the date of signing of the applicable Ordering Document, and you acknowledge that you will be responsible for providing such
Service to yourself until that date and that we have no responsibility for providing such Service until that date. We may make modifications to the Services or particular components of the Services from time to time, provided that such modifications do not materially degrade the functionality or features of the Services. We may from time to time engage subcontractors to perform or assist in the delivery of the Services, but we will remain responsible for the performance of the Services. Unless otherwise agreed and specified in an Addendum, you will not be liable to any subcontractor for payment of any amounts unless otherwise agreed by you in writing.
1.3 Professional Services. We will perform Professional Services requested by you as specified in each Ordering Document. Applicable timelines, specifications and standards shall be set forth the applicable Ordering Document. Ordering Documents may only be modified by a written document signed by authorized representatives of both you and us. As set forth in an Ordering Document, the Professional Services may include certain deliverables (“Work Product”). Upon completion of any Work Product, we will provide it to you. You will then have fifteen (15) days to provide your acceptance of the Work Product in writing (such acceptance not to be unreasonably withheld). If you do not accept the Work Product, you must notify us in writing and we will correct the Work Product. Work Product will be deemed accepted upon the earlier of (a) fifteen (15) days passing from delivery to you without us receiving notice of rejection; or (b) your using the Work Product in a production environment or for a commercial purpose. Fees are not conditional upon the acceptance or completion of Work Product, and are due as set forth in the applicable Ordering Document. We will own all right, title and interest in and to all Work Product, including all intellectual property rights therein. To the extent applicable, we will be deemed to be the “Author” of all Work Product under the U.S. Copyright Act (17 U.S.C. §§ 101 et seq.) and any other applicable copyright law. You hereby waive any and all moral rights (including rights of integrity and attribution) in and to the Work Product, and hereby assign to us any rights you may have or obtain in the Work Product. So long as you are not in breach of any of your obligations under this Agreement and the applicable Ordering Document, we grant to you a non-exclusive, worldwide, nontransferable, non-sublicensable, royalty-free license during the Term (define below) to use, reproduce, or modify such Work Product for your internal use. If Work Product includes a customized mobile application (“Custom App”), you agree to, on our request, use your own account to submit or list the Custom App to either the Apple App Store or the Google Play Store (each an “App Store”).
1.4 Support Services. Subject to your compliance with this Agreement, including payment of all applicable Fees, we will use commercially reasonable efforts to provide you with standard maintenance and support services for the most recent version of the Services provided by us. We have no obligation to provide support for previous releases of the Software or any Work Product or for any Services provided by a third party. You acknowledge and agree that you will be responsible for providing the first tier of support to your Authorized Affiliates and to your and your Authorized Affiliates’ Authorized Users of the Services independently of us, and that we will only provide second tier support for issues which cannot be reasonably resolved by you. Your technical support requests must (a) include at least the following information: (i) your company name; (ii) a summary of the issue; (iii) the date and time the issue occurred; (iv) any error messages that occur; and (v) screenshots of the issue (if applicable); (b) be made by a “Designated Support Contact” set forth on your Order Form(s); and (c) be sent to the designated support email, phone number, or commercially reasonable support tool that we make available to you. We shall have no obligation to respond to support requests made other than in compliance with this Section, and if we do, in our discretion, respond to such a support request you may be subject to additional charges or fees. You may modify your listed Designated Support Contacts by submitting a written request to us, provided that a Designated Support Contact shall only be considered replaced upon us providing written confirmation of such change to you.
1.5 Authorized Affiliates. Your affiliates designated as “Authorized Affiliates” on an Ordering Document may order Services set forth on such Ordering Document. Your affiliates may enter into separate Ordering Documents with us, and such affiliates shall be considered Authorized Affiliates for purposes of those Ordering Documents, but no Ordering Document between us and an Authorized Affiliate shall be binding upon us until duly executed by us. All terms and conditions of this Agreement shall expressly apply to each Authorized Affiliate as if it executed the same directly with us, and you represent and warrant that you have the authority to bind each such Authorized Affiliate to the terms and conditions contained in this Agreement. You expressly agree that you shall be responsible for all Authorized Affiliates (including without limitation, for payment and for compliance herewith) on a joint and several basis.
2. Fees.
2.1 You agree to pay us the fees for the Services as specified in each Ordering Document (the “Fees”). You will also reimburse us for any reasonable expenses we incur based on travel to provide the Services, and for any third party goods or services that we purchase for you at your direction. Fees for the Services will be invoiced in advance unless otherwise specified. Fees for services not listed on the Ordering Document will be billed at our rates in effect at the time the services are provided.
2.2 We may, in our discretion, increase Fees each year after the first year of any term of an Ordering Document; however, Fees for subscription-based Services will not increase over the immediately preceding year’s Fee by more than the greater of (a) the Consumer Price Index for All Urban Consumers (CPI-U), as calculated by the US Bureau of Labor Statistics, for the preceding year; and (b) six percent (6%). If an Ordering Document is amended or superseded by a later Ordering Document, this period will be measured from the effective date of the original Ordering Document.
2.3 All Fees and other amounts payable by you as specified in an Ordering Document are exclusive of taxes and assessments of any nature imposed by any governmental or regulatory authority in any jurisdiction, including, but not limited to, value-added, sales or use taxes (collectively, “Taxes”). You are responsible for paying all Taxes on any amounts payable by you for your purchase or use of the Services. If we have a legal obligation to pay or collect Taxes for which you are responsible under this Section, we will invoice you and you agree to pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
2.4 Payment Terms. All Fees are invoiced per the schedule defined in the applicable Ordering Document. If any data submitted by you to us for processing is incorrect, incomplete or not in proper form such that we must modify it prior to the performance of Services thereon, we may charge you for the time we spend making such modifications at our then-current rates. Unless otherwise set forth on the applicable Ordering Document, all Fees for a given invoice are due within fifteen (15) days from the generation of each invoice. Unless otherwise agreed by us, payment will be made via ACH. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information. If payment of undisputed Fees is not received within fifteen (15) days of when the original payment was due, your access to the Services, and our work thereon, may be denied or withheld until such time as payment is received. We may assess you a late fee of 1½% per month (not to exceed the maximum allowed under state law) on all balances not paid when due. You agree to pay any and all costs and fees incurred in the collection of charges due and payable.
2.5 Invoice Disputes. You may withhold payment of Fees and other amounts that you, in good faith, dispute by providing a written statement to us prior to the payment due date. The statement must describe (i) the specific amounts in dispute, (ii) the basis of the dispute, and (iii) include documentation to support your assertions. A Fee or charge will be deemed “undisputed” if you do not deliver the written statement within the above time frame. If we agree with your assertions and adjust the applicable invoice, then you must pay the remaining amounts due (if any) within fifteen (15) days of such resolution. Disputing a portion of an invoice will not affect your obligation to timely-pay the undisputed portions of the invoice by the due date. Any Fees not disputed within fifteen (15) days from the generation of the applicable invoice shall be considered accepted and you shall have no right to further contest such Fees.
3. Term and Termination.
3.1 This Agreement will commence on the Effective Date indicated on the first Ordering Document entered into between you and us that references this Agreement and will continue as long as an Ordering Document between you and us referencing this Agreement remains in effect (the “Term”). The term of each Ordering Document shall be as set forth on such Ordering Document (the “Service Term”). If any Ordering Document is silent as to a Service Term, the initial Service Term for such Ordering Document shall be three (3) years. Unless expressly set forth on the applicable Order Form, each Order Form shall automatically renew for successive one (1) year periods unless either you or we provide the other with written notice of cancellation at least thirty (30) days prior to the expiration of the then-current Service Term. Unless expressly set forth on the applicable SOW, each SOW shall not renew absent written agreement otherwise by the parties.
3.2 Either you or we may terminate an Ordering Document or this Agreement for cause immediately:
(i) if the other breaches any material provision thereof (including any payment obligations) and fails within thirty (30) days after receipt of written notice of default to correct such material breach,
(ii) if the other ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing, or
(iii) if the other party violates a material legal requirement relating to its performance obligations under this Agreement.
3.3 Termination of an individual Ordering Document will not be deemed a termination of this Agreement so long as other Ordering Documents remain in effect. Termination of this Agreement will, however, terminate all outstanding Ordering Documents. Upon termination of this Agreement or any applicable Ordering Document, we will no longer provide the applicable Services to you and you shall immediately pay us for all Fees and other amounts payable to us that had accrued prior to the termination date. You will cease all use of the applicable Services and Work Product, and will promptly remove references thereto from your web portal or marketplace.
WITHIN THIRTY (30) DAYS FOLLOWING TERMINATION, IF REQUESTED BY YOU AND PROVIDED THAT YOU ARE CURRENT ON ALL FEES, WE WILL MAKE A FINAL BACKUP OF YOUR DATA AND PROVIDE THE BACKUP MEDIA TO YOU. AFTER SUCH 30-DAY PERIOD, WE WILL HAVE NO OBLIGATION TO MAINTAIN OR PROVIDE ANY OF YOUR DATA AND MAY THEREAFTER DELETE ALL OF YOUR DATA IN OUR SYSTEMS OR OTHERWISE IN OUR POSSESSION OR UNDER OUR CONTROL, EXCEPT AS REQUIRED BY LAW TO BE RETAINED BY US OR AS PART OF OUR ROUTINE BACKUP, ARCHIVAL AND DATA DESTRUCTION PROCEDURES.
If this Agreement or any Ordering Document is terminated for any reason except your material breach (including non-payment of Fees), we will provide transition assistance to you as reasonably requested upon the termination or expiration of this Agreement or any Ordering Document on a time and materials fee basis, at our then-current rates.
3.4 If this Agreement or any Ordering Document is terminated either by us for cause under Section 3.2 or by you for any reason other than cause under Section 3.2 prior to the conclusion of the applicable Service Term, then you will remain liable for an amount equal to the Fees for the affected Service(s) for the remainder of the applicable Service Term (the “Termination Payment”). The Termination Payment will be due immediately upon such termination. You and we agree that the Termination Payment constitutes liquidated damages based on fairly estimated harm to us and is not a penalty. In addition, you agree that if any Ordering Document is terminated for any reason prior to the end of the initial Service Term of such Ordering Document, then any Fees which we waived related to the install, setup, configuration or training of Services provided under such Ordering Document shall become immediately due upon such termination.
3.5 In no event will you or we make any public statement or customer communication regarding the termination or wind-down of this Agreement, or you, us, and applicable third party service providers, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, you agree that we may communicate the termination or expiration of this Agreement to third party service providers assisting us in providing the terminated Services to you.
3.6 All provisions of this Agreement that by their terms or by logical application appear to have an effect or an intended effect beyond the termination of this Agreement shall survive such termination.
3.7 We may terminate any Ordering Document with respect to third party products or services which we resell to you on written notice if our relationship with the applicable third party expires or is terminated. In that case we will refund to you any prepaid Fees for such third party product or service, prorating the refund based upon the remaining time in the current, prepaid period, and we will have no further responsibility or liability with respect to such third party products or services.
4. Required Actions and Information. You acknowledge and agree that our ability to provide certain Services may be contingent on your taking certain actions and providing us with certain information. You will execute and/or provide all documentation and information that we require to perform our responsibilities under the Agreement. You acknowledge that we may be required to obtain documents necessary to verify your identity pursuant to applicable federal and/or state statutes or regulations. We shall not be required to obtain separate authorization from you to act on information or instructions that you provide us, and we will be entitled to rely on such information or instructions and will not be responsible for errors that result from our reliance on the foregoing. You will promptly notify us of any errors you discover regarding information or instructions provided to us, or of any changes to provided instructions. If we provide you with any reports or documents as part of the Services, you will review such reports and documents within three (3) business days of your receipt or us making them available to you (whichever is sooner) and will notify us of any inaccuracies therein.
5. Access and Restrictions.
5.1 Subject to and conditioned upon your payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, we hereby authorize you to access and use, during the applicable Service Term, the Services and related documentation solely in accordance with (i) this Agreement and the applicable Ordering Document and Services Descriptions (including any restrictions on the type or amount of use of the Services therein), and (ii) all applicable laws and regulations. You may charge or otherwise collect fees from users for using the Services or any functionality thereof.
5.2 Your Authorized Users may use the Services pursuant to this authorization, as set forth on the applicable Ordering Document. “Authorized Users” means all of your and your Authorized Affiliates’ employees and contractors authorized by you to access and use the Services through your account under this Agreement and which have a unique user name and password. Notwithstanding the foregoing, Authorized Users (whether yours or your Authorized Affiliates’) may not include any of our competitors (including any entities that provide staffing software solutions). In addition to Authorized Users, your Active Associates (as defined on the applicable Ordering Document) may use the Services pursuant to this authorization as set forth on such Ordering Document. You will be responsible for your Active Associates in the same manner as your Authorized Users, and all references to Authorized Users in this Agreement will also apply to Active Associates.
5.3 You will not (and will not allow any third party to): (i) access or use the Services beyond the scope of the rights set forth in Section 5.1 and Section 5.2; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, APIs, or underlying structure, ideas, or algorithms of the Services, except to the extent expressly permitted by applicable law (and then only upon advance written notice to us); (iii) modify, translate, or create derivative works based on the Services; (iv) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of any Services; (v) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (vi) use the Services for timesharing or service bureau purposes; (vii) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof, or (viii) use the Services to create or enhance any other product or service, whether or not competitive to the Services. Further, you will not share your API key with any other party without our prior written consent.
5.4 Your Authorized Users may use the Services pursuant to this Agreement, subject to the terms set forth herein. You will be responsible and liable for all uses of the Services pursuant to this Agreement, including all use by Authorized Users and any unauthorized uses due to loss, theft or unauthorized distribution of the Services or unauthorized disclosure of your and your employees’ account credentials. You will ensure that each of your Authorized Users who uses the Services enters into any applicable end user license agreement or other similar terms and conditions contained within the Services or otherwise provided to you. If an Authorized User is not an employee of you or an Authorized Affiliate, their use of the Services is permissible only if the Authorized User is accessing or using the Services solely to support your or the applicable Authorized Affiliate’s internal business purposes and not for competitive purposes.
5.5 If we reasonably believe that you or any Authorized User are using the Services in a manner which violates this Agreement, including in violation of Section 5.1, Section 5.3, Section 5.3, Section 8 or Section 9.2, we may suspend your access to the Services until such violation is remediated. This suspension right is in addition to any other right or remedy we may have under this Agreement.
5.6 For each Service labeled on an Order Form as “Reporting”, you agree to promptly notify us in writing if your usage of such Service exceeds the scope set forth on the applicable Order Form. Such notice shall include a description of the amount of excess usage and the date on which such excess usage began. We will invoice you for such excess usage, adjusted on a pro rata basis from the date of first use and for the remainder of the applicable Service Term. You agree that we shall have the right, upon fourteen (14) days’ notice to you, to audit your use of such Services for compliance with any limitations on your use of the Services that are set forth herein. You agree to provide us with the necessary access to the “Reporting” Services to conduct such an audit either (i) remotely, or (ii) if remote performance is not possible, at your facilities, during normal business hours and no more than one (1) time in any twelve (12) month period. In the event any such audit reveals that you (including your Authorized Affiliates) have used the “Reporting” Services in excess of the limitations set forth herein, you agree to promptly pay to us an amount equal to the difference between the fees actually paid and the fees that you should have paid to remain in compliance with such limitations, and we may conduct an additional audit within such twelve (12) month period to confirm your continued compliance with the limitations herein. This Section shall survive for a period of one (1) year from the termination or expiration of this Agreement.
6. Third Party Materials. The Services may enable you to access and use other products or services not provided directly by us (“Third Party Materials”). Third Party Materials may be designated as such on the applicable Order Document. Some Third Party Materials may be provided to you by third party providers pursuant to a separate agreement between you and the third party provider. Any exchange of data or other interaction between you and a third party provider, and any purchase by you of any product or service offered by a third party provider (including Third Party Materials), is solely between you and the third party provider. You use such Third Party Materials at your own risk and we are not responsible for such Third Party Materials or the actions or inactions of any third party providers, or the handling of your data once we transmit it to a third party provider pursuant to your instructions.
7. Intellectual Property and Data.
7.1 All right, title and interest in and to the Services and, unless otherwise set forth in the applicable SOW, all Work Product, including all intellectual property rights therein, are and will remain with us and our respective licensors. You have no right, license or authorization with respect to any of the Services or Work Product except as expressly set forth herein or the applicable third-party license. All other rights in and to the Services and Work Product are expressly reserved by us and our respective licensors.
7.2 You will timely deliver to us any data or other information necessary for the provision of the Services in an electronic form and format approved by us. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to your data, including all intellectual property rights relating thereto.
7.3 You hereby grant all such rights and permissions in or relating to your data to us as are necessary to offer and perform the Services hereunder. You agree that we may also use your data to offer additional products and services, to perform analyses to determine your qualification to receive future services, and to collect Fees. We may disclose information regarding your payment of Fees to credit reporting agencies and to supply vendor references on your behalf.
7.4 In addition to the rights set forth in Section 7.3, you agree that we may collect, use and disclose aggregated data generated by the Services or derived from your use of the Services; provided, however, that we will only disclose any such data in an aggregated and anonymized form so that it will not be identifiable as relating to you or any one individual.
7.5 You acknowledge and agree that the Services are not intended to receive or process any protected health information (as that term is defined by the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”)), and agree not to send any such protected health information to us. Avionte specifically disclaims any warranty that Avionte’s treatment of any such protected health information will comply with the requirements of HIPAA, and you will indemnify, defend and hold us and our affiliates, employees, officers, directors, contractors and agents harmless, from and against any claim, suit or action brought by a third party (a “Claim”), and will pay any settlement you make or approve or any damages finally awarded in such Claim (including reasonable attorneys’ fees), arising from your transmission of protected health information to Avionte in violation of this Section.
8. Confidentiality
8.1 From time to time during the Term of this Agreement, either you or we (as the “Discloser”) may disclose or make available to the other (as the “Recipient”) information about the Discloser's business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, “Confidential Information”). The Recipient shall not disclose Confidential Information to any third party without the prior written consent of the Discloser and shall restrict dissemination of Confidential Information within its own organization to those employees who have a need to have access to the Confidential Information. The Recipient agrees to protect Confidential Information by using at least the same degree of care as it would use to protect its own information of like importance, but in no case less than reasonable care. You and we shall take appropriate measures, and in no event less than reasonable measures, by instruction and written agreement, with confidentiality terms no less stringent than those herein, prior to disclosure to such employees to protect against unauthorized use or disclosure.
8.2 Exceptions to Confidential Information. The obligations in Section 8.1 do not apply to Confidential Information which: (a) was rightfully in possession of or known to the Recipient without any obligation of confidentiality prior to receiving it from the Discloser, as evidenced by the Recipient's records; (b) is or becomes publicly available without breach of this Agreement by the Recipient; (c) becomes known or available to the Recipient from a source other than the Discloser without a restriction on use or disclosure of such Confidential Information; or (d) is independently developed by the Recipient without use of the Discloser's Confidential Information.
8.3 If the Recipient is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Discloser of such requirements to afford the Discloser the opportunity to seek, at the Discloser's sole cost and expense, a protective order or other remedy.
8.4 You and we acknowledge that the unauthorized use or disclosure of Confidential Information may cause irreparable harm to the Discloser. Accordingly, you and we agree that the Discloser shall be entitled to seek equitable relief (without posting a bond or other security), including injunctive relief, in addition to all other remedies available at law for any threatened or actual breach of this Agreement with respect to Confidential Information.
8.5 To assure that your inquiries are handled promptly, courteously and accurately, we may monitor and/or record telephone conversations and electronic communications between you and us without additional prior notification to you or your Authorized Users, and you will so advise your Authorized Users who communicate with us by telephone or electronic means.
9. Security.
9.1 By Us. Throughout the Term, we will maintain technical and security measures designed to prevent unauthorized disclosure of your data and shall comply with all applicable federal, state, and local, laws, regulations and industry standards, in the performance of the Services. We agree to undergo an SOC 2 Type 2 evaluation by a reputable provider on at least an annual basis. You acknowledge and agree that your data (and that of your customers which you submit into the Services) may be stored and managed with the assistance of third party data storage providers (such as Amazon Web Services), and may also be shared with third party providers in connection with Third Party Materials. Notwithstanding anything in this Agreement or otherwise to the contrary, we will not have any liability for an unauthorized party gaining access to your Confidential Information maintained on our or our service providers’ computer systems or in its records, so long as commercially reasonable efforts were made to maintain the security of such computer system and records. You acknowledge that the Internet is an open system and that we cannot and do not warrant or guarantee that third parties cannot or will not defeat those measures and thereby intercept, modify or gain access to your Confidential Information. You warrant that you have reviewed various security procedures including the foregoing and has determined that our security procedures constitute a commercially reasonable method of providing security against unauthorized action or access which meet your requirements, given your anticipated use of the Services.
9.2 By You. You are responsible for the security of your computer systems, including any data stored thereon and any applicable passwords. You will comply with applicable industry security standards including, but are not limited to, the use of multi-factor authentication capability (“MFA”) and maintaining strong and confidential passwords for your account and each Authorized User account. Use of the MFA capability of the Software requires third party mobile telephone hardware and may incur data charges and other third party fees. You will treat all passwords as confidential and will not share passwords across multiple users. You will promptly notify us at the Avionte customer support desk using the web portal at https://support.avionte.com, by email at info@avionte.com, or by telephone at (877)-4AVIONTE. if you become aware of any unauthorized disclosure (including unauthorized sharing) of a password.
You are solely responsible for the maintenance and routine review of computing and electronic system usage records (i.e. log files) and the security of your own data, data storage, computing device(s), other electronic systems, and network connectivity. You will, at your own cost and expense, obtain, install and, at all times during your utilization of the Services, maintain in good working order all software, hardware and other equipment necessary for you to perform in accordance with this Agreement. In the event of any failure of such software, hardware or other equipment, you will deliver to us all data which you would otherwise have provided that is necessary for us to perform our obligations in connection with the Services, and your failure to do so shall relieve us of any liability or obligation with respect to such Services.
You agree that in the event there is unauthorized access to your systems, or our systems through your systems, resulting in unauthorized access, loss or disclosure of Confidential Information or personally-identifiable information (a “Data Breach”), you will promptly (within 24 hours) notify us of such Data Breach, the nature of such Data Breach, and the corrective action taken to respond to the Data Breach and, upon three (3) business days’ prior written request, will provide access to us to investigate such Data Breach. You will notify us at the Avionte customer support desk using the web portal at https://support.avionte.com, by email at info@avionte.com, or by telephone at (877)-4AVIONTE. You agree that the payment of losses and fines relating to such Data Breach (including, without limitation, any fines assessed by any other regulatory authority) incurred as a result of confidentiality or data breach and the cost of identity theft protection services (if required by law) for affected persons are direct damages. In our sole discretion, we may take any action to maintain the integrity and security of the Services or Confidential Information, or to prevent harm to you, us, or other third parties. You waive any right to make a claim against us for losses you incur that may result from our actions.
9.3 Insurance. We will obtain and maintain at a minimum and at our expense, Cyber/Tech Errors & Omissions insurance coverage with a limit of $5,000,000 with a responsible insurance company of recognized standing, licensed to do business in the state where operations are to be performed (the “Policy”). We will name you as an additional insured under the Policy. Upon reasonable request, we will provide you a certificate of insurance evidencing the Policy and your status as an additional insured. In the event of a Data Breach you will be entitled to pursue recovery as an additional insured under the Policy up to the current and available coverage amounts of the Policy. You acknowledge and agree that your ability to recover any amounts under the Policy may be limited, or even eliminated, if other claimants under the Policy bring earlier claims which meet or exceed the applicable coverage amounts. In no event will we be directly liable to you with respect to our obligations set forth in Section 9.1. Notwithstanding the foregoing, in the event that you bring a claim against us with respect to Section 9.1 and a court of competent jurisdiction determines we may have liability to you (which, for the avoidance of doubt, the parties do not intend), our liability with respect to the obligations set forth in Section 9.1 will remain subject to Section 12 of this Agreement.
10. Warranties and Disclaimers.
10.1 By You. You warrant that you will use the Services in compliance with all applicable laws (including obtaining any applicable permits or consents), and that such use will not violate any agreement or obligation between you and any third party. You warrant that any information, data or other materials provided to us will not infringe the intellectual property rights of any third party. You acknowledge and agree that you, and not Avionte, are responsible for reviewing and understanding all laws, rules and regulations that are applicable to your business, and for all compliance therewith.
10.2 By Us. We warrant that we will perform all Professional Services in a professional and workmanlike manner using personnel of requisite skill, and that we will make commercially reasonable efforts to cause the Services to operate substantially in accordance with the applicable Ordering Document and Services Descriptions. If any Services do not perform as warranted by this Section, our sole obligation shall be, at our discretion, to (a) reperform or repair the Services, or (b) to reimburse to you the amount you paid us for such Services. This warranty shall not apply to the extent any defect arises out of modifications made to the Services by anyone other than us, your operation of the Services other than as authorized by this Agreement, your negligence or intentional misconduct, your failure to promptly install updates to the Services, a failure of Third Party Materials or your or a third party’s system or network, or a Force Majeure Event (defined below).
10.3 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1, THE SERVICES ARE PROVIDED "AS IS" AND WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE A STAFFING MANAGEMENT AND TAX ASSISTANCE TOOL ONLY AND THAT USE OF THE SERVICES CONTEMPLATES AND REQUIRES THE INVOLVEMENT OF SEPARATE LEGAL, TAX, ACCOUNTING, HUMAN RESOURCES AND OTHER PROFESSIONALS IN CONNECTION WITH ITS USE, WHICH SUCH RESOURCES AND PROFESSIONALS AVIONTE DOES NOT PROVIDE. IN ANY EVENT, AVIONTE IS NOT RESPONSIBLE FOR MISCLASSIFICATIONS, MISSED FILINGS OR OTHER ERRORS OR YOUR OR YOUR AUTHORIZED AFFILIATES’, CUSTOMERS’, OR AUTHORIZED USERS’ FAILURE TO COMPLY WITH APPLICABLE LAWS, RULES OR REGULATIONS, OR ANY FINES OR OTHER PENALTIES RESULTING THEREFROM. Avionte is not responsible for: (i) the accuracy of any data submitted by you, your Authorized Affiliates, or any Authorized Users; (ii) the performance of your or your Authorized Affiliates' computer systems; (iii) any interruption, loss or corruption of data that occurs as a result of transmitting or receiving data via the Internet or other network connectivity; or (iv) any performance issues arising from using the Services outside the scope of use permitted under this Agreement or contrary to the instructions in the applicable documentation.
10.4 Our ability to perform the Services is dependent upon your timely completion of your tasks and receiving accurate data from you; therefore, we cannot be responsible for delays or inaccuracies caused by you.
11. Indemnification.
11.1 By You. You will indemnify, defend and hold us and our affiliates, employees, officers, directors, contractors and agents harmless, from and against any Claim, and will pay any settlement you make or approve or any damages finally awarded in such Claim (including reasonable attorneys’ fees), arising from (a) your violation of this Agreement; (b) your access or use of the Services; (c) your negligence or misconduct; (d) your breach of this Agreement (including any Addendum); (e) any Data Breach; (f) your data; and/or (g) your actual or alleged violation of any third party rights or any legal requirement.
11.2 By Us. We will indemnify, defend and hold you harmless, from and against any Claim, and will pay any settlement we make or approve or any damages finally awarded in such Claim (including reasonable attorneys’ fees), alleging that the Services infringe any U.S. trademark, copyright, or patent, or misappropriate any trade secret recognized under the Uniform Trade Secrets Act; provided that we are given prompt written notice of the Claim and sole control over the defense and any settlement thereof and you reasonably cooperate with us to facilitate the settlement or defense of any Claim. We will have no obligation under this Section to the extent any Claim arises from: (i) your breach of this Agreement; (ii) use of the Services except in accordance with this Agreement and our written instructions; (iii) your negligence or intentional misconduct; (iv) the combination of the Services with any other software, data, or technology not supplied by us (including Third Party Materials); (v) modifications of the Services not made by us; or (vi) your failure to implement changes or updates recommended by us if the infringement or misappropriation would have been avoided by implementing the recommended changes.
11.3 If any portion of the Services becomes, or in our opinion is likely to become, the subject of a Claim of infringement, we may, at our option and expense: (a) procure for you the right to continue using the Services; (b) replace the Services with non-infringing services which do not materially impair the functionality of the Services; (c) modify the Services so that they become non-infringing; or, (d) if none of the above options are commercially reasonable, terminate this Agreement and upon such termination, you will immediately cease all use of the Services and we will refund to you any prepaid Fees for infringing Services, prorating the refund based upon the remaining time in the current, prepaid period. Sections 11.1 and 11.2 state your sole and exclusive remedy and the entire liability of us for any Claims of infringement or misappropriation.
12. Limitation of Liability.
12.1 IN NO EVENT SHALL EITHER YOU OR WE (OR ANY OF YOUR OR OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, OR AGENTS), BE LIABLE FOR ANY INDIRECT DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA, LOST BUSINESS OPPORTUNITY, OR BUSINESS INTERRUPTION) RESULTING FROM OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 IN NO EVENT SHALL WE (OR ANY OF OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, OR AGENTS), BE LIABLE FOR ANY DIRECT DAMAGES IN THE AGGREGATE IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY YOU TO US UNDER THE ORDERING DOCUMENT FOR THE SERVICES WHICH FORM THE SUBJECT OF THE LIABILITY DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
12.3 THE LIMITATIONS IN THIS SECTION 12 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
13. Miscellaneous
13.1 Notices. Any notice under this Agreement shall be given in writing and addressed to the address set forth above in the case of us or to the address set forth in the initial Ordering Document in the case of you (or to such other address that may be designated by your or us from time to time in accordance with this Section). Notices will be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available.
13.2 Assignment. You may not assign any rights or delegate any obligations under this Agreement without our prior written consent (which shall not be unreasonably withheld). We may assign any rights or delegate any obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets without your consent. Any purported assignment or delegation in violation of this Section is null and void. Subject to the foregoing, this Agreement is binding on and inures to the benefit of you and us and your and our permitted successors and assigns.
13.3 Publicity. We may use your name and logo on our website, marketing materials, and in our client lists. Neither you nor we may issue a press release regarding the existence or terms of this Agreement, nor any services or subsequent work performed hereunder, without first obtaining written approval of the other (which approval shall not be unreasonably withheld). Notwithstanding the foregoing, you understand that we may use your name, logo trademarks and/or statements of you, your affiliates, and your Authorized Affiliates' Authorized Users regarding the Services (“Testimonials”) in connection with print and online promotional, marketing, and advertising efforts for us and/or our Services (the “Purpose”). You consent to our use of the Testimonials, including your name and its logo and trademarks in connection with the Purpose provided such use is solely to identify you as the recipient of the services and/or products described in the Testimonials. You waive any right that you may have to inspect or approve the Testimonials or the materials that incorporate the Testimonials. You understand that you will not own any rights in the Testimonials and shall not have the right to enjoin the development, production, distribution or exploitation of the Testimonials.
13.4 Governing Law and Venue. This Agreement is made in and shall be governed by the laws of the State of Minnesota, without regard to the choice of law principles of any jurisdiction. Exclusive jurisdiction and venue shall be in the federal and state courts situated in Hennepin County, Minnesota, and you and we waive any objection to the adjudication of disputes in that forum.
13.5 Entire Agreement. This Agreement, including and together with any related Order Forms, SOWs, Exhibits, and the Services Descriptions constitutes the entire agreement between the you and us regarding use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No purchase order or other ordering document submitted by you that purports to modify or supplement the terms of this Agreement shall add to or modify the terms of this Agreement in any way.
13.6 No Third-Party Beneficiaries. Nothing in this Agreement is meant to create or creates any rights, obligations, or benefits directly or indirectly to any party not a signatory of this Agreement.
13.7 Relationship. The sole relationship between you and us is that of independent contractors.
13.8 Force Majeure. In the event that either you or we are prevented from performing, or are unable to perform, any respective obligations under this Agreement due to any cause beyond the reasonable control of the one invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, telecommunications outage not caused by the one obligated, or other similar causes) (a “Force Majeure Event”), the performance of the one affected will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the one affected provides the other with prompt notice of the nature and expected duration of the Force Majeure Event and uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event. Obligations to pay are excused only to the extent that payments are entirely prevented by the Force Majeure Event. If a Force Majeure Event continues for a period of thirty (30) days, either you or we may terminate this Agreement by giving notice in writing to the other.
13.9 Severability. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of all or part of a provision shall not affect the validity of the remaining parts and provisions of this Agreement, which shall remain in full force and effect.
13.10 Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
13.11 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
13.12 Counterparts; Electronic Copies. An Ordering Document may be executed in two or more counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, but all of which together shall constitute but one and the same instrument. Signatures to an Ordering Document transmitted by electronic mail in “portable document format” (“.pdf”), or by any other electronic means will have the same effect as physical delivery of the paper document bearing the original signature.
13.13 Arbitration. Notwithstanding Section 13.4, the parties hereto desire to resolve any dispute, controversy or complaint that may arise under or be related to this Agreement, or any breach of this Agreement exclusively through binding arbitration. Accordingly, any action shall be submitted to the American Arbitration Association (“AAA”) before three (3) arbitrators selected according to the rules of the AAA. The arbitration shall be in law, and shall take place in Hennepin County, Minnesota. The arbitrators shall apply the laws of the State of Minnesota to all aspects of this Agreement, without regard to principles of conflict of laws. The arbitrators will not be authorized to award exemplary or punitive damages, or any damages excluded in limitation of liability provisions of this Agreement. The decision of the arbitrators shall be final and binding on the parties, and may be executed by any court of competent jurisdiction. The parties will not be permitted to bring, or participate in, and the arbitrator will not have any authority or jurisdiction to hear or decide, any claims brought as any type of purported class action, coordinated action, aggregated action, or similar action or proceeding. Each party must only bring claims against each other in their individual capacity. Each side shall be responsible for its own fees and costs related to the arbitration, including legal fees and the costs of the arbitrators and of the AAA. Any dispute arising under this Agreement will be brought within two (2) years of when the claim accrued. Provided however, the you and we acknowledge and agree that each of you and us shall be entitled to seek equitable relief (without posting a bond or other security) against the other in the event of a breach of Section 8 of this Agreement in any court with jurisdiction.
13.14 Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY ADDENDUM, ORDER FORM OR SOW, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.15 Export Regulations; US Government Rights.
13.15.1 The Services may be subject to export control laws. you shall not, directly or indirectly, export, re-export or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable laws, regulations and rules in the country or countries where the you are licensed to use the Services, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Services available.
13.15.2 The Software is commercial computer software, as such term is defined in 48 C.F.R. § 2.101. Accordingly, if you are the US Government or any contractor therefor, you shall receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
13.16 No Solicitation. Unless otherwise approved in writing, for the Term and for a period of (12) twelve months thereafter, neither party will offer employment to any employee of the other party or contract with, either individually or through a third party, any employee of the other party who was involved with the Services provided hereunder. General purpose advertisements or solicitation by either party or their representative to which the other party’s employees may respond shall not constitute a solicitation in violation of this provision.
Unless otherwise approved by us in writing and as a condition for facilitating the integration of the Software with the software and/or service offering of one or more of our third party partners, for the Term and for a period of (12) twelve months thereafter, you will not knowingly assist any such third party partners in soliciting the business of any of our other customers in a manner which causes or might reasonably cause such customers to cease or materially diminish their business relationship with us.
13.17 Updates. We may update or change any part of this Agreement at any time. If we do so, we will let you know through a notification within the Services or by posting the updated or changed Agreement at https://info.avionte.com/terms with an updated “last updated” date at the bottom of the Agreement. The updated or changed Agreement will be effective and binding upon its posting, so we encourage you to return to our website and review this Agreement periodically.
This Agreement was last updated on March 6, 2024.